+1 212 318 2000
Europe, Middle East, & Africa
+44 20 7330 7500
+65 6212 1000
By Jay-Anne B. Casuga
The U.S. Court of Appeals for the Eighth Circuit March 11 upheld a jury verdict in favor of a Syrian Muslim electrician for Chrysler Group LLC in Missouri who alleged he was fired in retaliation for filing a discrimination charge against the company (Al-Birekdar v. Chrysler Grp. LLC, 8th Cir., No. 08-3780, 3/11/13).
A jury in February 2008 awarded approximately $200,000 in economic and emotional distress damages to Tarek Al-Birekdar on his retaliation claim under the Missouri Human Rights Act. Al-Birekdar alleged that co-workers and supervisors called him “camel jockey,” made disparaging remarks about Islam, and told him that “you people don't belong here.” He was fired for purportedly violating a company leave policy about 18 months after he filed an MHRA bias charge.
However, the jury ruled in favor of Chrysler on Al-Birekdar's discrimination claim. The district court denied Al-Birekdar's punitive damages request and lowered his attorneys' fees award by reducing the lawyers' hourly rate and number of hours worked and instituting a “global cut” based on Al-Birekdar's limited success at trial.
Affirming, the Eighth Circuit found that the lower court's jury instruction on MHRA retaliation claims was proper, and concluded that the evidence presented at trial was sufficient to support the retaliation verdict and damage awards.
In addition, the appeals court ruled that the district court did not abuse its discretion in denying Al-Birekdar's request for punitive damages because he failed to show that Chrysler's actions were “outrageous” because of “evil motive” or “reckless indifference” to his rights.
Although it declined to disturb the lower court's reduction of attorneys' fees, the appeals court remanded for further consideration Al-Birekdar's request for additional attorneys' fees for post-trial and appellate work.
Judge Michael J. Melloy wrote the opinion, joined by Judges William Jay Riley and Roger L. Wollman.
The former employee alleged that co-workers and supervisors harassed him because of his national origin, skin color, and religion. He claimed he was referred to as a “camel jockey,” a supervisor called Islam “nothing but bad people,” and he was told “guys don't want to work with a camel jockey” and “you people don't belong here.”
In September 2003, Al-Birekdar filed a discrimination charge with the Missouri Commission on Human Rights after he was suspended indefinitely for using “foul language” against a co-worker who allegedly made racially offensive remarks but was not initially punished. Al-Birekdar and the co-worker ultimately received 30-day suspensions, and MCHR concluded that the situation had been remedied.
About 18 months later, Al-Birekdar filed a written request for a vacation June 11-17 but mistakenly circled the wrong dates on one side of the form. His vacation was approved for the wrong dates. However, he also allegedly obtained oral permission from two different supervisors.
During his absence, supervisors allegedly could not find a record of Al-Birekdar's vacation approval. Although supervisors could “code” an employee as on vacation “after the fact,” they did not do so.
Chrysler's computer system marked Al-Birekdar as “absent without leave,” and the company fired him June 18 for being absent for five days without proper notice pursuant to its leave policy. Al-Birekdar filed a grievance to appeal his discharge, and he ultimately was reinstated in November 2006. Prior to reinstatement, however, Al-Birekdar sued Chrysler for discrimination and retaliation under the MHRA.
A Chrysler employee who worked for the company since 1968 testified that he knew of no other skilled-trades employee being terminated for violating the five-day leave policy.
Al-Birekdar requested economic, emotional distress, and punitive damages. He and his wife testified about his emotional distress, and he submitted various documents to prove his financial losses.
Before the case was submitted to the jury, the U.S. District Court for the Eastern District of Missouri granted Chrysler's motion for judgment as a matter of law on Al-Birekdar's claim for punitive damages, but otherwise denied the motion for his remaining substantive claims.
In instructing the jury on Al-Birekdar's retaliation claim, the district court stated that the jury must rule in favor of Al-Birekdar “if you believe … plaintiff's filing of a previous charge of discrimination was a contributing factor in such discharge.”
The jury ultimately returned a verdict in favor of Al-Birekdar on his retaliation claim, but in favor of Chrysler on his discrimination claim. The jury awarded $197,000 in economic damages and $3,000 in emotional distress damages to Al-Birekdar.
After trial, the district court denied Chrysler's renewed motions for judgment as a matter of law or for a new trial. The court also reduced Al-Birekdar's $174,570 attorneys' fee award request by reducing his lawyers' hourly rate from $365 to $250 and excluding approximately 33 hours of work for various administrative and ministerial tasks, email review, and work on filing time extensions.
In addition, the court instituted a 50 percent “global cut” of attorneys' fees because Al-Birekdar did not prevail at trial on all his claims against Chrysler, and because his “unsuccessful claims were not related to the successful claim.” The court ultimately awarded $55,650 in attorneys' fees.
First, the Eighth Circuit found that the contributing factor language used by the district court in its jury instruction was the proper standard for MHRA retaliation claims. The appeals court rejected Chrysler's argument that the lower court erred by not using the phrase “decision to discharge” instead of “in such discharge” in the instruction, observing that it is “unclear what difference” the phrases would make.
The appeals court also determined that the evidence, including the HR official's alleged statement about teaching Al-Birekdar a “lesson” and an employee's testimony about no other skills-trade employees being fired for violating the five-day leave policy, was sufficient to support the jury's verdict on the MHRA retaliation claim.
The court acknowledged that Chrysler had presented a “valid alternative rationale” for the HR official's statement, but pointed out that the jury “rejected this rationale.”
In addition, the court said, Al-Birekdar presented testimony and other evidence to establish an “approximate amount of damages,” which was sufficient to support the jury's awards because “[t]estimony regarding the damages amount need not be exact.”
The Eleventh Circuit affirmed that Al-Birekdar was not entitled to punitive damages, which are available under Missouri law only when a “defendant's conduct is 'outrageous' due to evil motive or reckless indifference to the rights of others.” Al-Birekdar did not present sufficient evidence that Chrysler acted with “evil motive” or “reckless indifference,” the court said.
The appeals also court said the district court did not abuse its discretion in reducing the hourly rates of Al-Birekdar's attorneys and implementing “line item” cuts of hours for “administrative and ministerial tasks, review of court e-mail transmissions, and preparation of extensions of time.”
The court also found no issue with the district court's 50 percent “global cut,” observing that a plaintiff may receive attorneys' fees for an unsuccessful claim only if it is “sufficiently related to the successful claim because they 'involve a common core of facts' or 'are based on related legal theories.' ”
“Here, the district court thoroughly analyzed Al-Birekdar's claims and made an express finding that the claims were not sufficiently related,” the appeals court said. “When coupled with Al-Birekdar's failure to obtain punitive damages, we find no abuse of discretion.”
However, the court observed that Al-Birekdar also requested attorneys' fees for post-trial and appellate work. It remanded that request to the district court for further consideration.
Kristin W. Parke of St. Louis represented Al-Birekdar. Brian P. Baggott, Kevin M. Smith, and Mark C. Tatum of Shook, Hardy & Bacon in Kansas City, Mo., represented Chrysler.
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Tarek_AlBirekdar_v_Chrysler_Group_LLC_Docket_No_0803780_8th_Cir_D.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).