F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 19 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MURIEL D. BURCH, as parent
and next best friend of her children
DARA JONES, a minor; DANA
JONES, a minor; DESEREE JONES,
a minor; and LAYTHATCHER
JONES, a minor,
Plaintiffs-Appellees,
v. No. 99-5057
(D.C. No. 97-CV-898-K)
LA PETITE ACADEMY INC., (N.D. Okla.)
a Delaware corporation,
Defendant-Appellant,
and
OKLAHOMA COMMISSION FOR
HUMAN SERVICES; OKLAHOMA
DEPARTMENT OF HUMAN
SERVICES,
Defendants.
ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiffs, minor children by and through their mother, Muriel Burch,
brought suit against defendants, alleging claims of racial discrimination,
intentional infliction of emotional distress, invasion of privacy, and negligent
supervision. A jury found for plaintiffs and against defendant La Petite Academy
Inc. 2 on claims of racial discrimination pursuant to 42 U.S.C. § 1981, and
negligent supervision, and awarded both compensatory and punitive damages.
La Petite’s appeal is limited to a challenge of the district court ’s submission of
punitive damages to the jury. We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291.
La Petite contends that there is insufficient evidence supporting liability for
punitive damages due to the acts of its employees, citing Fitzgerald v. Mountain
States Tel. & Tel. Co. , 68 F.3d 1257 (10th Cir. 1995). “Whether sufficient
evidence exists to support punitive damages is a question of law reviewed
2
The remaining defendants were dismissed on summary judgment before
trial. See Appellant’s App., Vol. I at 90.
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de novo.” Id. at 1262. After a careful review of the record on appeal, we
disagree with defendant’s argument. Fitzgerald sets out a disjunctive test that
can be satisfied upon a showing of any one of four factors, one of which is that
“the agent was employed in a managerial capacity and was acting in the scope of
employment.” See id. at 1263. There is sufficient evidence in the record to
satisfy this prong.
La Petite also argues, based on recent Supreme Court and Tenth Circuit
authority, that it should not be found liable for discriminatory acts of its
employees due to its nondiscrimination policy and testimony from its employees
that they were aware of such policy. Because we conclude that this evidence does
not demonstrate good faith efforts by defendant to educate its employees and
enforce a policy prohibiting discrimination, we need not decide whether such
efforts would preclude vicarious liability for an employee’s discrimination in
violation of § 1981, see EEOC v. Wal-Mart Stores, Inc. , 187 F.3d 1241, 1248-49
(10th Cir. 1999) (discussing Kolstad v. American Dental Ass’n , 119 S. Ct. 2118,
2128-29 (1999)).
La Petite also contends that Oklahoma law does not recognize actions for
negligent supervision. We agree with plaintiffs that, because defendant failed to
present this legal argument to the district court at any time, it has also failed to
preserve it for appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896
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(10th Cir. 1992). 3
La Petite further argues that there was no evidence that it acted
maliciously and wantonly. Again, we disagree; the record contains sufficient
evidence from which a jury could conclude otherwise.
In connection with its challenges to both issues, La Petite also asserts error
in the district court ’s admission of rebuttal testimony from witness Aneatria
Whitley. We review this ruling only for abuse of discretion. See Koch v. Koch
Indus., Inc. , 203 F.3d 1202, 1224 (10th Cir. 2000). “This court in fact endows the
district court with ‘broad discretion’ in deciding whether to admit or exclude
rebuttal evidence.” Id. (further quotation omitted). Our review convinces us that
the district court did not abuse its discretion in allowing Ms. Whitley’s testimony.
3
La Petite contends that it did object, but a review of the record indicates
that these objections were sufficiency of the evidence objections, not the
argument based on Oklahoma law that it now presents on appeal.
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We conclude that the district court did not err in submitting the issue of
punitive damages to the jury in this case. The judgment of the United States
District Court for the Northern District of Oklahoma is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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