United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 1997 Decided May 8, 1998
No. 96-7030
Carole Kolstad,
Appellant/Cross-Appellee
v.
American Dental Association,
Appellee/Cross-Appellant
Consolidated with
No. 96-7047
----------
Appeals from the United States District Court
for the District of Columbia
(No. 94cv01578)
Bruce S. Harrison and Elizabeth Torphy-Donzella argued
the cause and filed the briefs for appellee/cross-appellant.
Joseph A. Yablonski argued the cause and filed the brief
for appellant/cross-appellee.
J. Ray Terry, Jr., Deputy General Counsel, and Robert J.
Gregory, Attorney, were on the brief for amicus curiae Equal
Employment Opportunity Commission.
Before: Edwards, Chief Judge, Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph,
Rogers, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring opinion filed by Circuit Judge Randolph.
Dissenting opinion filed by Circuit Judge Tatel, with
whom Chief Judge Edwards, and Circuit Judges Wald,
Rogers and Garland join.
Williams, Circuit Judge: Carole Kolstad sued her employ-
er, the American Dental Association ("ADA"), under Title VII
of the 1964 Civil Rights Act, 42 U.S.C. s 2000e et seq. At the
close of evidence, the district court refused to instruct the
jury on punitive damages. The jury awarded Kolstad back
pay, and the district court denied ADA's motion for judgment
as a matter of law on the issue of liability. A panel of this
court reversed the district court's dismissal of Kolstad's puni-
tive damages claim and remanded for a trial on punitive
damages. Kolstad v. American Dental Ass'n, 108 F.3d 1431,
1437-39 (D.C. Cir. 1997). We granted en banc review on the
question whether the standard of evidence for punitive dam-
ages under Title VII is, in all but a narrow range of cases, no
higher than the standard for liability. We reject that view
and hold that punitive damages in a Title VII case may be
imposed only on a showing of egregious conduct. We further
hold that no evidence of such behavior was shown at trial in
this case, and thus affirm the district court on the issue of
punitive damages.
* * *
ADA is a Chicago-based professional organization with an
office in Washington. Jack O'Donnell worked in the Wash-
ington office, where he held the double-barreled title of
Director of Legislation and Legislative Policy and Director of
the Council on Government Affairs and Federal Dental Ser-
vices. The first role involved developing and advocating
ADA's stance on federal legislation and regulations; the
second entailed coordinating regular meetings of the Council
on Governmental Affairs, a policy-making body composed of
ADA members.
In September 1992 O'Donnell announced he would retire at
year's end. Upon learning of O'Donnell's impending depar-
ture, Kolstad (then serving as ADA's Director of Federal
Agency Relations) and Tom Spangler (then ADA's Legislative
Counsel) each expressed interest in the vacancy. Since 1988,
when Kolstad became responsible for federal regulatory mat-
ters at ADA, Leonard Wheat (the head of the Washington
office) had repeatedly rated her performance as "distin-
guished." Before coming to ADA, Kolstad had spent six
years in the General Counsel's office of the Department of
Defense, where she drafted proposed legislation, prepared
testimony for congressional hearings, and represented the
Department's interests on Capitol Hill. Spangler began
working at ADA in 1991. He dealt mainly with legislative
matters, and had also received "distinguished" performance
evaluations from Wheat. Before joining ADA, Spangler
spent five years as a lobbyist for the National Treasury
Employees Union. Both Kolstad and Spangler are lawyers.
Each had worked directly with O'Donnell, Spangler principal-
ly supporting his lobbying efforts and Kolstad assisting his
management of the Council.
Wheat asked Dr. William Allen, ADA's Executive Director
in Chicago, to appoint O'Donnell's successor. After consult-
ing with Wheat, Allen revised the "Position Description Ques-
tionnaire" for O'Donnell's job, incorporating verbatim ele-
ments of the Position Description Questionnaire that had
been used to hire Spangler in 1991. (There is no evidence
that the job has not in fact included those elements.) In
October 1992 Wheat approved a performance evaluation of
Spangler in which Spangler stated that one of his objectives
for 1993 was to "provide management and administrative
support ... for the Council on Government Affairs," work
that O'Donnell was then performing.
Spangler formally applied for the vacancy once it was
posted in November 1992. Kolstad also applied, after com-
plaining in a letter to Allen that Wheat had refused for
several weeks to meet with her to discuss her interest in the
position. Wheat interviewed both applicants and recom-
mended Spangler for the job. In December 1992 Allen
telephoned Kolstad to tell her that he had given the pro-
motion to Spangler, explaining that she lacked experience
with health care reform and was too valuable to ADA in her
current position to take on O'Donnell's job.
Kolstad's claims of discrimination rest largely on the idea
that ADA had in effect picked Spangler in advance of the
formal selection process; seeing the formal process as largely
facade, she contends that its artificial quality evidences intent
to engage in sex discrimination. She also gave testimony,
hotly contested, that Wheat told sexually offensive jokes at
staff meetings and sometimes used derogatory terms to refer
to prominent professional women.
After exhausting her administrative remedies before the
Equal Employment Opportunity Commission, Kolstad filed
suit, charging ADA with unlawful employment discrimination
and seeking equitable relief, 42 U.S.C. s 2000e-5(g)(1), and
damages, 42 U.S.C. s 1981a. At the close of the trial evi-
dence, the district judge declined to give the jury the issue of
punitive damages. The jury found that ADA had unlawfully
discriminated against Kolstad on the basis of sex and award-
ed her $52,718 in back pay. The district court denied ADA's
motion for judgment as a matter of law on liability. The
court also held that Kolstad was not entitled to attorneys'
fees or the equitable remedy of instatement. Kolstad v.
American Dental Ass'n, 912 F. Supp. 13 (D.D.C. 1996).
A panel of this court affirmed the denial of ADA's motion
for judgment as a matter of law, but reversed and remanded
for trial on punitive damages and for reconsideration of
Kolstad's claims for instatement and attorneys' fees. Kolstad
v. American Dental Ass'n, 108 F.3d 1431 (D.C. Cir. 1997).
We granted rehearing en banc on the question whether the
issue of punitive damages was properly withheld from the
jury in this case. We conclude that it was, and affirm the
district court.
* * *
Until 1991 successful plaintiffs in Title VII cases could only
get "equitable" relief. See Landgraf v. USI Film Products,
511 U.S. 244, 252-53 (1994). In the Civil Rights Act of 1991,
Congress authorized a broader range of monetary remedies
for Title VII plaintiffs. The Act provides that a plaintiff who
proves "intentional discrimination" in violation of Title VII
may recover compensatory and punitive damages in addition
to the equitable relief available under prior law. 42 U.S.C.
s 1981a(a). A separate provision--the one at issue in this
proceeding--limits the recovery of punitive damages to cases
in which "the complaining party demonstrates that the re-
spondent engaged in a discriminatory practice or discrimina-
tory practices with malice or with reckless indifference to the
federally protected rights of an aggrieved individual." 42
U.S.C. s 1981a(b)(1). The sum of compensatory and punitive
damages is capped at a total ranging from $50,000 and
$300,000 depending on the employer's size. 42 U.S.C.
s 1981a(b)(3).
We think that by enacting a separate provision setting out
a special standard for the imposition of punitive damages,
Congress showed that it did not intend to make punitive
damages automatically available in the standard case of inten-
tional discrimination under Title VII. The structure of the
statute--one standard for basic liability, another for the
exceptional remedy of punitive liability--strongly suggests
that, before the question of punitive damages can go to the
jury, the evidence of the defendant's culpability must exceed
what is needed to show intentional discrimination. To be
sure, Congress's choice of language ("malice or ... reckless
indifference to ... federally protected rights") hardly pin-
points what the content of that "something more" ought to be.
Still less, however, does that language support either the rule
proposed by Kolstad--that punitive damages should be avail-
able in every case strong enough to get to the jury on simple
compensation--or even the marginally less permissive rule
urged by the dissent.
We begin by rejecting Kolstad's broad assertion that a
finding of intentional discrimination is enough to put the
question of punitive damages before the jury in every Title
VII case.1 Such an approach would conflict with the remedial
structure of the statute, with legislative history indicating
that Congress meant to reserve punitive damages for particu-
larly egregious violations of Title VII, and with the Supreme
Court's pronouncements on the purposes and availability of
punitive damages. Kolstad's position does draw some super-
ficial plausibility from the language of the statute: since
recklessness is typically subsumed within intent in the mens
rea taxonomy, it might appear logical to read s 1981a(b)(1) as
authorizing punitive damages whenever intent is shown--in
other words, whenever compensatory damages are available.
It is a stretch, however, to conclude that, in expressing the
standard for punitive damages in s 1981a(b)(1), Congress
used terms whose meaning is clear or well settled. We said
recently that mental-state standards like "recklessness" and
"reckless disregard" are among the most malleable and am-
biguous in the law. See Saba v. Compagnie Nationale Air
France, 78 F.3d 664, 668-69 (D.C. Cir. 1996); see also United
States v. Krizek, 111 F.3d 934, 941 (D.C. Cir. 1997). "Malice,"
too, is susceptible of a range of meanings. See Smith v.
Wade, 461 U.S. 30, 41 n.8 (1983); New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964). As we have said, the
structure of the statute strongly points to a two-tiered
scheme of liability; we decline to read the pliable and impre-
cise language of s 1981a(b)(1) to flatten that scheme.
The legislative history of the Civil Rights Act of 1991
supports the conclusion we reach today. The House Report
stated:
Plaintiffs must first prove intentional discrimination, then
must prove actual injury or loss arising therefrom to
recover compensatory damages, and must meet an even
higher standard (establishing that the employer acted
__________
1 Neither compensatory nor punitive damages are available in so-
called "disparate impact" cases, s 1981a(a)(1), or in "mixed motive"
cases in which the defendant demonstrates that it would have taken
the same action in the absence of the impermissible motivating
factor, 42 U.S.C. s 2000e-5(g)(2)(B); see, e.g., Sheppard v. River-
view Nursing Center, 88 F.3d 1332, 1334 (4th Cir. 1996).
with malice or reckless or callous indifference to their
rights) to recover punitive damages.
H.R. Rep. No. 40(I), 102d Cong., 1st Sess. at 72 ("House
Report") (emphasis added).2 Other statements from both
sides of the legislative aisle indicate that Congress intended
to establish an egregiousness requirement for punitive dam-
ages as a matter of law. See, e.g., 137 Cong. Rec. S 15473
(Oct. 30, 1991) (Interp. Memo of Sen. Dole et al.) (punitive
damages to be available only in "extraordinarily egregious
cases"); 137 Cong. Rec. S 15479 (Oct. 30, 1991) (statement of
Sen. Bumpers) ("[Y]ou have to allege and prove intentional,
malicious, willful discrimination in order to receive [punitive]
damages under this bill, and certainly that is as it should be.
It is a heavy burden for plaintiffs.").
Of course, legislative history is not legislative text, and
House Reports are not, as the dissent implies, authoritative
sources for determining what Congress "intended" or "ex-
pected" or "wanted." Dissent at 8 (citing House Report at
69-70). Yet it bears mentioning that even among all the
conflicting and "frankly partisan" congressional statements
concerning the Civil Rights Act of 1991, see Landgraf, 511
U.S. at 262 & n.15, we find nothing to support the proposition
that Congress intended to make punitive damages available
on the same legal basis as compensatory damages in the
typical run of Title VII cases.
To be sure, the House Report does say that s 1981a(b)(1)
"sets the same standard courts have applied under [42
U.S.C.] section 1981," a Reconstruction-era civil rights statute
prohibiting racial discrimination in the making and enforce-
__________
2 This Report accompanied a House version of the 1991 Civil
Rights Act whose punitive damages provision differed from that of
the enacted legislation only in being arguably broader. The House
bill allowed punitive damages to be awarded when the defendant
engaged in a discriminatory practice "with malice, or with reckless
or callous indifference to the federally protected rights of others."
House Report at 12 (emphasis added). We have no reason to think
that the ultimate deletion of the words "or callous" reflected a
House purpose to expand the scope of punitive liability.
ment of contracts. House Report at 74. See also 137 Cong.
Rec. H 9527 (Nov. 7, 1991) (Interp. Memo of Rep. Edwards)
("Punitive damages are available under [s 1981a] to the same
extent and under the same standards that they are available
to plaintiffs under 42 U.S.C. s 1981."). But a cross-reference
to s 1981 (a statute that lacks a separate punitive damages
provision) hardly counts as a firm view on the present ques-
tion, for the circuits are deeply divided as to the proper
standard for punitive liability under s 1981.
Four courts of appeals have held that egregious misconduct
beyond mere intent to discriminate is required for punitive
damages under s 1981--and had done so before enactment of
s 1981a. See Stephens v. So. Atlantic Canners, Inc., 848
F.2d 484, 489 (4th Cir. 1988) (although evidence adequate to
go to jury on intentional discrimination, and although any
form of discrimination "constitutes reprehensible and abhor-
rent conduct," evidence nonetheless inadequate for punitive
damages); Beauford v. Sisters of Mercy-Province of Detroit,
816 F.2d 1104, 1109 (6th Cir. 1987) (stating that punitive
damages in civil rights actions have "generally been limited to
cases involving egregious conduct or a showing of willfulness
or malice on the part of the defendant"); Jackson v. Pool
Mortgage Co., 868 F.2d 1178, 1182 (10th Cir. 1989) (upholding
compensatory award, and affirming trial court's rejection of
punitive damages in the absence of a showing of defendant's
"personal animosity and malice" toward the plaintiff); Wal-
ters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir. 1986)
(finding that there was adequate evidence of intentional dis-
crimination to support jury's finding of liability under s 1981
but that defendants had not "acted with either the requisite ill
will or callous disregard" to justify punitive damages).
Three other circuits have held that a finding of intentional
discrimination, without more, is enough to put the question of
punitive damages before the jury in the usual s 1981 case--
although only two had done so at the time Congress enacted
s 1981a. In Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194,
205 (1st Cir. 1987), the First Circuit applied to s 1981 a rule
that "punitive damages are within the jury's discretion in
cases requiring proof of intentional wrongdoing." In Wil-
liamson v. Handy Button Machine Co., 817 F.2d 1290, 1296
(7th Cir. 1987), the Seventh Circuit appeared to say that
punitive damages were available for racial discrimination
under s 1981 so long as "the application of the law to the
facts at hand was so clear at the time of the act that
reasonably competent people would have agreed on its appli-
cation." 3 And recently we held that the jury's (sustainable)
"finding of intentional racial discrimination permitted it to
find" the requisite ill will or reckless or callous indifference
for punitive damages in a s 1981 case. Barbour v. Merrill,
48 F.3d 1270, 1277 (D.C. Cir. 1995).
In fact, the House Report reflects this circuit split by citing
two illustrative cases decided under s 1981--one of which,
Rowlett, 832 F.2d at 205, supports Kolstad's position, while
the other, Beauford, 816 F.2d at 1109, supports ADA's posi-
tion. See House Report at 74. Perhaps the House Report
could be said to invite each circuit to follow its own view of
s 1981 in construing s 1981a, but such an approach seems
unduly self-referential--and we note that at least two circuits
have already rejected it. Both the First and the Seventh
Circuit have endorsed a low threshold for punitive liability
under s 1981, yet both appear to set a higher standard for
__________
3 The position of the Seventh Circuit on the availability of punitive
damages under s 1981 is not wholly clear. Williamson appears to
permit automatic imposition of punitive damages with limited allow-
ance for a defendant's mistake on an obscure issue of law. Howev-
er, in Ramsey v. American Air Filter Co., Inc., 772 F.2d 1303, 1314
(7th Cir. 1985), the court held that "[i]n a section 1981 action, a
finding of liability for discrimination against a defendant does not
automatically entitle the prevailing plaintiff to an award of punitive
damages," and described the basis for punitive damages in terms of
"outrageous conduct" and the "defendant's ill will against the
plaintiff." And in Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d
508, 514 (7th Cir. 1986), the court upheld the verdict of intentional
discrimination, finding the case basically a "swearing contest," and
then upheld the award of punitive damages, but only after charac-
terizing it as "a close case." Unless there was a higher evidentiary
standard for punitive damages, it is hard to see why that case was
"close" and the liability issue not.
punitive than for compensatory liability under s 1981a.
Compare Rowlett, 832 F.2d at 205, with McKinnon v. Kwong
Wah Restaurant, 83 F.3d 498, 507-09 (1st Cir. 1996); and
compare Williamson, 817 F.2d at 1296, with Emmel v. Coca-
Cola Bottling, 95 F.3d 627, 636 (7th Cir. 1996). Those courts'
approach to s 1981a seems quite sound; the Report's indif-
ferent citation to two antithetical opinions cannot reflect a
focus on their exact meaning.
Significantly, even the cosponsors of s 1981a do not seem
to have taken an expansive view of the availability of punitive
damages under s 1981. "Under 42 U.S.C. s 1981, victims of
intentional racial and ethnic discrimination are entitled not
only to equitable relief, but also to compensatory damages.
Further, in egregious cases, punitive damages may also be
awarded." 137 Cong. Rec. S 15483 (Oct. 30, 1991) (Sponsors'
Interp. Memo) (emphasis added).
Finally, the House Report also cites the Supreme Court's
decision in Smith v. Wade, 461 U.S. 30 (1983); see House
Report at 74. More specifically, the Report includes a "pin
cite" to the concluding passage of Smith, 461 U.S. at 56, in
which the Court announced that "a jury may be permitted to
assess punitive damages in an action under [42 U.S.C.] s 1983
when the defendant's conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others." That
Congress ultimately enacted language similar to that em-
ployed in Smith v. Wade is clear; we now turn to the
implications of that decision for our question.
Kolstad asks us to draw from Smith v. Wade the broad
principle that the issues of compensatory and punitive liability
must go to the jury on the same evidentiary standard in civil
rights cases. But we do not read that decision--much less
the House Report's isolated citation to Smith 's linguistic
formula--to go so far. In Smith, an inmate sued a prison
guard (among others) under 42 U.S.C. s 1983, alleging that
the guard violated his Eighth Amendment rights by failing to
protect him from violent physical and sexual abuse. The sole
dispute was over the proper standard for punitive damages,
and because s 1983 makes no reference to such a remedy, the
Court looked to common law for the answer. It rejected the
proposition that "actual malicious intent--'ill will, spite, or
intent to injure,' " id. at 37, was required for punitive dam-
ages, and held instead, as noted above, that they were
allowable when the defendant's conduct was "motivated by
evil motive or intent, or when it involve[d] reckless or callous
indifference to the federally protected rights of others." Id.
at 56.
The Court in Smith noted at the outset that compensatory
damages had been assessed at trial on an extremely demand-
ing standard, one which itself incorporated a requirement of
egregiousness:
In this case, the jury was instructed to apply a high
standard of constitutional right ("physical abuse of such
base, inhumane and barbaric proportions as to shock the
sensibilities"). It was also instructed, under the principle
of qualified immunity, that Smith could not be held liable
at all unless he was guilty of "a callous indifference or a
thoughtless disregard for the consequences of [his] act or
failure to act," or of "a flagrant or remarkably bad failure
to protect" Wade.
Id. at 50-51. Thus, while the criterion adopted by the Court
for punitive damages was not egregious in relation to the
applicable compensatory standard, it clearly was so in relation
to ordinary tortious conduct. Any of the discriminatory acts
penalized by s 1981a is deplorable and wrong, but not all rise
(or sink) to equivalence with "physical abuse of such base,
inhumane and barbaric proportions as to shock the sensibili-
ties." Thus the decision in Smith supports rather than
refutes the idea that some form of egregiousness is essential
for punitive damages.
In fact, the Court made clear that "deterrence of future
egregious conduct is a primary purpose ... of punitive dam-
ages." Id. at 49 (emphasis added). It invoked common law
standards using such terms as "injury ... inflicted malicious-
ly or wantonly," "criminal indifference to civil obligations," id.
at 41 (quoting Philadelphia, W. & B. R. Co. v. Quigley, 62
U.S. 202, 214 (1859)), "wilful misconduct," and "conscious
indifference to consequences," id. at 42-43 (quoting Milwau-
kee & St. Paul R. Co. v. Arms, 91 U.S. 489, 495 (1876)).
Tellingly, the Court drew its formulation of the appropriate
standard for punitive damages from the Restatement of
Torts, which says that punitive damages are allowable "for
conduct that is outrageous, because of the defendant's evil
motive or his reckless indifference to the rights of others."
Restatement (Second) of Torts s 908(2) (1977) (emphasis
added). The Smith Court quoted the Restatement's observa-
tion that punitive damages are awarded "to punish [the
defendant] for his outrageous conduct and to deter him and
others like him from similar conduct in the future." Id.
s 908(1) (quoted in Smith, 461 U.S. at 54) (emphasis added).
The comments to Section 908 add that punitive damages are
only appropriate where there is "some element of outrage
similar to that usually found in crime." Id., comment b. See
also id., comment d (although award of punitive damages left
to jury discretion, "[i]t is error ... to award punitive dam-
ages if there has been no bad motive or wanton indifference").
The Court itself has since recognized that even in its
s 1983 context the Smith formula will commonly generate
two tiers of liability. In a later s 1983 case in which a trial
court's instructions had allowed the jury to include an imper-
missible element in calculation of compensatory damages, the
Court considered whether the award could nonetheless be
saved by recharacterizing it as punitive damages. Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 306 n.9
(1986). The Court rejected this view, noting that punitive
damages "are available only on a showing of the requisite
intent," and citing as examples both Smith and the jury
instructions in the case before it, which "authoriz[ed] punitive
damages for acts 'maliciously, or wantonly, or oppressively
done'." Id.
In short, then, we construe Smith as establishing a thresh-
old requirement of egregiousness for the imposition of puni-
tive damages in s 1983 cases--a requirement which Congress
transferred largely intact to s 1981a(b)(1). This case does
not require us to define this requirement with specificity, for
the evidence presented by Kolstad, as we will discuss shortly,
fails to show egregiousness in any form. We think, however,
that punitive damages would properly reach the jury where,
for example, the evidence shows that the defendant engaged
in a pervasive pattern of discriminatory acts, or manifested
genuine spite and malevolence,4 or otherwise evinced a "crimi-
nal indifference to civil obligations," Smith, 461 U.S. at 41
(quoting Philadelphia, W. & B.R. Co. v. Quigley, 62 U.S. 202,
214 (1859)).
One might agree with this characterization of egregious-
ness and still contend that the determination of that threshold
in individual cases has been entrusted by Smith--and hence
derivatively by s 1981a(b)(1) as well--to the jury's "discre-
tionary moral judgment." Smith, 461 U.S. at 52. We do not
think s 1981a(b)(1) upsets the traditional relationship be-
tween court and jury in this fashion. Nor, in fact, do we
think Smith itself granted unfettered discretion to juries to
determine whether the minimum requirements for punitive
damages have been met. The Court in Smith correctly
pointed out that punitive damages "are never awarded as of
right, no matter how egregious the defendant's conduct." 461
U.S. at 52. Rather, as the Eighth Circuit recently said in a
s 1983 case, "punitive damages are awarded or rejected in a
particular case at the discretion of the fact finder once
sufficiently serious misconduct by the defendant is shown."
Coleman v. Rahija, 114 F.3d 778, 787 (8th Cir. 1997) (empha-
sis added). The Smith Court said that the jury retains
"discretionary moral judgment" over the award of punitive
damages, but this simply restates the commonplace that the
jury can choose not to award them even when the evidence is
sufficient to give it the choice. And indeed, none of the
__________
4 The dissent for some reason equates our use of "malevolence"
with the statutory term "malice," Dissent at 12, but as the Supreme
Court made clear in Smith, such an equation is far from automatic.
461 U.S. at 41 n.8. To the extent that the reference to "malice" does
mean malevolence, of course, the doctrine of noscitur a sociis--
which counsels courts to construe statutory terms in harmony with
the words that accompany them--argues against the dissent's broad
reading of "reckless indifference."
authorities cited in Smith in support of the "discretionary
moral judgment" proposition goes so far as to deny the
court's traditional role in deciding whether a reasonable juror
could find the defendant's conduct sufficiently egregious for
the punitive damages issue to be submitted to the jury in the
first instance. See, e.g., Chuy v. Philadelphia Eagles Foot-
ball Club, 595 F.2d 1265, 1277-78 n.15 (3d Cir. 1979) (en banc)
("Although the underlying conduct must be outrageous to
sustain liability [for intentional infliction of emotional dis-
tress], the factfinder may conclude, on the record in a particu-
lar case, that exemplary damages would not be warranted.")
(emphasis added) (cited in Smith v. Wade, 461 U.S. at 52
n.14).
Lower courts have consequently read Smith as establishing
a legal standard of egregiousness that must be met before the
issue of punitive damages may go to the jury in a s 1983 case.
See, e.g., Coleman, 114 F.3d at 788 (upholding award of
compensatory damages but finding that the defendant's "con-
duct in this case was not sufficiently egregious to justify the
imposition of punitive damages"); Cornell v. Woods, 69 F.3d
1383, 1391 (8th Cir. 1995) (affirming liability for intentional
violation of plaintiff's clearly established First Amendment
rights, but holding that defendants' conduct, "though certain-
ly not to be commended, did not rise to a level of egregious-
ness sufficient to justify the imposition of punitive damages");
Ivey v. Wilson, 832 F.2d 950, 958 (6th Cir. 1987) (citing Smith
v. Wade in reversing jury award of punitive damages in
s 1983 case); Soderbeck v. Burnett County, 752 F.2d 285, 289
(7th Cir. 1985) (holding that defendant's politically motivated
firing of plaintiff was enough to subject him to compensatory
but not punitive damages); Lavicky v. Burnett, 758 F.2d 468,
477 (10th Cir. 1985) (affirming judgment of liability for inten-
tional violation of plaintiff's Fourth, Fifth, and Fourteenth
Amendment rights but holding that "there was no evidence of
malice, wantonness or oppressiveness to justify punitive dam-
ages"); Wulf v. City of Wichita, 883 F.2d 842, 867 (10th Cir.
1989) (affirming s 1983 liability for termination motivated by
plaintiff's protected speech, but reversing award of punitive
damages, holding that "not every intentional violation of a
plaintiff's constitutional rights subjects a defendant to puni-
tive damages").
There was, of course, no separate punitive damages provi-
sion in s 1983 for the Court to interpret in Smith. Our task
in this case is to construe a comprehensive statutory scheme
that includes a separate standard for punitive damages. For
Congress to have enacted the statutory terms of
s 1981a(b)(1) merely as guidelines to channel the jury's oth-
erwise unchecked discretion would be quite a novelty. We
know of no other statutory provision that functions that way.
Congress writes laws; we do not casually assume it to have
done nothing more than draft jury instructions. Indeed, it is
difficult to imagine where one would look to find standards
that operate as a matter of law if not to the laws that
Congress has duly enacted.
The House Report lends support to this common sense
view. In speaking of the "even higher standard" the plaintiff
"must meet" to get punitive damages, the Report appears to
assume that the legislation will function in the normal way:
by establishing a legal standard, not simply a verbal formula-
tion to be pondered by juries with no role for the trial court.
Thus, the Report notes that the s 1981a(b)(1) limitation,
among others, "serve[s] to check jury discretion in awarding
such damages." House Report at 72.
Kolstad contends that our insistence on preserving two
meaningful tiers of liability across the range of Title VII
cases is undercut by two Supreme Court opinions, Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), and
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), which
together rejected an egregiousness requirement for "liqui-
dated damages" under the Age Discrimination in Employ-
ment Act. But liquidated damages under the ADEA and
punitive damages under Title VII are not twins. To begin
with, the relevant language is different: the ADEA requires
"willful" conduct, not "malice" or "reckless indifference." 29
U.S.C. s 626(b).
Further, under the ADEA liquidated damages are double
damages; that is, they are always equal in amount to the
compensatory award. See 29 U.S.C. s 216(b). By contrast,
although the sum of compensatory and punitive damages is
capped in absolute terms under Title VII, the proportion of
punitive to compensatory damages is statutorily uncon-
strained. Thus in an individual case the ratio may be astro-
nomical--in principle infinite, if no compensatory damages
are awarded. It is one thing to award numerically equal
compensatory and liquidated damages on the basis of the
same conduct (the concept of double or treble damages for a
single violation is not an unfamiliar one); it is quite another
to leverage a compensatory award into a punitive award that
is ten or a hundred times greater, with no showing of
heightened culpability.
We turn next to the reading of the statute proposed by the
dissent, though not by Kolstad--a reading which preserves
the form of a two-tiered structure but scarcely the substance.
The argument runs as follows: Punitive damages are avail-
able when the defendant displays reckless indifference to the
plaintiff's federally protected rights. If the scope or nature
of a given right is sufficiently obscure, a defendant might
intentionally discriminate but be merely negligent as to the
existence of the right. Such a defendant would be subject to
compensatory but not punitive damages. This approach in
effect carves out a mistake-of-law defense to punitive liability.
We find it extremely unlikely that Congress meant to
codify a mistake-of-law defense through s 1981a(b)(1), much
less that it did so in "plain language," as the dissent repeated-
ly insists. Dissent at 1, 2, 5, 9. Contrary to the dissent's
confident assurances, we find the formulation Congress
chose--"with malice or with reckless indifference to the fed-
erally protected rights of an aggrieved individual"--to be an
unusually imprecise and roundabout way of articulating a
mistake-of-law defense. Of course there is no principle that
Congress must pick the clearest or most direct expression of
its standards. But the ornateness of the reasoning needed to
read the section as giving juries discretion to award punitive
damages for all knowing violations of Title VII, in relation to
simplicity of the language Congress might have used to
achieve that result, makes such a reading extremely improba-
ble.5
The improbability only increases when one reflects that the
class of disparate treatment cases that could escape exposure
to punitive damages on the dissent's theory is small, perhaps
vanishingly so. The prohibition against basing employment
decisions on sex, race, and other impermissible factors is
pervasive and well understood, as the dissent itself observes.
See Dissent at 5 (noting that "the statute and its prohibition
against discrimination are well known to employers"). In the
typical intentional discrimination case an employer could not
plausibly argue that it was merely negligent as to the law's
command. Nor do employers often (or advisedly) defend on
the sincere but mistaken basis that religion, sex, or national
origin constitutes a bona fide occupational qualification, and
as a matter of law they may never make such a claim for race.
See 42 U.S.C. s 2000e-2(e). Indeed, the relative implausibili-
ty of such "good faith" defenses in the Title VII context
reveals another feature that distinguishes this case from
Thurston and Hazen. Given the widespread belief among
employers that age can sometimes be a bona fide occupational
qualification--a belief reflected in mandatory retirement pro-
grams--the Supreme Court could reasonably suggest in Haz-
en that its broad reading of "willful" would not frustrate any
legislative intention to create "two tiers of liability across the
__________
5 The dissent claims to find additional support in a phrase
snatched from the crossfire in Smith v. Wade between Justices
Brennan and Rehnquist, namely Justice Brennan's reference to "the
defendant's subjective consciousness of risk ... of unlawfulness."
Dissent at 2 (quoting Smith, 461 U.S. at 38 n.6 (emphases altered
by dissent)). The full sentence reads: "Justice Rehnquist consis-
tently confuses, and attempts to blend together, the quite distinct
concepts of intent to cause injury, on one hand, and subjective
consciousness of risk of injury (or of unlawfulness) on the other."
Smith, 461 U.S. at 38 n.6. (emphases in original). In short, the
Court's treatment of consciousness of unlawfulness was, quite liter-
ally, parenthetical.
range of ADEA cases." 507 U.S. at 616. Such a suggestion
would be far weaker in relation to religion, sex, or national
origin discrimination under Title VII and completely out of
place for the race component. If s 1981a(b)(1) does nothing
more than establish a narrow mistake-of-law defense, then
every garden-variety disparate treatment case qualifies for
both compensatory and punitive damages--a result, as we
have already said, that seems hard to square with Congress's
chosen structure and language.
In its effort to show that its approach would not obliterate
the difference in standards between compensatory and puni-
tive exposure under Title VII, the dissent places considerable
emphasis on the scenario involving "an attenuated agency
relationship" between an employer/defendant and an employ-
ee who intentionally discriminates. Dissent at 7.6 But even
in such cases the dissent does not argue that its approach
would produce a meaningful two-tiered system, in which a
significant fraction of cases would go to the jury on compen-
satory but not punitive damages. Instead, it simply serves
up another helping of the "discretionary moral judgment"
argument--predicting that when "the jury focuses on the
employer's ... awareness of its legal obligation," id., it may
be swayed by evidence that the employer has hired Title VII-
sensitive managers or has provided punctilious equal employ-
ment opportunity training. Perhaps juries would be so
swayed under the dissent's approach, but that does not
answer the question of what legal standard Congress meant
to establish by enacting s 1981a(b)(1). And as we have
already noted, any test that makes the difference between
compensatory and punitive exposure depend on the employ-
er's awareness of Title VII's legal mandates is likely to
produce only a negligible set of cases in which compensatory
but not punitive damages are available.
__________
6 It is unclear just why the dissent uses the word "attenuated" to
characterize the agency relationships on which it focuses. The acts
the dissent goes on to describe--discriminatory "hiring or firing
decision[s]," Dissent at 7-8--are "company acts" that do not involve
an unusual degree of attenuation between employer/defendant and
employee/wrongdoer. These are precisely the sorts of cases in
which employers' claims to have misunderstood the extent of their
legal obligations are least plausible.
Just as important, the dissent never explains why it be-
lieves "[a]ttribution of employee state of mind differs when
the jury turns to the question of punitive damages." Dissent
at 7. In Title VII cases, the defendant is the employer, and
an employer is liable for "company acts"--hirings, firings,
promotions, demotions--performed by employees within the
scope of their employment.7 If those acts amount to inten-
tional discrimination, the employer is subject to compensatory
damages; if the acts satisfy the requirements of
s 1981a(b)(1), the employer is subject to punitive damages.
There is nothing in the language of s 1981a(b)(1) that would
derail this standard presumption of respondeat superior for
company acts--and certainly that provision contains no clear
textual invitation for courts to explore the "employer's aware-
ness," Dissent at 8, whatever that indeterminate phrase
might mean. In short, we fail to see how the dissent's special
new rule of imputation for punitive damages finds any
grounding in the statute's "plain language."
We note in conclusion that our decision today aligns us with
all but one of the several circuit courts to address this
question. See McKinnon v. Kwong Wah Restaurant, 83 F.3d
498, 508 (1st Cir. 1996) (endorsing concept of a higher stan-
dard for punitive damages under s 1981a, and noting that
such damages "are awarded as a matter of public policy to
punish outrageous conduct by the defendant or to deter
similar conduct in the future"); Harris v. L & L Wings, Inc.,
132 F.3d 978, 982 (4th Cir. 1997) (holding that under s 1981a,
"[p]unitive damages are an extraordinary remedy, to be re-
served for egregious cases," and "are not an element of
recovery in every case involving an intentional tort") (citation
omitted); Turic v. Holland Hospitality, Inc., 85 F.3d 1211,
1216 (6th Cir. 1996) (despite sufficiency of evidence for liabili-
ty and "duplicitous" actions of defendant's employees, evi-
dence held insufficient for punitive damages); Emmel v.
Coca-Cola Bottling, 95 F.3d 627, 636 (7th Cir. 1996) (charac-
terizing standard for punitive damages as a "higher hurdle"
__________
7 We need not address the scope of employer liability for "non-
company acts" such as sexual harassment.
than that for proving the underlying discrimination); 8 Karch-
er v. Emerson Electric Co., 94 F.3d 502, 509 (8th Cir. 1996)
(although jury could properly infer intentional sex discrimina-
tion from inconsistent nature of hiring process and failure to
select and train women, it could not find malice or deliberate
indifference); Ngo v. Reno Hilton Resort Corp., 1998 WL
162166 (9th Cir. Apr. 9, 1998) (requiring "evidence of conduct
more egregious than intentional discrimination to support an
award of punitive damages in Title VII cases"); but see
Luciano v. Olsten Corp., 110 F.3d 210, 219-20 (2d Cir. 1997)
(finding that no additional evidence is required for punitive
liability).
The evidence in this case does not show the kind of
egregious discriminatory conduct necessary for the imposition
of punitive damages. As the district court noted, 912
F. Supp. at 14-15, the jury's finding of discrimination appears
to have been premised largely if not exclusively upon its
apparent rejection, as mere pretext, of ADA's proffered ratio-
nales--that Kolstad's legislative experience and writing skills
were inadequate. Whether such a rejection, by itself, is
enough to support an award of compensatory damages is a
question for a different en banc proceeding, see Aka v.
Washington Hospital Center, 116 F.3d 876 (D.C. Cir. 1997),
vacated pending rehearing en banc, 124 F.3d 1302 (D.C. Cir.
__________
8 As with s 1981, the position of the Seventh Circuit on this
question is not simple to characterize. The Emmel decision com-
ports with the approach we take today, as do Tincher v. Wal-Mart
Stores, Inc., 118 F.3d 1125, 1132 (7th Cir. 1997) (holding that
evidence of egregiousness is required for punitive damages, since
otherwise "every employment discrimination claim [could] include a
punitive damage award because every employment discrimination
plaintiff must demonstrate an intentional unlawful discrimination"),
and Ortiz v. John O. Butler Co., 94 F.3d 1121, 1126-27 (7th Cir.
1996) (plaintiff who had already received compensatory damages
not entitled to punitive damages because employer did not act
recklessly or maliciously). But Merriweather v. Family Dollar
Stores of Indiana, Inc., 103 F.3d 576, 581-82 (7th Cir. 1996), a case
which arose under both Title VII and s 1981, appears to point in
the opposite direction.
1997), but in this case it falls far short of supplying grounds
for a punitive award.9
There was substantial evidence to indicate that Spangler
was pre-selected for the promotion, and that Kolstad was
never seriously in the running. Evidence of pre-selection
may of course be "relevant to the question of discriminatory
intent" insofar as an employer's departure from its own hiring
and promotion procedures might suggest that the reasons it
advances for its actions are pretextual. Krodel v. Young, 748
F.2d 701, 709 (D.C. Cir. 1984). But pre-selection by itself is
neither unusual nor illegal, much less egregiously wrongful.
Indeed, where the selection is to be made from among a
narrow band of current employees well known to the selec-
tors, it is hard to see how there could not be a substantial
degree of pre-selection--unless the decision-makers were
asleep at the switch or the candidates' track records were
virtually identical. The dissent lingers over the evidence
concerning the process by which Spangler was promoted, see
__________
9 Given that a large portion of the dissent is devoted to attacking
positions that the Court does not adopt, see Dissent at 11-17, we
take pains here to state expressly what should be evident from a
straightforward reading of our opinion. While it is true that many
plaintiffs, like this one, who can offer only weak evidence of
discrimination will not be able to provide any evidence at all of
egregious conduct, nothing we say precludes the possibility of
sparse, but nonetheless adequate, evidence of egregious discrimina-
tion. And our position in no way "amount[s] to little more than a
requirement of direct rather than circumstantial evidence of dis-
crimination as a prerequisite for punitive damages." Id. at 13. The
showing of egregious discrimination necessary for an award of
punitive damages, like any other element of a plaintiff's case, may
be made through circumstantial as well as direct evidence. Nor do
we hold that punitive damages may not be considered in pretext-
only cases, see id. at 14-17, though legitimate punitive awards in
such cases do seem improbable. The reasoning behind this pre-
dictive judgment is simple: a plaintiff who can demonstrate that her
employer engaged in truly outrageous acts of discrimination will
generally be able to offer some evidence probative of the employer's
illicit motivations, rather than merely resting on a finding that its
claimed motivations were unworthy of belief.
Dissent at 15-16, but the only evidence it adduces to show
ADA's knowledge of "the impropriety of preselection" is a
consent decree--expired at the time of the operative events--
under which ADA undertook not to engage in the practice.
Id. at 16. It scarcely bears repeating that "a consent decree
is a form of contract," Richardson v. Edwards, 127 F.3d 97,
101 (D.C. Cir. 1997), not a statement of what the law consid-
ers wrongful. Consequently, evidence of pre-selection is rele-
vant only insofar as it logically supports an inference of
discriminatory intent, i.e., trivially at best. For the same
reason we reject Kolstad's fallback position that we should
remand for a new trial on punitive damages with a direction
that the trial court admit the consent decree into evidence.
The only evidence that pointed toward gender bias was
Kolstad's testimony that Wheat told sexually offensive jokes
at staff meetings and on occasion used derogatory terms to
refer to prominent professional women. But Wheat, as men-
tioned above, did not make the decision to promote Spangler
over Kolstad; Allen did. In any event, sexist remarks,
tasteless and lamentable though they may be, are "not always
conclusive of sex discrimination." Neuren v. Adduci, Mas-
triani, Meeks & Schill, 43 F.3d 1507, 1513 (D.C. Cir. 1995).
Wheat's statements standing alone do not form an adequate
basis for an award of punitive damages.
The judgment of the district court on the matter of punitive
damages is
Affirmed.
Randolph, Circuit Judge, concurring: The interpretative
problem in this case starts with the interplay of the words
"intentional discrimination," which suffices for compensatory
damages, 42 U.S.C. s 1981a(a), and "reckless indifference,"
which along with the alternative "malice" is a prerequisite for
punitive damages, id. s 1981a(b)(1). The judicial mind natu-
rally tends to view these words against a legal background,
here a Supreme Court decision defining "malice" to include
recklessness, Smith v. Wade, 461 U.S. 30, 39 & n.8 (1982);
and the common legal notion, as expressed in the Model
Penal Code s 2.02(5), that "[w]hen recklessness suffices to
establish an element, such element also is established if a
person acts purposely or knowingly." If one fed this data
into a parsing machine, it would answer--s 1981a(a)'s stan-
dard for compensatory damages subsumes s 1981a(b)(1)'s
standard for punitive damages, or whenever there is inten-
tional discrimination there is at least reckless disregard. Yet
one cannot help wondering why Congress would have enacted
two separate provisions when one would have sufficed, and
why all employers liable under s 1981a(a) should be swept
within s 1981a(b)(1). Those who voted for this legislation
surely must have believed that they were voting for a two-
tiered damages system, as the majority opinion describes it.
If the dissent is nevertheless correct in its interpretation, the
punitive damages subsection must be the product of a very
clever draftsman, someone who wanted to convey the appear-
ance of limiting punitive damages to exceptional cases, while
hoping that courts would draw upon other legal sources to
find the limitation an illusion. Despite the dissent's linguistic
points, the majority opinion convinces me that Congress
wanted the subsections kept separate, that it intended puni-
tive damages to be reserved for only the worst cases. The
structure of s 1981a certainly points in that direction, as do
the historical materials, the policies promoted by punitive
damages and the other factors skillfully marshalled in the
majority opinion. Although the matter is exceedingly close, I
also believe the language of s 1981a(b)(1) will bear the mean-
ing the majority opinion ascribes to it. I therefore concur.
Tatel, Circuit Judge, with whom Edwards, Chief Judge,
Wald, Rogers, and Garland, Circuit Judges, join, dissenting:
A jury found that the American Dental Association ("ADA")
intentionally discriminated against Carole Kolstad on the
basis of sex when it denied her a promotion in favor of a male
candidate. Under the Civil Rights Act of 1991, 42 U.S.C.
s 1981a(b)(1) (1994), victims of intentional employment dis-
crimination who demonstrate that the employer acted "with
malice or with reckless indifference to [their] federally pro-
tected rights" may recover punitive damages. This court now
holds that Congress meant to require something more serious
than intentional discrimination--some undefined quantum of
egregiousness--before a jury may consider punitive damages.
Because this amorphous requirement nullifies the plain lan-
guage of section 1981a(b)(1)'s reckless indifference standard,
and because it conflicts with Supreme Court decisions in
Smith v. Wade, 461 U.S. 30 (1983), and Hazen Paper Co. v.
Biggins, 507 U.S. 604 (1993), I respectfully dissent.
I
Asserting that Congress "did not intend to make punitive
damages automatically available in the standard case of inten-
tional discrimination under Title VII," Maj. Op. at 5, the court
declares that the evidence supporting punitive damages "must
exceed what is needed to show intentional discrimination," id.
If Congress had wanted to require something more serious
than intentional discrimination, however, it would have limited
section 1981a(b)(1) to "malice," or it would have written the
statute to require "malice or egregiousness." But section
1981a(b)(1) never mentions egregiousness. Instead, it allows
the jury to consider punitive damages if the employer acts not
only with malice, but also with "reckless indifference to ...
federally protected rights." Because this court's duty is to
"give effect, if possible, to every clause and word of [the]
statute," Bennett v. Spear, 117 S. Ct. 1154, 1166 (1997)
(internal quotation marks omitted), we may not ignore the
reckless indifference standard, but must interpret it as writ-
ten by Congress. See National Credit Union Admin. v.
First Nat'l Bank & Trust Co., 118 S. Ct. 927, 938-40 (1998).
According to its plain language, section 1981a(b)(1)'s "reck-
less indifference" threshold for punitive damages focuses on
the employer's awareness of "federally protected rights." In
Smith v. Wade, from which Congress drew section
1981a(b)(1)'s language, see H.R. Rep. No. 102-40, pt. 1, at 74
(1991) (citing Smith), Justice Brennan's opinion for the Court
referred to this inquiry as a measure of the defendant's
"subjective consciousness of risk ... of unlawfulness."
Smith, 461 U.S. at 38 n.6 (emphases altered). As this court
said in a different context, " 'the wrongdoer must consciously
be aware of his wrongdoing, i.e., the actor must not only
intend to do the act found to be wrongful, but also must know
that his conduct is wrongful.' " Saba v. Compagnie Natio-
nale Air France, 78 F.3d 664, 668 (D.C. Cir. 1996) (emphasis
omitted) (quoting In re Korean Air Lines Disaster of Sept. 1,
1983, 704 F. Supp. 1135, 1136 (D.D.C. 1988)).
Although the details of the recklessness standard remain
open to debate, see Maj. Op. at 6 (citing Saba, 78 F.3d at 668-
69, and United States v. Krizek, 111 F.3d 934, 941 (D.C. Cir.
1997)); cf. Farmer v. Brennan, 511 U.S. 825, 836-37 (1994)
(discussing objective and subjective tests for reckless disre-
gard), its basic contours are well settled; the language of
section 1981a(b)(1) is not the blank slate that the court seeks
to make of it. Whether relying on the employer's mental
state (Saba) or inferring recklessness from the entire record
(Krizek), a jury can award punitive damages under section
1981a(b)(1) if the employer either knew of Title VII's prohibi-
tions and acted regardless or disregarded a substantial risk of
violating the statute. Cf. W. Page Keeton et al., Prosser and
Keeton on the Law of Torts s 34, at 213 (5th ed. 1984)
(noting that the "usual meaning" of "reckless" is that "the
actor has intentionally done an act of an unreasonable charac-
ter in disregard of a known or obvious risk that was so great
as to make it highly probable that harm would follow").
The court and concurring opinion reject the statute's reck-
less indifference standard because they view it, mistakenly in
my view, as "subsumed" by section 1981a(a)'s liability deter-
mination. When the jury determines liability in a Title VII
disparate treatment case, it considers only whether the em-
ployer made the challenged employment decision "because of"
the plaintiff's race, color, religion, sex, or national origin. See
42 U.S.C. s 2000e-2. The employer's awareness of its legal
obligations plays no role. In this case, for example, the
verdict in Kolstad's favor, a verdict unanimously affirmed by
the panel and not now before this court, rested solely on the
jury's conclusion that ADA denied Kolstad the promotion
because of her sex. ADA's liability for punitive damages, by
comparison, turns on its awareness of its legal obligations:
When it denied Kolstad the promotion because of sex, did it
intend to violate Title VII? Did it know of its legal obli-
gations yet recklessly disregard them? Or can reckless
indifference to federally protected rights be inferred from the
entire record?
Criticizing this reading of the Act, the court says that "any
test that makes the difference between compensatory and
punitive exposure depend on the employer's awareness of
Title VII's legal mandates is likely to produce only a negligi-
ble set of cases in which compensatory but not punitive
damages are available." Maj. Op. at 18. Quite apart from its
entirely speculative nature, this statement disregards the fact
that section 1981a(b)(1), by focusing specifically on whether
the employer acted with "reckless indifference ... to federal-
ly protected rights," in fact makes the difference between
compensatory and punitive damages "depend on the employ-
er's awareness of Title VII's legal mandates."
In addition to appearing nowhere in section 1981a, the
court's new egregiousness requirement conflicts with Smith v.
Wade 's holding that "a jury may be permitted to assess
punitive damages in an action under [42 U.S.C.] s 1983 when
the defendant's conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others,"
Smith, 461 U.S. at 56. Rejecting the notion that punitive
damages under section 1983 require anything as egregious as
"actual malicious intent--'ill will, spite, or intent to injure,' "
Smith, 461 U.S. at 37, the Court noted that the majority
common law rule recognizes that "punitive damages in tort
cases may be awarded not only for actual intent to injure or
evil motive, but also for recklessness, serious indifference to
or disregard for the rights of others, or even gross negli-
gence," id. at 48. Although citing the Restatement (Second)
of Torts' view that punitive damages "punish [the defendant]
for his outrageous conduct," Restatement (Second) of Torts
s 908(1) (1979), quoted in Smith, 461 U.S. at 54, Smith
actually draws its standard for punitive damages from the
Restatement's subsequent explanation that conduct can be
outrageous "because of the defendant's evil motive or his
reckless indifference to the rights of others," id. s 908(2)
(emphasis added), quoted in Smith, 461 U.S. at 46-47.
Smith also rejected the proposition, central to my col-
leagues' interpretation of section 1981a, that "the threshold
for punitive damages should always be higher than that for
liability in the first instance," Smith, 461 U.S. at 38; see also
id. at 51-54. According to Smith, the reckless indifference
threshold for punitive damages "applies even when the under-
lying standard of liability for compensatory damages is one of
recklessness." Id. at 56.
The Supreme Court reached the same result under the Age
Discrimination in Employment Act ("ADEA"), notwithstand-
ing that statute's "two-tiered scheme of liability," Maj. Op. at
6. Interpreting the term "willful" as used in the ADEA, the
Court held that an employer should be assessed liquidated
damages, the statute's equivalent of punitive damages, if it
"knew or showed reckless disregard for the matter of wheth-
er its conduct was prohibited by the ADEA." Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985) (quoting
Air Line Pilots Ass'n, Int'l v. Trans World Airlines, Inc., 713
F.2d 940, 956 (2d Cir. 1983)). Lower courts, concerned that
the reckless disregard standard "would defeat the two-tiered
system of liability intended by Congress, because every em-
ployer that engages in informal age discrimination knows or
recklessly disregards the illegality of its conduct," Hazen
Paper, 507 U.S. at 615-16, added just the kind of heightened
culpability requirement that my colleagues now read into
section 1981a, see id. at 615 (citing, e.g., Lockhart v. Westing-
house Credit Corp., 879 F.2d 43, 57-58 (3d Cir. 1989), which
allowed liquidated damages only if employer's conduct was
"outrageous"). Flatly rejecting these decisions, Hazen Paper
holds that "[t]he ADEA does not provide for liquidated
damages 'where consistent with the principle of a two-tiered
liability scheme.' It provides for liquidated damages where
the violation was 'willful.' ... Once a 'willful' violation has
been shown, the employee need not additionally demonstrate
that the employer's conduct was outrageous." Id. at 616-17.
Read in light of Smith and Hazen Paper, section 1981a's
plain language thus leaves no doubt that juries may consider
punitive damages on the basis of evidence showing nothing
more than "reckless indifference to ... federally protected
rights." Moreover, even though the liability determination
(Did the employer intentionally take account of sex?) differs
from the reckless indifference inquiry (When the employer
intentionally discriminated, was it aware of its legal obli-
gations?), proof of unlawful intentional discrimination can also
demonstrate reckless indifference to federally protected
rights. Considering that Congress passed the Civil Rights
Act over three decades ago, that the statute and its prohibi-
tion against discrimination are well known to employers, that
many companies have instituted Title VII compliance pro-
grams, and that an industry of equal employment opportunity
consultants and attorneys is readily available to employers in
need of assistance, a jury could reasonably conclude that an
employer nevertheless refusing to hire or promote a woman
because of sex is worthy of punishment.
This does not mean, as the court fears, that juries will
automatically award punitive damages in every Title VII
disparate treatment case. Punitive damages "are never
awarded as of right, no matter how egregious the defendant's
conduct." Smith, 461 U.S. at 52. If a jury believes that an
employer has acted maliciously or with reckless indifference
to a plaintiff's federally protected rights, it then decides
whether to punish the defendant, a determination the law
leaves to the jury's "discretionary moral judgment." Id.
Although a jury exercising its moral discretion might con-
clude that an employer recklessly indifferent to federally
protected rights deserves punishment, a jury could also reach
the opposite conclusion, that because of extenuating circum-
stances--e.g., the employer had no history of discrimination,
showed remorse, or had already taken steps to rectify the
injury--the employer should not have to pay punitive dam-
ages.
Because liability and punitive damages require distinct
inquiries, moreover, employers found to have intentionally
discriminated in employment in violation of federal law may
introduce evidence to demonstrate that they did everything
they could to comply with the law and were therefore not
recklessly indifferent to their legal obligations. In Trans
World Airlines, Inc. v. Thurston, for example, the Supreme
Court held that employers who intentionally violate the
ADEA may nevertheless avoid liquidated damages by demon-
strating that they attempted "reasonably and in good faith" to
comply with the law. Thurston, 469 U.S. at 129. Although
finding that TWA's mandatory retirement policy violated the
Act, the Court denied plaintiffs liquidated damages because,
by seeking legal advice and consulting with the union, TWA
demonstrated that it had not acted in " 'reckless disregard' of
the requirements of the ADEA." Id. at 130. Cf., e.g., Harris
v. L & L Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997) (noting
"that the institution of a written sexual harassment policy
goes a long way towards dispelling any claim about the
employer's 'reckless' or 'malicious' state of mind").
For similar reasons, employers found to have intentionally
discriminated in violation of Title VII may be able to per-
suade a jury that they had acted without reckless indiffer-
ence; employers may even be able to convince a judge to
remove the question of punitive damages from jury consider-
ation altogether. For example, evidence that an employer
erroneously used religion, sex, or national origin as a "bona
fide occupational qualification" for employment, see 42 U.S.C.
s 2000e-2(e), or overreached in a good-faith effort to remedy
the effects of past discrimination, could demonstrate that the
employer acted without reckless indifference to its legal
obligations. Punitive damages might be equally inappropri-
ate where liability rests on a novel legal theory. See, e.g.,
Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1216 (6th
Cir. 1996) (denying punitive damages although holding em-
ployer liable for dismissing female employee who had contem-
plated an abortion, an entirely novel theory of liability); see
also Hernandez-Tirado v. Artau, 874 F.2d 866, 870 (1st Cir.
1989) (although intentionally violating the First Amendment
in a politically motivated employment decision, defendant was
only "negligent [as] to the existence of a federally protected
right").
Evidence sufficient to prove liability may also fall short of
establishing an employer's reckless indifference to its legal
obligations where the employer's liability arises from an
attenuated agency relationship with an employee found to
have committed an intentional act of discrimination. Because
employers are responsible for injuries caused by employees
acting within the scope of employment, juries considering
liability in traditional Title VII cases attribute employees'
intentional use of race or sex to the employer. See Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 75 (1986) (Mar-
shall, J., concurring in judgment) (in the typical Title VII case
"when a supervisor discriminatorily fires or refuses to pro-
mote a black employee, that act is, without more, considered
the act of the employer"); see also Restatement (Second) of
Agency s 219 (1958) ("A master is subject to liability for the
torts of his servants committed while acting in the scope of
their employment."). Attribution of employee state of mind
differs when the jury turns to the question of punitive dam-
ages. Because punitive damages are intended not to compen-
sate the victim, but rather to punish employers for the
discriminatory acts of employees, cf. Smith, 461 U.S. at 54 (in
the punitive damages inquiry, "[t]he focus is on the character
of the tortfeasor's conduct--whether it is of the sort that calls
for deterrence and punishment over and above that provided
by compensatory awards"), the jury focuses on the employ-
er's, not the employee's, awareness of its legal obligations.
Obviously, if the person discriminating is the same as the
employer--in a sole proprietorship, for example--there is no
difference between the employer's awareness of its legal
obligations and the employee's. But where a gap exists in
the agency relationship between the agent and the entity
being held liable, i.e., where the employee making the hiring
or firing decision does not constitute the employer's entire
decision-making apparatus, the punitive damages inquiry re-
quires the jury to examine the employer's awareness of the
law. An employer could thus argue that even though it had
been found liable for the discriminatory acts of an employee
and ordered to pay compensatory damages to the victim, it
should not have to pay punitive damages because it had
undertaken good-faith efforts to comply with Title VII--for
example, by hiring staff and managers sensitive to Title VII
responsibilities, by requiring effective EEO training, or by
developing and using objective hiring and promotion stan-
dards--thereby demonstrating that it never acted in reckless
disregard of federally protected rights.
This interpretation of section 1981a sets up exactly the
incentives Congress intended. While Congress expected vic-
tims of intentional discrimination to be compensated for their
losses, it also wanted to motivate employers to detect and
deter Title VII violations. See H.R. Rep. No. 102-40, pt. 1, at
69-70 (recounting testimony encouraging employers to design
and implement effective structures to combat discrimination).
Giving punitive damages protection to employers who make
good-faith efforts to prevent discrimination in the workplace
accomplishes just this purpose. Employers making no such
efforts will not only have to compensate victims, but may be
punished for their reckless indifference to federal law.
Applying section 1981a(b)(1)'s reckless indifference stan-
dard to the facts of this case, I believe the district court
should have allowed the jury to consider punitive damages.
Found to have intentionally discriminated against Kolstad,
ADA never argued that it made good-faith efforts to comply
with the law; the case involves no novel issues of Title VII
liability; and the decision to deny Kolstad the promotion was
made not by a low-level employee, but by ADA's executive
director. Under these circumstances, the jury should have
been allowed to consider whether in denying Kolstad a pro-
motion because of her sex ADA acted with reckless indiffer-
ence to her federally protected rights.
II
The court spends most of its opinion struggling to avoid the
plain language of section 1981a and the holdings of Smith and
Hazen Paper. It begins by detecting an egregiousness stan-
dard in section 1981a's legislative history. Contentious and
partisan, see Landgraf v. USI Film Prods., 511 U.S. 244, 262
(1994), the Act's legislative history actually manifests contra-
dictory signals regarding congressional intent about punitive
damages. As the court acknowledges, see Maj. Op. at 9, the
House Report it relies on for a "heightened" standard cites
two irreconcilable section 1981 cases--Beauford v. Sisters of
Mercy-Province of Detroit, Inc., 816 F.2d 1104, 1109 (6th Cir.
1987), limiting punitive damages to "egregious" cases, and
Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 205-06 (1st
Cir. 1987), holding that plaintiffs need prove nothing beyond
intentional discrimination for juries to consider punitive dam-
ages. The court's egregiousness standard comports with
Beauford. My interpretation of section 1981a comports with
Rowlett. Given the clarity of section 1981a's text, we should
follow the statute rather than selective bits of its confused
legislative history.
Next, appearing to concede that Congress drew the lan-
guage of section 1981a(b)(1) from Smith, see Maj. Op. at 10,
the court then reads Smith to require proof of egregiousness
for punitive damages, see id. at 12. Even if recklessly
violating the Eighth Amendment is somehow more egregious
than intentionally discriminating in employment on the basis
of sex or race in violation of federal law, see id. at 11, it does
not follow that because liability in Smith required "base,
inhumane and barbaric" action, Smith, 461 U.S. at 32, the
standard for punitive damages must always include "some
form of egregiousness," Maj. Op. at 11. Like the rest of the
court's opinion, its reliance on Smith's underlying standard
for liability rests on its failure to acknowledge that the
punitive damages inquiry depends not on the seriousness of
the behavior giving rise to liability, but on the defendant's
awareness of its legal obligations. Both "base, inhumane and
barbaric" acts (Eighth Amendment) and intentional discrimi-
nation in employment (Title VII) can be committed with
"reckless indifference to ... federally protected rights."
The court relies on Memphis Community School District v.
Stachura, 477 U.S. 299 (1986), but nothing in that case casts
doubt on Smith's holding that proof of reckless indifference
suffices for punitive damages. Noting in dicta that punitive
damages are available on a showing of "requisite intent," id.
at 306 n.9, Stachura drew the "maliciously, or wantonly, or
oppressively done" standard not from Smith, but from the
jury instruction under review in that case, see id. Moreover,
while our sister circuits have split over the meaning of Smith,
compare Maj. Op. at 14-15 (collecting cases reading Smith to
require egregiousness), with, e.g., Savarese v. Agriss, 883
F.2d 1194, 1203-04 (3d Cir. 1989) (rejecting heightened culpa-
bility requirement under Smith); Melear v. Spears, 862 F.2d
1177, 1187 (5th Cir. 1989) (applying Smith's reckless indiffer-
ence standard without proof of egregiousness), we have con-
sistently read Smith's reckless indifference standard without
adding an egregiousness requirement, see, e.g., Samaritan
Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1239 (D.C.
Cir. 1997) (applying Smith to the Fair Housing Act); Barb-
our v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995) (applying
Smith to section 1981).
My colleagues make two unpersuasive attempts to distin-
guish Hazen Paper's clear rejection of their "two-tiers" ratio-
nale. Asserting first that the ADEA's "willful" standard has
no bearing on the "malice" or "reckless indifference" required
under section 1981a(b)(1), Maj. Op. at 15, the court ignores
Thurston's holding that "willful" conduct includes "reckless
disregard," a term courts use interchangeably with "reckless
indifference," see, e.g., Williams v. Borough of West Chester,
891 F.2d 458, 464 n.10 (3d Cir. 1989).
Second, the court points out that unlike the double dam-
ages authorized by the liquidated damages provision of the
ADEA, the ratio between compensatory and punitive dam-
ages under Title VII is potentially unlimited. Maj. Op. at 15-
16. This observation is interesting, but Congress chose to
deal with the risk of disproportionate punitive damages
awards under Title VII by preserving judges' traditional
oversight of jury discretion. See H.R. Rep. No. 102-40, pt. 1,
at 72 ("Judges serve as an additional check: they can and do
reduce awards which are disproportionate to the defendant's
discriminatory conduct or the plaintiff's resulting loss."). I
have no doubt that district courts--and if necessary, circuit
courts--have all the authority they need to correct dispropor-
tionate awards, particularly an "infinite[ly]" disproportionate
award, Maj. Op. at 16, should one ever occur. Equally
significant, when enacting the Civil Rights Act of 1991, Con-
gress carefully limited punitive damages in other ways. It
capped total damages at between $50,000 and $300,000 de-
pending on the employer's size, 42 U.S.C. s 1981a(b)(3), and
barred punitive damages altogether in disparate impact cases,
see id. s 1981a(a)(1), in mixed motive cases, see id.
s 2000e-5(g)(2), and against governmental defendants, see id.
s 1981a(b)(1). Because Congress itself carefully cabined pu-
nitive damages, it is particularly inappropriate for this court
to add a limitation not found in the language of the statute.
"Courts may not create their own limitations on legislation,
no matter how alluring the policy arguments for doing
so...." Brogan v. United States, 118 S. Ct. 805, 811-12
(1998).
III
Not only does the court's egregiousness standard conflict
with the language of section 1981a and with Smith and Hazen
Paper, but my colleagues offer no clear definition of the term,
shifting from one interpretation to another and leaving dis-
trict courts little guidance.
Egregiousness as a Measure of the Seriousness
of the Discrimination
Initially, the court equates egregiousness with the serious-
ness of the underlying discrimination. See Maj. Op. at 2, 5.
But unlike reckless indifference, or even malice, which also
focuses on an employer's state of mind, see, e.g., Dellums v.
Powell, 660 F.2d 802, 808 (D.C. Cir. 1981) (noting that malice
is a subjective inquiry), the jury considers the seriousness of
the underlying intentional discrimination in setting compensa-
tory damages; the more egregious the harm, the greater the
compensation awarded. Of course, the egregiousness of the
violation can relate to the punitive damages inquiry in the
sense that egregious discrimination can be probative of mal-
ice or reckless indifference. To consider egregiousness in
awarding punitive damages, however, the jury must make an
inference not required at the liability stage: that the egre-
giousness of the discrimination suggests malice or reckless in-
difference to federally protected rights.
The court's effort to define egregiousness as a measure of
the severity of discrimination suffers from several other
defects. At one point, for example, the court defines egre-
giousness as "a pervasive pattern of discriminatory acts."
Maj. Op. at 13. Not only does the court provide no support
for this new standard, but exposing only those employers to
punitive damages who commit multiple acts of discrimination
essentially allows employers to engage in a single act of
invidious discrimination without fear of punitive damages.
Offering still another definition, again without citation, the
court says that egregiousness might be demonstrated by an
employer's "genuine spite and malevolence." Id. Not con-
tent to read the reckless indifference standard out of the
statute, the court here tinkers with section 1981a's other
punitive damages test, suggesting that it requires not just
"malice," but some kind of "genuine" malice, whatever that
means.
Under any of these iterations of egregiousness-as-a-
measure-of-seriousness, it is entirely unclear how district
judges will determine when intentional discrimination is suffi-
ciently non-egregious to take the issue from the jury. Never
offering a clear answer, the court leaves it to district courts to
decide for themselves whether an employer's conduct is wor-
thy of punishment, thus allowing judges to usurp the jury's
exercise of moral judgment.
Egregiousness as a Measure of the Plaintiff's Evidence
Applying its egregiousness standard to the facts of this
case, see id. at 20-22, the court shifts from using egregious-
ness as a reflection of the seriousness of the discrimination to
a measure of the strength of Kolstad's proof. According to
the court, the "only evidence that pointed toward gender bias
was Kolstad's testimony that Wheat told sexually offensive
jokes at staff meetings and on occasion used derogatory
terms to refer to prominent professional women." Id. at 22.
"Wheat's statements standing alone," the court says, "do not
form an adequate basis for an award of punitive damages."
Id.
Amounting to little more than a requirement of direct
rather than circumstantial evidence of discrimination as a
prerequisite for punitive damages, the court's approach con-
flicts with Hazen Paper, 507 U.S. at 615 (rejecting require-
ment of Neufeld v. Searle Laboratories, 884 F.2d 335, 340
(8th Cir. 1989), that underlying evidence of liability be direct
before allowing liquidated damages). It also conflicts with
this circuit's case law holding that at least with respect to
proof of liability, circumstantial evidence can be as probative
as direct evidence. See, e.g., Crawford-El v. Britton, 93 F.3d
813, 818 (D.C. Cir. 1996) (en banc) (Williams, J.) ("[T]he
distinction between direct and circumstantial evidence has no
direct correlation with the strength of [a] plaintiff's case."),
rev'd on other grounds, No. 96-827, 1998 WL 213193 (U.S.
May 4, 1998); cf. Thomas v. National Football League Play-
ers Ass'n, 131 F.3d 198, 204 (D.C. Cir. 1997) (" '[D]irect'
evidence [in the Title VII mixed motive context] may be
circumstantial in nature, so long as it establishes that discrim-
inatory motive played a substantial role in the employment
decision."). I see no reason why the same rule should not
apply to proof of punitive damages, particularly since the
presence or absence of direct evidence of intent is not neces-
sarily an accurate measure of blameworthiness. Why, for
example, is an employer who leaves behind clear evidence of
its intentional, discriminatory refusal to promote one wom-
an--"these are jobs for men"--more worthy of punishment
than an employer who subtly, but equally intentionally, re-
fuses to promote an entire class of women? Under the
court's direct evidence rule, employers who effectively cover
up evidence of their discriminatory intent will escape punitive
damages no matter how egregious their discrimination. Con-
gress, acting to strengthen Title VII in the Civil Rights Act of
1991, could not have intended such a nonsensical result.
Egregiousness as a Requirement
of More than Mere Pretext
Acknowledging that we are considering the question of
whether rejection of a proffered nondiscriminatory rationale
by itself can support a finding of intentional discrimination in
a different en banc case, see Maj. Op. at 20 (citing Aka v.
Washington Hosp. Ctr., 116 F.3d 876 (D.C. Cir.), judgment
vacated pending reh'g en banc, 124 F.3d 1302, 1302 (D.C. Cir.
1997)), the court says that in this case such evidence "falls far
short of supplying grounds for a punitive award," id. at 21.
Although punitive damage awards in pretext-only cases may
be "improbable," id. at 21 n.9, the court's premise is entirely
unsupported by the record. Properly reviewed, the evidence
in this case demonstrates that the jury's verdict could have
rested on much more than rejection of the employer's prof-
fered nondiscriminatory justification. This court's job is not
to weigh the evidence, as my colleagues seem to have done,
but to view the evidence "in the light most favorable" to
Kolstad, giving her "the benefit of every fair and reasonable
inference," Anderson v. Group Hospitalization, Inc., 820 F.2d
465, 471 (D.C. Cir. 1987). Viewed this way, the jury could
have based its finding of liability--again, a finding of inten-
tional discrimination affirmed unanimously by the panel--on
much more than "rejection, as mere pretext, of ADA's prof-
fered rationales," Maj. Op. at 20.
To begin with, the record contains evidence from which the
jury could have concluded that Kolstad was the more quali-
fied of the two candidates. A lawyer, Kolstad worked for six
years as the principal legislative draftsperson for the Depart-
ment of Defense, preparing testimony for congressional hear-
ings and representing the Department's interests on Capitol
Hill. Employed for four years at ADA when the position
opened, Kolstad served as Director of Federal Agency Rela-
tions, handling the entire range of regulatory issues of con-
cern to ADA. She consistently received "distinguished" per-
formance evaluations from the Director of ADA's Washington
office. By contrast, Tom Spangler, the male candidate who
got the promotion, began working for ADA only a year and a
half before the position opened, technically failed to meet the
minimum posted requirements for the position, and received
negative comments about his writing ability, a skill ADA
highlighted at trial as central to the position.
Although the court describes what it perceives to have been
a benign, routine selection process, the record contains evi-
dence from which the jury could have concluded that because
ADA preselected Spangler for the position, the selection
process was a sham. Before ADA posted the opening, Span-
gler met frequently with the incumbent (Jack O'Donnell),
ADA did not post the position promptly after O'Donnell
decided to retire, and a secretary familiar with the process
testified that she thought Spangler was being groomed for
the job. Leonard Wheat, head of ADA's Washington office
and the person most closely supervising the competing candi-
dates, refused to meet with Kolstad to discuss O'Donnell's
position, despite frequently meeting with Spangler. Although
Executive Director Dr. William Allen formally appointed
O'Donnell's successor, Allen--based in ADA's Chicago head-
quarters--relied heavily upon Wheat's recommendation of
Spangler. Assigning all legislative work to Spangler, Wheat
repeatedly refused Kolstad's requests to work on legislative
matters, despite their relevance to the regulatory issues she
covered and her experience in the field. Formally interview-
ing Spangler but not Kolstad, Allen failed to review Kolstad's
numerous, detailed, positive performance evaluations.
The record also contains evidence, equally minimized by
the court, from which the jury could have concluded that
ADA attempted to cover up Spangler's preselection. Compil-
ing a description of O'Donnell's position a few days before
posting the job, Allen edited the description to fit Spangler's
qualifications. O'Donnell's position description originally
stated that its "most important responsibility" was to "[m]ain-
tain liaison with federal agencies, bureaus and Administra-
tion," corresponding directly to Kolstad's work at ADA. Tai-
loring the job description to Spangler's specialty, Allen added
"Congress" before "federal agencies," and also added whole
phrases from the position description questionnaire used to
hire Spangler. As Kolstad argued, the jury could have
believed that ADA, in an effort to bolster its claim that
Spangler was more qualified, altered documents to justify his
promotion.
Kolstad proffered a 1984 consent decree settling a class
action suit brought against ADA by female employees under
Title VII and the Equal Pay Act. Resnick v. American
Dental Ass'n, No. 79-C-3785 (N.D. Ill.). Denying wrongdo-
ing and expiring prior to the decision not to promote Kolstad,
the decree showed that ADA had specific knowledge of the
impropriety of preselection, as well as of the connection
between preselection and employment discrimination. The
decree stated that "pre-selection of a favored candidate is
contrary to ADA's firm policy of giving full and fair consider-
ation to each application. Violations of this policy will have
an adverse impact on an employee's annual merit review and
will be cause for discipline." The district court refused to
admit the decree to prove liability, but the panel stated in a
portion of the opinion not before us that the district court
could admit the decree in a trial on punitive damages. See
Kolstad v. American Dental Ass'n, 108 F.3d 1431, 1439 (D.C.
Cir. 1997).
From the evidence, the jury also could have found that
ADA changed its explanation for rejecting Kolstad. After
telling her that she was passed over because she lacked
experience with health care reform and was too valuable in
her position, ADA abandoned that justification at trial, in-
stead attacking Kolstad's general qualifications and writing
ability. My colleagues ignore this testimony, but the jury
was entitled to consider it as evidence of ADA's falsehood,
and therefore of its discrimination. See St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 511 (1993) ("The factfinder's
disbelief of the reasons put forward by the defendant (partic-
ularly if disbelief is accompanied by a suspicion of mendaci-
ty) may, together with the elements of the prima facie case,
suffice to show intentional discrimination.") (emphasis added).
The record also contains evidence from which the jury
could have concluded that Wheat, Kolstad's supervisor whose
advice Allen relied on in deciding to promote Spangler instead
of Kolstad, told sexually offensive jokes at the office and
referred to professional women as "bitches" and "battleaxes."
Although this testimony may have been "contested" (the
panel's word) or even "hotly contested," (the court's words),
nothing in the record indicates that the testimony lacked
sufficient credibility for the jury to believe it.
In addition to weighing the evidence instead of viewing it
from a reasonable juror's perspective, my colleagues isolate
each element of Kolstad's case, diminishing the cumulative
significance of her proof. Of course, preselection "by itself,"
Maj. Op. at 21, violates no law, and "sexist remarks ... are
'not always conclusive of sex discrimination,' " id. at 22 (quot-
ing Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d
1507, 1513 (D.C. Cir. 1995)). As in even the most compelling
cases of discrimination, any aspect of Kolstad's case taken in
isolation might seem minimal. Considering her evidence
together, as this court must, see, e.g., Downes v. Volkswagen
of America, Inc., 41 F.3d 1132, 1140 (7th Cir. 1994), and
reviewing it "in the light most favorable" to Kolstad, giving
her "the benefit of every fair and reasonable inference,"
Anderson, 820 F.2d at 471, the jury could have concluded that
this record contains substantial circumstantial, perhaps even
direct, evidence of invidious, intentional, unlawful discrimina-
tion that society no longer tolerates. Therefore, even if
punitive damages are "improbable" in a case where the
verdict rests on no more than the jury's rejection of the
employer's nondiscriminatory rationale, this is not that case.
IV
Because this court has found that the record contains
sufficient evidence to support the jury's finding of intentional
discrimination on the basis of sex, and because ADA never
attempted to justify its use of sex in the promotion decision,
never disavowed the actions of its agents (Wheat and Allen),
never offered evidence that it had taken any specific steps to
comply with Title VII, and never otherwise demonstrated
that in intentionally discriminating against Kolstad, it had not
acted with reckless indifference to her federally protected
rights, I would remand for a trial on punitive damages.
Kolstad, Carole v. Amer Dent Assn
Court: Court of Appeals for the D.C. Circuit
Date filed: 1998-05-08
Citations: 139 F.3d 958, 329 U.S. App. D.C. 265
Copy CitationsCombined Opinion