United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 96-2802/2846
___________
Ruth C. Deneen, *
*
Cross-Appellant/Appellee, * Appeals from the United States
* District Court for the
v. * District of Minnesota.
*
Northwest Airlines, Inc., a *
Minnesota *
corporation, *
*
Appellant/Cross-Appellee.
___________
Submitted: May 22, 1997
Filed: January 6, 1998
___________
Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.
___________
HANSEN, Circuit Judge.
A jury awarded Ruth C. Deneen compensatory and punitive damages on
her claim of pregnancy discrimination in employment against Northwest
Airlines, Inc. (NWA). NWA sought judgment as a matter of law, which the
district court1 granted in part by striking the jury’s award of punitive
damages. NWA appeals, arguing that Mrs. Deneen did not prove unlawful
discrimination and that her claims are precluded
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
by the Railway Labor Act (RLA), 45 U.S.C. § 151 (1994). Mrs. Deneen cross-
appeals the district court's partial grant of judgment as a matter of law,
seeking to reinstate the jury’s verdict of punitive damages. We affirm.
I. Background
Viewing the facts in the light most favorable to the jury verdict,
Ryther v. Kare 11, 108 F.3d 832, 836 (8th Cir.) (en banc), cert. denied, 117
S. Ct. 2510 (1997), a reasonable jury could have found the following facts.
In January 1990, Ruth C. Deneen began working as a customer service agent
(CSA) for NWA. In general, CSAs perform three major job functions: ticket
counter work, baggage service, and gate service. The job generally requires
repetitive lifting of luggage and boxes that average 24 pounds and can
exceed 75 pounds, intermittent bending, and standing or walking during most
of a shift. The general CSA job description also includes some non-lifting
positions and duties, such as coordinating unaccompanied minors, handling
the lost and found, processing damage claims, announcing flights, and
helping passengers board flights.
In January 1993, NWA laid off Mrs. Deneen as part of a reduction in
force. She was pregnant at that time with an expected delivery date in
July, and she had informed NWA of her pregnancy. In April, the secretary
to Steve Holme, director of ground operations, placed a telephone call to
Mrs. Deneen, offering her a temporary part-time CSA position during the busy
travel months of June through September 1993. Mrs. Deneen orally accepted
the position. The secretary inquired casually about Mrs. Deneen’s
pregnancy. In late May, another NWA representative informed Mrs. Deneen
that she would be working five-hour shifts, beginning on June 9, 1993.
On June 2, 1993, the doctor restricted Mrs. Deneen to 48 hours of bed
rest and relaxation due to pregnancy-induced hypertension. Mrs. Deneen's
husband, who also worked as a CSA for NWA, took some time off work to be
with her. On June 8, 1993, concerned about their family finances, Mr.
Deneen called Mr. Holme's office to inquire
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about how long a person must be “on the clock” at work to receive earned
benefits. (Appellant’s App. at 5.) The secretary knew of Mrs. Deneen's
pregnancy, and the office apparently knew that Mr. Deneen had taken some
leave to be home with his wife. The secretary referred the call to Mr.
Holme, who responded that Mrs. Deneen would not be allowed to return to
work, "because of her pregnancy complication." (Id. at 6.) Mr. Deneen was
surprised that anyone at NWA would even know whether or not Mrs. Deneen had
suffered complications. The conversation became heated, and Mr. Holme
concluded by stating that Mrs. Deneen could only return to work if she
produced a doctor’s note verifying her fitness to work.
Mrs. Deneen complied and obtained a doctor’s note releasing her to
work her five-hour shift with light duty. When she reported to work as
scheduled on June 9, 1993, Mrs. Deneen discovered that no time card was
prepared for her and her name had been crossed off the work list with a
notation by Mark Horvath, the CSA manager, that she was on a medical leave
of absence. Neither Mr. Holme nor Mr. Horvath had ever spoken to Mrs.
Deneen about her medical condition -- they were acting on an assumption that
she had a pregnancy-related complication that would not allow her to perform
her job functions.
Mr. Holme and Mr. Horvath met with Mrs. Deneen after she reported to
work. Mr. Holme said, "It's been brought to my attention that you are
having problems with your pregnancy, and we need you to bring in a note."
(Appellant's App. at 47.) She then presented her note along with her own
explanation that she could perform most of the job functions, with the
exception of lifting bags. She had not previously been aware that she would
have to comply with any particular lifting requirements. Mr. Horvath then
presented Mrs. Deneen with a letter outlining the physical requirements of
the CSA job, including the ability to lift up to 75-pound bags of luggage
onto a conveyor belt. Mrs. Deneen said that she never was able to lift 75-
pound bags even when she was not pregnant, and she named many CSA duties and
job functions that she could perform with her present limitation. Mr. Holme
responded, "If I let you come
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back now, you would just go out and take your sick leave, and that would be
preventing another person from working." (Id. at 49-50.) He told her that
she could not come back to work unless she had a doctor's note verifying
that she could perform all the listed job functions.
The next day, Mrs. Deneen received a letter notifying her that she was
not qualified to return to work because of her medical restriction to light
duty. The letter informed her that the decision could be reviewed if her
doctor certified her as fit to perform all of the physical aspects of the
job. Four months later, after she had delivered her baby and fully
recovered from the pregnancy, NWA again called Mrs. Deneen back to work but
did not ask if she was pregnant and there is no indication that NWA required
any certification that she could lift up to 75 pounds.
Mrs. Deneen brought suit against NWA, alleging that it discriminated
against her on the basis of her sex, in violation of 42 U.S.C. § 2000(e)-
2(a) (1988), as amended by the Pregnancy Discrimination Act of 1978 (PDA),
42 U.S.C. § 2000e(k) (1988), and on the basis of her disability, in
violation of 42 U.S.C. § 12112 (Supp. V 1993) of the Americans with
Disabilities Act. She also alleged pendent state law claims of
discrimination on the basis of pregnancy and disability under the Minnesota
Human Rights Act (MHRA), Minn. Stat. Ann. § 363.03, subd. 1 (West 1991 &
Supp. 1997). The district court dismissed Mrs. Deneen’s disability claims,
concluding that she is not an individual with a disability as defined in
either the ADA or the MHRA. NWA moved to dismiss the remaining claims for
lack of subject matter jurisdiction, arguing that Mrs. Deneen’s
discrimination claims were preempted by the Railway Labor Act, but the
district court rejected this contention.
The Pregnancy Discrimination Act claim proceeded to trial. The
district court concluded as a matter of law that Mrs. Deneen had submitted
sufficient direct evidence of discrimination to justify submitting the case
to the jury as a mixed-motives case. On this basis, the jury entered a
special verdict finding that NWA "did not allow Ruth
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Deneen to return from layoff status on June 9, 1993, and that her pregnancy
was a motivating factor" in its decision. (Appellant's Adden. at AA4.) The
jury also found that NWA would not have made the same decision had she not
been pregnant. The jury awarded Mrs. Deneen $3,500 in lost wages, $10,000
for other compensatory damages, and $10,000 in punitive damages.
The district court took the MHRA claims under advisement and
ultimately applied the same analysis, noting that the MHRA mirrors the
language of the Pregnancy Discrimination Act. The district court found that
Mrs. Deneen's pregnancy was a motivating factor in NWA's decision not to
allow her to return from layoff status and that NWA would not have required
strict compliance with the lifting requirement had she not been pregnant.
While NWA asserted that its decision not to allow Mrs. Deneen back to work
was based on a concern for her own safety, the district court concluded that
such laudable reasons are no longer sufficient to justify an adverse
employment action. The district court also found that the proof did not
support NWA's assertion that Deneen was not physically able to perform the
same work as other employees. The district court adopted the jury's
compensatory damage awards, but concluded that an additional damage award
would be duplicative. Thus, the court did not award any additional actual
damages arising from the state cause of action and declined to award treble
the actual damages as allowed by state law. Additionally, the district
court declined to award punitive damages under state law.
NWA filed a post-judgment motion for judgment as a matter of law or
in the alternative for a new trial. The district court granted this motion
in part, striking the jury award of punitive damages in the federal
discrimination claim. The district court awarded attorneys' fees to Mrs.
Deneen as the prevailing party. NWA appeals the verdict, and Mrs. Deneen
cross-appeals the district court's decision to strike the award of punitive
damages.
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II. Discussion
A. Proof of Discrimination
NWA asserts that the district court erred by not granting its motion
for judgment as a matter of law, arguing that Mrs. Deneen failed to prove
pregnancy discrimination. We review de novo the denial of a motion for
judgment as a matter of law. Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir.
1996). “Judgment as a matter of law is appropriate only when the nonmoving
party fails to present enough evidence to permit a reasonable jury to decide
in his [or her] favor.” Id.
Title VII declares it unlawful for an employer to discharge "or
otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions or privileges of employment" on the basis
of the individual's sex. 42 U.S.C. § 2000e-2(a)(1). As amended by the
Pregnancy Discrimination Act, the sex discrimination proscribed by Title VII
includes discrimination on the basis of "pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related
purposes, including receipt of benefits under fringe benefit programs, as
other persons not so affected but similar in their ability or inability to
work." 42 U.S.C. § 2000e(k); see Lang v. Star Herald, 107 F.3d 1308, 1311
n.2 (8th Cir.) (explaining purpose and effect of Congress’s enactment of the
PDA), cert. denied, 118 S. Ct. 114 (1997). Thus, to prevail on her
pregnancy discrimination claim, Mrs. Deneen had the burden to show that she
was "treated differently because of her pregnancy" or a pregnancy-related
condition. Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996).
Consistent with Title VII, an employer may be held liable for dismissing an
employee on the basis of a mixture of motives, including some legitimate and
some illegitimate considerations. See Price Waterhouse v. Hopkins, 490 U.S.
228 (1989). This point has been strengthened by the Civil Rights Act of
1991, which states that an unlawful employment practice is established when
an individual demonstrates
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that pregnancy or a pregnancy-related condition "was a motivating factor for
any employment practice, even though other factors also motivated the
practice." 42 U.S.C. § 2000e-2(m). See Robinson v. Southeastern Pa.
Transp. Auth., 982 F.2d 892, 899 & n.8 (3d Cir. 1993) (noting the 1991 Civil
Rights Act “overrul[ed] that portion of Price Waterhouse that permitted an
employer to avoid liability if it could demonstrate that it would have taken
the same action in the absence of discriminatory motive”).
1. Direct Evidence
NWA first challenges the trial judge’s conclusion that Mrs. Deneen
presented direct evidence of discrimination. Direct evidence is that which
demonstrates “a specific link between the alleged discriminatory animus and
the challenged [employment] decision, sufficient to support a finding by a
reasonable fact finder that an illegitimate criterion actually motivated
[the employer’s] decision” to take the adverse employment action. Thomas
v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997) (internal
quotations omitted). We conclude that the district court was correct in its
determination that Mrs. Deneen presented direct evidence of discrimination:
Without any real knowledge of a physical limitation, Mr. Holme stated that
Mrs. Deneen could not return to work from layoff status without a note from
her physician because of her pregnancy-related condition.
NWA contends that “a statement that simply refers to an employee’s
protected status, but fails to express any bias against the employee because
of that status, is not direct evidence” of discrimination. (NWA’s Br. at
23.) This principle may apply with regard to the secretary’s initial
inquiry as to whether Mrs. Deneen was pregnant. There is evidence, however,
that NWA did more than merely refer to Mrs. Deneen’s pregnant status in this
manner. Mr. Holme’s initial statement that she could not return to work was
expressly based on her pregnancy-related condition, a condition he only
assumed to exist, and was made before Mr. Holme knew of any pregnancy-
related physical
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restrictions. He did not simply refer to her pregnant status but made an
adverse employment decision on the basis of his discriminatory judgment
about her abilities or her propensity to use earned sick leave benefits.
Additionally, the cases cited by NWA in support of its contention that mere
reference to a protected status is not direct evidence of discrimination are
distinguishable. For example, in Philipp v. ANR Freight Sys., Inc., 61 F.3d
669, 674 (8th Cir. 1995), the plaintiff claimed that one decision maker’s
occasional reference to him as “the old man” amounted to direct evidence of
age discrimination when he was terminated as part of the defendant’s
reduction in force. We held that these references were nothing more than
stray remarks in the workplace, because no evidence linked the remarks to
the challenged employment decision. Id. See also Geier, 99 F.3d at 242 (“To
be probative of discrimination, isolated comments must be contemporaneous
with the discharge or causally related to the discharge decision making
process.”). In the present case, Mr. Holme’s remarks about Mrs. Deneen’s
pregnancy-related complication were made contemporaneously and directly in
connection with the adverse employment decision. Her pregnancy-related
condition was the reason Mr. Holme took her name off the duty list and
refused to permit her to return to work.
We conclude the district court correctly determined that Mrs. Deneen
presented direct evidence of discrimination. Based on this conclusion, the
district court committed no error by submitting the case to the jury on a
mixed motives instruction.
2. Lifting Requirement
NWA contends that it prevented Mrs. Deneen from returning to work
because she could not satisfy the 75-pound lifting requirement of the CSA
job description, not because of a discriminatory motive. It is not unlawful
for an employer to discriminate on the basis of sex or pregnancy "in those
certain instances" where sex "is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or
enterprise." 42 U.S.C. § 2000e-2(e)(1). The PDA “does not
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create substantive rights to preferential treatment.” Lang, 107 F.3d at
1312. On the contrary, the PDA allows “employers [to] treat pregnant women
as badly as they treat similarly affected but nonpregnant employees.”
Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994). The
opposite, however, is also true -- employers must treat pregnant women as
well as they treat similarly affected employees. The PDA does not require
an employer to overlook the work restrictions of pregnant women unless the
employer overlooks the comparable work restrictions of other employees. Cf.
id. (stating, “[t]he PDA requires the employer to ignore an employee’s
pregnancy, but . . . not her absence from work, unless the employer
overlooks the comparable absences of nonpregnant employees”).
While NWA’s policy of requiring CSAs to be capable of lifting up to
75 pounds is not discriminatory on its face, the evidence before the jury
demonstrated that it was not strictly applied across the board. The jury
could conclude in this particular case that full compliance was only
required of Mrs. Deneen because suspicions arose concerning a pregnancy-
related condition. Mr. Holme testified, “I recall asking for a doctor’s
note because I wanted to find out what she could do,” (NWA’s App. at 135),
but the same was not routinely required of any other NWA employees who had
been on layoff status for less than six months. The offensive conduct in
this case is not NWA’s policy of requiring fitness for duty, but NWA’s
actions in not permitting her to return to work before it was aware of Mrs.
Deneen’s actual physical capabilities. NWA did not mention the physical
requirements of the job until after Mr. Deneen called to inquire about the
use of earned benefits. NWA asserts that managers Holme and Horvath
required Mrs. Deneen to bring medical proof of fitness because they “learned
that plaintiff was suffering ‘pregnancy complications’ that interfered with
her ability to do the job.” (NWA’s Br. at 24 n.9.) There was no evidence,
however, that they were privy to any such information when they took her
name off the duty list. A reasonable jury could conclude that NWA
discriminatorily assumed Mrs. Deneen was suffering a condition that would
interfere with her job. Furthermore, Mrs. Deneen presented evidence that
certain light duty job functions existed within the definition of
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the CSA position which she was capable of performing and which other CSAs
were allowed to continue performing after they had been medically restricted
to light duty work. Because light duties existed within the CSA position,
a jury could reasonably conclude that the 75-pound lifting requirement was
not a bona fide occupational qualification within the meaning of the statute
and was discriminatorily invoked against Mrs. Deneen in an effort to prevent
her from having the opportunity to return to work and exercise her earned
sick leave benefits.
3. NWA’s Treatment of Other Employees
NWA contends that the district court committed evidentiary error by
allowing Mrs. Deneen to introduce evidence of NWA’s treatment of other
pregnant CSAs. Aside from her direct proof of discrimination, Mrs. Deneen
presented circumstantial evidence also indicating a discriminatory animus
on the basis of her pregnancy-related condition. As already noted, Mrs.
Deneen presented the testimony of Sally Goodsell and Sharla Burly, both of
whom were CSAs placed on layoff status and recalled while pregnant. They
were not yet restricted to light duty because of their pregnancy at the time
they were recalled, but when they became unable to lift bags and requested
light duty assignments, NWA accommodated their request. NWA contends that
this evidence was not relevant for two reasons. First, NWA argues that Mrs.
Deneen must compare herself to other nonpregnant employees of similar
ability, not other pregnant employees. Second, NWA argues that Title VII
does not require it to accommodate the restrictions of a person being
recalled from layoff status.
On the first argument, we acknowledge our statement of the relevant
question in a pregnancy discrimination case is whether the employer treated
the pregnant plaintiff “differently than nonpregnant employees . . . not
whether the [employer] could have made more concessions for [the
plaintiff].” Lang, 107 F.3d at 1313. This statement of the issue
emphasizes that the state of being pregnant is not itself a reason for
distinguishing between employees. Employers must look to the employee’s
actual
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abilities. A comparison with other pregnant employees in most instances
will not give rise to an inference of discrimination on the basis of
pregnancy. In this particular case, however, where NWA suspected some
pregnancy-related complication on the part of the plaintiff close to the
time when she was being recalled (and if she were not recalled, NWA would
not have to give her earned sick leave benefits), a showing that the
employer gave better treatment to similarly restricted pregnant persons who
were already on the clock does support a finding of intentional
discrimination. While the comparison group was similarly pregnant, our
analysis is unaffected in this particular case because the distinguishing
feature is not the pregnancy alone but Mrs. Deneen’s pregnancy-related
complication which NWA assumed existed before even talking with Mrs. Deneen
and which could require her to exercise her earned benefits.
On the second argument, we agree that Title VII does not require NWA
to specially accommodate every pregnancy-related physical restriction. See
Lang, 107 F.3d at 1312 (emphasizing that the PDA does not require employees
to make accommodations for pregnant workers). Where an employer
accommodates for some pregnant women restricted to light duty, however, and
attempts to strictly apply the rule to deny others their earned benefits
upon returning from layoff status, the comparison is relevant to resolving
the question of whether the employer engaged in intentional discrimination
and whether the physical requirement of the position is a bona fide
occupational qualification. We conclude that the comparison in this case
constitutes valid circumstantial evidence that NWA engaged in discrimination
on the basis of Mrs. Deneen’s pregnancy-related condition in an attempt to
deny her earned benefits. The district court did not commit evidentiary
error.
4. Sufficiency of the Evidence
We view the evidence in the light most favorable to the verdict and
will not reverse a jury’s verdict for insufficient evidence unless “we
conclude that no reasonable juror could have returned a verdict for the non-
moving party.” Ryther, 108
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F.3d at 836. The evidence presented at trial and summarized above included
testimony from which a reasonable jury could find that Mr. Holme improperly
and expressly considered Mrs. Deneen’s pregnancy-related complication in
placing her on an unrequested medical leave of absence and demanding strict
compliance with the lifting requirement when others with a similar
restriction were not treated in this manner. We do not question NWA’s right
to hire or recall only persons who are fit for the job. Mrs. Deneen,
however, was not a new hire and she was not treated the same as other
persons returning to work from less than six months of layoff status. She
was recalled without being required to prove her fitness but then taken off
the list and prevented from returning to work on the basis of a pregnancy-
related complication that NWA assumed existed and assumed shortly would
require the payment of earned benefits. NWA alleges a distinction between
Mrs. Deneen, who was under a light duty restriction when she was recalled,
and CSAs who were on active duty when they became restricted to light duty.
Nonetheless, because she was treated differently from NWA’s usual policy for
employees on recall status for less than six months, we believe the impact,
if any, from this asserted distinction was a question for the jury to
consider as it determined the ultimate question of whether NWA intentionally
discriminated against Mrs. Deneen on the basis of her pregnancy-related
condition. While this may be a close case on the facts, close cases are
best left to the jury.
We conclude that there is sufficient evidence from which a reasonable
jury could conclude that NWA intentionally discriminated against Mrs. Deneen
on the basis of her pregnancy-related medical condition in an attempt to
deny her earned benefits. Because the mixed motives analysis was
appropriate in this case, we need not address the sufficiency of the proof
under the pretext analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).
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B. Punitive Damages
On cross appeal, Mrs. Deneen contends that the district court erred
by striking the jury’s award of punitive damages. Punitive damages may be
awarded to a plaintiff under the Civil Rights Act when the plaintiff shows
that the defendant engaged in a discriminatory practice “with malice or
reckless indifference” to the plaintiff’s federally protected rights. 42
U.S.C. § 1981a(b)(1) (Supp. V 1993); see Kimzey v. Wal-Mart Stores, Inc.,
107 F.3d 568, 575 (8th Cir. 1997). The district court concluded in this
case that there was no evidence to support the jury’s grant of punitive
damages and granted judgment as a matter of law on this issue. We review
de novo the district court’s grant of judgment as a matter of law, viewing
the facts and resolving any conflicts in the light most favorable to the
jury verdict. Varner v. National Super Markets, Inc., 94 F.3d 1209, 1212
(8th Cir. 1996), cert. denied, 117 S. Ct. 946 (1997).
We agree with the district court’s conclusion that a punitive damages
award is not supported by the evidence presented in this case. In spite of
the direct evidence of discrimination Mrs. Deneen presented, NWA maintained
that it believed the contract required it to consider her pregnancy-related
condition and ensure her fitness for duty before allowing her to return from
layoff status. Additionally, Mr. Holme testified that he was concerned
about the health of Mrs. Deneen and her baby. While we have found the
evidence sufficient for the jury to determine that NWA’s actions in this
case were illegally discriminatory, there is no evidence of malice or
reckless indifference. Accordingly, the district court did not err by
striking the jury award of punitive damages.
C. Preemption
NWA contends that Mrs. Deneen’s discrimination claims should have been
dismissed for lack of subject matter jurisdiction because, as minor contract
disputes, they are preempted by the Railway Labor Act. The Railway Labor
Act provides that
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all minor disputes must be resolved in mandatory arbitration before the
Railway Labor Board and that federal and state courts lack jurisdiction over
such claims. 45 U.S.C. § 151a (1994). Courts can resolve questions of
federal or state law involving labor claims only if the issues do not
require the court to construe the collective bargaining agreement. Lingle
v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411 (1988). The
discrimination claims at issue in this case arise independent of the
collective bargaining agreement. Because federal and state law are the
source of the claims, not the collective bargaining agreement, the Railway
Labor Act does not preempt Mrs. Deneen’s discrimination claims. See
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 256 (1994) (holding RLA
does not preempt causes of action to enforce rights independent of the
collective bargaining agreement); Taggart v. Trans World Airlines, Inc., 40
F.3d 269, 274-75 (8th Cir. 1994) (holding state law discrimination claim not
preempeted by RLA); Norman v. Missouri Pac. R.R., 414 F.2d 73, 83 (8th Cir.
1969) (noting Congress did not intend to make railroads immune from Title
VII liability for discrimination in employment).
D. Attorney Fees and Costs
Mrs. Deneen also contends that she is entitled to receive attorney’s
fees and costs incurred on appeal. Title VII provides that the court may,
in its discretion, allow the prevailing plaintiff on appeal attorney’s fees
and the costs of appeal. 42 U.S.C. § 2000e-5(k). Mrs. Deneen contends that
a fee award is necessary because the fees incurred at trial and on appeal
will exceed her verdict. Mrs. Deneen is a prevailing party in NWA’s appeal,
but she did not prevail on her own cross appeal. Her counsel should proceed
to file her motion for appellate attorney’s fees and costs pursuant to 8th
Cir. R. 47(c) so that the matter can be considered.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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