Ray Nassar v. Earnestine Jackson

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 13-1953
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Ray Nassar, Ph.D.; Gena Smith

lllllllllllllllllllll Plaintiffs - Appellees

v.

Earnestine Jackson, Individually & in her official capacity as a Hughes School
Board member

lllllllllllllllllllll Defendant - Appellant

Jimmy Wilkins, Individually & in his Capacity as Superintendent of the Hughes
School District

lllllllllllllllllllll Defendant

Hughes School District

lllllllllllllllllllll Defendant - Appellant

Hughes School Board, Members in their Official Capacities; Rudolph Robinson,
in Official Capacity as member of Hughes School Board; Demarcus Burks, in
Official Capacity as member of Hughes School Board; Leitha Cupples, in Official
Capacity as member of Hughes School Board; Irene Combs, in Official Capacity
as member of Hughes School Board; Jeff Spaletta, in Official Capacity as member
of Hughes School Board; W E Duckworth, in Official Capacity as member of
Hughes School Board

lllllllllllllllllllll Defendants
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 Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
____________

Submitted: September 8, 2014
Filed: March 3, 2015
____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
____________

GRUENDER, Circuit Judge.

Believing that the school district of Hughes, Arkansas (“school district”) fired
them because of their race, Ray Nassar and Gena Smith sued and won under several
legal theories. The school district and one school-board member, Earnestine Jackson,
now appeal several orders of the district court. We affirm in part and vacate and
remand in part.

I.

The school district hired Ray Nassar as superintendent in 2008. While
superintendent, Nassar hired Gena Smith as a business manager. The school district
renewed Nassar’s contract for the three years running from July 1, 2010 until June 30,
2013. Over those three years, the contract provided for a total salary of $274,000,
plus benefits.

Both Nassar and Smith are white. After the racial composition of the school
board shifted from a white majority to an African-American majority, Nassar’s
already-poor relationship with two African-American board members deteriorated
further. One of those board members was Earnestine Jackson. At one public
meeting, she referred to Smith as Nassar’s “girlfriend,” though both Nassar and Smith

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are married to other people. Jackson also said at a meeting that Nassar “lie[s].” The
hostility devolved into a profanity-laced exchange, and soon after, on February 8,
2011, the school district fired Nassar without a hearing. A few months later, the
school district fired Smith, also without a hearing.

Nassar and Smith sued the school district, Jackson, and others, alleging
violations of due process, unlawful racial discrimination, and breach of contract.
Nassar and Smith both claimed that Jackson’s “girlfriend” comment was defamatory,
and Nassar individually complained of Jackson’s saying that he “lie[s].” The district
court granted partial summary judgment for Nassar and Smith on the due-process
claims, reserving the remaining claims and the determination of damages for trial.

At trial, an economist testified to different measures of Nassar’s damages from
losing his job. The net salary and benefits lost between the date of Nassar’s firing
and the trial were worth $195,639.38. During cross-examination, the economist
valued at about $50,000 the salary and benefits that would have remained on Nassar’s
contract from the time of the trial until the contract would have expired. Thus,
Nassar’s damages to the end of his contract totaled about $245,639.38. The
economist also testified that the present value of Nassar’s lost salary, lost benefits,
and added travel costs for seven years after trial was $283,577.77. The school district
and Jackson did not object to the testimony about future damages.

After the close of all the evidence, the defendants moved under Federal Rule
of Civil Procedure 50(a) for judgment as a matter of law, citing only “the plaintiffs’
failure to carry their burden.” The court denied the motion and instructed the jury on
the measure of damages appropriate under each of Nassar’s and Smith’s claims. The
court further instructed the jury to reduce its awards so as not to duplicate recovery
for the same misconduct.

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 The jury found for Nassar and Smith on all claims. Specifically finding that
Nassar would not have been fired had the school district provided a proper hearing,
the jury awarded Nassar $340,000 on his due-process claim—more than he would
have earned in salary and benefits through the end of the term of his contract—$1.00
on his discrimination claim, and $1.00 on his contract claim.1 The defendants then
renewed under Rule 50(b) their motion for judgment as a matter of law, claiming for
the first time with specificity that the discrimination claims failed for insufficient
evidence of racial discrimination and that the $340,000 due-process damages
exceeded the amount supported by the evidence. The district court denied the
defendants’ motion.

Nassar and Smith requested attorney’s fees. Their lead counsel’s usual rate
was $250 per hour, but they requested fees “more in line with the contingency fee
agreement they had with their attorneys”—about $440 per hour for lead counsel. The
court granted Nassar and Smith attorney’s fees at a rate of $375 per hour for their lead
counsel.

II.

The school district and Jackson appealed. Their brief argues that (1) they were
entitled to judgment as a matter of law on the discrimination claims because there was
insufficient evidence of racial discrimination, (2) Jackson was entitled to judgment
as a matter of law on the defamation claims because there was insufficient evidence
of publication and “actual malice,” (3) the court should have reduced the due-process
damages awarded or granted a new trial on that issue, and (4) the award of attorney’s
fees was excessive.

1
The $340,000 award represented only economic damages. The jury also
awarded other, non-economic damages that are not at issue on appeal.

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 A.

We turn first to the school district and Jackson’s argument that they were
entitled to judgment as a matter of law on the discrimination claims. They assert that
the evidence was insufficient for a reasonable jury to find racial discrimination, an
assertion that they first raised in their post-trial motion under Federal Rule of Civil
Procedure 50(b). We conclude that the school district and Jackson have waived this
issue.

Rule 50(b) provides for post-trial renewal of a Rule 50(a) trial motion for
judgment as a matter of law. A court reviewing a Rule 50(b) motion is limited to
consideration of only those grounds advanced in the original, Rule 50(a) motion.
Graham Constr. Servs. v. Hammer & Steel Inc., 755 F.3d 611, 617-18 (8th Cir. 2014).
Rule 50(a) in turn requires that a “motion for judgment as a matter of law . . . specify
. . . the law and facts that entitle the movant to judgment.”

The school district and Jackson did specify why they believed they were
entitled to judgment as a matter of law in their post-trial, Rule 50(b) motion. But in
their Rule 50(a) motion, the school district and Jackson’s attorney said only that:

the defendants would move for a directed verdict based on the plaintiffs’
failure to carry their burden on all but the due process claim. And I—I
could go through all the evidence, but the Court—I won’t go any
further.

This statement, which specifies neither law nor facts, lacks the particularity required
of a Rule 50(a) motion. See Alternate Fuels, Inc. v. Cabanas, 538 F.3d 969, 973-74
(8th Cir. 2008) (rejecting a judgment-as-a-matter-of-law argument on appeal because
the Rule 50(a) motion “gave no legal or factual basis”); Williams v. Runyon,
130 F.3d 568, 571-72 (3d Cir. 1997) (finding the “blanket statement that ‘there is no
legally sufficient evidentiary basis for a reasonable jury to find for the Plaintiff o[n]

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any of the issues that counsel have set forth in this case’” to be “obviously
insufficient” to support a Rule 50(a) motion). Accordingly, despite the more
particular Rule 50(b) motion, the school district and Jackson’s nebulous Rule 50(a)
motion “cannot be the basis of an appeal.”2 Alternate Fuels, 538 F.3d at 973-74; see
also Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 900-01 (8th
Cir. 2006) (explaining that issues not included in a Rule 50(a) motion are waived and
cannot be included in a Rule 50(b) motion). For this reason, we also do not consider
Jackson’s argument that the defamation claims failed for lack of publication or
“actual malice.”3

B.

The school district and Jackson next contest the $340,000 award to Nassar on
his due-process claim. They assert that the damages could not have exceeded the
value of the salary and benefits remaining on Nassar’s contract. Expert testimony
established that this value was about $245,639.38—$195,639.38 for damages from
the date of Nassar’s firing until the trial, plus approximately $50,000 from the trial
until the end of the contract term. We conclude that the district court abused its
discretion in sustaining the $340,000 award, and with respect to this issue, we vacate
and remand with instructions to offer remittitur.

2
Though we have recognized an exception to this kind of waiver to prevent “a
manifest miscarriage of justice,” see BE & K Constr. Co. v. United Bhd. of
Carpenters and Joiners of Am., AFL-CIO, 90 F.3d 1318, 1325 (8th Cir. 1996), the
school district and Jackson have not addressed waiver of these arguments at all, let
alone asserted that an exception to waiver applies. See Alternate Fuels,
538 F.3d at 973-74 & n.3.
3
The defamation argument was not included in the Rule 50(b) motion either.
We would not consider it for that reason as well. See Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 546 U.S. 394 (2006).

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 The court had instructed the jury to award Nassar the economic damages
caused by the denial of due process, that is:

[a]ny wages or fringe benefits you find that the plaintiff would have
earned . . . if he . . . had received the type of hearing required under the
Constitution. In order to fairly compensate a plaintiff, any award should
put the plaintiff in no better position than he . . . would have been in if
the Hughes School District had provided the plaintiff a hearing prior to
termination.

The parties agree that the jury was properly instructed as to the measure of damages.
Nonetheless, the school district and Jackson argue that the $340,000 award
improperly exceeded the only demonstrated value of Nassar’s lost salary and benefits
during the term of his contract, approximately $245,639.38.

Although Nassar asserts that this argument too was waived by the vague Rule
50(a) motion or by the lack of objection to the economist’s future-damage evidence,
we disagree. The school district and Jackson essentially argue “that the jury
instructions were proper but were misapplied by the jury . . . resulting in an incorrect
judgment.” Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 468 (8th Cir.
2013). As the school district and Jackson seek either a new trial on the issue or to
amend the judgment, “a Rule 59 motion is the appropriate vehicle.” Id. Admittedly,
the school district and Jackson argued that the award was improper in their Rule 50(b)
motion, not in a Rule 59 motion. But Rule 50(b)’s text explicitly allows for the
inclusion of a Rule 59 request in a Rule 50(b) motion. Moreover, as already
discussed, a Rule 50(b) motion renews only those grounds advanced in a Rule 50(a)
motion, and here the school district and Jackson’s argument would have been
premature in a Rule 50(a) motion, which must be made before the case is submitted
to the jury. The school district and Jackson could not have known at that time that
the jury would grant an excessive award. Similarly, their failure to object to the
economist’s testimony on future damages does not mean they missed their chance to

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ensure the jury followed its instructions. As such, the argument was not waived, and
we construe as a Rule 59 motion that part of the Rule 50(b) motion challenging the
$340,000 award. See Maristuen v. Nat’l States Ins. Co., 57 F.3d 673, 679 n.4 (8th
Cir. 1995) (treating a request to amend a judgment as a Rule 59 motion despite
references to Rules 50(b) and 60(b)). We review the denial of a Rule 59 motion for
abuse of discretion, Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 462 (8th Cir.
2013); Trickey v. Karman Indus. Techs. Corp., 705 F.3d 788, 807-08 (8th Cir. 2013),
and “we may reverse a district court’s denial of a Rule 59 motion where its judgment
rests on an erroneous legal standard,” Pulla v. Amoco Oil Co., 72 F.3d 648, 656 (8th
Cir. 1995).

On appeal, Nassar does not attempt to defend the $340,000 award except to
argue that it included “front pay,” an equitable remedy from our discrimination cases,
see, e.g., Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 639, 641 (8th Cir.
1997). Claiming that “future loss is synonymous with front pay,” Nassar’s economist
testified that the present value of Nassar’s seven-year front pay was $283,577.77.
Together with past damages of $195,639.38, this amount far exceeds what the jury
awarded, and thus, Nassar argues, the $340,000 award was justified. Front pay,
however, may be awarded only by a court, not by a jury. Id. at 641-43. Even if we
assume that front pay is available as a remedy for a due-process violation, it was error
for the court to allow the jury to award it.4

4
Even assuming further that the school district and Jackson consented to a jury
determination and that front pay is not solely within the court’s authority, we still
believe that the jury did not follow its instruction that it award only those damages
caused by the denial of due process. Based on the evidence presented by Nassar’s
economist, the award necessarily included lost salary and benefits beyond the term
of Nassar’s contract. The award thus assumes that Nassar’s contract would have been
renewed if he had received a proper hearing. Nassar’s brief, however, points us to no
evidence suggesting such renewal. See Tussey v. ABB, Inc., 746 F.3d 327, 339 (8th
Cir.) (finding damages speculative where plaintiffs did not cite evidence supporting

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 Without the improper front pay, the only evidence of the value of Nassar’s
salary and benefits during the term of his contract was the economist’s estimate of
$245,639.38. The district court should offer remittitur to that amount. See Racicky
v. Farmland Indus., Inc., 328 F.3d 389, 400 (8th Cir. 2003). If Nassar does not
consent to remittitur, the court should conduct a new trial on this issue. See id.

C.

Coming to the matter of fees, “[w]e review the district court’s award of
attorney’s fees for abuse of discretion.” Miller v. Dugan, 764 F.3d 826, 830 (8th Cir.
2014). The school district and Jackson argue (1) that the district court improperly
enhanced the fee award to Nassar and Smith solely because of their contingency

assumption necessary to damage award), cert. denied, 135 S. Ct. 477 (2014); see also
McKenzie Eng’g Co. v. NLRB, 373 F.3d 888, 894 (8th Cir. 2004) (modifying an
award assuming certain durations of employment where the assumptions were
“supported by neither [the employer’s] past history as an employer, nor [the relevant]
workers’ past employment histories”). This is not a case in which Nassar’s contract
had been renewed time and time again. Cf. Larch v. Mansfield Mun. Elec. Dept.,
272 F.3d 63, 73-75 (1st Cir. 2001). Rather, this is a case from a generally at-will
employment state, see Crawford Cnty. v. Jones, 232 S.W.3d 433, 438 (Ark. 2006),
in which Nassar’s contract had been renewed only once and in which board members
were openly hostile to Nassar. Without some evidence that the contract would have
been renewed but for the denial of due process, the evidence of post-contract damages
was irrelevant, see Fed. R. Evid. 104(b), and the front-pay award was improper,
whether consented to or not. We recognize that the Seventh Circuit has allowed a
defendant to consent implicitly to a jury award of front pay in a traditional
discrimination suit. See Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495,
500-01 (7th Cir. 2000). But in these specific circumstances, we think the partial
dissent expands consent on one issue too far into uncharted legal territory. The
school district and Jackson’s failure to object to irrelevant evidence did not also
approve the doubly novel idea that the jury could award front pay on a due-process
claim.

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agreement with their attorneys and (2) that the award was based on improperly block-
billed records.

The school district and Jackson argue that in determining attorney’s fees, the
district court improperly awarded Nassar and Smith’s lead counsel $375 per hour,
rather than his usual rate of $250 per hour, solely because counsel worked on
contingency. See Newhouse, 110 F.3d at 644 (“[A]n enhancement above the lodestar
fee for contingency is not permitted.”). Though the school district and Jackson did
not raise the issue in the district court, they “could not anticipate” this outcome,
“which the district court introduced in its order.” United States v. Hurt, 676 F.3d 649,
652-53 (8th Cir. 2012). As such, they did not waive the issue. Id. But they are
wrong on the merits. The district court explicitly acknowledged that it could not
enhance the fee award solely because of a contingent fee agreement. Rather, it
explained that it enhanced the rate of Nassar and Smith’s lead counsel specifically
because of his experience and his “superior legal and advocacy skills” in the case.
The district court thus did not abuse its discretion as the school district and Jackson
have argued.

The school district and Jackson also extrapolate from our general rule that
“[i]nadequate documentation may warrant a reduced fee.” H.J. Inc. v. Flygt Corp.,
925 F.2d 257, 260 (8th Cir. 1991). They contend that the court should have reduced
the award because the time entries of Nassar and Smith’s attorneys were “block-
billed, preventing meaningful analysis of the time spent on each discrete task.” As
our sister circuit has noted, the district court’s “superior understanding of the
litigation” cautions against “appellate review of minutia[e].” Farfaras v. Citizens
Bank and Trust of Chi., 433 F.3d 558, 569 (7th Cir. 2006) (quoting Spellan v. Bd. of
Educ. for Dist. 111, 59 F.3d 642, 645 (7th Cir. 1995)). We again find no abuse of
discretion.

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 Nonetheless, we note that “the results obtained” is one factor relevant to a
court’s calculation of fees. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
Thus, though we affirm the fee award with respect to the arguments raised here, we
vacate and remand for reconsideration in light of our holding vacating Nassar’s
$340,000 award. See Quigley v. Winter, 598 F.3d 938, 958 n.7 (8th Cir. 2010)
(noting “that the usual procedure is to remand any further consideration of an attorney
fee award to the district court”). We leave alteration of the fee, if any, to the sound
discretion of the district court.

III.

For the reasons discussed, we affirm in part and vacate in part, remanding for
further proceedings not inconsistent with this opinion.

BYE, Circuit Judge, concurring in part and dissenting in part.

I disagree the school district and Jackson did not waive their ability to
challenge the $340,000 award to Nassar on his due-process claim. Instead, I believe
the jury properly considered the evidence presented within the provided jury
instructions. I therefore respectfully dissent from Part II.B. of the decision reversing
the district court. I concur in all other aspects of the majority opinion.

First, the school district and Jackson allowed Dr. Ralph Scott to testify about
Nassar’s future income and fringe benefit losses without an appropriate objection or
limitation. Although counsel for the school district and Jackson posed an objection,
the objection pertained to Dr. Scott’s offering of a narrative rather than Dr. Scott’s
ability to offer testimony regarding future losses. Instead, counsel indicated he

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realized Dr. Scott was an expert and was “allowed to give his testimony.”
Appellants’s App. 233. “Without an objection and a proper request for relief, [a]
matter is waived and will receive no consideration on appeal absent plain error.”
McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir.
1994) (internal quotation marks and citation omitted). The total amount to which Dr.
Scott testified, including both past and future income and fringe benefits losses,
exceeded $340,000, and neither the school district nor Jackson presented any
evidence contradicting these amounts.

Further, even though front pay, which Nassar argues is synonymous with future
losses, may be awarded by the district court in its discretion, see Mathieu v. Gopher
News Co., 273 F.3d 769, 778 (8th Cir. 2001), the school district and Jackson
consented to its consideration by the jury by failing to object to Dr. Scott’s testimony.
See Whiting v. Jackson State Univ., 616 F.2d 116, 123 (5th Cir. 1980) (“By failing
to object, the parties agreed that the jury’s verdict on the claims for equitable relief
was to have the same effect as if a right to a jury trial existed.”); see also Broadnax
v. City of New Haven, 415 F.3d 265, 272 (2d Cir. 2005) (“[W]hen a party demands
a jury consideration of lost wages . . . and the party’s opponent fails to object,
[Federal Rule of Civil Procedure] 39(c) permits the district court to submit the lost
wages issue for a non-advisory jury determination.”); Pals v. Schepel Buick & GMC
Truck, Inc., 220 F.3d 495, 501 (7th Cir. 2000) (finding the parties consented to the
jury deciding front pay because neither party objected, resulting in jury consideration
of the issue under Rule 39(c) and an implied consent to amend the pleadings under
Federal Rule of Civil Procedure 15(b)); Bereda v. Pickering Creek Indus. Park, Inc.,
865 F.2d 49, 52 (3d Cir. 1989) (holding that where both parties “requested a jury trial
and the subject of an advisory jury was never mentioned at any time during the
proceedings, [the plaintiff] and [the defendant] must be deemed to have consented to
a trial by a nonadvisory jury under Rule 39(c)”). Additionally, “having juries
calculate lost wages requires no special competence or authority belonging solely to

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the court.” Broadnax, 415 F.3d at 272. I further “find sensible the proposition that
where a party requests a jury determination of an issue requiring no special
competence or authority belonging solely to the court, and the other party or parties
fail to object, such silence may be deemed ‘consent’ under Rule 39(c).” Id.
Accordingly, contrary to the majority’s determination, ante at 9, mutual implied
consent by Nassar, the school district, and Jackson supports the jury’s authority to
resolve the issue of front pay which would normally be decided by the court. See
Pals, 220 F.3d at 501. The school district and Jackson also failed to make any
arguments or cite case law standing for the proposition that front pay is not a remedy
available to Nassar.

The jury, thereafter, contrary to the school district and Jackson’s argument,
properly applied the jury instructions to the evidence which was presented. See CSX
Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009) (“In those cases, as in all cases,
juries are presumed to follow the court’s instructions.”). Although the majority cites
to an instruction the district court provided to the jury, the language cited is only an
excerpt of the instruction. See ante at 7. Instead, the instruction broadly states the
jury must award Nassar an amount of money for any damages he sustained as a result
of the constitutional violation. Appellants’s App. 94. It then provides the award
should merely put Nassar in no better position than he would have had if the school
district had provided him a hearing. Id. Absent is any limitation as to the specific
kinds of damages the jury may award or the time period over which those damages
may be awarded.5 Although the instruction next provides an element of damages to
consider, it does not direct the jury to make this element its sole consideration for

5
Although the instruction later provided a time limitation to the amount of
wages and fringe benefits which the jury could have awarded, the jury found the
school district failed to carry its burden to make the time limitation applicable. See
Appellants’s App. 78, 94-95. The school district and Jackson do not appeal this
finding.

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damages. Id. Additionally, the element itself provides a broader consideration than
the school district and Jackson argue, directing the jury to consider the wages and
fringe benefits which Nassar would have earned in his employment with the school
district instead of those wages and fringe benefits which remained based on his
contract. Id.

The plain language of the instruction as a whole therefore refutes the school
district and Jackson’s argument that “the measure of [Nassar’s] damages was the
amount of wages and fringe benefits remaining on his contract at the time of his
termination.” Appellants’s Br. 37. A reasonable jury could read this instruction and
conclude Nassar’s damages award extended beyond the wages and fringe benefits
remaining under the contract. If the school district and Nassar believed damages
should have been awarded on this narrow basis, an objection to the instruction was
warranted. Because they failed to object, they waived their ability to now argue the
jury improperly applied the jury instructions on this basis. See Niemiec v. Union Pac.
R.R. Co., 449 F.3d 854, 857-58 (8th Cir. 2006) (“A party’s failure to object to jury
instructions results in a waiver of that objection, absent a showing of plain error.”).
I further conclude there was no plain error in this case. See id. (finding plain error,
“especially in the civil context . . . must result in a miscarriage of justice in order to
compel reversal”) (internal quotation marks and citation omitted).

For these reasons, I would find the school district and Jackson waived their
ability to challenge the $340,000 award and would affirm.
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