                                     No. 95-2531


Virginia L. Stemmons,                         *
                                              *
      Appellee,                               *
                                              *   Appeal from the United States
     v.                                       *   District Court for the Western
                                              *   District of Missouri.
Missouri Department of                        *
Corrections,                                  *
                                              *
      Appellant.                              *




                        Submitted:      February 14, 1996

                              Filed:    May 7, 1996


Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Virginia Stemmons applied to be an Educational Supervisor I at the
school at the Boonville, Missouri, Correctional Center.                Before applying
for this position, Ms. Stemmons had worked as a teacher for the Missouri
Department of Corrections ("the department") for more than twenty years and
had taught at the Boonville prison school for over ten.                Although twenty
candidates were eligible to interview for the position, only eight elected
to do so.    Three department officials, Mary Hosier, Max Safely, and Dr.
John Bell, conducted the interviews.         Acting on the panel's recommendation,
the department hired Jay Fuzzell, a white man, for the position.


     Ms.    Stemmons   then   sued     the   department   for   race    discrimination
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a)(1).     Following a two-day trial, the jury returned a verdict
for Ms. Stemmons.    The department appeals and we affirm.


                                         I.
                                         A.
      The department first asserts that the district court1 erred when it
refused to give the jury a so-called "business judgment" instruction.          At
the   instructions   conference,   the    department   proposed   the   following
instruction:
            An employer has the right to assign work to an employee,
      to change an employee's duties, or to refuse to promote an
      employee to a particular job for a good reason, bad reason, or
      no reason at all absent intentional discrimination based on ...
      race.

            You should not find that the failure to promote plaintiff
      is unlawful just because you may disagree with the defendant's
      stated reasons or because you believe the decision was harsh or
      unreasonable, as long as the defendant would have reached the
      same decision regardless of the plaintiff's ... race.
Although the plaintiff raised no objection to this instruction, the
district court rejected it.   Instead, it simply instructed the jury to find
for Ms. Stemmons if "race was a motivating factor" in the decision and if
the department would have selected her if she had not been black.


      In Walker v. AT&T Technologies, 995 F.2d 846, 849-50 (8th Cir. 1993),
we ordered a new trial because the district court refused to instruct the
jury that the defendant had a right to make employment decisions for any
reasons except discriminatory ones.           The department argues that Walker
required the district court to give the business judgment instruction in
this case.     (The department correctly notes that the language of the
proposed instruction was taken directly from the text of Walker.         See id.
at 850.)




      1
      The Honorable Scott O. Wright, United States District Judge
for the Western District of Missouri.


                                     -2-
Ms. Stemmons, on the other hand, contends that Walker's holding was
confined to the narrow facts of that case.


     It is true that Walker contains language that can be read to limit
its holding to a specific set of facts.      See id. at 849-50.   But we also
made it clear in Walker that "when a proposed instruction addresses an
issue that is crucial to a fair presentation of the case to the jury, the
trial court has the obligation to give an appropriate instruction on that
issue."   Id. at 849.   It is well settled that an employer "is entitled to
make its own subjective personnel decisions ... for any reason that is not
discriminatory."   Blake v. J. C. Penney Company, Inc., 894 F.2d 274, 281
(8th Cir. 1990); see also Neufeld v. Searle Laboratories, 884 F.2d 335, 340
(8th Cir. 1989) ("courts have no business telling [employers] how to make
personnel decisions"); Smith v. Monsanto Chemical Co., 770 F.2d 719, 723
n.3 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986) ("[i]t is an
employer's business prerogative to develop as many arbitrary, ridiculous
and irrational rules as it sees fit").     We believe, therefore, that, in an
employment discrimination case, a business judgment instruction is "crucial
to a fair presentation of the case," Walker, 995 F.2d at 849, and we agree
with the department that the district court must offer it whenever it is
proffered by the defendant.    (A defendant is not, of course, entitled to
demand that the business judgment instruction include specific language.
Blake, 894 F.2d at 282.   "[T]he form and language of jury instructions are
committed to the sound discretion" of the district court.    Walker, 995 F.2d
at 849, quoting Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th
Cir.), cert. denied, 506 U.S. 1014 (1992).)


                                     B.
     Although the district court erred when it refused to give a     business
judgment instruction, a new trial would be in order only if the error
prejudiced the department.    Walker, 995 F.2d at 850;




                                     -3-
Crues v. KFC Corp., 729 F.2d 1145, 1152 (8th Cir. 1984).         In this case, we
believe that the omission was not prejudicial because the trial record
leads us to conclude that the absence of a business judgment instruction
did not affect the verdict.


       There is no contention that Ms. Stemmons did not make a prima facie
case that she was discriminated against because of her race.                But the
department articulated a non-discriminatory reason for not hiring Ms.
Stemmons.     It claimed that Mr. Fuzzell was selected because he had more,
and more recent, administrative experience than Ms. Stemmons.            Department
officials also claimed that they preferred Mr. Fuzzell because he had more
computer    experience   than   Ms.   Stemmons   and   because   he    dressed   more
professionally than Ms. Stemmons for the interview.


       At that point, the burden shifted to Ms. Stemmons to demonstrate that
the department's explanation was pretextual.       One way of doing that was to
present "'evidence of conduct or statements by persons involved in the
decisionmaking process that may be viewed as directly reflecting the
alleged discriminatory attitude ... sufficient to permit the factfinder to
infer that that attitude was more likely than not a motivating factor in
the employer's decision.'"      Radabaugh v. Zip Feed Mills, Inc., 997 F.2d
444, 449 (8th Cir. 1993), quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968
F.2d 171, 182 (2d Cir. 1992); see also Beshears v. Asbill, 930 F.2d 1348,
1354   (8th   Cir.   1991)   (relying   on    "[c]omments   which     demonstrate   a
discriminatory animus in the decisional process ... or those uttered by
individuals closely involved in employment decisions") (internal quotation
marks and citations omitted).         We believe that Ms. Stemmons did indeed
produce evidence that a reasonable factfinder could conclude proved that
the department's explanation was pretextual.




                                        -4-
      Within forty-eight hours after her interview, and before she learned
that she had not been selected, Ms. Stemmons sent a twenty-nine-page letter
to Gail Hughes, Deputy Director of the Missouri Department of Corrections.
In the letter, she complained about the way that she had been treated both
before and during her interview, and she expressed her belief that she was
mistreated because of her race.        She was particularly upset about several
comments made by department officials.            Ms. Stemmons presented evidence at
trial substantiating the complaints in her letter.                 She testified that she
asked her immediate supervisor, Mr. Safely, if she could leave her class
twenty-five minutes before the interview.             Mr. Safely refused her request
and instead allowed her to leave ten minutes early.                Ms. Stemmons testified
that, because she only had ten minutes, she could not change into a suit
or dress for the interview.          At trial, one reason the panel members gave
for   preferring    Mr.    Fuzzell   was    that    he     was   wearing   a   suit,   while
Ms. Stemmons was not dressed professionally.                (She was wearing pants and
a sweater.)


      While she waited for her interview to begin, Ms. Stemmons spoke with
David Miller, the Superintendent of the Department of Corrections.                        She
testified that, after informing Mr. Miller that she was interviewing to be
an Educational Supervisor I, he told her, "You're not going to get this
position."      (Mr. Miller testified that he said, "You don't want that
position, do you?")       She was upset by his remark and attempted to speak to
Dr. Bell about it as he left the interview room.                 She testified that, after
relaying the exchange to Dr. Bell, he replied "Good ol' Miller, did he say
that?"    Dr.    Bell     admitted   that   he     might    have    made   such   a   remark.
Ms. Stemmons also testified that, after Dr. Bell made that comment, he
stopped Larry Wilson (another department employee) in the hallway, laughed,
and said, "Larry, Virginia here is looking for an administration job, can
you believe that?       Do you have any administration jobs you can let Virginia
have?"   (Dr. Bell




                                            -5-
remembered the exchange somewhat differently; he testified that he said,
"Larry, do you have Educational Supervisor positions open?     Ms. Stemmons
is interested in such a position.")


     All of the relevant witnesses testified that Ms. Stemmons was upset
when she began the interview and that she became more upset as the
interview progressed.     Ms. Stemmons testified that the panel did not ask
her any of the questions that the department had scripted for Educational
Supervisor interviews.    Instead, she testified that Dr. Bell asked her the
following string of questions:      "Suppose nobody wants to work for you?
Suppose everybody quits?       Suppose nobody will let you come into their
classroom to evaluate them?"    Ms. Stemmons responded, "Are you saying this
-- that nobody would want to work for me because I'm a black lady?"     She
testified that Dr. Bell replied, "Yes, Virginia, you're black, and that
ain't gonna change, so how are you going to deal with it?"         Dr. Bell
testified that he remembered Ms. Stemmons expressing concern that her race
had affected her promotional opportunities, but he did not recall the exact
nature of the exchange.   Ms. Hosier, however, testified that she remembered
Dr. Bell making a similar statement to Ms. Stemmons.        Mr. Safely also
remembered the comment, but explained that he felt that Dr. Bell was merely
trying to get Ms. Stemmons to answer the original question.


     Ms. Hosier also admitted that she had written the words "block out
race" in her notes during Ms. Stemmons's interview.   During her deposition,
Ms. Hosier could not explain what this notation meant.    During the trial,
however, Ms. Hosier testified that she simply scribbled the note in
response to something Ms. Stemmons said.    Ms. Stemmons's attorney pointed
out the discrepancy during Ms. Hosier's testimony.




                                     -6-
     All of this evidence tends to undermine the department's proffered
reason for denying Ms. Stemmons a promotion, and thus to establish that it
was a pretext.     In light of this evidence, moreover, we believe that the
district court's failure to give a business judgment instruction was
harmless error.      The department was given the opportunity to present
evidence supporting its assertion that Mr. Fuzzell was selected for
non-discriminatory reasons.     May v. Arkansas Forestry Comm'n, 993 F.2d 632,
638 (8th Cir. 1993).      (The jury was, of course, entitled to draw any
reasonable inferences from the evidence and to credit or discredit any
testimony.)   Furthermore, the department's attorney explained the business
judgment rule to the jury during his closing argument, and the court
instructed the jury not to find for Ms. Stemmons if she would not have been
selected regardless of her race.


     The record in this case is unlike Walker, 995 F.2d at 850, where we
found that the defendant was prejudiced by the court's failure to give a
business judgment instruction.     In Walker, the plaintiff's case consisted
primarily of the testimony of co-workers who indicated that the plaintiff
was the most qualified candidate.         Id.       None of that testimony directly
indicated that the plaintiff's age (the relevant question in Walker) played
a part in the hiring decision.     Id.    In this case, on the other hand, the
jury heard testimony that very strongly suggested that race affected the
hiring decision.


                                         II.
     The    department   also   urges    us    to    reverse   the   judgment   because
Ms. Stemmons's attorney made an improper comment during his closing
argument.     The attorney began his remarks by stating, "You know, ladies
and gentlemen, I don't take these cases very often, and I only take them
when I think there is something there."         The department's attorney objected
to the remark, but the trial court overruled the objection.




                                         -7-
     We have held that "to constitute reversible error, statements made
in closing arguments must be plainly unwarranted and clearly injurious."
Griffin v. Hilke, 804 F.2d 1052, 1057 (8th Cir. 1986), cert. denied, 482
U.S. 914 (1987).    Reversal is inappropriate "when the error is harmless and
did not affect the substantial rights of the parties."           Williams v.
Fermenta Animal Health Co., 984 F.2d 261, 266 (8th Cir. 1993).       A party
seeking reversal in circumstances like the present ones must make a
"concrete showing" that he or she was prejudiced by the objectionable
statement.    Vanskike v. Union Pacific R.R. Co., 725 F.2d 1146, 1149 (8th
Cir. 1984).


     Although counsel should not have expressed his opinion about the
merits of the case, see, e.g., Johnson v. Bowers, 884 F.2d 1053, 1055-56
(8th Cir. 1989), the department does not claim that the attorney behaved
inappropriately at any other time, and we do not believe that this one
isolated remark during the closing statement affected the jury's verdict.
See Sanders-El v. Wencewicz, 987 F.2d 483, 485 (8th Cir. 1993) ("[i]f this
were an isolated incident ... we might have difficulty finding prejudice");
City of Malden v. Union Elec. Co., 887 F.2d 157, 164 (8th Cir. 1989)
("[d]efense counsel's comments were brief and were made in the context of
a lengthy closing argument").


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


     A true copy.


              Attest:


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




                                     -8-
