UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 98-30777
__________________
ASHER RUBINSTEIN,
Plaintiff-Appellee-Cross-Appellant,
versus
ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND; MICHAEL LYNCH;
WILLIAM C. VAN BUSKIRK,
Defendants-Appellants-Cross-Appellees.
______________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
______________________________________________
July 6, 2000
Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
Professor Asher Rubinstein filed a Title VII and related
state-law lawsuit against Tulane University, his employer, in
October, 1995, asserting several grounds for relief of
discriminatory and retaliatory employment decisions made against
him. The district court granted summary judgment on all claims,
except a later-added claim of retaliation for the 1997 school year.
This issue was submitted to a jury and the jury awarded $2500 in
compensatory damages and $75,000 in punitive damages. The district
court then entered judgment for Rubinstein in the aforementioned
amounts, as well as for a 3.5% raise as an equitable remedy for the
retaliatory act taken by Tulane. The parties now each appeal from
the adverse rulings against them.
Finding the district court’s rulings correct on all but the
punitive damages issue, we affirm. As we further find that the
$75,000 punitive damage award is excessive, we remit the award and
remand the issue to the district court so as to afford Rubinstein
the opportunity for a new trial on the issue of punitive damages.
I. FACTUAL AND PROCEDURAL HISTORY
Because this appeal involves several issues of summary
judgment granted in favor of the defendants, as well as a jury
verdict rendered in favor of the plaintiff, we recount the facts in
a light most favorable to Rubinstein’s arguments so as to
facilitate a review of the facts deferential to the non-movant vis-
a-vis summary judgment, and deferential to the jury verdict, as
rendered in favor of Rubinstein. The more notable factual
disputes, however, are highlighted.
Appellee-cross-appellant Rubinstein, a Jewish man born and
raised in the former USSR, is, and was at all time relevant to this
action, a tenured professor of mechanical engineering at Tulane’s
School of Engineering. Rubinstein achieved the rank of Associate
Professor in 1990, when he was granted tenure. In Rubinstein’s
2
tenure recommendation it was noted that he was “an outstanding
researcher” and a “satisfactory teacher.” It is undisputed that
faculty evaluations at Tulane reference three major areas of
performance: teaching, university citizenship and research. In
the two years subsequent to achieving this rank, Rubinstein
received raises in excess of eight percent, reflecting his
outstanding research skills and contributions to the University.
Sometime in 1991, William Van Buskirk was promoted to Dean of
the School of Engineering. In 1992, Paul Michael Lynch was named
Department Chair of the Mechanical Engineering department. It is
around this time that Rubinstein asserts the discrimination began.
Specifically, Rubinstein contends that the defendants-
appellants-cross-appellees Tulane, Lynch and Buskirk (hereinafter
“Tulane”), refused to grant him a raise in 1993, out of
discriminatory animus directed toward his status as a Russian Jew.
In support of this claim, Rubinstein references a conversation he
had with defendant Van Buskirk concerning his 1993 raise, during
which Van Buskirk apparently speculated that defendant Lynch might
be discriminating against him because he was Russian and Jewish.
Sometime in 1993 or 1994, Rubinstein contends a senior faculty
member of the mechanical engineering department, Prof. Robert
Watts, began referring to Rubinstein as a “Russian Yankee” and a
“commie.” Apparently, around this time, Watts also began making
anti-Semitic remarks, such as a comment concerning placing a
propeller on a yarmulke and a remark about Jewish frugality.
3
In 1994, Rubinstein received a 2.02% raise, purportedly the
lowest in the department, excluding the former dean who was about
to retire. That fall, Rubinstein requested consideration for
promotion to the level of Full Professor. Sometime after making
this request, Rubinstein complained to Van Buskirk that he was
being unfairly considered with respect to raises and promotion.
Rubinstein asserts that Van Buskirk responded by inquiring: “what
are you going to do, sue me? Do you know what happens to people
who sue their employer?” While denying ever uttering these exact
words, Van Buskirk admits he inquired into whether Rubinstein
planned to file suit, expressing the opinion that it would be a bad
idea. Rubinstein filed what appears to be his first of two
complaints with the EEOC in December of 1994.
Rubinstein’s promotion request was denied in early 1995.
Although Tulane acknowledges his excellent research record, the
denial was purportedly based on Rubinstein’s poor university
citizenship, low teaching evaluation scores, and an insufficient
record in mentoring students. Rubinstein, however, insists that
the evidence supports the finding that the teaching evaluations
were tampered with.
Rubinstein again filed a complaint with the EEOC, in April of
1995. Shortly thereafter, it appears he again received the lowest
raise in the department, of approximately 2.53%. Rubinstein filed
this lawsuit on October 11, 1995, asserting claims of
discrimination and retaliation in the decisions concerning his
4
promotion and pay raise consideration.
In early 1996, Rubinstein’s additional request for promotion
was denied. Later that year, Tulane announced a campus-wide policy
that only Assistant Professors and newly hired Associate Professors
would be eligible for raises for the 1996-97 academic year.
Rubinstein does not complain about his lack of raise for this year.
The following fall, Rubinstein’s request for promotion was
again denied. When the time came again for raise consideration, it
appears that Tulane implemented a policy designed to use the
limited raise pool to remedy inequities among the faculty both
internally and with reference to salaries at comparable
institutions. Rubinstein did not receive a raise for the 1997-98
academic year. He contends that despite this policy, and despite
the fact that his salary was well above both Tulane’s average and
the national average, he was denied a raise out of retaliation for
filing suit. Van Buskirk admitted as much, Rubinstein maintains.
The district court granted summary judgment on all issues
raised in Rubinstein’s complaint and amended complaints, except the
issue of retaliation concerning the refusal to grant the 1997-98
raise. The retaliation issue was submitted to a jury, and the jury
returned a verdict for Rubinstein in the amount of $2500 plus
$75,000 in punitive damages.1 Both sides now appeal the adverse
decisions against them.
1
The verdict was later amended by the district court, so as to
include a 3.5% pay raise.
5
II. ANALYSIS
Tulane and Rubinstein both assert several grounds of error,
each of which will be addressed below in turn.
A. Scope of Discovery
From the beginning of this action, Rubinstein and Tulane have
disputed the appropriate breadth and scope of discovery that should
be allowed in this case. On appeal, Rubinstein maintains that the
district court’s decision to limit discovery to the records of the
Mechanical Engineering Department constituted error. We review
orders concerning discovery under a deferential abuse of discretion
standard. See Geiserman v. MacDonald, 893 F.2d 787, 789 (5th
Cir.1990); see also Hodges v. United States, 597 F.2d 1014, 1018
(5th Cir.1979).
The record reveals that the district court limited discovery
to the records of the Mechanical Engineering department based on
its finding that Rubinstein is similarly situated only to those in
his department. This finding is based on evidence demonstrating
that salary and initial promotion decisions are made on a
departmental basis. Rubinstein maintains that this is error, as
our case law requires broader discovery into university-wide tenure
and promotion decisions.
The cases cited by Rubinstein in support of this contention,
however, do not mandate broad discovery in all university
discrimination suits. Rather, the cases stand for the proposition
that discovery orders are fact-based and must be reviewed in the
6
context of the claims at issue. Specifically, Rubinstein relies on
Travis v. Bd. of Regents of Univ. of Texas, 122 F.3d 259 (5th Cir.
1997), for the proposition that university-wide statistics are more
relevant than statistics limited to plaintiff’s division, as
similar officials are responsible for approving promotion
decisions. However, importantly, and as Rubinstein fails to note
in his brief, this Court reached this conclusion in ruling on a
Rule 50 motion - not in settling a discovery dispute. See id. at
263. The evidence concerning school-wide practices was already
admitted before the jury, and, additionally, in Travis, the
plaintiff alleged sex-discrimination. Thus, this Court concluded,
wider statistics concerning the treatment of women at the
university generally were relevant to a determination concerning
whether the defendant had engaged in illegal discrimination.
Here, the district court exercised its discretion properly in
concluding that Rubinstein’s requests for discovery concerning his
claim that he was discriminated against for being Jewish and
Russian did not implicate the salary and promotion decisions of the
School of Engineering with regard to every foreign-born professor.
The record reflects that initial promotion decisions are made on a
departmental basis, followed by highly deferential, not de novo,
review of these decisions by a school-wide tenure committee.
Further, raise decisions are made based on the recommendation of
the department chair to the Dean. Based on these pertinent
7
characteristics which distinguish the case from Travis, it is clear
the district court did not abuse its discretion in limiting
Rubinstein’s discovery requests to the Mechanical Engineering
department- the relevant unit of decision-making with respect to
these issues.
Rubinstein further relies on Duke v. University of Texas at El
Paso, 729 F.2d 994 (5th Cir. 1984), to support his contention that
broader discovery was both necessary and required under the facts
of his case. While this Court in Duke reversed a limited discovery
order, reasoning that failure to allow discovery into the records
of professors university-wide to substantiate a gender-
discrimination claim constituted an abuse of discretion, the Duke
decision again rests on the unique facts of the case.
In Duke, the plaintiff attempted to certify a university-wide
class of similarly situated female professors, but was thwarted by
the discovery order. Further, university-conducted, university-
wide surveys indicated that women were paid less than their male
counterparts. These facts, reasoned the Court, warranted further
and broader discovery.
Importantly, however, Duke reaffirmed that this Court is
“reluctant to find abuse when the trial court’s discretion is as
wide as it is in the superintendence of discovery. . . .” Id. at
997. Thus, despite Rubinstein’s protestations otherwise, we do not
feel compelled by our case law to order broader discovery, based
alone on the fact that this is a university case. Given the
8
district court’s careful consideration of the issue, including the
persuasive conclusion that any wider discovery would only be
relevant to the establishment of a prima facie case - which the
district court concluded was established on the record absent
additional discovery - we affirm the discovery orders as entered by
the magistrate judge and ratified by the district judge.
B. Summary Judgment Rulings
Rubinstein asserted several claims in the district court
concerning allegedly discriminatory and retaliatory behavior by
Tulane. As the district court concluded, and as affirmed by our
reading of the record, Rubinstein alleged that Tulane gave him
comparatively lower salary increases than other faculty members in
1992, 1993, 1994, and 1995. Additionally, Rubinstein complained
that he was denied full professorship status during this time
period, due to discriminatory animus as well as a desire to
retaliate. Finally, Rubinstein maintained that he did not receive
a promotion or pay raise in 1997 due to retaliation.
The district court granted summary judgment on all these
claims except the 1997 pay raise/retaliation claim. Rubinstein
appeals from the grant of summary judgment on his 1994 and 1995
claims, as well as his promotion claim for 1997.2
This Court reviews a grant of summary judgment de novo.
2
The district court dismissed the earlier claims on statute of
limitations grounds as well as state law prescription grounds.
Rubinstein does not appeal this aspect of the district court’s
ruling.
9
Summary judgment is proper when the evidence, viewed in the light
most favorable to the non-movant, reflects no genuine issues of
material fact. Fed. R. Civ. P. 56(c). A genuine issue of fact
exists “if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
As with any appeal from a grant of summary judgement, a fact-
intensive review of the record is necessary, in order to discover
the evidence and reasonable inferences therefrom in favor of the
non-movant’s claims. We are aided in this review by the district
court’s carefully considered and highly detailed summary judgment
orders entered on March 6, 1998, and March 20, 1998. Our review of
the dismissed claims tracks the district court’s analysis and
reaches the same conclusion: summary judgment was proper.
The required showing to be made by any Title VII plaintiff is
familiar: the plaintiff bears the burden of establishing a prima
facie case of discrimination; upon such a showing, the burden
shifts to the defendant(s) to articulate some legitimate, non-
discriminatory reason for the challenged employment action; if such
a showing is made, then the burden shifts back to the plaintiff to
demonstrate that the articulated reason was merely a pretext to
unlawful discrimination. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973).
A prima facie case may be established by a showing that the
plaintiff was a member of an identifiable national origin or
10
religion; that he was qualified for the benefit or promotion he
sought; that he was denied these benefits and such denial
constitutes an adverse employment decision; and that the adverse
employment decision was differentially applied to plaintiff. See
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981);
Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
In this case, the parties do not dispute the first or third of
these requirements: Rubinstein is clearly a member of a protected
class and he clearly suffered an adverse employment decision. The
parties do dispute whether Rubinstein was qualified for the benefit
he sought and, further, whether the adverse employment decision
complained of was differentially applied to him.
The district court found on all Rubinstein’s claims evidence
of qualification and evidence of differential application, at least
sufficient enough to establish a prima facie case. Likewise, the
district court easily found defendants offered legitimate, non-
discriminatory reasons for the employment decisions at issue:
Rubinstein was a poor teacher, based on student evaluations, and
therefore not entitled to the promotion he sought; furthermore, as
the University lacked funds to give raises to every professor,
merit based raises were unavailable to those individuals with poor
teaching records; finally, Rubinstein was a poor university
citizen, as evidenced by his lack of participation on committees.
The record clearly supports these findings. The record is replete
with evidence of Rubinstein’s poor teaching evaluations, as well as
11
faculty reviews and memoranda reflecting Rubinstein’s poor teaching
and inadequate mentoring of students, in addition to evidence of
his lower participation rate in departmental committees. As such,
we move to the third, and pivotal step in the McDonnell Douglas
framework.
Specifically, summary judgment in this case turned on whether
Rubinstein could substantiate pretext and ultimately whether he
could demonstrate that discrimination lay at the heart of the
complained of employment decisions. See Walton v. Bisco Indus.,
Inc., 119 F.3d 368 (5th Cir. 1997). The district court found some
evidence of pretext, specifically with regard to Rubinstein’s
purported lack of university citizenship. In particular, the
district court concluded that, viewing the evidence in the light
most favorable to Rubinstein as the non-movant, his testimony that
he was thwarted in his efforts to participate in departmental
committees by Professor Lynch, by simply not being named to these
committees, would tend to establish pretext. We agree that the
record supports this finding.
We also agree that the record indicates that Tulane’s non-
discriminatory purpose in denying pay-raises based on Rubinstein’s
poor teaching skills is not rebutted by Rubinstein’s arguments that
these evaluations were not always accurate. Even if Rubinstein is
correct that one or two evaluations were tampered with, the
district court is correct that this does not rebut the overwhelming
evidence that, even controlling for these evaluations, Rubinstein
12
received substantially lower evaluations than other, similarly
situated professors. Rubinstein has not established pretext as to
this issue.
Even on the issue for which Rubinstein demonstrated some
pretext, we find an overall lack of any evidence of discriminatory
intent. While we are mindful of the Supreme Court’s recent
admonition that Title VII plaintiffs need not always present
evidence above and beyond their prima facie case and pretext, see
Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663, *5,
discrimination suits still require evidence of discrimination. On
this record, Rubinstein has failed to meet his burden of producing
any evidence of discrimination sufficient to survive summary
judgment, and his evidence to rebut the non-discriminatory reasons
offered by Tulane is not so persuasive so as to support an
inference that the real reason was discrimination. In fact, the
only evidence offered by Rubinstein in support of his claims of
discriminatory intent relate to the comments made by Professor
Watts, a member of the relevant committees responsible for making
promotion and pay-raise decisions, that Rubinstein was a “Russian
Yankee” and that Jews are thrifty, as well as an isolated remark by
a Professor Bruce, also a member of the relevant committees, that
if “the Russian Jew” could obtain tenure, then anyone could.
These comments, standing alone, will not defeat summary
judgment on Rubinstein’s claims of discrimination in the promotion
and pay-raise decisions. This Court held, in Brown v. CSC Logic,
13
Inc., 82 F.3d 651, 655 (5th Cir. 1996), that, in order for comments
in the workplace to provide sufficient evidence of discrimination,
they must be “1) related [to the protected class of persons of
which the plaintiff is a member]; 2) proximate in time to the
[complained-of adverse employment decision]; 3) made by an
individual with authority over the employment decision at issue;
and 4) related to the employment decision at issue.” In this case,
Rubinstein fails to offer evidence that the comments he complains
of are either proximate in time to his failure to receive raises or
promotions, or that the comments are related to the employment
decisions at issue. The only evidence he offers is that the
comments were, in fact, made. Our careful review of the record
indicates that these comments are best viewed under our Circuit
precedent as stray remarks, thus not warranting survival of summary
judgment.3 See Krystek v. University of Southern Mississippi, 164
F.3d 251, 256 (5th Cir. 1999). Summarized, our careful review of
all the summary judgment evidence presented, viewed in the best
light to the non-movant’s claims, mandates the conclusion that the
evidence taken together does not raise a legitimate fact issue as
to discriminatory intent with respect to Rubinstein’s
discrimination claims.
3
Rubinstein references a few other comments made by various
members of the faculty concerning women and other minority groups.
Many of these comments are ambiguous at best in their meaning, and,
in any event, inapplicable to the case at bar, as they do not
relate to the protected class of which Rubinstein is a member.
14
Rubinstein further appeals from the district court’s grant of
summary judgment on his remaining retaliation claims. These claims
apparently relate to his lack of pay raise in 1995, and the refusal
to promote after 1994. However, the district court, in its second
Order and Reasons partially granting summary judgment concludes
that the only evidence of retaliation presented concerns Tulane’s
failure to grant him a pay-raise in 1997. Given that Rubinstein
compresses these issues and speaks generally to the district
court’s error in granting summary judgment on his retaliation
claims, we review them together, as did the district court, and we
similarly conclude that, as discussed above, Rubinstein presented
no evidence of discrimination or retaliation with respect to the
earlier pay raise and promotion decisions. Accordingly, we affirm
the grant of summary judgment on all issues presented by
Rubinstein.
C. Motion for Judgment as a Matter of Law
At the conclusion of the trial, Tulane moved for judgment as
a matter of law (JMOL). The district court denied this motion and
Tulane appeals.
This Court reviews a district court's denial of a motion for
judgment as a matter of law de novo. See Travis v. Board of
Regents of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th
Cir.1997). "A motion for judgment as a matter of law ... in an
action tried by jury is a challenge to the legal sufficiency of the
evidence supporting the jury's verdict." Harrington v. Harris, 118
15
F.3d 359, 367 (5th Cir.1997) (internal quotations and citation
omitted). This Court tests jury verdicts for sufficiency of the
evidence under the standards set forth in Boeing Co. v. Shipman,
411 F.2d 365, 374 (5th Cir.1969) (en banc), overruled on other
grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th
Cir.1997) (en banc). Under Boeing, we 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 [judgment as a matter of law] is
proper.” Id.
As discussed above, this Court applies the burden-shifting
framework expounded by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981), to retaliation
cases. However, we need not now parse the evidence into discrete
segments corresponding to a prima facie case, an articulation of a
legitimate, nondiscriminatory reason for the employer's decision,
and a showing of pretext. "When a case has been fully tried on
the merits, the adequacy of a party's showing at any particular
stage of the McDonnell Douglas ritual is unimportant." Molnar v.
Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir.1993)
(citation omitted). A Title VII plaintiff bears the burden of
16
proving not only that the employer's purported reasons for taking
an adverse employment action are pretextual, but also that the
employer engaged in illegal discrimination or retaliation. Hicks,
509 U.S. at 511. Thus, applying Boeing's sufficiency of the
evidence standards, this Court must examine whether the plaintiff
has met his ultimate burden of proving that the adverse employment
action complained of resulted from retaliatory intent.
Again, we note the Supreme Court’s recent admonition to the
Courts of Appeals sitting in review of jury verdicts in such cases:
“Under Rule 50, a court should render judgment as a matter of law
when ‘a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue’. . . . It therefore follows that, in
entertaining a motion for judgment as a matter of law, the court
should review all of the evidence in the record.” Reeves, 2000 WL
743663, *10 (citation omitted). The jury made several findings
in this case: first, the jury found by a preponderance of the
evidence that Rubinstein’s filing of a discrimination lawsuit
and/or EEOC charge was a motivating factor in Tulane’s decision to
deny his pay raise in 1997-98; second, the jury found by a
preponderance of the evidence that Tulane also had a legitimate,
non-retaliatory motive for the denial of the 1997-98 pay raise;
and, third, the jury found by a preponderance of the evidence that
Tulane would not have made the same decision to deny his raise
absent the existence of a retaliatory motive.
17
In this case, Rubinstein testified that Dean Van Buskirk, in
depositions taken pursuant to this lawsuit, stated clearly that he
denied Rubinstein a raise in 1997 because Rubinstein filed suit, a
step Van Buskirk apparently believes good colleagues do not take.
Van Buskirk, also testifying at trial, confirmed that his
deposition testimony corresponded to Rubinstein’s account, although
he attempted to distance himself from the full meaning of these
comments. We find that this evidence, clearly presented at trial
and viewed with reference to the entire trial record, could be no
more direct on the issue of retaliation. As such, the jury was
presented with more than sufficient evidence from which to conclude
that Tulane illegally retaliated against Rubinstein.
In addition to complaints concerning the sufficiency of the
evidence, the defendants complain at length about the nature of the
jury interrogatories and resultant findings. Specifically, they
challenge the consequences of these jury findings to this Court’s
requirement that Title VII retaliation plaintiffs prove that but
for retaliation, the adverse employment action would not have
occurred. See Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th
Cir. 1996). The parties seem to agree that the ‘but for’ test is
required by this Circuit’s precedent. See id. (“The ultimate
determination in an unlawful retaliation case is whether the
conduct protected by Title VII was a ‘but for’ cause of the adverse
employment decision” (citing McDaniel v. Temple Indep. Sch. Dist.,
770 F.2d 1340, 1346 (5th Cir.1985))). In other words, even if a
18
plaintiff's protected conduct is a substantial element in a
defendant's decision to terminate an employee, no liability for
unlawful retaliation arises if the employee would have been
terminated even in the absence of the protected conduct. Jack v.
Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir.1984).
Tulane, thus, complains that the application of mixed-motive
law to the facts of this case tainted the jury’s findings and
mandates reversal, given the above requirement in retaliation cases
that the plaintiff prove but-for causation. The dispute is thus:
The district court apparently concluded that 42 U.S.C. §2000e-2(m)
(Section 107), and the corresponding remedial provision, apply to
Rubinstein’s retaliation claim. This section allows for limited
remedies in cases where plaintiffs are able to prove that one
motive for the adverse employment action is discrimination, even
when the defendant is able to prove that the action would have been
taken in the absence of the discriminatory motive. These
amendments were passed by Congress in the wake of Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989), a case in which the Supreme Court
held that all discrimination plaintiffs must prove that but for the
discriminatory intent, the adverse employment decision would not
have been made.
This Circuit has not had opportunity to address the question
of whether the amended statute applies in retaliation cases. The
district court in this case determined that it does, while three
circuit courts have reached the contrary result. See McNutt v.
19
Board of Trustees of Univ. of Ill., 141 F.3d 706 (7th Cir. 1998);
Woodson v. Scott Paper Co., 109 F.3d 913, 932-36 (3d. Cir.), cert.
denied, 118 S.Ct. 299 (1997); Tanca v. Nordberg, 98 F.3d 680, 682-
85 (1st Cir.), cert. denied, 117 S.Ct. 1253 (1997). Tulane now
asserts that error resulted from the district court’s consideration
of this issue in instructing the jury and drafting the jury
interrogatories.
Rubinstein, not surprisingly, disagrees as to the consequences
of the district court’s application of this reasoning in drafting
the jury interrogatories in this case. Tulane emphasizes the
second jury finding: Tulane had a legitimate, non-retaliatory
motive for the denial of the pay raise at issue.4 However, their
discussion fails completely to reference the third finding: Tulane
would not have made the complained of adverse employment decision
in the absence of the retaliatory motive. Rubinstein is correct
that he does not have to prove that his “protected conduct was the
sole factor in motivating [Tulane’s] challenged decision.” Long,
88 F.3d at 305. All that is left for us to determine is whether
4
The three relevant jury interrogatories were:
1. Do you find by a preponderance of the evidence that Asher
Rubinstein’s filing of a discrimination lawsuit and/or EEOC
charge was a motivating factor in Tulane’s decision to deny
Asher Rubinstein a pay raise in 1997-98?
2. Do you find by a preponderance of the evidence that Tulane
also had a legitimate, non-retaliatory motive for the denial
of the 1997-98 pay raise?
3. Do you find by a preponderance of the evidence that Tulane
would have made the same decision to deny Asher Rubinstein a
raise despite the existence of a retaliatory motive?
20
the jury verdict is supported by sufficient evidence, under the
test outlined above. As we have already concluded that it does,
the verdict on retaliation will be allowed to stand.
Thus, we respectfully decline the invitation to address this
issue now. Simply stated, this is not the case to decide a matter
of first impression, when it is not clearly presented and it is
unnecessary to our decision on the issues before us. Whether error
or not, the error was certainly harmless, given the jury’s explicit
finding of but-for causation pursuant to interrogatory three. The
district court’s understanding of mixed motive analysis may have
resulted in a jury interrogatory form that was over-extensive (so
as to determine the multiple reasons underlying the adverse
employment action in question), but ultimately the jury rejected
the option of returning a verdict based on mixed motive and instead
found that absent the retaliatory motive, Rubinstein would have
received his raise. D. Jury Instructions and Interrogatories
Tulane next complains that the jury instructions5 and jury
interrogatory forms were improper because they allowed the jury to
consider mixed motive analysis.
Challenges to jury instructions are reviewed to determine
5
As Tulane notes in its brief, the jury instructions are not
preserved on appeal, as apparently the transcript of the charging
conference has been misplaced. However, we can infer from the
instructions submitted by the parties and the jury interrogatories
the nature of the disputed instructions, given that Tulane’s
concern focuses on the application of mixed-motive law to the
retaliation claim in this case.
21
whether the court's charge, as a whole, is a correct statement of
the law and clearly instructs jurors on the legal principles at
issue. See United States v. Moreno, 185 F.3d 465, 476 (5th
Cir.1999). Further, and importantly to this case, review of jury
instructions is for harmful error. Even if an instruction
erroneously states the applicable law or provides insufficient
guidance, this Court will not disturb the judgment unless the error
could have affected the outcome of the trial. See Arleth v.
Freeport-McMoran Oil & Gas Co., 2 F.3d 630, 634 (5th Cir.1993);
Colburn v. Bunge Towing, Inc., 883 F.2d 372, 377 (5th Cir.1989).
This Court affords district courts great latitude in framing and
structuring special interrogatories and reviews the formulation of
jury interrogatories for abuse of discretion. EEOC. v. Manville
Sales Corp., 27 F.3d 1089, 1096 (5th Cir.1994).
Tracking our discussion of this issue above, we will assume,
arguendo, that the district court abused its discretion, by
misapplying the law, in instructing the jury on mixed motive.
However, as stated, this error was harmless, in that the jury made
an explicit finding as to ‘but for’ causation. As such, this issue
does not require reversal.
E. Punitive Damages
The jury awarded Rubinstein $75,000 in punitive damages upon
answering in the affirmative interrogatory 5, which asked: “Do you
find by a preponderance of the evidence that Tulane acted with
malice or with reckless indifference to the rights of Asher
22
Rubinstein in denying him a pay raise in 1997-98?” Tulane argues
that this award of punitive damages is contrary to controlling law
and specifically the Supreme Court’s opinion in Kolstad v. American
Dental Association, 119 S.Ct. 2118 (1999), decided subsequent to
the trial in this case. Rubinstein counters that such an award is
authorized by statute and well within reason on the facts of this
case.
Prior to 1991, Title VII provided no authority for an award of
punitive or compensatory damages. See Landgraf v. USI Film
Products, 511 U.S. 244, 252-253 (1994). With the passage of the
1991 Act, however, Congress provided for additional remedies,
including punitive damages, for certain classes of Title VII and
Americans with Disabilities Act violations. These awards are
limited, however, to cases of "intentional discrimination." There
is no dispute that this is such a case.
The availability of punitive awards, however, is further
qualified: "A complaining party may recover punitive damages under
this section against a respondent (other than a government,
government agency or political subdivision) if the complaining
party demonstrates that the respondent engaged in a discriminatory
practice or discriminatory practices with malice or with reckless
indifference to the federally protected rights of an aggrieved
individual." 42 U.S.C. § 1981(a). The Supreme Court has stated
that the very structure of this amendment “suggests a congressional
intent to authorize punitive awards in only a subset of cases
23
involving intentional discrimination.” Kolstad v. American Dental
Ass’n, 119 S.Ct. at 2124. “Congress plainly sought to impose two
standards of liability--one for establishing a right to
compensatory damages and another, higher standard that a plaintiff
must satisfy to qualify for a punitive award.” Id.
Under this reading of the relevant statute - the Supreme
Court’s reading - the employee must demonstrate that the employer
acted with “malice or with reckless indifference” to appellant’s
federally protected rights.
Our inquiry, however, does not end there. Rather, the
employee must satisfy an additional requirement as set out in this
recent articulation of the necessary showing to obtain punitive
damages under Title VII: the requirement of agency. Relevant to
this case, the evidence must support a finding that the malfeasing
agent served in a “managerial capacity” and committed the wrong
while “acting in the scope of employment.” Kolstad, 119 S.Ct. at
2127.
We begin our analysis, however, by considering the
consequences of the final consideration required, as articulated in
Kolstad - what might be termed application of the good-faith
exception. In Kolstad, the Supreme Court held that “in the
punitive damages context, an employer may not be vicariously liable
for the discriminatory employment decision of managerial agents
where these decisions are contrary to the employer’s ‘good-faith
efforts to comply with Title VII.’” Id. at 2129. In this case,
24
Rubinstein’s evidence of retaliation concerns comments made by the
Dean of his department about the consequences of filing suit
against Tulane. Tulane argues, relying on Kolstad, that whether it
can properly be held responsible for these comments, and the
retaliatory result of these comments, depends on whether Tulane
made a good-faith effort to comply with Title VII. It further
contends that, as it has made such an effort, punitive damages are
forbidden by Kolstad.
We disagree for the simple reason that Tulane presented no
evidence at trial, and the record as a whole offers no evidence, to
establish Tulane’s efforts to comply with Title VII. However, as
Kolstad was decided subsequent to the jury trial in this case, we
consider the effect of applying the ruling in Kolstad to a
previously rendered jury verdict.
Following the decision in Kolstad, this Court had opportunity
to consider the consequences of retroactively applying the good-
faith language on a punitive damages award in a Title VII case.
See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278 (5th
Cir. 1999). In Deffenbaugh-Williams, the jury returned a verdict
for the plaintiff which included a $100,000 punitive damages award
upon a finding that Wal-Mart had discriminated against the
plaintiff based on her race with malice or with reckless
indifference to her federally protected rights.6 The district
6
The punitive damages award was previously reduced to $75,000
by the panel upon the initial hearing of the case, see 156 F.3d
25
judge granted Wal-Mart’s motion for judgment as a matter of law
(JMOL) with respect to the punitive damages, relying on Patterson
v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996) (discussing
in detail the depth of management participation required to sustain
an award of punitive damages). An appeal was taken and a panel of
this Court affirmed the liability finding and the award of
compensatory damages, while reversing the post-verdict JMOL on
punitive damages, although a remittitur was ordered. 156 F.3d 581,
586-91 (5th Cir. 1998).
The Supreme Court subsequently granted certiorari in Kolstad.
As such, this Court, en banc, granted rehearing and ordered
briefing on the punitive damages question. After Kolstad was
rendered in June of 1999, the en banc Court remanded to the panel
the punitive damages question. It is this remanded opinion that
guides our decision today.
Tulane maintains that this is not a punitive damages case, in
light of Patterson and Kolstad, and, as such, the punitive damages
award should be vacated by this Court. We are convinced, however,
as was the Deffenbaugh-Williams panel, that Tulane was on notice
“that faithfully-adhered-to non-discrimination polic[ies] may bar
imputing punitive damages liability to an employer when its
employee acts with malice or reckless indifference,” and thus
581, 594-98 (5th Cir. 1999), a reduction which was subsequently
upheld on remand from the en banc court. See Deffenbaugh-Williams,
188 F.3d at 286.
26
cannot now claim the benefit of this newly clarified standard in
requesting a new trial or other remedies. Deffenbaugh-Williams,
188 F.3d at 283. “In short, Kolstad’s imputation holding was not
such a sudden shift as to require, in fairness, giving [Tulane] an
opportunity to present additional evidence.” Id. at 284.
Therefore, we will consider Tulane’s motion for judgment as a
matter of law, with respect to punitive damages, by applying
Kolstad, in full to the record before us, without concern that our
retroactive application is unfair.7
In the first instance, we must determine whether the
retaliatory act at issue was committed by a managerial agent acting
within the scope of employment. Tulane does not seriously contest
this issue and we find easily, based on the record, that Dean Van
Buskirk, the agent primarily responsible for ratifying the decision
not to grant Rubinstein a raise, was acting within the scope of his
employment in making this decision. As the record reflects, it is
ultimately the dean of each department at Tulane who is responsible
for entering any pay-raise decisions. In this case, the Dean of
the Engineering Department, Van Buskirk, refused to grant
7
As we noted in Deffenbaugh-Williams, “[t]his 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, 183 F.3d 782, 784 (8th Cir. 1999) (affirming
punitive damage award); Blackmon v. Pinkerton Sec. & Investigative
Services, 182 F.3d 629, 636 (8th Cir. 1999) (reversing district
court’s JMOL on punitive damages and remanding for reinstatement,
finding, inter alia, employer’s remedial response inadequate).
27
Rubinstein a raise. Without question, this decision was made in
his capacity as a managerial agent and in the scope of his
employment.
Kolstad instructs that we must next consider whether the bad
act complained of was committed with malice or with reckless
indifference to the complainant’s federal rights. As we know now,
from Kolstad, plaintiffs are not required to make an additional
showing of egregiousness. Kolstad, 119 S.Ct. at 2129 (“We have
concluded that an employer’s conduct need not be independently
‘egregious’ to satisfy § 1981a’s requirements for a punitive
damages award, although evidence of egregious misconduct may be
used to meet the plaintiff’s burden of proof.”) Thus, Tulane’s
insistence to the contrary must fall on deaf ears.
Rather, we will only search the record for evidence that
Tulane’s agent was motivated by malice or reckless indifference to
Rubinstein’s federal rights. We find, on the trial record,
Rubinstein made such a showing. The evidence indicates that Dean
Van Buskirk denied Rubinstein a raise because he “hauled colleagues
into court to try to resolve differences.” Whatever else this
evidences, it certainly indicates a healthy disdain for
Rubinstein’s rights to seek redress in the courts for perceived
wrongs adequate to meet the standard of reckless indifference at
least, if not outright animus, towards those rights. The jury was
well within its purview to so find, and we will not disturb this
finding on appeal.
28
Finally, as noted earlier, Tulane has not presented and the
record does not reflect any evidence of its good-faith efforts to
comply with Title VII. As our analysis above leads us to conclude
that Tulane had ample notice and opportunity to do so, we will not
allow Tulane to raise this issue for the first time on appeal. As
such, this is an impotent defense to the award of punitive damages
and we will not disturb the award of those damages on this record.
Our inquiry, however, cannot end here. While we conclude
without controversy that Rubinstein is entitled to an award of
punitive damages on the facts of this case, we must nevertheless
pause to consider Tulane’s arguments that the amount of the award
is excessive. The jury awarded Rubinstein $2500 in compensatory
damages for lost wages and benefits and the jury awarded nothing
for emotional damage. The jury then awarded $75,000 in punitive
damages. Tulane insists that this award is grossly excessive and
requests that we either vacate the award, grant a new trial, or,
alternatively, grant a remittitur on the punitive damages issue.
Tulane moved for judgment as a matter of law at the conclusion
of the trial. The judge denied this motion without comment or
opinion. Accordingly, we review this claim, applying the usual
standard, as articulated above.
Relying primarily on our decision in Patterson, Tulane
maintains that the award of punitives in an amount thirty times the
award of compensatory damages is excessive and ‘close to the line’
of constitutional propriety. Rubinstein counters that given the
29
reprehensibility of the conduct at issue, the award, in equity, of
a 3.5% pay raise, and the comparable nature of this award to others
in this Circuit, the amount is within the realm appropriate for
such a case.
In the original panel opinion in Deffenbaugh-Williams v. Wal-
Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998), this Court
extensively discussed the appropriate appellate approach to
assessing a punitive damages award.8 See id. at 594-98.
As in that case, Rubinstein does not respond in his brief to
Tulane’s request that we either remit or remand the award of
punitives. As in that case, Tulane mentions primarily in passing
that the award of $75,000 exceeds the Constitutional limit as
prescribed by the Due Process Clause. As in that case, the parties
rely on a three-tiered analysis provided by Patterson and the
Supreme Court’s opinion in BMW of North America, Inc. v. Gore, 517
U.S. 559 (1996), without acknowledging that BMW concerned the
constitutional limits of a punitive damages award, not statutory or
otherwise. As in that case, this matter was tried to a jury and
yet the parties fail to acknowledge that Patterson concerned a
bench trial, raising different and fewer Seventh Amendment
considerations. Finally, as in that case, the parties fail to
8
As we detailed above, the panel opinion was taken en banc,
then reinstated except for the punitive damages issue. The panel
subsequently issued an opinion which adopted its former reasoning
with respect to the amount of punitive damages the law would allow.
See Deffenbaugh-Williams, 188 F.3d at 285.
30
fully develop the numerous considerations that must underlie an
application of BMW’s standards for assessing the Constitutionality
of a punitive damages award.
Thus, we find the reasoning of Deffenbaugh-Williams
instructive on the issue of excessiveness, given the critical
similarities between these cases, and we apply its reasoning in
toto, and similarly conclude that a more fully developed approach
to assessing the Constitutionality of a punitive damages award
awaits a future day. In so doing, we agree with the Deffenbaugh-
Williams court that special consideration must be given to
Rubinstein’s failure to respond to the remand or remit issue. He
simply offers us no guidance as to whether if we deem the award
excessive he is entitled to a new trial on this issue, or whether,
as an alternative, we should remit the award or leave it to the
district court for further consideration. As the Deffenbaugh-
Williams court stated, “efficiency and economy for the parties and
the courts” dictate that we settle this issue now, on appeal,
rather than through further proceedings in the district court. 156
F.3d at 597.
The first factor to consider and “‘[p]erhaps the most
important indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendants’s
conduct.’” Deffenbaugh-Williams, 156 F.3d at 597 (quoting BMW, 517
U.S. at 575). This case concerns one act of retaliation.
31
Rubinstein was denied a pay-raise of approximately 3.5% as a result
of seeking redress for perceived acts of discrimination. The
record indicates that the decision-maker responsible for setting
Rubinstein’s raise punished him for exercising his rights, in an
act of certain ill-will towards Rubinstein. Tulane argues,
however, that the record supports, and the jury also found, that
other reasons existed for Rubinstein’s lack of pay-raise. While
this may be true, it does nothing to undermine our conclusion that
the act of the Dean in expressly acknowledging that he was
undertaking what should be a performance-based employment decision
on the basis of an employee’s exercise of his federal rights is
sufficient to demonstrate a high degree of reprehensibility under
the first BMW factor.
The second factor to consider is whether the punitive damages
bear a reasonable relationship to the compensatory damages awarded.
See Id. We bear in mind, in applying this factor, that this court
has not and indeed cannot “‘draw a mathematical bright line between
[] constitutionally acceptable and [] constitutionally
unacceptable’” levels of punitive damages “‘that would fit every
case.’” Id. (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499
U.S. 1, 18 (1991)). “‘We can say, however, that general concerns
of reasonableness . . . properly enter into the constitutional
calculus.’” Id. Thus, we are required to consider the disparity
between the harm suffered by the plaintiff and the punitive damages
awarded.
32
While no bright line exists, this award is clearly outside
even the gray areas of the demarcation between acceptable levels of
damages and unacceptable levels. While we acknowledge Rubinstein’s
arguments that he was awarded a 3.5% pay raise in addition to $2500
in compensatory damages, we cannot fairly consider this award in
weighing the appropriateness of the punitive damages awarded. The
pay-raise is prospective relief to correct a wrong previously
committed, while the punitive damages award is properly the tool
used to correct the retrospective harm. Accordingly, we must
consider the appropriateness of the amount at issue here with
reference only to the compensatory damages awarded for the prior
harm.
As previously stated, the punitive damages awarded were in an
amount thirty times the compensatory damages. While there is no
magical multiplier, a multiplier of thirty is unreasonable on the
facts of this case. Rubinstein, while no doubt, and
understandably, frustrated and angry as his testimony indicates,
did not lose his tenured position at the University, nor was he
demoted or otherwise forced to suffer consequences to his status at
the university. We find that the employment decision denying
Rubinstein a small percentage raise, while illegally made, was not
so exceptional as to justify a multiplier of thirty. On the facts
of this case the ratio alone of thirty-to-one is so
disproportionate as to “raise a suspicious judicial eyebrow,” and
require a remittitur. TXO Production Corp. v. Alliance Resources
33
Corp., 509 U.S. 443, 481 (1993) (O’Connor, J., dissenting).
Having found that the award fails to satisfy the second
requirement, we need not examine the third prong of the BMW test.
Thus, our application and analysis of the BMW factors to the
record in this case, as outlined and applied in Deffenbaugh-
Williams in the context of a non-constitutional challenge to
punitive damages, compels our finding that the punitive damages
awarded by the jury were excessive. The award is high when
considered against the harm to be remedied. As such, we remit the
damages to $25,000. While we acknowledge that this remittitur
leaves the award at a level ten times the compensatory damages, we
note that the Supreme Court has indicated that a ratio of ten to
one does not necessarily “‘jar one’s constitutional
sensibilities.’” TXO, 509 U.S. at 462 (quoting Haslip, 499 U.S. at
18.) Moreover, when considered as an absolute amount as opposed to
a comparative ratio, we find that a $25,000 punitive damages award
is reasonable given the illegal conduct by the Dean, admitted to on
the record and found by the jury to constitute malicious or
reckless indifference to Rubinstein’s federal rights. Such an
award is appropriate in this case and does not test the boundaries
of the Due Process Clause.
F. Compensatory Damages
Rubinstein additionally complains on appeal that the jury
erred in refusing to award him compensatory emotional damages. We
do not agree.
34
In this case, the only evidence submitted to the jury
concerning Rubinstein’s emotional state resulting from the 1997
pay-raise denial is Rubinstein’s own testimony that he was angry
and moody as a result of not receiving a raise.9 However, as this
Court has noted “[h]urt feelings, anger and frustration are part of
life.” Patterson, 90 F.3d at 940. As no other evidence was
offered to establish the emotional impact of this retaliatory act,
we find no error in the jury’s decision not to award Rubinstein
compensatory emotional damages.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
rulings on discovery, summary judgment, emotional damages, jury
instructions and interrogatories, and Tulane’s motion for judgment
as a matter of law. We further reduce the amount of punitive
damages awarded from $75,000 to $25,000, and REMAND this issue
alone to the district court to afford Rubinstein an opportunity
either to accept the remittitur, in which case the district court
shall grant it and enter judgment accordingly, or refuse it, in
9
Specifically, in response to a question from counsel
concerning his mental state, Rubinstein stated:
Well, it made me very upset, very angry. It’s like,
basically, I’m trying to do everything I am told to do. . . .
It’s like you get a feeling like you’re standing in front of
the world, you do everything possible, you want to believe
that here is somewhere some kind of fair evaluation. You want
to do anything possible to overcome this, and no matter what
you do, you don’t get anywhere; you get another wall. The
wall keep [sic] on getting higher and higher, no matter how
you approach it. That’s the feeling. It makes me very angry,
very upset about it. . . . It make [sic] me moody at home.
35
which case the district court shall grant a new trial solely on the
issue of punitive damages.
AFFIRMED; REMITTITUR OF PUNITIVE DAMAGES; REMANDED.
36
Rubinstein v. Administrators of the Tulane Educational Fund
Court: Court of Appeals for the Fifth Circuit
Date filed: 2000-07-06
Citations: 218 F.3d 392
Copy CitationsCombined Opinion