F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 28 2002
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
SUSAN M. DAVEY,
Plaintiff - Appellee,
v. No. 00-1373
LOCKHEED MARTIN
CORPORATION, a Maryland
corporation,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 96-D-2076)
Katherine J. Peck (Richard G. Wilkins and Matt A. Mayer, with her on the brief), Holme
Roberts & Owen LLP, Denver, Colorado, for the appellant.
Barry D. Roseman, Roseman & Kazmierski, LLC, Denver, Colorado, for the appellee.
Before TACHA, Chief Judge, GARTH1 and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
1
The Honorable Leonard I. Garth, United States Court of Appeals, Third
Circuit, sitting by designation.
Susan Davey brought this employment discrimination action against her former
employer, Lockheed Martin Corporation (LMC), alleging LMC discriminated against her
on the basis of gender in 1992 and retaliated against her in 1993 for complaining about
the discrimination when LMC selected her for layoff during a reduction in force. Davey
amended her complaint to include another retaliation claim based on LMC’s refusal to
rehire her in 1997. A jury trial resulted in a verdict in favor of LMC on the 1992
discrimination and the 1993 retaliation claims, but in favor of Davey on the 1997
retaliation claim. In accordance with the jury's verdict, the district court awarded Davey
compensatory damages of $50,000 and punitive damages of $200,000, and further entered
judgment in favor of Davey for back pay of $112,800, front pay of $36,000, and attorney
fees of $65,610, plus pre-judgment and post-judgment interest.
LMC appeals the verdict in favor of Davey on the 1997 retaliation claim,2
contending (1) the district court erroneously denied it the opportunity to present a material
aspect of its case to the jury, which led to an unfair award of punitive damages; (2) the
court failed to instruct the jury that “an invidious motive must be 'a motivating factor' in
an actionable employment decision” (Br. at 23); and (3) the court improperly applied
Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection. LMC also appeals the
award of attorney fees because the district court stated it awarded the fees based in part on
2
Davey does not appeal the verdict in favor of LMC on the 1992 discrimination
and the 1993 retaliation claims.
2
the “excellent results” plaintiff received in being awarded $200,000 in punitive damages.
We exercise jurisdiction under 28 U.S.C. § 1291, vacate the award of punitive damages
arising out of the 1997 retaliation claim, vacate the award of attorney fees, and remand
for new trial limited to the issue of punitive damages. We affirm the judgment in all other
regards.
I.
Davey was hired by Martin Marietta Corporation, now LMC, in November 1987.
From 1989 until she was discharged, she worked as a test engineer in the company's
defense systems department where she wrote and revised procedures used for testing of
the payload system on highly classified items. In 1991, Davey learned that her immediate
supervisor, Richard Turner, had given her a low ranking for layoff purposes. Davey filed
an ethics complaint alleging Ronald Bills, her second-level supervisor, had engaged in
favoritism toward male employees by treating them more favorably with respect to
overtime pay, and that Bills engaged in discriminatory, gender-related promotional
practices. Bills subsequently resigned from his supervisory position and Turner was
removed from his supervisory position. In 1992, John Shupe, the new manager in
Davey's department, informed her that she would be laid off. Her employment was
terminated on April 12, 1993. LMC alleged Davey's position was eliminated and her
duties were divided among other employees who had not been selected for layoff. Davey
filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sex
3
discrimination and retaliation, and the EEOC issued her a notice of right to sue on June 3,
1996. Davey filed this action on September 4, 1996.
In 1997, Davey learned of job openings in the test engineering area in LMC.
Davey met with Gary Mueller, the technical staffing manager for the test department, but
he informed her that Shupe had given him a new organizational chart and stated he did
not intend to fill the open positions in test engineering. At the suggestion of Mueller,
Davey contacted Wayne Scott about available test conductor positions. Scott informed
Davey he would discuss the possibility of her filling one of the positions with other
management employees, but later told her she would not receive a job offer.
II.
As regards the punitive damages award, LMC contends the district court erred in
not allowing LMC to present a material aspect of its case to the jury -- good faith
compliance with Title VII. On Friday, August 20, 1999, the parties filed an amended
pretrial order to reflect several additions, but were unable to agree on one addition –
whether LMC could assert the affirmative defense that it could not be liable for punitive
damages because it made a good faith effort to comply with Title VII. According to
LMC, the newly-proposed affirmative defense was based on the recent decision in
Kolstad v. American Dental Assoc., 527 U.S. 526 (1999). The amended pretrial order
was filed with a space for the trial court to mark whether it granted or denied LMC’s
request to add the affirmative defense. At the beginning of trial on Monday, August 23,
4
1999, prior to selection of the jury, the court stated it would not allow LMC to assert that
it made a good faith effort to comply with Title VII as a defense to punitive damages
because allowing the defense would be “fundamentally unfair to the plaintiff.” The court
noted that the defense was factually intensive and “the plaintiff did not have an
opportunity during the discovery phase of the case to take discovery as to whether or not
there’s a response to that defense.” App. Tab 13 at 99.
A pretrial order, which measures the dimensions of the lawsuit, both in the trial
court and on appeal, may be modified “only to prevent manifest injustice.” Fed. R. Civ.
P. 16(e). See Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997). The
party moving to amend the order bears the burden to prove the manifest injustice that
would otherwise occur. See Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir.
2000). The purpose of the pretrial order is to “insure the economical and efficient trial of
every case on its merits without chance or surprise.” See Hull v. Chevron U.S.A., Inc.,
812 F.2d 584, 588 (10th Cir. 1987). Because the issues and defenses of the lawsuit are
defined by the terms of the order, “total inflexibility is undesirable.” Id..
We review the denial of a motion to amend a pretrial order for an abuse of
discretion. See Koch, 203 F.3d at 1222. A district court can abuse its discretion when it
“bases its ruling on an erroneous conclusion of law,” Kiowa Indian Tribe v. Hoover, 150
F.3d 1163, 1165 (10th Cir. 1998), or “fails to consider the applicable legal standard,”
Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).
5
In Kolstad, the Court provided a framework for the award of punitive damages
under 42 U.S.C. § 1981a(b)(1).3 First, the plaintiff must establish that the employer acted
with knowledge that its actions violated federal law. See 527 U.S. at 535. If able to do
so, the plaintiff must then demonstrate that the actions of the employee who discriminated
against the plaintiff is a managerial agent who acted within the scope of employment.
See id. at 543. The Court in Kolstad also provided employers with a defense to punitive
damages. The Court stated that even if the plaintiff establishes that the employer’s
managerial employees recklessly disregarded federally-protected rights while acting
within the scope of employment, punitive damages will not be awarded if the employer
shows that it engaged in good faith efforts to comply with Title VII. See id. at 545-46.
Such a defense was proper, the Court stated, because of the common law limitation on
vicarious liability for punitive damages. See id. at 544. The Court also noted that
allowing vicarious punitive liability, regardless of compliance efforts, would in effect not
only reduce an employer’s incentive to implement anti-discrimination programs, but
could penalize those employers who do educate themselves and their employees. See id.
at 544-45. Accordingly, the Court set forth the good-faith defense to punitive damages in
3
Section 1981a(b)(1) provides that a prevailing Title VII plaintiff may be awarded
punitive damages if she “demonstrates that [the defendant] engaged in a discriminatory
practice or discriminatory practices with malice or with reckless indifference to [her]
federally protected rights.” 42 U.S.C. § 1981a(b)(1). Prior to Kolstad, the precise burden
a plaintiff had to carry to prove malice or recklessness was the source of a conflict among
the circuits. See Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1244 n.6 (10th Cir.
1999).
6
Title VII cases:
Recognizing Title VII as an effort to promote prevention as well as
remediation, and observing the very principles underlying the Restatements’
strict limits on vicarious liability for punitive damages, we agree that, in the
punitive damages context, an employer may not be vicariously liable for the
discriminatory employment decisions of managerial agents where these
decisions are contrary to the employer’s good faith efforts to comply with
Title VII.
Id. at 545 (internal quotation omitted).
This court has recently stated that “[i]t 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.” Cadena v. The Pacesetter Corp., 224
F.3d 1203, 1209 n.4 (10th Cir. 2000).4 We have additionally opined 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).
However, at a minimum, an employer must at least adopt anti-discrimination policies and
make a good faith effort to educate its employees about these policies and Title VII’s
4
Other circuits, however, have determined the defense is an affirmative one. See
Zimmerman v. Associates First Capital Corp., 251 F.3d 376, 385 (2nd Cir. 2001);
Romano v. U-Haul Int’l, 233 F.3d 655, 670 (1st Cir. 2000) cert. denied, 122 S. Ct. 41
(2001); Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516 (9th
Cir. 2000); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir.
1999). See also Ogden v. Wax Works, Inc., 214 F.3d 999, 1009 (8th Cir. 2000) and
Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 445 (4th Cir. 2000) (describing Kolstad
defense as an exception to vicarious liability).
7
prohibitions. See id. at 1248-49. “Kolstad itself suggests that the good-faith-compliance
standard requires the employer to make ‘good faith efforts to enforce an anti-
discrimination policy.’” Cadena, 224 F.3d at 1210 (quoting Kolstad, 527 U.S. at 546).
Thus, “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 damages if she demonstrates
the employer failed to adequately address Title VII violations of which it was aware.” Id.
Kolstad was decided two months prior to commencement of this trial. The original
pretrial order was filed a year and a half prior to the Kolstad decision. As stated, the
district court did not allow LMC the benefit of the Kolstad defense because Davey had
not had the opportunity to conduct discovery on the issue and, therefore, allowing the
defense would be “fundamentally unfair” to plaintiff. We consider the following factors
in a challenge to a district court’s denial of a motion to amend the pretrial order and
resulting exclusion of an issue: “(1) prejudice or surprise to the party opposing trial of the
issue; (2) the ability of that party to cure any prejudice; (3) disruption by inclusion of the
new issue; and (4) bad faith by the party seeking to modify the order.” Koch, 203 F.3d at
1222. We also take into consideration the timeliness of the movant’s motion to amend
the order. See id. at 1223.
Prejudice/surprise/timeliness
The district court’s denial of LMC’s proposed amendment rested entirely on
8
prejudice to Davey. Davey argues the district court’s decision was correct because the
request was contained in the amendments to the pretrial order filed on the Friday before
trial was to begin the following Monday and she could not have conducted any
meaningful discovery over the weekend while also preparing for the trial. LMC responds
that Davey could have moved to continue the trial.
In Moss v. Feldmeyer, 979 F.2d 1454 (10th Cir. 1992), this court affirmed the
district court’s admission of testimony from two expert witnesses either not listed or not
fully described in the initial pretrial order. The district court permitted defendant to
amend the pretrial order to add Dr. DeJong as an expert witness and to expand the scope
of Dr. Evans' testimony on the morning of trial. The court reasoned that the opposing
party, the plaintiff, was not prejudiced or surprised by the additions because
both doctors were designated as witnesses in the [amended] pretrial order;
Dr. DeJong was designated as an expert more than two weeks before the
trial; [the plaintiff] received a summary of both doctors’ reports prior to
their trial testimony; both doctors were available for discovery prior to
testifying; and [the plaintiff], at her option, deposed Dr. DeJong but did not
depose Dr. Evans.
Id. at 1459. The court contrasted the facts in Moss with the facts in Smith v. Ford Motor
Co., 626 F.2d 784 (10th Cir. 1980), where the prejudice factor was found to weigh in
favor of the opposing party. See Moss, 979 F.2d at 1459. In Smith, the “surprise”
testimony was presented during the trial. See Smith, 626 F.2d at 788-89. One of the
plaintiff’s witnesses, Dr. Freston, was listed in the pretrial order as a treating physician.
However, to the defendant’s surprise, Dr. Freston was allowed to give an expert opinion
9
on the cause of the plaintiff’s injury. Counsel for the defendant was granted only a ten-
minute recess to prepare a cross-examination. Thus, we found that defendant was
prejudiced by the new expert testimony. The court noted, however, that “[i]f Ford had
been apprised in advance of Dr. Freston’s testimony, it could have taken his deposition,
discovered the article, and been well prepared at trial to cross-examine him.” Id. at 798.
In Summers v. Missouri Pacific R.R. System, 132 F.3d 599, 604 (10th Cir. 1997),
this court reversed the denial of a motion to amend a pretrial order to add an expert
witness, relying on the fact that the motion was filed prior to trial and therefore, trial
would not be disrupted. See id. at 605. Thus, the timing of the motion in relation to
commencement of trial is an important element in analyzing whether the amendment
would cause prejudice or surprise. Here, the amended pretrial order was filed on Friday,
August 20, and trial was to begin the following Monday, August 23. Trial had not started
and therefore could not have been disrupted. However, LMC's motion to amend was
untimely given the two-month period that had elapsed between the filing of the Kolstad
decision and the filing of LMC's motion to amend the pretrial order.
Ability to cure
Closely related to the prejudice and surprise factor is whether the opposing party
had the ability to cure any prejudice or surprise caused by the amendment. For example,
in Smith, we found this factor weighed in favor of the defendant because after the witness
gave “surprise” expert testimony, the defendant’s counsel had only ten minutes to prepare
10
for cross-examination and to review the witness’ use of an empirical study not disclosed
during discovery. See Smith, 626 F.2d 798-99. If, however, the motion to amend is made
prior to trial, it is more easily found that the opposing party could cure any prejudice.
See, e.g., Summers, 132 F.3d at 605 (finding second factor weighed in favor of granting
the plaintiff’s motion to amend to add two expert witnesses because motion was filed
eighty days prior to trial, giving the defendant time to conduct discovery). See also,
Moss, 979 F.2d at 1459 (holding “whereas Ford had only [ten] minutes to prepare for
cross-examination, Moss had over two weeks to prepare for Dr. DeJong’s cross-
examination and eight days to prepare for Dr. Evans’ cross-examination, during which
time, in each instance, Moss had their respective reports. Under these circumstances, we
hold that Moss’ ability to cure was not significantly impaired.”).
LMC argues Davey easily could have cured any prejudice or surprise by moving to
continue the trial. See Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 588 (10th Cir. 1987)
(stating that if opposing party was surprised by new theory of recovery first discussed in
plaintiff’s opening statement, “it should have moved for a continuance of the trial with
sufficient support to satisfy the trial court that additional time was needed to meet the
change in theory”). Davey responds that a continuance would have prejudiced her
because of the availability and fading memories of the witnesses. She reasons that she
would “have been forced to choose between having the ability to obtain discovery on
[the] new affirmative defense and having her case tried within three years of the date that
11
she filed her complaint.” Answer Br. at 13.
Davey's concerns, however, should not be able to justify the district court's failure
to apply Kolstad. Our willingness to apply Kolstad after a district court enters judgment
does not support her contention. See Cadena, 224 F.3d at 1209-10; Wal-Mart Stores, 187
F.3d at 1246. In Wal-Mart, we found that under the standard of Kolstad, there was
sufficient evidence to justify an award of punitive damages. 187 F.3d at 1246. One could
read Wal-Mart as suggesting that if the record evidence had been insufficient to resolve
the Kolstad issue, we would have remanded the case for new trial. Similarly, in Cadena,
the employer argued it was entitled to a new trial on punitive damages because the jury
was not instructed on the Kolstad defense. 224 F.3d at 1210. Although we determined
the employer had waived the issue, one could conclude that, absent the waiver, we would
have allowed it the benefit of the Kolstad defense even though Kolstad was decided after
judgment was entered. A remand in either Wal-Mart or Cadena would have resulted in an
even greater potential for the loss of witness memory than in the present case where only
a short continuance was needed to provide sufficient time for additional discovery.
Disruption
The third factor to be considered is whether the amendment to the pretrial order
would “disrupt the orderly and efficient trial of the case or other cases in court.” Smith,
626 F.2d at 797. In Smith, we concluded this factor did not weigh in favor of amending
the pretrial order because the challenged testimony first was revealed in the midst of the
12
trial. Adjournment of the trial for depositions would have resulted in significant
disruption. However, if the motion to amend is made prior to trial, no disruption of an
ongoing trial is threatened. See, e.g., Moss, 979 F.2d at 1459 (stating no disruption of
trial threatened because additional expert witnesses and their respective reports were
made available to plaintiff prior to their testimony). In this case, a continuance might
have been necessary so Davey could conduct discovery on the Kolstad defense, but
because the trial had not started when the motion to amend was made, disruption to the
trial process would have been minimal. In its reply brief, LMC states that Davey had
already deposed most of the witnesses who would have testified regarding LMC’s good
faith compliance with Title VII. See Reply Br. at 7. Therefore, re-deposing these
witnesses on the limited issue of good faith compliance would not have been a lengthy
process. We acknowledge a continuance may have caused disruption of other cases
scheduled for trial on the court's docket.
Bad faith
Finally, the court must consider the “bad faith or willfulness in failing to comply
with the court’s order.” Smith, 626 F.2d at 797. In this case, the district court, at the time
of denying LMC’s motion, stated “I’m not criticizing the defense because [Kolstad]
wasn’t issued until June [22], 1999.” App. Tab 13 at 100. There is no evidence LMC
acted with any bad faith or willful disregard of the order. Instead, it merely wanted to
amend a pretrial order to reflect a defense recently set forth in a Supreme Court opinion.
13
While the untimeliness of LMC's motion weighs against LMC, the other factors
weigh in favor of allowing LMC to amend the pretrial order to assert its defense to
punitive damages. We conclude the district court abused its discretion in not allowing
LMC to assert its defense and vacate the jury's punitive damage award and remand for
new trial limited to the issue of punitive damages.
III.
LMC asserts the district court's instructions to the jury on mixed-motive
discrimination (Instructions Nos. 18 and 23) inaccurately described the law under Price
Waterhouse v. Hopkins, 490 U.S. 228 (1998).
We review de novo the question of whether the court's instructions, as a whole,
properly stated the applicable law and focused the jury on the relevant inquiry. Id. “[A]n
error in jury instructions will mandate reversal of a judgment only if the error is
determined to have been prejudicial, based on a review of the record as a whole.” Big
Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 n.19 (10th Cir. 1988).
Instruction No. 18 provided in pertinent part:
The mere fact that plaintiff is a woman and was laid off is not
sufficient in and of itself to establish plaintiff's sex discrimination claim
under the law. In showing that plaintiff's sex was a motivating factor,
plaintiff is not required to prove that her sex was the sole motivation or
even the primary motivation for defendant's decision. The plaintiff need
only prove that sex played a part in the defendant's decision even though
other factors may have also motivated the defendant.
Aplt. App. at 143 (emphasis added). Instruction No. 23 provided in pertinent part:
14
In showing that plaintiff's opposition to sex discrimination or her
filing of a charge of discrimination or a lawsuit was a motivating factor or
factors, plaintiff is not required to prove that this opposition or the filing of
a charge of discrimination or lawsuit [was] the sole motivation or even the
primary motivation for defendant's decision. The plaintiff need only prove
that her opposition to sex discrimination or the filing of a charge of
discrimination or lawsuit played a part in the defendant's decision, even
though other factors may also have motivated the defendant.
Id. at 145-46 (emphasis added). LMC is not arguing that the jury should not have been
given a mixed-motive instruction. Rather, LMC argues that the mixed-motive
instructions were improperly worded. LMC argues the instructions should have stated
“played a motivating part” instead of “played a part.” LMC timely objected to both
instructions. The district court overruled LMC's objections, stating that the instructions
were “consistent with the law,” adequately used the word “motivating” several times, and
that the language “came directly from Devitt and Blackmar and it came from the most
recent edition.” Id. at 122, 124.
In Thomas, we explained mixed-motive cases:
In Price Waterhouse v. Hopkins, [490 U.S. 228 (1989)], the Supreme Court
held that when a discrimination case challenges an employment decision
that may have been “the product of a mixture of legitimate and illegitimate
motives, . . . it simply makes no sense to ask whether the legitimate reason
was the true reason.” Id. at 247. The Court therefore rejected the argument
that “the plaintiff in a mixed-motives case must squeeze proof into
Burdine's framework.” Id. at 246-47. The Court held that “once a plaintiff
. . . shows that [an improper motive] played a motivating part in an
employment decision, the defendant may avoid a finding of liability only by
proving that it would have made the same decision even if it had not
allowed [the improper motive] to play such a role.” Id. at 244-45.
111 F.3d at 1511 (internal quotations omitted). The Price Waterhouse Court described
15
the mixed-motive approach as “most appropriately deemed an affirmative defense.” 490
U.S. at 246. “[O]nce a plaintiff has shown that an improper reason was a substantial or
motivating factor in the defendant's adverse treatment, the employer must prove by a
preponderance of the evidence that it would have reached the same decision even absent
the improper motive.” Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1471 (10th Cir. 1992)
(emphasis added).
Section 107(a) of the Civil Rights Act of 1991, codified at 42 U.S.C. § 2000e-
2(m), overruled Price Waterhouse to the extent that the case held a defendant's proof that
it would have made the same decision absent the improper motive would allow the
defendant to completely avoid liability. See Medlock v. Ortho Biotech, Inc., 164 F.3d
545, 552 (10th Cir. 1999) (exploring effect 1991 amendment had on Price Waterhouse
and holding case continued to control when mixed-motive instruction was appropriate).
Both the 1991 amendments to Title VII and Price Waterhouse shift the
burden to the employer to prove it would have taken the same action even
in the absence of the unlawful motive. The only difference between the
Price Waterhouse standard and § 2000e-2(m) is the legal consequence of a
finding that the employer would have taken the same action even in the
absence of the unlawful motive. Under Price Waterhouse, the defendant
avoids a finding of liability altogether. Under the 1991 amendments,
defendant is still liable but plaintiff is limited in what forms of relief she
may receive.
Medlock, 164 F.3d at 553 n.5. “[I]f the employer successfully demonstrates that the
outcome would have been the same even without discriminatory animus, the court may
not award monetary damages but may award certain declaratory and injunctive relief, as
16
well as attorney fees and costs demonstrated to be directly attributable to pursuing a claim
under Section 107(a).” Watson v. Southeastern Pennsylvania Transp. Auth., 207 F.3d
207, 216 (3d Cir. 2000).
We acknowledge that by instructing the jury that Davey need only prove the
discriminatory motive “played a part” (rather than “played a substantial part” or “played a
motivating part”), the district court may have impermissibly lessened Davey's burden of
proof before the burden of persuasion was shifted back to LMC. However, even if after
reading the two instructions in their entirety one could conclude the jury would not see
that the improper motive needed to play a motivating part (both instructions described
Davey's burden as showing that the improper motive was “a motivating factor”), the
difference such an error would have had on the ultimate outcome would not rise to a level
that could be found to be prejudicial to LMC. The two instructions given by the district
court are sufficiently similar to the instruction we recently approved in Hampton v.
Dillard Dep't Stores, Inc., 247 F.3d 1091, 1111 (10th Cir. 2001), cert. denied, 2002 WL
232982 (2002).
IV.
LMC also argues the district court erred in granting one of Davey's Batson
challenges to LMC's peremptory strikes. LMC's peremptory strikes were made to three
women, whereupon Davey challenged them under Batson. After explaining the burden-
shifting approach articulated in Batson, the district court asked whether counsel for LMC
17
believed Davey had made a prima facie case of gender discrimination. Counsel for LMC
replied: “No, I don't. Given the number of females that are still left on the jury. There
would still be four.” Aplt. App. at 106.5 The court agreed with Davey and found a prima
facie case of gender discrimination.
The district court directed LMC to explain its gender-neutral grounds for striking
the three potential jurors. Counsel for LMC explained:
[T]here's a common basis for striking actually all three of those people.
And that is none of them work in a workplace setting. This is a case of
discrimination, alleged discrimination in the workplace. They need to
understand concepts such as performance evaluations, rankings, what
supervisors are confronted with on a day-to-day basis is something that
would be useful to the jurors' understanding of the case. [Ms. Elder] is not
working outside of the home. Miss Whitely is not working outside of the
home, and Miss Murley is not working for an employer but works for
herself selling Mary Kay cosmetics. So frankly, the major basis for striking
each one of them is that they do not have current employers and so they
would not have that perspective to bring to their deliberations.
Id. at 108-09 (emphasis added). In response, Davey's counsel argued:
Your Honor, that's clearly pretexual. Let's take [Ms. Elder]. [Ms. Elder]
worked for ten years as a nurse. She was a head nurse. Had responsibilities
for other individuals whom she was supervising as a nurse. She clearly was
someone who was aware of policies and procedures. Nurses have to follow
those policies, and clearly she knew about personnel policies because that
was her job.
Id. at 109 (emphasis added). Counsel for LMC argued that Ms. Elder had been out of the
5
LMC points out that prior to its peremptory challenges, Davey exercised her
challenges by striking three men. However, LMC did not raise a Batson objection. See
Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1019-20 (10th Cir. 2000) (failure to raise Batson
objection in trial court results in appellate court review for plain error).
18
workplace for fourteen years and the reason she was struck was because she did not have
current employment. The district court found:
[Counsel for LMC] noted that this is a case of discrimination, alleged
discrimination, in the workplace. They need to understand concepts such as
performance evaluation rankings, what supervisors are confronted with on a
day-to-day basis is something that would be useful to the jurors'
understanding in this case.
Now, it seems to me that [Ms. Elder], if she worked as a nurse in
some major hospitals for ten years and supervised up to eight people, would
have had an ability to do those things that are the objection – would have
had an opportunity to do the very things that [counsel for LMC] said is a
primary reason for striking her.
So I do find that striking of [Ms. Elder] is based on gender
discrimination; and so under the law that I've already cited, I'm going to
invalidate that peremptory challenge and will require the defendant to strike
another juror.
Id. at 118-19. Counsel for LMC attempted to give additional reasons for striking Ms.
Elder, but the district court dismissed the reasons because they were not stated originally.
In Batson, the Court held that the Equal Protection Clause of the Fourteenth
Amendment forbids a prosecutor to use peremptory challenges to exclude African-
Americans from jury service because of their race. The prohibition was later extended to
include gender discrimination, see J.E.B. v. Alabama, 511 U.S. 127 (1994), and to be
applicable in civil cases, see Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
Our commitment to equal justice under law, carved into stone outside the
courthouse, would be mocked by allowing discriminatory peremptory
challenges inside. The practice not only causes the silent sting of
discrimination, it “mars the integrity of the judicial system and prevents the
idea of democratic government from becoming a reality.”
Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1548 (10th Cir. 1997) (quoting Edmonson,
19
500 U.S. at 628).
In Purkett v. Elem, 514 U.S. 765, 767 (1995), the Court set forth a three-part
burden-shifting approach to Batson challenges:
Under our Batson jurisprudence, once the opponent of a peremptory
challenge has made out a prima facie case of [gender] discrimination (step
one), the burden of production shifts to the proponent of the strike to come
forward with a [gender]-neutral explanation (step two). If a [gender]-
neutral explanation is tendered, the trial court must then decide (step three)
whether the opponent of the strike has proved purposeful racial
discrimination.
See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 855 (10th Cir. 2000) (stating that
the “trial court should ask challenging counsel to respond to the race-neutral reasons
which have been proffered” because “[t]his clearly defines the opposing positions,
facilitates the district court's task by separating the second and third steps of the Batson
test, and greatly aids appellate review”).
We review de novo as a legal issue the proffered gender-neutral explanation, but
review the court's ultimate finding of gender discrimination for clear error. See Hidalgo,
206 F.3d at 1019. LMC argues the district court concluded its proffered reason for the
peremptory strike was not gender-neutral and therefore its decision should be reviewed de
novo. Davey responds that the court's grant of her Batson objection was not that LMC's
proffered reason was not gender-neutral, but that it was pretextual (i.e., made at the third
step of the Batson analysis) and therefore a clear error standard is applicable. After
reviewing the transcript, we conclude that a clear error standard should be applied.
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LMC suggests that Davey failed to set forth a prima facie case of gender
discrimination, arguing that four females remained on the jury after it had struck the three
females. The presence of members of the subject gender on the final jury “is a relevant
factor in negating an alleged Batson violation when the [exercising party] has the
opportunity to strike the juror.” United States v. Johnson, 4 F.3d 904, 913 (10th Cir.
1993) (emphasis added). However, at the time the Batson challenge was made in this
case, LMC had not had the opportunity to strike the other female jurors. Each party was
given only three peremptory challenges. After the district court ruled that LMC could not
strike Ms. Elder, LMC exercised its remaining peremptory challenge on yet another
female. In any event, “the issue of whether [Davey] established a prima facie case of
discrimination is moot because [LMC] gave [its] explanation of the peremptory challenge
of [Ms. Elder] and the district court ruled on the ultimate question of intentional
discrimination.” United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994). “Once a
[gender] neutral reason is offered, the trial court's decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort accorded great deference on
appeal.” Id. at 1579. “We will not disturb the district court's findings of fact unless,
following a review of the entire evidence, we are left with a definite and firm conviction
that a mistake has been committed.” Purrington, 996 F.2d at 1032.
LMC's reason for striking Ms. Elder was that she did not have current
employment. The district court's finding of pretext relied on the fact that Ms. Elder had
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past employment. We must remind ourselves that a district court's ultimate finding of
discrimination is based in large part on judging the credibility of the exercising party's
counsel at the time the neutral reason for the challenge is made. See Hurd, 109 F.3d at
1547-48. We cannot say it was clearly erroneous for the district court to determine that
LMC's explanation for striking Ms. Elder was pretextual.
IV.
We VACATE the jury's award of punitive damages on the 1997 retaliation claim,
vacate the award of attorney fees, and REMAND for new trial limited to the issue of
punitive damages. The remainder of the judgment is AFFIRMED.
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