UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-10685
____________________
JULIE DEFFENBAUGH-WILLIAMS,
Plaintiff-Appellee-Cross-Appellant,
versus
WAL-MART STORES, INC., Et Al.,
Defendants,
WAL-MART STORES, INC.,
Defendant-Appellant-Cross-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
August 31, 1999
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Our en banc court, 1999 WL 528486, having reinstated our prior
opinion, 156 F.3d 581 (1998), except for part II. C. (punitive
damages), id. at 592-98, at issue on remand is whether the
recently-clarified standard for such Title VII damages, Kolstad v.
American Dental Association, 119 S. Ct. 2118 (1999), requires a new
trial on that issue or supports the district court’s judgment as a
matter of law for Wal-Mart. We REVERSE and REMAND for
reinstatement of the punitive damages award for Julie Deffenbaugh-
Williams (Deffenbaugh), but reduced to $75,000.
I.
The relevant facts, 156 F.3d at 585-86, are established by the
reinstated affirmance of the jury verdict for Deffenbaugh on
liability and compensatory damages.
Dale Gipson, district manager over the shoe and jewelry
departments in six Wal-Mart stores, left uncontradicted, during an
August 1993 lunch meeting between him, Deffenbaugh, and two other
Wal-Mart managers, the statement by Deffenbaugh’s prior supervisor
(a district manager) that Deffenbaugh would “never move up with the
company being associated with a black man”. Subsequently, Gipson
became Deffenbaugh’s supervisor. He pursued a series of pretextual
disciplinary actions against Deffenbaugh, finally terminating her
in January 1994 on fabricated workplace-policy grounds.
Signs in Wal-Mart stores encouraged employees with grievances
to contact higher management. Subsequent to one of the pre-
termination disciplinary episodes, Deffenbaugh complained to Wal-
Mart regional manager David Norman that her supervisors were “out
to get” her because of, inter alia, her interracial relationship.
Norman responded that her dating a black man was not a problem and
that he would “check into it”. But, Norman did not contact
Deffenbaugh about any follow-up.
2
Deffenbaugh filed suit under Title VII, 42 U.S.C. § 2000e, et
seq., and 42 U.S.C. § 1981. On 25 July 1996, four days before her
trial, Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir.
1996), was rendered. It addressed in some detail what level of
management must participate in an action in order to assess Title
VII punitive damages against an employer, particularly stressing
the relevance and importance of a properly-functioning anti-
discrimination policy for an employer’s lack of “malice or ...
reckless indifference to the federally protected rights of an
aggrieved individual”, the 42 U.S.C. § 1981a(b)(1) Title VII
punitive-damages touchstones.
However, Patterson went unmentioned during the trial, held
from 29 to 31 July, including during the charge conference, held 31
July. Wal-Mart rested on 31 July without presenting any evidence
(Wal-Mart personnel, including Gipson, had been called by
Deffenbaugh).
The jury found that Wal-Mart had discriminated against
Deffenbaugh based on her race; and, pursuant to bare-bones
instructions on corporate vicarious liability and the § 1981a(b)(1)
criteria (unobjected to by Wal-Mart), that Wal-Mart had done so
with malice or with reckless indifference to Deffenbaugh’s
federally protected rights. The jury awarded $19,000 compensatory
and $100,000 punitive damages.
3
While Wal-Mart’s post-verdict motion for judgment as a matter
of law (JMOL) or for a new trial was pending, Patterson’s
applicability was finally raised. Following supplemental briefing,
and relying on Patterson, the district court granted a JMOL to Wal-
Mart on punitive, but not compensatory, damages.
Wal-Mart and Deffenbaugh each appealed. In June 1998, just
prior to oral argument, Burlington Industries, Inc. v. Ellerth, 118
S. Ct. 2257 (1998), and Faragher v. Boca Raton, 118 S. Ct. 2275
(1998), clarified vicarious liability in the context of Title VII
sexual harassment; our panel ordered post-argument briefing on
these cases’ effect.
Our first opinion, in September 1998, affirmed liability and
the compensatory damages, rejecting, inter alia, Wal-Mart’s
contention that discrimination on the basis of an interracial
relationship is not Title VII race discrimination. 156 F.3d at
586-91. We reversed the post-verdict JMOL on punitive damages, id.
at 592-94, but found the jury’s award excessive, and ordered a
remittitur to $75,000, id. at 594-98.
In November 1998, the Supreme Court granted certiorari in
Kolstad to consider when punitive damages may be awarded under
Title VII, the principal focus being whether, despite its plain
terms, § 1981a(b)(1) could be satisfied only if the discriminatory
conduct was also “egregious”. 119 S. Ct. 401 (1998); id. at 2127
(1999); id. at 2132-33 (Stevens, J., concurring in part and
4
dissenting in part). Concomitantly, our en banc court granted
rehearing in this case in February 1999, 169 F.3d 215, and ordered
additional briefing on the punitive damages issue and Kolstad’s
possible effect. The EEOC participated in briefing and oral
argument. Prior to, and at, the en banc oral argument in May 1999,
Deffenbaugh stipulated to accepting the reduced punitive damages.1
Kolstad was rendered in June 1999. As discussed infra, after
rejecting an egregiousness element, the Court addressed imputing
liability to an employer, if its employee was found to have acted
with the requisite malice or reckless indifference. 119 S. Ct. at
2126. Four Justices dissented from the Court’s reaching the
imputation issue. Id. at 2130 (Stevens, J., concurring in part and
dissenting in part).
Kolstad having lighted the way for when Title VII punitive
damages liability can be imputed to the employer, our en banc
court, in short order, reinstated our prior panel opinion, except
its punitive damages section, and remanded to our panel to consider
Kolstad’s impact. 1999 WL 528486. Therefore, the $19,000
compensatory damages award has again been affirmed. We directed
the parties, and invited the EEOC (it accepted), to brief the
1
In her post-remand, supplemental brief, however, Deffenbaugh
requests a new trial on punitive damages should we reinstate the
remittitur but should she then refuse it. No authority need be
cited that, on grounds of judicial estoppel, among other bases, she
is bound by her earlier stipulation.
5
effect of Kolstad, particularly whether a new trial on punitive
damages is necessary.
II.
In the post-Kolstad briefing, Deffenbaugh and the EEOC urge
that such remand is not necessary; that the JMOL again be reversed.
Wal-Mart takes a different procedural course: it urges remand;
alternatively, that the JMOL be affirmed.
A.
Kolstad explains, first, that no “egregiousness” requirement
exists for § 1981a(b)(1) punitive damages beyond the statutory
“malice” or “reckless disregard” regarding actions’ legality under
Title VII. 119 S. Ct. at 2123-26. Second, Kolstad adopts
Restatement (Second) of Agency § 217C for imputing liability for
punitive damages; they are available against a principal only when,
inter alia, an agent employed in a managerial capacity acts in the
scope of employment. 119 S. Ct. at 2126-29. But, pursuant to an
exception crafted by the Court to the Restatement rule, such
liability may not be imputed when the managerial agent’s within the
scope actions are “contrary to the employer’s good faith efforts to
comply with Title VII”. Id. at 2129 (quotation omitted).2
2
This good faith defense is designed “to avoid undermining the
objectives underlying Title VII”; the statute’s “primary objective
is a prophylactic one” — “not to provide redress but to avoid
harm”. Kolstad, 119 S. Ct. at 2129 (quotation omitted).
6
Of course, Supreme Court decisions apply retroactively and
prospectively to all cases on direct appeal whenever applied to the
litigants before the Court. Harper v. Virginia Dept. of Taxation,
509 U.S. 86, 97 (1993). When law changes in unanticipated ways
during an appeal, however, this court will generally remand for a
new trial to give parties the benefit of the new law and the
opportunity to present evidence relevant to that new standard. The
motivation of this rule is fairness: to prevent injustice to a
party who had no reason to expect a changed rule at the time of
trial. See Hill v. International Paper Co., 121 F.3d 168, 176-77
(5th Cir. 1997) (remand appropriate “in fairness to the court and
the parties”, where “law has changed — rather dramatically” causing
“mid-course change in Mississippi law”); Vicknair v. Formosa
Plastics Corp., Louisiana, 98 F.3d 837, 839 (5th Cir. 1996)
(“supervening jurisprudential ‘sea change’” justified remand);
Millipore Corp. v. Travelers Indemnity Company, 115 F.3d 21, 34
(1st Cir. 1997) (“significant intervening clarification of the law”
required allowing parties opportunity to present new evidence);
E.E.O.C. v. Westinghouse Elec. Corp., 925 F.2d 619, 633 (3d Cir.
1991) (no remand for new evidence where “the need, or certainly the
helpfulness, of such evidence [was] reasonably apparent to
ordinarily prudent counsel” at time of trial).
Accordingly, we must consider the law of this circuit at the
time of Deffenbaugh’s trial to determine whether fairness requires
7
affording Wal-Mart the opportunity to present new evidence under
Kolstad. In this regard, we are principally guided by Patterson,
released the week before trial and available electronically on the
same day on the Fifth Circuit’s Electronic Dissemination of
Opinions Service (EDOS) bulletin-board system (listed under the
subcategory “Civil Rights - Damages”), and within two days on
Westlaw. (Opinions are now released electronically on the Fifth
Circuit’s World Wide Web site.)
At the outside, Patterson was within the reach of an informed
attorney several days before Wal-Mart’s decision to rest.
Moreover, in that, post-verdict, the district court ordered
briefing on the effect of Patterson and relied upon it in rendering
the JMOL, the district court charged the parties with knowledge of
Patterson in earlier presenting their evidence at trial.
Patterson involved a bench trial under 42 U.S.C. § 1981 and
Title VII. Regarding punitive damages against the employer, PHP
Healthcare, the opinion stated:
[T]he imposition of punitive damages under §
1981 and Title VII requires that the
discrimination be malicious or done with
reckless indifference. Jones [v. Western
Geophysical Co.], 761 F.2d [1158,] 1162 [(5th
Cir. 1985)]; and see 42 U.S.C. § 1981a. All
of the discriminatory acts in this case were
solely acts of Kennedy. Kennedy was not a
corporate officer of PHP Healthcare but was a
“project manager” of the Fort Hood office.
PHP Healthcare provided a handbook which
expressly established a policy of non-
discrimination and explained how employees
8
could complain about discriminatory practices
to the company. Further, the vice president
of human resources ... testified that memos
were distributed throughout the Fort Hood
facility which also set out the procedures for
making complaints to headquarters. No
evidence suggests that [plaintiffs] Brown or
Patterson followed these procedures in an
attempt to notify PHP Healthcare’s corporate
office that Kennedy was discriminating against
black employees. The record is completely
void of evidence showing that PHP Healthcare
took part in any discriminatory conduct much
less any “malicious” or “reckless” conduct.
The existence of the employment handbook
setting forth a policy of non-discrimination
is at least prima facie evidence of awareness
on the part of PHP Healthcare of the federally
protected rights of [plaintiffs] Brown and
Patterson; and there is nothing in this record
which purports to show that PHP Healthcare
took any action which was inconsistent with
that policy. Similarly, there is nothing in
the record which would show that PHP
Healthcare had knowledge of Kenendy’s
malicious or reckless conduct, or authorized,
ratified, or approved Kennedy’s actions. See
Fitzgerald [v. Mountain States Telephone &
Telegraph], 68 F.3d [1257,] 1263 [(10th Cir.
1995)] (refusing to impose punitive damages
under § 1981 where employer took no part in
the intentional discrimination). Although
Kennedy was the project manager of PHP
Healthcare’s Fort Hood facility, his actions
alone, without some evidence showing that PHP
Healthcare knew or should have known of
Kennedy’s malicious or reckless conduct, are
insufficient to cause punitive damages to
attach directly to PHP Healthcare.
90 F.3d at 944 (emphasis added). A footnote, quite relevant for
our purposes, followed:
We have affirmed a district court’s refusal to
impose punitive damages based on evidence that
a defendant had taken steps to eliminate
9
racial discrimination and the ambiguous nature
of the evidence at the district court. Jones
v. Western Geophysical Co., 761 F.2d [1158,]
1162 [(5th Cir. 1985)]. When prompt remedial
measures were taken by the employer, the
evidence “did not compel the conclusion that
the [defendant] had behaved maliciously.” Id.
at 1162. Similarly, the evidence in this case
does not compel the conclusion that PHP
Healthcare behaved in a manner which warranted
the imposition of punitive damages.
Id. at 944 n.15 (emphasis added). Consistent with the rule adopted
three years later in Kolstad, Patterson thus put Wal-Mart 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.
Alternatively, even if, in fairness, we could not expect the
parties, at the time of trial, to have been aware of Patterson, the
authorities on which it (and Kolstad) relied had been available
long earlier. Reasoning from 42 U.S.C. § 2000e(b)’s definition
that “employer” includes “agents”, Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 72 (1986), referred generally to the
Restatement (Second) of Agency as the source of “agency principles”
to guide Title VII. Moreover, the Restatement, adopted in 1957,
has roots in such old cases as Lake Shore & M.S. R. Co. v.
Prentice, 147 U.S. 101, 110 (1893) (punitive damages available only
if an act is “brought home to the corporation”); see Kolstad, 119
S. Ct. at 2127 (describing roots of Restatement view).
10
Section 1981a, Title VII’s punitive damages provision, was
based on §§ 1983 and 1981 standards. See, e.g., Patterson, 90 F.3d
at 941 (citing explicit, unambiguous legislative history of Civil
Rights Act of 1991); Kolstad, 119 S. Ct. at 2124 (noting that §
1981a’s language was taken directly from the § 1983 case Smith v.
Wade, 461 U.S. 30 (1983)). Restatement § 217C (or the identical
Restatement (Second) of Torts § 909) has also been long applied to
punitive damages under 42 U.S.C. § 1981. E.g., Fitzgerald v.
Mountain States Telephone & Telegraph Co., 68 F.3d 1257, 1263 (10th
Cir. 1995) (as noted, cited in Patterson, 90 F.3d at 944); Mitchell
v. Keith, 752 F.2d 385, 389-90 (9th Cir. 1985).
Several courts have used “good faith” in this context as the
natural converse to malice or reckless indifference. E.g., Hopwood
v. Texas, 78 F.3d 932, 959 (5th Cir. 1996) (damages under § 1981);
Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 710 (5th Cir.
1997) (damages under ADA); see also BLACK’S LAW DICTIONARY 693 (6th ed.
1990) (“good faith” includes, among other things, “absence of
malice”); cf. Meritor, 477 U.S. at 72 (“policy against
discrimination” is “plainly relevant” to employers’ Title VII
liability).
In short, Kolstad’s imputation holding was not such a sudden
shift as to require, in fairness, giving Wal-Mart an opportunity to
11
present additional evidence. Therefore, we consider the JMOL in
the light of Kolstad.3
B.
As noted, Wal-Mart offered no jury instructions relating
specifically to agency or punitive damages. The jury was
instructed that
[a] corporation may only act through natural
persons, who are known as its agents. In
general, any agent or representative of a
corporation possessing adequate authority may
bind the corporation by his acts,
declarations, and omissions.
(Emphasis added.) Beyond this brief statement, the jury was left
on its own to decide whose actions (Gipson’s or Norman’s, for
instance) to impute to Wal-Mart, or what constituted “adequate
authority”. The jury was asked whether, all things considered,
“Wal-Mart” acted with malice or reckless indifference.4 Obviously,
3
This conclusion is consistent with post-Kolstad opinions from
other courts, none of which have required a new trial under its
standards after a jury considered the issue pre-Kolstad. See,
e.g., Kimbrough v. Loma Linda Development, — F.3d —, —, 1999 WL
493275, *2 (8th Cir. 1999) (affirming punitive damage award);
Blackmon v. Pinkerton Sec. & Investigative Services, — F.3d —, —,
1999 WL 437218, *7 (8th Cir. 1999) (reversing district court’s JMOL
on punitive damages and remanding for reinstatement, finding, inter
alia, employer’s remedial response inadequate).
4
The § 1981a-based instruction stated:
If you find that [Deffenbaugh] has proved by a
preponderance of the evidence that Wal-Mart
discriminated against her based on race, then
you may consider whether also to award her
punitive damages. The purpose of punitive
damages is to punish a wrongdoer forextraordinary misconduct, and
12
if a more specific instruction had been requested, Kolstad (as
would have the law then extant) would support the propriety of its
being granted. But, Wal-Mart did not question the instructions
either at trial or on appeal.5 We note that the Patterson and
agency issues in Wal-Mart’s FED. R. CIV. P. 50(b) post-verdict
renewed motion for JMOL were not raised in its FED. R. CIV. P. 50(a)
motion for JMOL at the close of evidence; regarding punitive
damages, the first motion merely asked the court to “find as a
matter of law that Wal-Mart may not be found liable for punitive
to warn others against engaging in similar conduct. In this case
you have discretion to award punitive damages if you find by a
preponderance of the evidence that Wal-Mart discriminated against
[Deffenbaugh]:
(1) with malice, that is, out of ill
will, spite or for the purpose of causing
injury to [Deffenbaugh]; or
(2) with reckless indifference to
[Deffenbaugh’s] right to be free from
discrimination based on race.
5
Needless to say, failure to request a jury instruction does
not preclude a later JMOL. Boyle v. United Technologies Corp., 487
U.S. 500, 513-14 (1988). In this regard, we note that the
Patterson and agency issues in Wal-Mart’s FED. R. CIV. P. 50(b)
post-verdict renewed motion for JMOL were not raised in its FED. R.
CIV. P. 50(a) JMOL motion at the close of evidence. Regarding
punitive damages, the pre-verdict motion merely asked the court “as
a matter of law [to] find that Wal-Mart may not be found liable for
punitive damages if the jury finds liability”. Rule 50(b) motions
may not, of course, raise issues not raised under Rule 50(a),
Morante v. American General Financial Center, 157 F.3d 1006, 1010
(5th Cir. 1998); but, new grounds may be considered where, as here,
the non-movant does not object, Thompson and Wallace of Memphis,
Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996).
13
damages if the jury finds liability”. [5 R 141] Rule 50(b) motions
may not, of course, raise issues not raised under Rule 50(a),
Morante v. American General Financial Center, 157 F.3d 1006, 1010
(5th Cir. 1998), but new grounds may be considered where, as here,
the non-movant does not object, Thompson and Wallace of Memphis,
Inc. v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996).
A JMOL is reviewed de novo, e.g., King v. Ames, 179 F.3d 370,
373 (5th Cir. 1999), under the well-known standard of Boeing Co. v.
Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc), overruled
on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331
(5th Cir. 1997) (en banc):
On motions for [JMOL] the Court should
consider all of the evidence–not just that
evidence which supports the non-mover's
case–but in the light and with all reasonable
inferences most favorable to the party opposed
to the motion. If the facts and inferences
point so strongly and overwhelmingly in favor
of one party that the Court believes that
reasonable men could not arrive at a contrary
verdict, granting of the motions is proper.
On the other hand, if there is substantial
evidence opposed to the motions, that is,
evidence of such quality and weight that
reasonable and fair-minded men in the exercise
of impartial judgment might reach different
conclusions, the motions should be denied, and
the case submitted to the jury. A mere
scintilla of evidence is insufficient to
present a question for the jury. The motions
for [JMOL] should not be decided by which side
has the better of the case, nor should they be
granted only when there is a complete absence
of probative facts to support a jury verdict.
There must be a conflict in substantial
evidence to create a jury question. However,
14
it is the [Seventh Amendment] function of the
jury as the traditional finder of the facts,
and not the Court, to weigh conflicting
evidence and inferences, and determine the
credibility of witnesses.
(Emphasis added.)
1.
The district court, applying Patterson, concluded that only
Norman (regional manager), not Gipson (district manager for
departments in six stores), was sufficiently high in the Wal-Mart
hierarchy for possibly imputing punitive damages to Wal-Mart.
However, under Kolstad, sufficient evidence to survive JMOL exists
that Gipson was a requisite “managerial agent”. He had supervisory
authority over Deffenbaugh, terminated her on his own authority,
and was, as noted, in charge of departments at six stores. As
Kolstad noted, whether an agent is a manager is a “fact-intensive”
inquiry. 119 S. Ct. at 2128. “[A]n employee must be important,
but perhaps need not be the employer's top management, officers, or
directors, to be acting in a managerial capacity.” Id. (quotations
omitted).
One of the Kolstad-cited treatises notes:
The key ... in determining whether an agent
acts in a managerial capacity is to look at
what the individual is authorized to do by the
principal and to whether that agent has
discretion as to both what is done and how it
is done. Job titles ... should be of little
importance in the determination.
15
2 J. GHIARDI & J. KIRCHNER, PUNITIVE DAMAGES: LAW AND PRACTICE § 24.05, at
15 (1998) (cited by Kolstad, 119 S. Ct. at 2128). Another Kolstad-
cited treatise echoes these remarks and adds that, “[u]ltimately,
the court or jury will have to decide this issue on the particular
facts of the case”. L. SCHLUETER & K. REDDEN, PUNITIVE DAMAGES §
4.4(B)(2)(a), at 181-82 (3d ed. 1995) (cited by Kolstad, 119 S. Ct.
at 2128). Fitzgerald, cited by Kolstad (again, cited also by
Patterson), refers in assessing § 217C manager status to the
“typical discretion of a manager, such as the power to make
independent decisions regarding personnel matters or determine
policy”. 68 F.3d at 1263-64.
Gipson, of course, had authority to make personnel decisions
regarding Deffenbaugh and others in her department and in those of
five other stores. In sum, substantial evidence existed from which
a jury could reasonably find that Gipson was a managerial agent,
acting in the scope of employment.6
6
In its en banc brief, but not its post-Kolstad brief, Wal-
Mart contended that Gipson acted outside the scope of his
employment, relying on the statement in Ellerth, 118 S. Ct. at
2266-67, that “unlawful discrimination” typically falls outside the
scope of employment. (In its post-Kolstad brief, Wal-Mart disavows
Ellerth, in the light of Kolstad, as being “pertinent or applicable
authority in the punitive damages analysis”.) Assuming that,
despite Kolstad, Wal-Mart continues to press this point, it is laid
to rest by Kolstad. 119 S. Ct. at 2128 (“even intentional torts are
within the scope of an agent’s employment if the conduct is the
kind the employee is employed to perform, occurs substantially
within the authorized time and space limits, and is actuated, at
least in part, by a purpose to serve the employer”; such action is
within the scope “even if the employee ... uses forbidden means of
accomplishing results”) (quotation omitted). In this light, for
16
2.
In rejecting an “egregiousness” requirement, Kolstad, 119 S.
Ct. at 2124-26, leaves intact our previous conclusion, 156 F.3d at
593-94, that Gipson’s actions manifested the requisite malice or
reckless disregard of Deffenbaugh’s federal rights.
3.
Concerning the good-faith defense, Wal-Mart’s only evidence
(elicited in cross-examining Deffenbaugh) was that it (Wal-Mart)
encourages employees to contact higher management with grievances.
Plainly, such evidence does not suffice to establish, as a matter
of law, Wal-Mart’s good faith in requiring its managers to obey
Title VII. Wal-Mart presented no evidence either of its response
to Deffenbaugh’s complaint, or of any specific Title VII efforts;
nor did it explain, for JMOL purposes, how a Wal-Mart manager’s
comment on her perceived Wal-Mart corporate hostility to
interracial relationships could pass unrebutted at a meeting with
two other Wal-Mart managers present.
Deffenbaugh, on the other hand, presented substantial evidence
that Wal-Mart failed to respond effectively to her complaints about
Gipson’s racial animus: despite Norman’s promise to check into her
complaint of hostility to her interracial relationship, she was
fired the next month on pretextual grounds. Wal-Mart’s minimal
imputing Title VII punitive damages to Wal-Mart, Gipson acted
within the scope of his employment in disciplining and terminating
Deffenbaugh.
17
presentation left the jury wide latitude to infer that any Wal-Mart
policy against discrimination was too poorly enforced to
distinguish Wal-Mart’s actions from Gipson’s. For JMOL purposes,
the evidence of Wal-Mart’s antidiscrimination good faith was
certainly not so overwhelming that reasonable jurors could not
conclude otherwise.
C.
No intervening authority affects our concerns, 156 F.3d at
594-98, regarding the size of the jury’s punitive damages award.
Consideration of the relative reprehensibility of Wal-Mart’s
conduct, the punitive/compensatory damages ratio, and the
similarity to other awards led us to order a remittitur to $75,000;
we do so again. Because of Deffenbaugh’s stipulation to accepting
the reduced award, we need only remand for entry of judgment.
III.
For the foregoing reasons, the judgment as to punitive damages
is REVERSED and this case REMANDED for reinstatement of punitive
damages for Deffenbaugh, in the reduced amount of $75,000.7
REVERSED and REMANDED
7
As noted, pursuant to the partially reinstated prior panel
opinion, the balance of the judgment, including the compensatory
damages award, has already been AFFIRMED.
18