F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 12 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
LYNN M. CADENA,
Plaintiff-Appellee,
v.
No. 99-3047
THE PACESETTER CORPORATION,
No. 99-3166
Defendant-Appellant.
___________
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Amicus Curiae.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 97-CV-2659-KHV)
Richard P. Barkley, of Brownstein, Hyatt & Farber, P.C. (Lisa Hogan, of
Brownstein, Hyatt & Farber, P.C., Denver, Colorado, and Carl A. Gallagher and
Patrice M. Brown, of McAnany, Van Cleave & Phillips, P.C., Kansas City,
Kansas, with him on the briefs) for Appellant.
Michael S. Ketchmark, of Davis, Ketchmark & Eischens (Brett A. Davis, of
Davis, Ketchmark & Eischens, Kansas City, Missouri, and Scott A. McCreight
and Korey A. Kaul, of Sprenger & McCreight, L.C., Kansas City, Missouri, with
him on the brief), for Appellee.
John F. Suhre, Attorney (C. Gregory Stewart, General Counsel Designate, Vincent
J. Blackwood, Assistant General Counsel, Philip B. Sklover, Associate General
Counsel, and Jodi B. Danis, Attorney, on the brief), of the Equal Employment
Opportunity Commission, Office of General Counsel, Washington, D.C., for
Amicus Curiae.
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
For four months, Lynn Cadena’s supervisor at work subjected her to severe
sexual harassment. As a consequence, Cadena successfully sued her former
employer, the Pacesetter Corporation (“Pacesetter”), for violating Title VII of the
1964 Civil Rights Act. Pacesetter brought two separate appeals, which are now
consolidated in the instant appeal. Pacesetter first challenges the underlying
judgment, asserting the following arguments: (1) the district court erred in
denying its post-verdict motion for judgment as a matter of law because no
reasonable jury could have rejected its affirmative defense premised on Faragher
v. City of Boca Raton, 118 S. Ct. 2275 (1998) and Burlington Industries v.
Ellerth, 118 S. Ct. 2257 (1998); (2) in light of the Supreme Court’s decision in
Kolstad v. American Dental Association, 119 S. Ct. 2118 (1999), rendered
subsequent to the entry of judgment, Pacesetter is entitled to either judgment as a
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matter of law or a new trial on the issue of punitive damages; and (3) the district
court’s erroneous admission of testimony mandates a new trial. Pacesetter also
appeals the district court’s award of attorneys’ fees. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, this court affirms the judgments entered by the
district court.
II. BACKGROUND
A. Factual Background
Pacesetter is a home improvement company which sells windows, siding,
doors, and cabinets. In July 1996, Pacesetter hired Cadena to work as a
telemarketer in its Lenexa, Kansas office. During the relevant time period,
Timothy Whittinghill was the general manager of the Lenexa office. Charles
Bauersfeld, David Hawley, and Ann Humphrey were the telemarketing managers
for that office and supervised Cadena.
Several months after Cadena was hired, Bauersfeld began subjecting her to
a steady barrage of severe sexual harassment. In November, Bauersfeld told
Cadena he had experienced a “wet dream” about her which “was erotic” and that
he “couldn’t wait to have more.” Cadena immediately complained about this
comment to Hawley, who responded by stating “that is the way Charlie is.”
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Hawley further indicated that officials at the company’s headquarters knew about
Bauersfeld’s behavior but tolerated it.
Following that first harassing comment, Bauersfeld often told Cadena that
she needed to go out with him “so that he could have more wet dreams about
[her].” Bauersfeld constantly made references of a sexual nature to Cadena. One
day, for example, when Cadena was not having great success with telemarketing,
Bauersfeld asked, “What’s wrong, Lynn, aren’t you getting enough sex?”
Another time, when Cadena asked Bauersfeld “where do you want me,” referring
to which cities he wanted her to call, Bauersfeld responded, “Well, preferably on
my desk.”
Bauersfeld also physically harassed Cadena on a regular basis. Bauersfeld
would often call Cadena into his office and touch her in a sexual manner,
massaging her lower back, putting his arms around her, touching her hair and the
front of her body. He would touch her in this manner most often when she was on
the phone conducting her telemarketing work. Bauersfeld even asked Cadena to
change her physical appearance so she would not “turn[] him on too much.”
Finally, on February 13, 1997, Bauersfeld approached Cadena in her
cubicle and stated, “Lynn, why don’t you flash Rick your breasts to get him
going. I know that sure as hell would turn me on.” Bauersfeld then told Cadena,
“I am just joking,” but immediately thereafter whispered in her ear, “You know
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what they say, though, Lynn, the truth is always said in jest.” After Cadena
completed her phone call, she began crying. Subsequently, she entered
Bauersfeld’s office and told him that his behavior bothered her and that it needed
to stop. Bauersfeld merely responded, “Honey, I didn’t mean anything by it. You
know, you are one of my favorite sweethearts.”
The following day, Cadena informed Hawley of the incident and
complained to him about all of the harassment which she had endured. Hawley
simply shrugged his shoulders and stated, “Lynn that’s the way he is. . . . There’s
nothing nobody can do about it. That’s Charlie for you. What can I say?”
Hawley indicated further that Whittinghill and people at Pacesetter’s corporate
headquarters were aware of Bauersfeld’s conduct but would do nothing about it
because Bauersfeld made too much money for Pacesetter. Finally, Hawley
suggested that if Cadena was unhappy with the situation, she should quit. Cadena
also attempted to discuss the situation with Whittinghill that week, but he was not
in the office.
On February 20, Cadena delivered a letter of resignation, which reiterated
the problems she had been experiencing with Bauersfeld. That same day, Hawley
flew to Florida, where Whittinghill was already vacationing, to play golf with
Whittinghill. While there, Hawley informed Whittinghill about Cadena’s
complaint. When Whittinghill returned to Kansas, he questioned Bauersfeld
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about the February 13 incident, which Bauersfeld fully admitted. On February 28,
Whittinghill telephoned Cadena, who informed him of all the problems she had
experienced with Bauersfeld. Whittinghill then told her she should view
Bauersfeld’s conduct as a compliment to Cadena’s attractiveness. Whittinghill
also tried to make Cadena feel guilty about jeopardizing Bauersfeld’s career by
emphasizing Bauersfeld’s vision problems. Finally, Whittinghill offered Cadena
a raise if she would return to work and drop her sexual harassment complaint.
The following week, Cadena wrote Whittinghill a letter setting out the
incidents of sexual harassment and the company’s failure to address the problem
and indicating she did not wish to return to work. In response, Whittinghill called
her again, telling Cadena that Bauersfeld had been written up and would be fired
if another incident occurred. The next day, Cadena phoned Hawley, who opined
that Bauersfeld would not be fired even if he continued his sexually harassing
behavior. Cadena did not return to work at Pacesetter.
B. Procedural Background
On March 27, 1997, Cadena filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”), which issued Cadena a
Notice of Right to Sue. In December, she sued Pacesetter in federal district court,
alleging Pacesetter had violated Title VII of the 1964 Civil Rights Act. See 42
U.S.C. § 2000e et. seq. Pacesetter subsequently moved for summary judgment,
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ultimately relying on the affirmative defense delineated in Faragher v. City of
Boca Raton, 118 S. Ct. 2275 (1998) and Burlington Industries v. Ellerth, 118 S.
Ct. 2257 (1998). The district court denied Pacesetter’s motion for summary
judgment, concluding that Cadena had alleged facts from which a jury could
reject the Burlington/Faragher defense.
The district court held a three-day jury trial in September of 1998. The jury
ultimately returned a verdict in favor of Cadena and against Pacesetter. The jury
awarded Cadena $50,000 in compensatory damages for emotional distress and
$700,000 in punitive damages. The district court then reduced the total award to
$300,000 pursuant to the statutory cap and entered judgment reflecting this award.
See 42 U.S.C. § 1981a(b)(3)(D). Pacesetter subsequently moved for judgment as
a matter of law or, in the alternative, a new trial. The district court denied that
motion.
Cadena then moved for attorneys’ fees and related expenses totaling
$163,582. Pacesetter objected to this motion, arguing, inter alia, that Cadena had
engaged in the disapproved practice of “block billing.” The district court denied
that objection but reduced the fees sought by Cadena, awarding her $138,104 in
fees and costs.
III. DISCUSSION
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A. Judgment as a Matter of Law on the Burlington/Faragher Defense
Burlington and Faragher provide an employer an affirmative defense to a
Title VII claim premised on vicarious liability when there has been no tangible
employment action taken against the employee. 1 To succeed on the defense, the
employer must establish by a preponderance of the evidence two elements: “(a)
that the employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.” Faragher, 118 S. Ct. at 2292-93; see
also Burlington, 118 S. Ct. at 2270. The two elements of the
Burlington/Faragher defense were submitted as special interrogatories to the jury,
which found Pacesetter failed to meet its burden on both elements. Pacesetter
then moved for judgment as a matter of law, arguing no reasonable jury could
have found against it on the Burlington/Faragher defense. The district court
denied that motion, and Pacesetter now appeals that ruling.
This court reviews de novo the district court’s denial of a motion for
judgment as a matter of law, construing the evidence in a light most favorable to
the nonmoving party. See Vining v. Enterprise Fin. Group, 148 F.3d 1206, 1213
Cadena does not assert on appeal that she suffered any tangible
1
employment action. This court, therefore, offers no opinion on that question.
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(10th Cir.1998). “[W]e . . . will reverse only if there is no legally sufficient
evidentiary basis ... with respect to a claim or defense ... under the controlling
law.” Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1412 (10th Cir.
1999) (quotation omitted). Because the affirmative defense in this case requires
Pacesetter to demonstrate two elements, we must affirm the district court’s denial
of the motion if a reasonable jury could have found against Pacesetter on either
element. See Clark v. Brien, 59 F.3d 1082, 1086 (10th Cir. 1995).
Contrary to Pacesetter’s contention, a reasonable jury could well conclude
that Pacesetter had failed to demonstrate by a preponderance of the evidence “that
[Pacesetter] exercised reasonable care to prevent and correct promptly any
sexually harassing behavior.” Faragher, 118 S. Ct. at 2293. In arguing that
Pacesetter promptly corrected Bauersfeld’s sexual harassment of Cadena,
Pacesetter relies entirely on the evidence of Whittinghill’s actions after he learned
about Bauersfeld’s flashing comment of February 13, 1997. 2 Pacesetter, however,
fails to acknowledge the substantial evidence demonstrating that Whittinghill, as
well as people working at Pacesetter’s corporate headquarters, knew of
2
Pacesetter concedes that if Whittinghill did not exercise reasonable care to
promptly correct Bauersfeld’s sexually harassing behavior, the jury would be
entitled to reject the Burlington/Faragher defense. Because this court concludes
the evidence supported a finding that Whittinghill did not take reasonable steps to
remedy Bauersfeld’s conduct, we need not decide the disputed question of
whether the company could also be liable based on Hawley’s or Humphrey’s
similar inaction.
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Bauersfeld’s harassing behavior well before the February 1997 incident yet did
nothing to stop it.
For example, Cadena testified that when she complained to Hawley both in
November of 1996 and February of 1997, Hawley stated that Whittinghill and
other corporate officers were already cognizant of Bauersfeld’s sexually harassing
conduct but would not address it because he made too much money for the
company. Moreover, Greg Fuller, Cadena’s co-worker, testified that when he
complained to Whittinghill about Bauersfeld’s offensive behavior in February
1997, Whittinghill merely responded “that things had been that way for a long
time at Pacesetter, that the business world was full of pricks like Charlie . . .
[a]nd . . . to get used to it because that is the way the business world was.”
Fuller’s testimony suggests that Whittinghill was previously aware of
Bauersfeld’s conduct but that neither he nor anyone else at Pacesetter intended to
stop it. Finally, Cadena testified that the first time Whittinghill spoke with her
about her complaints, he justified Bauersfeld’s behavior as a “compliment” to
Cadena and did not offer to take corrective action. Instead, he simply told
Cadena if she returned to work and dropped her complaints she would receive a
raise. A jury could reasonably conclude that this response did not constitute
“reasonable care to . . . correct promptly [the] sexually harassing behavior.” Id.
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In addition to the ample evidence demonstrating Whittinghill’s less than
reasonable efforts to remedy Bauersfeld’s sexual harassment, other evidence was
presented indicating the company’s investigation of Bauersfeld’s conduct was
inadequate, if not a complete sham. Cricket Thompson, Pacesetter’s assistant
vice-president of Human Resources who was in charge of investigating
Bauersfeld’s sexual harassment in early 1997, conceded that she never spoke with
Cadena, Bauersfeld, Humphrey, Hawley, Whittinghill, or Fuller. Thompson
further admitted that when she conducted her investigation, she did not know that
Cadena was the complainant or that Bauersfeld was the harasser. Thompson even
testified that she was unsure if she had ever been told the nature or the specifics
of the complaint.
Based on all this evidence, 3 the jury’s finding that Pacesetter failed to
prove by a preponderance of the evidence that it “exercised reasonable care to
prevent and correct promptly [Bauersfeld’s] sexually harassing behavior” was
more than reasonable. Id. Because the jury reasonably found Pacesetter failed to
meet its burden on the first element of the Burlington/Faragher defense, the
3
We do not mean to suggest that the evidence discussed above constitutes
the only evidence to support the jury’s finding on the first element of Pacesetter’s
affirmative defense. It is, however, more than sufficient to support that finding.
This court, therefore, need not discuss other such evidence.
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district court properly denied Pacesetter’s post-verdict motion for judgment as a
matter of law based on that defense.
B. Pacesetter’s Kolstad Arguments
Subsequent to the district court’s entering judgment, which included an
award of punitive damages, the Supreme Court handed down its decision in
Kolstad v. American Dental Association, 119 S. Ct. 2118 (1999). In Kolstad, the
Court held that in a Title VII case based on vicarious liability for the acts of a
managerial employee, the employer cannot be liable for punitive damages if the
managerial employee’s actions were “contrary to the employer’s good-faith
efforts to comply with Title VII.” Id. at 2129 (quotation omitted). Pacesetter
first argues that this court should reverse the district court’s judgment and enter
judgment as a matter of law in its favor on the issue of punitive damages because
the undisputed evidence demonstrates that Bauersfeld’s harassing conduct was
contrary to Pacesetter’s good faith efforts to prevent sexual harassment and thus
comply with Title VII. Based on a review of the evidence, this court concludes
that Pacesetter is not entitled to judgment as a matter of law under Kolstad. 4
4
It is unclear whether the good-faith-compliance standard set out in Kolstad
represents an affirmative defense on which the defendant bears the burden of
proof or whether the plaintiff must disprove the defendant’s good faith
compliance with Title VII. See Kolstad v. American Dental Ass’n, 119 S. Ct.
2118, 2128-30 (1999). This court need not resolve that question in the instant
case. Even assuming that, under Kolstad, Cadena would be required to prove by a
preponderance of the evidence that Pacesetter failed to make good faith efforts to
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This court recently stated that “Kolstad provides us no definitive standard
for determining what constitutes good-faith compliance with” Title VII. EEOC v.
Wal-Mart Stores, Inc., 187 F.3d 1241, 1248 (10th Cir. 1999). Wal-Mart,
however, recognized that to avail itself of Kolstad’s good-faith-compliance
standard, an employer must at least adopt antidiscrimination policies and make a
good faith effort to educate its employees about these policies and the statutory
prohibitions. See id. at 1248-49. Pacesetter asserts that the undisputed evidence
demonstrates both that it maintains a strong policy against sexual harassment and
that it adequately trained its employees to comply with that policy and Title VII.
Contrary to Pacesetter’s contention, there was evidence presented at trial
undermining Pacesetter’s claim that it made good faith efforts to educate
employees about sexual harassment. For example, Humphrey, the manager
responsible for sexual harassment training at the office where Cadena worked,
testified that she discussed the topic of sexual harassment at meetings with her
co-workers on a monthly basis. However, Richard Payne, another telemarketing
manager at the Lenexa office, testified that no such monthly training sessions
occurred. More significantly, Humphrey conceded that when she gave her
deposition testimony, she believed that a male supervisor would not commit
comply with Title VII in order to recover punitive damages from Pacesetter, the
evidence presented was sufficient to meet that standard.
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sexual harassment if he either exposed his genitalia to a female subordinate or
grabbed her breasts, so long as he apologized after the incident. Based on
Humphrey’s admitted ignorance about sexual harassment, a jury could reasonably
infer that Pacesetter failed to make good faith efforts to adequately educate its
employees about its non-discrimination policy and Title VII.
Moreover, Kolstad itself suggests that the good-faith-compliance standard
requires the employer to make “good faith efforts to enforce an antidiscrimination
policy.” 119 S. Ct. at 2130 (emphasis added). Therefore, even if an employer-
defendant adduces evidence showing it maintains on paper a strong non-
discrimination policy and makes good faith efforts to educate its employees about
that policy and Title VII, a plaintiff may still recover punitive damages if she
demonstrates the employer failed to adequately address Title VII violations of
which it was aware. As discussed supra, Cadena presented substantial evidence
suggesting that Pacesetter knew about Bauersfeld’s sexually harassing conduct
but failed to take any action to stop it. See supra Section III.A. Because
sufficient evidence was presented on which a jury could have found Pacesetter did
not make good faith efforts to comply with Title VII, this court will not enter
judgment as a matter of law in favor of Pacesetter on the question of punitive
damages.
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Pacesetter alternatively contends it is entitled to a new trial on punitive
damages because (1) the jury was not instructed on the Kolstad good-faith-
compliance standard, (2) the jury applied the wrong standard in deciding the
question of punitive damages, 5 and (3) the district court similarly applied the
wrong standard on punitive damages when resolving Pacesetter’s post-verdict
motion for judgment as a matter of law. This court concludes that Pacesetter
waived the first two of these challenges to punitive damages. Federal Rule of
Civil Procedure 51 provides, “No party may assign as error the giving or the
failure to give an instruction unless that party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter objected to and the
grounds of the objection.” Pacesetter does not and cannot contend that it objected
to the district court’s instruction to the jury concerning the standard for imposing
punitive damages. Pacesetter stipulated to a substantially similar instruction to
the one given and did not itself propose a good faith compliance instruction.
Instead, Pacesetter argues it should be excused from the objection requirement of
5
This court fails to understand the difference between these first two
arguments. A jury applies whatever legal standard the district court instructs it to
apply. See United States v. Lonedog, 929 F.2d 568, 576 (10th Cir. 1991) (noting
that this court assumes the jury followed its instructions). If the jury in this case
applied an incorrect legal standard, it only did so because the jury instructions
were erroneous. Pacesetter’s challenge, therefore, must be to the instructions
informing the jury of the standard to apply in resolving the punitive damages
issue.
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Rule 51 because Kolstad represents a significant change in the law subsequent to
the trial. Pacesetter’s position is that it could not be expected to have anticipated
this change and, therefore, it is entitled to a new trial even if it failed to object to
the punitive damages instructions as otherwise required by Rule 51.
In support of this argument, Pacesetter cites three cases, United States v.
Spring, Anixter v. Home-Stake Production Co., and Key v. Rutherford, in which
this court remanded for a new trial because the jury was improperly instructed in
light of Supreme Court decisions handed down after judgment was entered. See
80 F.3d 1450, 1464-66 (10th Cir. 1996); 77 F.3d 1215, 1231-32 (10th Cir. 1996);
645 F.2d 880, 883 (10th Cir. 1981). This court, however, does not read these
cases as establishing a categorical rule that in an appeal from a district court
judgment, we must remand for a new trial whenever a Supreme Court decision
issued subsequent to the entry of that judgment calls into question or renders
incorrect jury instructions given at trial.
Spring was a criminal appeal in which this court reviewed the challenged
jury instructions for plain error, pursuant to Federal Rule of Criminal Procedure
52(b). The Spring court ultimately remanded for retrial only because it
determined that in light of a Supreme Court decision issued subsequent to the
defendant’s conviction, the instructions given at trial were plainly erroneous,
affected the defendant’s substantial rights, and undermined the fairness, integrity,
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or public reputation of the judicial proceedings. See 80 F.3d at 1464-66; see also
United States v. McGuire, 200 F.3d 668, 671 n.2 (10th Cir. 1999) (holding that
we review for plain error only a district court’s failure to submit a jury instruction
when the appellant-defendant made no objection at trial, even if the failure to
object was based upon well-settled circuit precedent subsequently overruled by
the Supreme Court). If a criminal defendant must show plain error rather than
automatic entitlement to a new trial when he failed to object to jury instructions
ultimately rendered erroneous by a subsequent Supreme Court decision, certainly
a similarly defaulting civil litigant is not automatically entitled to a new trial.
Moreover, in the two civil cases on which Pacesetter relies, this court made
clear that we will excuse a party’s failure to object to jury instructions and
address its challenge to those instructions on appeal only “when the interests of
justice require,” a standard which necessarily involves a case-by-case
determination. 6 Key, 645 F.2d at 883; see also Anixter, 77 F.3d at 1231-32 (“Like
6
We recognize that, in the civil context, this court has also stated it may
review the propriety of jury instructions which were not objected to at trial if the
instructions given were “patently plainly erroneous and prejudicial.” Medlock v.
Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir. 1999) (quotation omitted). It is
interesting to note that the Federal Rules of Civil Procedure reference neither the
patently-plainly-erroneous-and-prejudicial standard nor the interests-of-justice
exception to Rule 51. See Hammer v. Gross, 932 F.2d 842, 847 (9th Cir. 1991)
(en banc) (plurality opinion) (“[T]here is no ‘plain error’ exception [to Rule 51]
in civil cases in this circuit.”); Deppe v. Tripp, 863 F.2d 1356, 1361-62 (7th Cir.
1988) (noting “there is a conspicuous absence of a plain error doctrine provision
the Federal Rules of Civil Procedure” and holding that “in civil cases a plain error
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the court in Key, we believe that in this case the interests of justice and the
policies underlying Rule 51 reject forcing an appellant to object to a jury
instruction where, based on the state of the then applicable law, her objection
would have been futile.” (emphasis added)). This “rarely” applied “narrow
exception” to Rule 51, however, should not be employed in this appeal.
Glasscock v. Wilson Constructors, Inc., 627 F.2d 1065, 1067-68 (10th Cir. 1980).
Prior to trial in the instant case, this court had “not had occasion to
determine comprehensively what burden a plaintiff must carry” to be able to
receive punitive damages for a Title VII violation. Medlock v. Ortho Biotech,
Inc., 164 F.3d 545, 551 (10th Cir. 1999). One year before Cadena’s case went to
trial, however, the very district court in which this case was tried had issued a
published memorandum and order in a different case entitled Baty v. Willamette
Industries, rejecting a post-verdict motion for judgment as a matter of law on
doctrine is not available to protect parties from erroneous jury instructions to
which no objection was made at trial”). Apparently, these concepts are purely
creatures of case law. Even if this court, however, were to conclude that the
instructions given in the instant case were patently plainly erroneous and
prejudicial and thus determine whether relief is warranted, Pacesetter “has the
heavy burden of demonstrating fundamental injustice.” Medlock, 164 F.3d at 553
(quotation omitted). Upon a thorough review of the record in the instant case,
particularly the evidence which this court discussed in affirming the denial of
judgment as a matter of law on both the Burlington/Faragher defense and
punitive damages, we are satisfied that the district court’s failure to instruct the
jury on the good-faith-compliance standard did not result in a fundamental
injustice.
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punitive damages in a Title VII suit premised on vicarious liability. See 985 F.
Supp. 987, 996 (D. Kan. 1997); Baty v. Willamette Indus., 172 F.3d 1232, 1242
(10th Cir. 1999) (recognizing that the district court’s decision was limited to the
plaintiff’s vicarious liability theory). In Baty, the district court concluded that the
jury properly awarded punitive damages because, inter alia, “plaintiff presented
evidence from which a reasonable jury could have inferred that management did
not really respond to plaintiff’s complaints, despite knowledge of serious
problems with sexual harassment.” 7 See Baty, 985 F. Supp. at 996. In essence,
the district court ruled that a plaintiff asserting vicarious liability against her
employer in a Title VII suit may receive punitive damages if she presents
evidence demonstrating the employer’s failure to make good faith efforts to
remedy known harassment. This standard is effectively the same as that
announced in Kolstad, in which the Court stated that under Title VII, an employee
is not entitled to punitive damages on a vicarious liability theory unless she
proves that the employer was not “making good faith efforts to enforce an
antidiscrimination policy.” Kolstad, 119 S. Ct. at 2130. The good-faith-
compliance standard articulated in Kolstad, therefore, was entirely consistent with
7
The district court’s ruling that the jury properly awarded punitive damages
was ultimately affirmed by this court on the precise grounds articulated by the
district court. See Baty v. Willamette Indus., 172 F.3d 1232, 1242-43 (10th Cir.
1999).
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an opinion which had been published by the district court in which Cadena
brought her suit at the time it went to trial.
Other circuits had similarly foreshadowed the pronouncement of the good-
faith-compliance standard in Kolstad prior to the instant trial. For example, in
Patterson v. P.H.P. Healthcare Corp., the Fifth Circuit reversed an award of
punitive damages because there was no evidence “to show that PHP Healthcare
took any action which was inconsistent with [its non-discrimination] policy . . .
[nor] that PHP Healthcare had knowledge of [the harasser’s] malicious or reckless
conduct, or authorized, ratified, or approved [the harasser’s] actions.” 90 F.3d
927, 944 (5th Cir. 1996). As the Fifth Circuit later characterized this decision,
“Patterson . . . put [employers] on notice that evidence of a faithfully-adhered-to
non-discrimination policy may bar imputing punitive damages liability to an
employer when its employee acts with malice or reckless indifference.” See
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 283 (5th Cir.
1999). Also prior to the trial in the instant case, the Eleventh Circuit had
reversed an award of punitive damages against an employer for sexual harassment
committed by its employee when the evidence showed that the employer “had a
general policy against sexual harassment and did investigate the complaints it
received.” Splunge v. Shoney’s, Inc., 97 F.3d 488, 491 (11th Cir. 1996).
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Research by Pacesetter prior to or during trial would have revealed the
district court’s published memorandum and order in Baty, as well as the Fifth
Circuit opinion in Patterson and the Eleventh Circuit opinion in Splunge. A
reading of these decisions, in turn, should have led Pacesetter to request an
instruction informing the jury that Cadena cannot recover punitive damages if
Bauersfeld’s harassment was contrary to Pacesetter’s good faith efforts to prevent
and remedy sexual harassment. Such an instruction would not have differed
significantly from that which Pacesetter now contends is mandated by Kolstad.
The interests of justice, therefore, do not demand that this court excuse
Pacesetter’s failure to object to the district court’s instructions concerning
punitive damages. See Deffenbaugh-Williams, 188 F.3d at 284 (“Kolstad’s
imputation holding was not such a sudden shift as to require, in fairness, giving
Wal-Mart an opportunity to present additional evidence.”). To the contrary,
allowing Pacesetter to benefit from the serendipity of the Kolstad decision when
it reasonably could have recognized the availability of the good-faith-compliance
standard at the time of trial would work an injustice upon Cadena. This court
thus concludes that Pacesetter waived for appellate review its argument that the
jury was improperly instructed and applied the wrong standard concerning the
imposition of punitive damages.
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Finally, we reject Pacesetter’s contention that remand is necessary because
the district court, in deciding Pacesetter’s post-verdict motion for judgment as a
matter of law, failed to apply the good faith compliance standard. This court has
already concluded that even under Kolstad, Pacesetter is not entitled to judgment
as a matter of law on the question of punitive damages. See supra. Therefore,
even if the district court did err in not considering the good faith compliance
defense when deciding Pacesetter’s motion, a question we need not decide, any
such error was harmless.
C. Evidence of Humphrey’s and Bauersfeld’s Affair
During Cadena’s case-in-chief, she called Humphrey as a witness and asked
Humphrey, inter alia, whether she ever had a sexual relationship with Bauersfeld.
After Humphrey denied having a sexual relationship with Bauersfeld, Cadena
asked whether Humphrey had ever told Mary Sorrels, a former Pacesetter
employee, about the existence of such a relationship. Humphrey replied that she
never made that disclosure to Sorrels and that she never admitted to Sorrels that
she lied during her deposition about a relationship with Humphrey. Finally, when
asked whether she had asked solicited Sorrels to lie about the purported sexual
relationship with Bauersfeld if Sorrels was questioned about it during her
deposition, Humphrey denied making such a request. Cadena later elicited
testimony from Sorrels that Humphrey had confided in Sorrels about having a
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sexual relationship with Bauersfeld, that Cadena knew about the relationship
when still working at Pacesetter, that Humphrey admitted lying about the
relationship in her deposition, and that Humphrey had asked Sorrels to similarly
lie about the relationship if questioned.
On appeal, Pacesetter contends the district court erred in allowing both
Humphrey’s and Sorrels’ testimony regarding Humphrey’s relationship with
Bauersfeld, thus entitling Pacesetter to a new trial. This court reviews a district
court’s decision to receive evidence for abuse of discretion. See United States v.
Guardia, 135 F.3d 1326, 1328 (10th Cir. 1998).
Pacesetter first argues that any evidence concerning the alleged relationship
should have been excluded as irrelevant. See Fed. R. Evid. 401, 402. As the
district court recognized in its ruling admitting this testimony, evidence
demonstrating a sexual relationship between Humphrey and Bauersfeld was
directly relevant to rebut Pacesetter’s asserted Burlington/Faragher affirmative
defense. Under that defense, Pacesetter would not be liable if it showed that it
“exercised reasonable care to correct promptly any sexually harassing behavior”
and that Cadena “unreasonably failed to take advantage of any preventitive or
corrective opportunities provided by [Pacesetter] or to avoid harm otherwise.”
Faragher, 118 S. Ct. at 2293. In arguing its motion in limine to exclude evidence
concerning the purported relationship, Pacesetter indicated that it intended to
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prove the second element of the affirmative defense by demonstrating Cadena
failed to report Bauersfeld’s harassment to management. Cadena did adduce
evidence, however, showing that she complained about the harassment to Hawley
and Bauersfeld himself. The jury, therefore, might have wondered why Cadena
never reported Bauersfeld’s harassing conduct to Humphrey, particularly since
she was Cadena’s only female supervisor. The evidence indicating Cadena knew
Humphrey was having a sexual relationship with Bauersfeld was directly relevant
to demonstrate that Cadena’s decision not to report the harassment to Humphrey
was reasonable. 8 Thus, the district court did not abuse its discretion in
concluding this evidence was relevant.
Pacesetter next asserts the evidence should have been excluded under
Federal Rule of Evidence 608(b). That rule provides in relevant part, “Specific
instances of the conduct of a witness, for the purpose of attacking or supporting
the witness’ credibility, other than conviction of a crime as provided in rule 609,
may not be proved by extrinsic evidence.” Fed. R. Evid. 608(b) (emphasis
8
The record of the motion in limine hearing belies Pacesetter’s contention
that “there was no suggestion that Cadena should have reported Bauersfeld’s
conduct to Humphrey.” Although it is true that “Pacesetter’s own witnesses
testified that Cadena had complied with Pacesetter’s policy against sexual
harassment by reporting incidents to Hawley,” as Pacesetter argues, that testimony
was elicited after Cadena had completed her case-in-chief. Given Pacesetter’s
representations during the motion in limine hearing concerning its intended means
of proving the second element of the affirmative defense, the district court
properly ruled that the challenged testimony was relevant to that defense.
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added). As just discussed, the challenged testimony was not elicited solely “for
the purpose of attacking . . . [Humphrey’s] credibility.” Id. Rule 608(b),
therefore, does not require the exclusion of the challenged testimony.
Finally, Pacesetter argues the testimony concerning the alleged sexual
relationship and perjury should have been excluded under Federal Rule of
Evidence 403. Rule 403 states, “Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice .
. . .” Fed. R. Evid. 403. “This court has recognized that exclusion of evidence
under Rule 403 is an extraordinary remedy to be used sparingly.” Koch v. Koch
Indus., 203 F.3d 1202, 1229 (10th Cir. 2000) (quotation omitted). We are
unconvinced that the district court abused its discretion in concluding that the
danger of prejudicing the jury by exposing it to evidence of the alleged sexual
relationship and perjury did not substantially outweigh that evidence’s probative
value to rebut Pacesetter’s affirmative defense.
D. Attorneys’ Fees
After the district court entered judgment in favor of Cadena reflecting an
award of damages of $300,000, Cadena moved for an award of attorneys’ fees and
related nontaxable expenses. Specifically, Cadena requested attorneys’ fees of
$156,846.30 and expenses totaling $6,735.70. Pacesetter objected to Cadena’s
motion on numerous grounds, arguing, inter alia, that Cadena’s use of “block
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billing,” i.e., lumping multiple tasks into a single entry of time, is precluded by
this court’s decision in Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983).
Pacesetter thus requested that the district court reduce the amount of hours
factored into its attorneys’ fees calculus. The district court denied that objection,
stating, “[T]he use of single entries of time expended for more than one task is
not per se forbidden. In this case, plaintiff’s counsel has produced
contemporaneous time records that sufficiently meet the requirements set out in
Ramos.” The district court ultimately awarded Cadena $131,368.30 in attorneys’
fees and $6,735.70 in related expenses.
On appeal, Pacesetter argues the district court should have further reduced
the amount of time claimed by Cadena because her attorneys employed the block-
billing practice. This court reviews for abuse of discretion a district court’s
award of attorneys’ fees. See Roberts v. Roadway Express, Inc., 149 F.3d 1098,
1111 (10th Cir. 1998).
A plaintiff who prevails in a Title VII lawsuit “ordinarily is to be awarded
attorney’s fees in all but special circumstances.” Metz v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 39 F.3d 1482, 1492 (10th Cir. 1994) (quotation omitted).
To recover such fees, however, the plaintiff must “prove and establish [the]
reasonableness of each dollar, each hour, above zero.” Jane L. v. Bangerter, 61
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F.3d 1505, 1510 (10th Cir. 1995) (quotation omitted). More specifically, in
Ramos this court stated,
[I]f [prevailing parties] intend to seek attorney’s fees . . . [their
attorneys] must keep meticulous, contemporaneous time records to
present to the court upon request. These records must reveal, for
each lawyer for whom fees are sought, all hours for which
compensation is requested and how those hours were allotted to
specific tasks–for example, how many hours were spent researching,
how many interviewing the client, how many drafting the complaint,
and so on.
713 F.2d at 553.
Pacesetter is correct in contending that Ramos admonishes attorneys who
wish to recover attorneys’ fees not to utilize the practice of block billing, because
block billing does not precisely delineate “how . . . hours were allotted to specific
tasks.” Id. As the district court properly recognized, however, this court has not
established a rule mandating reduction or denial of a fee request if the prevailing
party submits attorney-records which reflect block billing. See Robinson v. City
of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (“[A] district court may
discount requested attorney hours if the attorney fails to keep ‘meticulous,
contemporaneous records’ that reveal ‘all hours for which compensation is
requested and how those hours were allotted to specific tasks.’” (emphasis added)
(quoting Ramos, 713 F.2d at 553)). This court’s review of the time records
submitted by Cadena fails to convince us that the district court abused its
discretion in concluding that those records sufficiently allowed the court to
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determine the time allotted by her attorneys to specific tasks and the
reasonableness of that time. See Roberts, 149 F.3d at 1112 (“We recognize that
the billing records submitted to the district court would benefit from greater
specificity, but cannot conclude that the district court abused its discretion in
awarding attorneys’ fees.”). We will not, therefore, disturb the attorneys’ fees
and related expenses awarded by the district court.
IV. CONCLUSION
This court concludes that the district court properly denied Pacesetter’s
post-verdict motion for judgment as a matter of law premised on the
Burlington/Faragher defense. Additionally, the Supreme Court’s decision in
Kolstad does not entitle Pacesetter to either judgment as a matter of law or a new
trial. Furthermore, the district court did not abuse its discretion in admitting
testimony concerning Humphrey’s alleged sexual relationship with Bauersfeld and
related perjury. This court, therefore, AFFIRMS the judgment entered by the
District Court for the District of Kansas in favor of Cadena and against Pacesetter
on her Title VII claim, in which Cadena was awarded $300,000 in compensatory
and punitive damages. Finally, because the district court did not abuse its
discretion in its award of attorneys’ fees, this court AFFIRMS the judgment
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entered by the district court awarding Cadena $131,368.30 in attorneys’ fees and
$6,735.70 in related expenses.
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