                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                    ___________

                          Nos. 97-3066; 97-3122; 97-3832;
                            97-4221; 97-4369; 97-4370
                                   ___________

Ashok K. Gumbhir,                       *
                                        *
      Plaintiff - Appellee/             *
      Cross Appellant,                  *
                                        *
      v.                                *
                                        * Appeals from the United States
Curators of the University of Missouri, * District Court for the
                                        * Western District of Missouri.
      Defendant - Appellant/            *
      Cross - Appellee,                 *
                                        *
Robert W. Piepho; R. Lee Evans,         *
                                        *
      Cross - Appellees.                *
                                   ___________

                                 Submitted: May 14, 1998
                                     Filed: October 7, 1998
                                   ___________

Before BEAM, LOKEN, and MURPHY, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       After years of bitter feuding within the University of Missouri at Kansas City’s
School of Pharmacy (UMKC), Professor Ashok Gumbhir commenced this action
against UMKC, Pharmacy Dean Robert Piepho, and Professor R. Lee Evans, alleging
employment discrimination, violation of Gumbhir’s First Amendment rights in the work
place, and defamation. The district court granted summary judgment dismissing
Gumbhir’s defamation and § 1983 First Amendment claims. After a trial, the jury
returned a verdict for UMKC on Gumbhir’s claims of race, national origin, and
disability discrimination. The jury awarded Gumbhir $4,432.20 in lost wages and
benefits on his Title VII retaliation claim, and the court entered judgment on this
verdict. Gumbhir then moved for sweeping injunctive relief, prospective equitable
monetary relief, and an award of $535,000 in attorneys’ fees and costs. The court
denied injunctive relief, granted a prospective salary increase of $4,432.20 consistent
with the jury’s verdict, and awarded $110,000 in attorneys’ fees. Both sides appeal.
We reduce the award of attorneys’ fees and otherwise affirm.

              I. The Jury’s Finding of Retaliation Discrimination.

       The jury found that Gumbhir was the victim of unlawful retaliation and awarded
him $4,423.20 in “lost wages and benefits through the date of this verdict.” On appeal,
UMKC argues it is entitled to judgment as a matter of law on this claim. We view the
evidence in the light most favorable to the jury’s verdict, giving Gumbhir as prevailing
party the benefit of all inferences that may reasonably be drawn from that evidence.
See Kim v. Nash Finch Co., 123 F.3d 1046, 1057-58 (8th Cir. 1997).

       The lengthy trial exposed a rather incredible sequence of petty, venomous
exchanges between the main protagonists, Professor Gumbhir on the one hand, and
Dean Piepho and Professor Evans on the other, an unprofessional spate of
communications that would not be tolerated in a well-functioning work place and that
should have been beneath the dignity and intelligence of the seemingly well-educated
combatants. On appeal, UMKC’s opening brief spends twenty pages marshalling this
distasteful evidence to show that Gumbhir was the villain, while Gumbhir’s opening
brief responds with twenty-five pages intended to paint Piepho, Evans, and other
UMKC supervisors as the black hats. Most of this is irrelevant to the issues on appeal,

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a waste of our time and a strong indication the case has been massively over-lawyered.
We will spare the reader a tedious review of these background facts and move directly
to the evidence we view as critical to Gumbhir’s claim of unlawful retaliation.

       A claim of retaliation discrimination requires proof that the employee engaged
in protected activity, that the employer took adverse employment action against him,
and that there was a causal connection between the two. See Kempcke v. Monsanto
Co., 132 F.3d 442, 445 (8th Cir. 1998). Beginning in December 1991, an otherwise
disgruntled Gumbhir made a series of complaints to Piepho and the Vice Provost of
Affirmative Action about ethnic slurs by Evans, about an Associate Dean’s unfavorable
comment concerning immigrants working in the United States, and about what Gumbhir
perceived as a racially biased environment in the School of Pharmacy. Gumbhir
received substantially below average salary increases the next three times the School
of Pharmacy gave such increases. UMKC argues Gumbhir’s complaints about ethnic
discrimination were not protected activity, and denying him salary increases was not
adverse employment action. These contentions are frivolous. See Davis v. City of
Sioux City, 115 F.3d 1365, 1369 (8th Cir. 1997); Smith v. St. Louis University, 109
F.3d 1261, 1266 (8th Cir. 1997).

       The critical issue is whether there was sufficient evidence of a causal connection
between Gumbhir’s protected activity of complaining about racial and ethnic
discrimination, and UMKC’s adverse salary actions. The district court properly
instructed the jury that to prove his claim of unlawful retaliation, Gumbhir “must prove
by the greater weight of the evidence that [UMKC] took action against plaintiff for
exercising his rights to object to race or national origin or disability discrimination.”
The sufficiency issue is close because UMKC presented strong evidence of legitimate
non-discriminatory reasons for its salary actions. But giving the verdict the deference
to which it is entitled, we conclude the evidence was sufficient to permit the jury
reasonably to infer that UMKC’s adverse salary actions were motivated at least in part


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by an intent to retaliate for Gumbhir’s protected activity. Accordingly, the district
court’s judgment on the jury verdict dated May 15, 1997, must be affirmed.

                 II. The Grant of a Prospective Salary Increase.

       The district court granted Gumbhir equitable relief in the form of a prospective
pay increase of $4,423.20, an amount equal to the back pay the jury awarded to the
date of its verdict. It is often appropriate to grant a prospective salary adjustment, or
some other form of “front pay,” in an employment discrimination case. We review the
grant or denial of such equitable relief under the abuse of discretion standard. See
Newhouse v. McCormick & Co., 110 F.3d 635, 643 (8th Cir. 1997).

       At trial, UMKC sought to introduce evidence that Gumbhir double-billed the
University for certain consulting trips, behaved inappropriately to female students, and
secretly managed an HMO in Texas. The district court excluded this evidence. On
appeal, UMKC does not challenge these evidentiary rulings. Instead, it argues the
court abused its discretion by awarding Gumbhir equitable relief without considering
this evidence of employee wrongdoing and unclean hands, citing McKennon v.
Nashville Banner Publishing Company, 513 U.S. 352, 361 (1995), and Gibson v.
Mohawk Rubber Company, 695 F.2d 1093 (8th Cir. 1982). We disagree. While those
opinions stress the importance of considering all relevant circumstances in awarding
equitable relief, including employee wrongdoing, neither case involved evidence that
had been excluded at trial. Indeed, our decision in Gibson emphasized that a post-trial
decision regarding equitable relief may not be based upon findings that conflict with
those made by the jury. 695 F.2d at 1101. Thus, the district court did not abuse its
discretion in declining to consider in fashioning equitable relief evidence it had
excluded from the jury’s consideration at trial. The award of a prospective salary
increase is consistent with the jury’s back pay verdict and must be affirmed.




                                          -4-
                 III. The Dismissal of Gumbhir’s § 1983 Claims.

       Count III of the fifty-one-page Third Amended Complaint asserted claims under
42 U.S.C. § 1983 against UMKC and the individual defendants. One claim is that
defendants violated Gumbhir’s First Amendment rights by punishing him for opposing
unlawful discrimination and speaking out on matters of general academic concern. The
district court granted summary judgment dismissing Count III. On appeal, Gumbhir
argues that genuine issues of material fact preclude summary judgment on his First
Amendment § 1983 claim. We review the grant of summary judgment de novo.

        It is well settled that UMKC “cannot condition public employment on a basis that
infringes the employee’s constitutionally protected interest in freedom of expression.”
Connick v. Myers, 461 U.S. 138, 142 (1983). The district court concluded Gumbhir
had not spoken out on matters of public concern; that if he did it was to denigrate his
academic colleagues, not to benefit the public; and that he presented no evidence his
criticism of Piepho and Evans was a substantial factor in any adverse employment
actions. This was the proper legal standard. See Pickering v. Board of Educ., 391 U.S.
563, 568-73 (1968); Bausworth v. Hazelwood Sch. Dist., 986 F.2d 1197, 1198 (8th Cir.
1993). After careful review of the summary judgment record, we agree with the district
court’s conclusions and affirm the dismissal of Gumbhir’s § 1983 claims.

                            IV. The Defamation Claim.

        In 1992, Gumbhir refused to teach some of his assigned courses. The School of
Pharmacy issued him a letter of censure in December 1993, which became a basis for
his state law claim of defamation. The district court dismissed this claim on the ground
that dissemination of the letter within the UMKC community was not the requisite
publication as that element of the tort was construed in Rice v. Hodapp, 919 S.W.2d
240, 243 (Mo. banc 1996) (“communications between officers of the same corporation



                                          -5-
in the due and regular course of the corporate business, or between different offices of
the same corporation, are not publications to third persons”).

       Gumbhir argues the district court misapplied Rice because there is evidence the
letter was distributed to the entire School of Pharmacy faculty, and “[d]efamatory
statements made by company officers or supervisors to non-supervisory employees
constitute a publication for purposes of a defamation action.” Rice, 919 S.W.2d at 243.
However, even assuming other faculty members were non-supervisory employees for
purposes of this rule, Missouri courts recognize a qualified privilege, to be determined
by the court as a matter of law, for a good faith communication “in which the person
making the communication has an interest or in reference to which he has a duty, and
to a person having a corresponding interest or duty.” Id. at 244. Internal
communications related to the solving of personnel problems are entitled to this
privilege. See Blake v. May Dept. Stores Co., 882 S.W.2d 688, 690 (Mo. App. 1994);
Lovelace v. Long John Silver’s, Inc., 841 S.W.2d 682, 685 (Mo. App. 1992). Having
reviewed the summary judgment record de novo, we conclude the district court
correctly applied Rice. The dismissal of Gumbhir’s defamation claim is affirmed.

                         V. The Award of Attorneys’ Fees.

       Gumbhir initially requested an award of $488,960.25 in attorneys’ fees and
$45,909.55 in costs. The district court advised that it would reduce this request
because of limited success and invited Gumbhir to brief the issue further. Gumbhir then
urged the court to award $458,263.57 in attorney’s fees and $46,576.98 in costs. The
court reduced the award to $110,000 in attorneys’ fees and $15,000 in costs. The court
cited four categories of unreasonable billing claims and also concluded that Gumbhir
had achieved very limited success in the litigation because only three of nine claims
survived summary judgment, retaliation was not his major claim, he received only a
fraction of the compensatory damages sought and no punitive damages, and he was
denied the wide-ranging equitable relief requested. Both sides appeal this ruling.


                                          -6-
        UMKC argues Gumbhir is entitled to no fee because of his “inexcusable
behavior.” We reject this attempt to reargue the adverse jury verdict on retaliation.
Gumbhir was a “prevailing party” entitled to some fee. The question is how much. See
Warner v. Independent Sch. Dist. No. 625, 134 F.3d 1333, 1336 (8th Cir.), petition for
cert. filed, 66 U.S.L.W. 3800 (U.S. Jun. 4, 1998).

       Gumbhir urges us to grant the fees and costs he requested. His amended fee
petition was based upon attorney hours allegedly spent on the litigation and what he
claimed were reasonable hourly rates, reduced by ten percent because of the district
court’s finding of limited success. “The most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983); see City of Riverside v. Rivera, 477 U.S. 561, 569 n.4 (1986). In determining
what hours were reasonably expended in this case, the district court properly examined
whether particular claimed hours were unreasonable and the question of limited
success. But it overlooked another aspect of reasonableness -- the question whether the
requested fee award when based upon hours allegedly expended exceeds the amount
that could ever be reasonable for a case of this nature. This question is relevant
because attorneys “should not be permitted to run up bills that are greatly
disproportionate to the ultimate benefits that may be reasonably attainable.” Copeland
v. Marshall, 641 F.2d 880, 908 (D.C. Cir. 1980) (en banc) (MacKinnon, J., concurring).



       In his closing argument to the jury, counsel for Gumbhir requested lost salary
damages of $20,832 plus an unspecified amount for emotional distress. A lawyer who
does not urge the jury to award a specific amount for emotional distress damages, and
whose remaining claim for compensatory damages is $20,832, cannot expect that the
jury will award substantial emotional distress damages. In other words, counsel knew
from the outset that this case involved only a relatively modest claim for compensatory
damages, perhaps $50,000 to $75,000 at most. It was not reasonable for an attorney


                                         -7-
to run up a bill of $450,000 to $500,000 to litigate this type of damage claim. We
conclude that if the jury in this case had awarded Gumbhir the full amount he requested
in closing argument, a reasonable fee could not have exceeded $110,000, the amount
awarded by the district court for Gumbhir’s far more limited success.1 This was not a
case with broad civil rights implications. It was a damage action for injury suffered
from a rancorous employment dispute that degenerated into unlawful racial or ethnic
retaliation.

       If an award of $110,000 would have been appropriate had Gumbhir been fully
successful, the actual award must be substantially reduced because of his very limited
success. “[T]he most critical factor in determining the reasonableness of a fee award
is the degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992).
Gumbhir did not succeed on his claims for institutional equitable relief. He prevailed
on only one of his personal damage claims. The jury awarded him $4,423.20 of the
$20,832 in quantifiable damages he requested, and the court awarded an additional
$4,423.20 in the form of a prospective pay increase. Although pro rata fee reductions
based upon the relationship between damages requested and damages awarded are
often inappropriate, we conclude that this approach is if anything a generous method


      1
         It might be argued that the case as framed by Gumbhir could not have been
effectively litigated to a fully tried conclusion for this amount of attorney time. One
response to that contention is that competent attorneys are adept at finding ways of
litigating cases so that the time expended is reasonably related to the amount at issue.
Another response is that of the court in Scheriff v. Beck, 452 F. Supp. 1254, 1261 (D.
Colo. 1978):

      The dispute here is personal. The relatively small sums awarded by the
      jury indicate that in the general scheme of things, the affair was minor and
      should never have happened. Good sense among intelligent, if unfriendly,
      people should have prevailed. The argument should have been resolved
      within the community or in some forum other than the courts [and] that it
      did not is unfortunate.


                                          -8-
of determining the appropriate reduction for limited success in this case. The total
damages awarded Gumbhir were $8,846.40 or 42.5% of the lost salary damages he
requested. Therefore, a reasonable attorneys’ fee award cannot exceed 42.5% of
$110,000, or $46,750.

       The district court’s attorneys’ fee award is reduced to $46,750. As so modified,
the judgment of the district court is affirmed, including its award of $15,000 in costs.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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