                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2069
                                    ___________

Orris Bowles,                            *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the Western
Osmose Utilities Services, Inc.,         * District of Arkansas.
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: January 13, 2006
                                 Filed: March 29, 2006 (Corrected: 04/11/06)
                                  ___________

Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.
                          ___________

ARNOLD, Circuit Judge.

      Osmose Utilities Services, Inc., appeals the judgment of the district court1 in
favor of Orris Bowles on his race discrimination claim. Osmose requests judgment
as a matter of law or, in the alternative, that the punitive damages award be set aside
or reduced. We affirm the district court's judgment in all respects.




      1
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
                                         I.
       Orris Bowles was hired in November, 2003, by Steve Fisher, an Osmose
foreman, to work on Mr. Fisher's utility pole treatment crew. On January 6, 2004,
Mr. Bowles filed a lawsuit against Osmose under 42 U.S.C. § 1981 claiming that it
had subjected him to a racially hostile work environment. After a bench trial, the
district court found for Mr. Bowles and awarded him $20,000 in compensatory
damages and $80,000 in punitive damages.

                                          A.
       Osmose contends that the district court clearly erred in making findings of fact
that supported Mr. Bowles's account of the racial harassment that he suffered and the
way that it affected him. We review the district court's factual findings for clear error.
Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir. 2002).

      The district court found that soon after Mr. Bowles started working on the
crew, Mr. Fisher peppered him and the other black crew members with racial insults.
The court also made findings consistent with Mr. Bowles's testimony about specific
instances of conduct by Mr. Fisher and the injurious effect of those insults on
Mr. Bowles.

       "[W]hen a trial judge's finding is based on his decision to credit the testimony
of one of two or more witnesses, each of whom has told a coherent and facially
plausible story that is not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error." Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 575 (1985). Although there were some
inconsistencies in the trial testimony of Mr. Bowles and his co-workers regarding
when Mr. Fisher's racist conduct began, how certain members of the crew responded,
and how some events took place, the district court found this slightly confused set of
narratives credible. The stories that Mr. Bowles and his witnesses told were all
relatively coherent and differences between the accounts did not affect the matters at

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the core of this action, namely whether Mr. Fisher repeatedly used racial slurs when
addressing the crew members and whether this behavior injured Mr. Bowles. It was
not clearly erroneous for the district court to credit the testimony of the crew.

                                           B.
        Osmose additionally asserts that, even if the district court did not clearly err in
believing Mr. Bowles's testimony about racial discrimination, the court should have
entered judgment for the defendant on the basis of what is called the Ellerth defense.
Under Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998), if no tangible
employment action was taken against the plaintiff, the employer took reasonable care
to prevent and correct the objectionable behavior in a timely fashion, and the plaintiff
unreasonably failed to mitigate the harm, then the employer is entitled to judgment
in its favor.

       Osmose contends that Mr. Bowles did not inform Mr. Fisher's supervisor,
Trevor Holmes, of Mr. Fisher's racially offensive conduct until January 5, 2004, and
that it was thus entitled to the Ellerth defense because Mr. Bowles's delay was
unreasonable and gave Osmose only one day's notice to correct the problem before
suit was filed. But Mr. Holmes's testimony that no complaints of racial
discrimination were made until January 5 was the only evidence that supported the
Ellerth defense, and the district court disbelieved it. The court instead credited the
testimony of Mr. Bowles and his fellow crew members that numerous complaints
about Mr. Fisher's conduct had been made to Mr. Holmes, some as far back as
November 2003. The district court found that Mr. Holmes had been informed of the
racial slurs soon after they began but that neither he nor his superior investigated the
crew members' accusations before January 5. On that date Mr. Holmes's supervisor,
Eric Hampton, asked Mr. Fisher if the allegations were true and accepted Mr. Fisher's
denial because (according to Mr. Hampton) he "tended to believe" that Mr. Fisher
would not do the things that he was accused of.



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       As we have said, the decision to credit the testimony of certain witnesses and
not others is virtually never clear error. See Anderson, 470 U.S. at 575. And because
the district court did not clearly err in believing the testimony that Osmose was given
timely notice of the racial harassment but did nothing to correct it, we uphold the
court's rejection of the Ellerth defense, which requires an employer to take reasonable
care to correct wrongful conduct in a timely fashion, see Ellerth, 524 U.S. at 765.

                                          II.
       Osmose also appeals the district court's award of $80,000 in punitive damages.
We dispose first of Osmose's contention that the amount was so excessive as to
violate due process.

       The Supreme Court has held that when punitive damages are single-digit
multiples of compensatory damages they are "more likely to comport with due
process" and that few awards that exceed such a single-digit ratio, "to a significant
degree, will satisfy due process." State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 425 (2003). In addition, where, as here, the amount of compensatory
damages is not particularly large, a higher ratio between the punitive and
compensatory damages will generally comport with due process. See id. Here the
punitive-damages award is four times the compensatory-damages award, well within
the single-digit range. We have approved punitive damages awards in this range
where the conduct was especially reprehensible, see, e.g., Kim v. Nash Finch Co.,
123 F.3d 1046, 1067 (8th Cir. 1997), and have observed that the gravity of the
defendant's offense is the dominant consideration when determining the
constitutionality of such an award, see Diesel Machinery, Inc. v. B.R. Lee Industries,
Inc., 418 F.3d 820, 839 (8th Cir. 2005).

      The district court found on an ample record that as a result of Mr. Fisher's
behavior Mr. Bowles suffered considerable mental anguish. On one occasion, he
ground his teeth so hard that he broke one; and the harassment that he suffered caused

                                         -4-
him to drink more heavily and led to domestic upheavals. Mr. Bowles's injuries
flowed from Osmose's indifference to the racially discriminatory behavior of its
foreman. The punitive damages award is not excessive, given the egregiousness of
Osmose's conduct and the injuries that it caused.

       Osmose also challenges the award of punitive damages because Mr. Bowles
did not ask for punitive damages in either his original or amended complaint.
Osmose, however, was unarguably on notice of Mr. Bowles's intention to seek
punitive damages three weeks before trial, when Mr. Bowles explicitly stated in his
pre-trial disclosure material that he would do so. And Osmose had arguably been
notified of Mr. Bowles's intention over three months before trial, when, during the
discovery process, Mr. Bowles requested information on Osmose's net worth, a
request that made sense only if Mr. Bowles intended to seek punitive damages.

        The Federal Rules of Civil Procedure establish a simplified standard for
pleading in civil actions. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513-14
(2002). Chief among the values that the Rules promote is notice: "The essential
function of notice pleading 'is to give the opposing party fair notice of the nature and
basis or grounds for a claim, and a general indication of the type of litigation
involved.' " Northern States Power Co. v. Federal Transit Admin., 358 F.3d 1050,
1056-57 (8th Cir. 2004) (quoting Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d
707, 714 (8th Cir. 1979)). Here, Mr. Bowles filed a document three weeks before
trial that explicitly notified Osmose of his intention to seek punitive damages. Cf.
Scutieri v. Paige, 808 F.2d 785, 790-92 (11th Cir. 1987). This provided Osmose with
adequate time to conform its defense to the plaintiff's announced objectives, and
serves to distinguish this case from Anheuser-Busch, Inc. v. John Labatt, Ltd., 89 F.3d
1339, 1350 (8th Cir. 1996). Though the complaint might have been more artfully
drawn, Osmose knew before trial what sort of claims Mr. Bowles's lawsuit involved.




                                          -5-
       While the complaint did not ask for punitive damages, Fed. R. Civ. P. Rule
54(c) provides that "every final judgment shall grant the relief to which the party in
whose favor it is rendered is entitled, even if the party has not demanded such relief
in the party's pleadings." Osmose maintains that awarding punitive damages in this
instance runs contrary to Fed. R. Civ. P. 9(g), which states that "[w]hen items of
special damage are claimed, they shall be specifically stated." But even if punitive
damages are "special" within the meaning of this rule, the object of the rule is to
guard against unfair surprise, and, for the reasons that we have already indicated, that
object is fully satisfied here. Osmose asserts that it would have called different
witnesses had it been apprised more fully of Mr. Bowles's claims. But, as the district
court noted, all the corporate witnesses whom Osmose asserts that it would have
called actually testified at trial. Osmose therefore suffered no prejudice in this
respect.

                                      III.
      For the aforementioned reasons, we affirm the judgment of the district court.
                     ______________________________




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