PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellee,
v. No. 06-1724
FEDERAL EXPRESS CORPORATION, d/b/a
FedEx Express,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:04-cv-03129-WDQ)
Argued: September 25, 2007
Decided: January 23, 2008
Before KING and GREGORY, Circuit Judges,
and Samuel G. WILSON, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Gregory and Judge Wilson joined.
COUNSEL
ARGUED: Edward John Efkeman, FEDERAL EXPRESS CORPO-
RATION, Memphis, Tennessee, for Appellant. Davis L. Kim,
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY
2 EEOC v. FEDERAL EXPRESS CORPORATION
COMMISSION, Washington, D.C., for Appellee. ON BRIEF: Ron-
ald S. Cooper, General Counsel, Lorraine C. Davis, Acting Associate
General Counsel, UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellee.
OPINION
KING, Circuit Judge:
Federal Express Corporation ("FedEx") appeals from a March 2006
judgment for compensatory and punitive damages entered against it
in the District of Maryland. The Equal Employment Opportunity
Commission (the "EEOC") sued FedEx on behalf of former FedEx
package handler Ronald Lockhart. By its judgment, the district court
awarded Lockhart, who is disabled due to deafness, the sums of
$8,000 in compensatory damages and $100,000 in punitive damages,
premised on a jury finding against FedEx for failing to reasonably
accommodate Lockhart under the Americans with Disabilities Act
(the "ADA"). See 42 U.S.C. § 12112(b)(5)(A). On appeal, FedEx
maintains that the district court erred in failing to grant judgment as
a matter of law or, alternatively, a remittitur, on two bases: (1) that
there was insufficient evidence on which to submit the question of
punitive damages to the jury; and (2) that the punitive damages award
was constitutionally excessive. As explained below, we reject these
contentions and affirm.
I.
A.
Ronald Lockhart, a resident of College Park, Maryland, has been
profoundly deaf since his birth in 1959. He is unable to either speak
or read lips, but is fluent in American Sign Language ("ASL"), which
is his primary language. He studied English formally, but has never
mastered the language. Lockhart uses ASL to communicate with his
wife, who is also deaf, and with his children.
Between March 2000 and January 2003, while a full-time under-
EEOC v. FEDERAL EXPRESS CORPORATION 3
graduate student at the University of Maryland, Lockhart was
employed by FedEx as a package handler at FedEx’s Baltimore-
Washington International Airport facility (the "FedEx-BWI Ramp").
He worked approximately twenty-five hours per week between 2:00
a.m. and 7:00 a.m. on various night shifts. While working for FedEx,
Lockhart made repeated requests for an ASL interpreter and other
accommodations, so that he could understand what occurred at
employee meetings and training sessions.1
On October 17, 2001, Lockhart filed a formal charge of discrimina-
tion with the EEOC against FedEx, alleging that it had violated the
ADA by denying him reasonable accommodations for his deafness
disability. In July 2002, the EEOC determined that FedEx had dis-
criminated against Lockhart by repeatedly denying him ASL transla-
tion "for full participation in meetings, training, and safety and
security events." J.A. 715.2 The EEOC advised that it would initiate
conciliation proceedings with FedEx to resolve the issues presented
by Lockhart’s discrimination charge. Any such proceedings were
apparently unsuccessful, and, on January 17, 2003, FedEx discharged
Lockhart from his employment at the FedEx-BWI Ramp, citing defi-
cient attendance as the reason for its decision. Lockhart thereafter
filed an additional charge with the EEOC, alleging that his discharge
by FedEx had been retaliatory.
B.
On September 30, 2004, the EEOC filed its complaint against
FedEx in the District of Maryland. The complaint alleged that FedEx
had violated the ADA by failing to provide reasonable accommoda-
tions to Lockhart, and that FedEx had unlawfully terminated Lockhart
in retaliation for the discrimination charge he filed with the EEOC.
As relevant here, the complaint sought both compensatory and puni-
1
Prior to his employment with FedEx, Lockhart worked for approxi-
mately sixteen years as a janitor at a Veterans Administration Hospital
in California and at Gallaudet University in Washington, D.C. Both
employers provided ASL interpreters for Lockhart at meetings and work-
shops related to his employment.
2
Citations herein to "J.A. __" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
4 EEOC v. FEDERAL EXPRESS CORPORATION
tive damages, alleging that FedEx had acted with malice and reckless
indifference to Lockhart’s federally protected rights, and that it had
failed to act in good faith. The case was thereafter tried before a jury
in Baltimore, over the four day period from February 27 to March 2,
2006.
1.
At trial, the EEOC established that Lockhart’s supervisors were
always aware of his disability. They were also familiar with the ADA
and FedEx’s obligations thereunder, but nevertheless failed to provide
ASL translation assistance or other accommodations to Lockhart at
employee meetings and training sessions.3
a.
When Lockhart first interviewed for the FedEx package handler
position with FedEx-BWI Ramp Operations Manager Ronald Thomp-
son in the spring of 2000, Thompson declined Lockhart’s request that
FedEx provide him an ASL interpreter for the interview. As a result,
it was necessary for Lockhart to bring a friend to translate during the
interview, and for the friend to also assist at a multi-day orientation
training session that followed Lockhart’s hiring. Lockhart explained
that he supplied his own interpreter for these initial events because he
"really wanted the job," and because he "felt as if [he] had no other
choice." J.A. 148. Immediately after hiring Lockhart, Thompson
informed his own supervisor, Pat Hanratty, about Lockhart’s disabil-
ity. As the Senior Operations Manager for FedEx at the BWI Ramp,
Hanratty bore ultimate responsibility for all FedEx personnel matters
there. Upon learning that Thompson had hired a deaf employee, Han-
ratty immediately "ask[ed Thompson] why" he had done so. Id. at
489.
3
At trial, the EEOC called six witnesses, including Lockhart, to testify
on its behalf. FedEx also called several witnesses in support of its
defense. In assessing the issues raised in this appeal, we are obliged to
view the evidence in the light most favorable to the EEOC, as the pre-
vailing party at trial, drawing all reasonable inferences in its favor. See
ABT Bldg. Prods. Corp. v. Nat’l Union Fire Ins. Co., 472 F.3d 99, 113
(4th Cir. 2006).
EEOC v. FEDERAL EXPRESS CORPORATION 5
b.
As a package handler at the FedEx-BWI Ramp, Lockhart’s duties
included sorting, scanning, and stacking packages and letters, as well
as attending employee meetings and training sessions. Such events
included daily briefings conducted prior to each work shift, monthly
meetings (often supplemented with video presentations) of up to two
hours, plus quarterly meetings and occasional training sessions. These
mandatory meetings and training sessions were used by FedEx to
address essential topics for its employees, such as workplace safety,
job training, and employee benefits. Although Lockhart did not need
or request any accommodations with respect to the routine handling
of packages, he was "unable to understand what [was] going on in the
meetings" and training sessions without an ASL interpreter or other
accommodations. J.A. 670.
From the time Lockhart began working for FedEx in March 2000
until his discharge in January 2003, he made repeated requests to his
supervisors for the accommodations necessary to enable him to rea-
sonably comprehend and participate in employee meetings and train-
ing sessions. On multiple occasions, Lockhart asked his supervisors
for complete notes from the daily briefings, and for ASL translation
and closed-captioning assistance at monthly meetings. In July 2000,
Victor Cofield, a FedEx-BWI Ramp Operations Manager, replaced
Thompson as Lockhart’s direct supervisor. Cofield served as such for
most of the nearly three-year period of Lockhart’s FedEx employ-
ment, and thus was the point of contact for many of Lockhart’s
requests for accommodations.
The EEOC’s evidence at trial demonstrated that Cofield routinely
ignored Lockhart’s requests for accommodations. Lockhart received
only sporadic notes from his supervisors or co-workers, which briefly
summarized some of the meetings and training sessions. Lockhart "al-
most never" received notes from the daily meetings, and he was "very
frustrated" that, although his co-workers were being given essential
information concerning their jobs, he had "no way of knowing" what
topics were being discussed. J.A. 154. During the first two years of
his FedEx employment, Lockhart received no ASL interpretation or
closed-captioning accommodations for any employee meetings. On
multiple occasions, Lockhart was not advised when such meetings
6 EEOC v. FEDERAL EXPRESS CORPORATION
were to occur. During the various training sessions, Lockhart was
sometimes provided with closed-captioned videos, but he was never
provided with ASL translations of live presentations. According to
Lockhart, he thus felt "frustrated" and "very behind." Id. at 157. He
told the jury that several of his co-workers "kept giving me pity or
saying they felt sorry for me and sad for me because I didn’t know
what was going on and that I was missing so much." Id. Often, it was
Lockhart’s co-workers who provided him with meeting notes, appar-
ently on their own volition.
Cofield knew that English was Lockhart’s second language, and
Lockhart admitted that his use of written English was, in his own
words, "not very good." J.A. 224. Nevertheless, for most of the three-
year period that he worked for FedEx, Cofield resorted to writing
notes in English as his sole means of communicating with Lockhart.
In that regard, Cofield even relied on Lockhart to supply the materials
necessary for writing such notes. On days when Lockhart did not
bring a notepad, Cofield recalled, "we would find a piece of paper
somewhere, . . . out of a trash can, off the floor or something, and
write [notes]." Id. at 314. On at least three occasions, Cofield asked
another FedEx employee — who was somewhat familiar with ASL
but not certified as an ASL interpreter — to translate for Lockhart.
Lockhart had difficulty comprehending this employee’s ASL transla-
tions because, although the employee could use the ASL alphabet to
spell English words, he was not fluent in the ASL language.
FedEx personnel records indicate that Lockhart completed twenty-
four separate company-administered training courses — including
courses on how to avoid workplace violence, how to recognize and
interpret hazard labels on packages, and how to safely handle danger-
ous materials. According to these records, Lockhart performed satis-
factorily in all of the graded training sessions. On those occasions
when FedEx required its employees to take computerized tests at the
conclusion of a training session, however, FedEx would direct a
"team leader" to sit with Lockhart at his computer and answer test
questions for him if he made incorrect answers. As Lockhart recalled,
"the team leader would . . . move[ ] me out of the way and start[ ] tak-
ing the test for me." J.A. 165-66. One such team leader, Marvin Redd,
acknowledged that, after helping Lockhart take such tests "four or
five times," Redd advised Cofield that Redd "couldn’t do it anymore,"
EEOC v. FEDERAL EXPRESS CORPORATION 7
because he "kind of felt like [he] was belittling [Lockhart] as a per-
son." Id. at 445. Thereafter, Cofield himself corrected Lockhart’s
incorrect answers. Lockhart was "very embarass[ed]" by the test-
taking arrangements, because his co-workers necessarily assumed that
he was "just stupid." Id. at 166.
Lockhart’s need for accommodations became particularly acute
after the events of September 11, 2001, when the FedEx managers at
BWI convened several meetings on security issues, covering subjects
such as potential anthrax exposure. Because he was denied ASL
translation assistance and meeting notes, Lockhart was unable to
effectively participate in these security meetings. As a result, Lock-
hart felt "very paranoid" and "emotional," and he was "concerned
about [his] own safety," due to the vast amount of information that
he was not receiving. J.A. 167. "[M]y co-workers started to feel very
concerned for me," Lockhart testified, "because there was so much
information that I wasn’t getting, and they were concerned for my
safety." Id.
In late 2001, revised federal aviation regulations were promulgated
requiring all FedEx-BWI Ramp employees to obtain and wear secur-
ity badges while at work. Lockhart was unable to obtain his security
badge, however, because he lacked the assistance of an ASL inter-
preter; he thus had to work without a security badge for several
months, in violation of the regulations. During that period, Lockhart
feared that he would be fired or laid off for not having his required
security badge.
c.
Almost two years after Lockhart was first hired at the FedEx-BWI
Ramp, Cofield gradually began to provide accommodations for his
deafness. In January 2002, Cofield made a certified ASL interpreter,
Derwood O’Quinn, available to assist Lockhart in obtaining his secur-
ity badge. O’Quinn had served as an ASL interpreter for FedEx at its
facilities at BWI and nearby Dulles International Airport since 2001.
Although Cofield was aware of Lockhart’s ongoing need for an ASL
interpreter, he made O’Quinn available to Lockhart on a limited basis
only. For example, Cofield provided Lockhart with O’Quinn’s ser-
vices at only some of the monthly meetings conducted between Janu-
8 EEOC v. FEDERAL EXPRESS CORPORATION
ary 2002 and the termination of Lockhart’s employment in January
2003. On occasion, O’Quinn would merely translate the video por-
tions of the meetings, doing so the day after the actual meeting had
occurred. Lockhart never received ASL translation assistance for any
daily briefings, training sessions, or quarterly meetings with FedEx’s
senior management.
Sometime in the fall of 2002, Cofield began ordering closed-
captioned versions of training videos used in the FedEx monthly
meetings. Cofield did not, however, provide Lockhart with notes from
the daily briefings on a consistent basis until December 2002. Cofield
began providing Lockhart with notes from the monthly meetings
around the same time, although Cofield admitted that such notes were
only the bulleted outlines of such meetings, as prepared for all pack-
age handlers. Even then, the notes were made available for some, but
not all, of the monthly meetings. Significantly, it was not until Janu-
ary 2003 — nearly three years after he began working at the FedEx-
BWI Ramp, and just a few weeks after Cofield first learned that
Lockhart had filed his discrimination charge with the EEOC — that
Lockhart was provided with FedEx’s approved form for requesting
disability accommodations. Lockhart was discharged that same
month.
d.
Since 1991, FedEx has maintained an internal ADA compliance
policy, guaranteeing reasonable accommodations to its disabled
employees. The details of this compliance policy — including the rea-
sonable accommodations requirement — are spelled out in a FedEx
human resources policy manual called the "People Manual."4 Han-
4
FedEx’s ADA compliance policy, as set forth in the People Manual,
specifies, inter alia, that FedEx "provides reasonable accommodation in
the employment of the handicapped upon request where such accommo-
dation does not cause undue hardship." J.A. 832. The compliance policy
includes a definition for, and provides examples of, reasonable accom-
modations, and it lays out guidelines for what may constitute undue hard-
ship to FedEx. It also references a complaint procedure by which written
complaints of violations of the compliance policy may be filed. As writ-
ten, the grievance procedure appears to be available only to "[d]isabled
applicants." Id.
EEOC v. FEDERAL EXPRESS CORPORATION 9
ratty, as the Senior Operations Manager at the FedEx-BWI Ramp,
acknowledged at trial that he was aware of FedEx’s ADA compliance
policy, and that he had received ADA training from FedEx. Hanratty
admitted being familiar with the ADA’s requirement that employers
make reasonable accommodations for their disabled employees. Strik-
ingly, however, during Lockhart’s employment with FedEx, Hanratty
never utilized the People Manual to ascertain how to accommodate
Lockhart’s deafness disability.
Moreover, although Hanratty was responsible for all personnel
matters at the FedEx-BWI Ramp, he failed to ensure that FedEx’s
ADA compliance policy was implemented there. Hanratty’s subordi-
nate, Cofield, who directly supervised Lockhart, had never received
any ADA training from FedEx. And, prior to Lockhart being hired,
Cofield had never supervised a deaf employee at FedEx. Cofield
acknowledged that he asked Hanratty for ADA training, but that he
had received none. Indeed, in Cofield’s words, "[t]here was no ADA
training at Federal Express." J.A. 370.
After reaching a dead end with Hanratty, Cofield made several
futile efforts to obtain clarification from other senior FedEx officials
about FedEx’s ADA-mandated obligation to accommodate Lockhart’s
disability. At one point, Cofield sought advice on such obligations
from an official in FedEx’s legal department, described by Cofield
as"a guy down at the Beltsville location." J.A. 329. Cofield admitted
discussing the ADA requirements of "reasonable accommodations"
with this legal department official, including the importance of "mak-
ing sure we kept the lines of communication open, that . . . safety was
number one, and . . . providing [Lockhart] with any . . . written docu-
mentation that we could." Id. On two occasions in 2002, Cofield con-
tacted FedEx official Virginia Connors (at "corporate headquarters")
on the Lockhart situation, seeking, in his words, to "get a definition
of what reasonable accommodations [were]." Id. at 330. Although
Cofield was familiar with the People Manual and referred to it to
identify other employment policies, he was never, in his multiple con-
versations with Hanratty and other FedEx officials, directed "to go to
a disability policy my entire career as it related to the ADA." Id. at
372.
On one occasion in 2002, Lockhart advised Cofield that FedEx was
regularly providing an ASL interpreter for a hearing impaired
10 EEOC v. FEDERAL EXPRESS CORPORATION
employee at a FedEx ramp facility in Ohio. As a result, Cofield con-
tacted Hank Arrington, FedEx’s Senior Personnel Representative for
the FedEx-BWI Ramp, about the Ohio ASL arrangements. Arrington
lacked knowledge of the Ohio situation, and requested further details
from Cofield on the location of the deaf employee (although FedEx
apparently had only one ramp facility in Ohio). Cofield, however, did
not follow up with Arrington on the hearing impaired employee in
Ohio.
In contrast to Cofield, Hanratty knew that the FedEx facility at
Dulles employed deaf individuals. Nevertheless, Hanratty did not
contact Tony Russell, his managerial counterpart at Dulles, to ascer-
tain whether ADA accommodations were being provided for such
employees. Cofield then spoke with Russell, who told him that he had
an ASL interpreter — Derwood O’Quinn — assist him at Dulles.
Cofield immediately contacted O’Quinn and got approval to hire him
to "come in and do meetings and written reviews." J.A. 327. Notably,
even after Cofield began using O’Quinn in 2002 to provide ASL
interpretation assistance for Lockhart at monthly meetings, no such
ASL accommodation was provided for Lockhart at his quarterly
meetings with Hanratty.
Hanratty acknowledged that, as of January 2003, he had known
about Lockhart’s EEOC charge "for years." J.A. 479. Indeed, the ini-
tial contact with FedEx about the EEOC charge was mailed to Han-
ratty by certified mail at the FedEx-BWI Ramp. Hanratty did not,
however, advise Cofield about the charge, or seek to verify that
FedEx’s procedures for addressing such allegations had been com-
plied with. Cofield, on the other hand, did not know of Lockhart’s
EEOC charge until December 2002, when Connors sent him an email
concerning it. Thereafter, in January 2003, Cofield provided Lockhart
with FedEx’s official form for requesting ADA accommodations.
Cofield admitted at trial, however, that even in early 2003 he did not
know what an EEOC charge was.
2.
Following the presentation of the foregoing and other evidence to
the jury, the trial proceeded with the jury instructions of the court, the
EEOC v. FEDERAL EXPRESS CORPORATION 11
closing arguments of counsel, the jury deliberations, and the return of
the verdict. We briefly summarize those aspects of this case.
At the conclusion of the evidence, FedEx moved, pursuant to Fed-
eral Rule of Civil Procedure 50(a), for judgment as a matter of law.
The trial court denied the Rule 50(a) motion, however, and proceeded
to instruct the jury on the legal principles applicable to the EEOC’s
two claims against FedEx. Of note, FedEx made no objections to the
jury instructions. On the factual issue of whether Lockhart had
requested that ADA accommodations be made, the jury was
instructed, inter alia, that although a disabled employee possesses a
general responsibility to inform his employer that such accommoda-
tions are necessary, "the need for a request may be excused altogether
when a known disability interferes with an employee’s ability to make
a request." J.A. 572. In such a circumstance, "the employer must
make a reasonable effort to understand what [the] needs are." Id. at
573.5 An important aspect of the punitive damages instruction, which
is not contested on appeal, was that
[a]n award of punitive damages will be appropriate in this
case only if you find for the EEOC and then further find
from a preponderance of the evidence: First, that a higher
management official of FedEx personally acted with malice
or reckless indifference to Mr. Lockhart’s federally-
protected rights; and, second, that FedEx itself had not acted
in good faith in an attempt to comply with the law by adopt-
ing policies and procedures designed to prohibit such dis-
crimination in the workplace.
Id. at 578. The instructions did not specify which FedEx personnel
could be deemed to be higher management officials.
5
With regard to an employee’s obligation to inform his employer about
needed ADA accommodations, the court explained to the jury that "this
burden is not a great one. The employee does not have to mention the
ADA or use the phrase ‘reasonable accommodation.’ Adequate notice
simply informs the employer of both the disability and the employee’s
need for the accommodations for that disability." J.A. 572.
12 EEOC v. FEDERAL EXPRESS CORPORATION
In the context of its punitive damages instruction, the court advised
the jury on the good-faith issue that
an employer may not be held liable for punitive damages
because of discriminatory acts on the part of its managerial
employees where those acts by such employees were con-
trary to the employer’s own good faith efforts to comply
with the law by implementing policies and programs
designed to prevent such unlawful discrimination in the
workplace.
J.A. 578. The court further emphasized that a "party that . . . delays
the interactive process is not acting in good faith." Id. at 573. In addi-
tion, the instructions advised that a "party who fails to communicate,
by way of initiation or response, may also be acting in bad faith." Id.
On March 2, 2006, the jury returned its verdict, by way of a "Spe-
cial Verdict Form," finding, inter alia, that the EEOC had proven by
a preponderance of the evidence that FedEx had violated the ADA by
failing to provide reasonable accommodations to Lockhart. The ver-
dict specified that "a higher management official of Federal Express
acted with malice or reckless indifference to [Lockhart’s] federally
protected rights," and that "FedEx did not act in a good faith attempt
to comply with the law by adopting policies and procedures designed
to prohibit such discrimination in the workplace." Special Verdict
Form, 1-2, Mar. 2, 2006.6 On the other hand, the jury rejected the
EEOC’s contention that FedEx had terminated Lockhart in retaliation
for filing a charge with the EEOC. By its verdict, the jury awarded
Lockhart the sum of $8,000 in compensatory damages, plus $100,000
in punitive damages. The aggregate of these two damage awards
6
During its deliberations, the jury on one occasion submitted questions
to the court, including a query relating to FedEx’s asserted good-faith
efforts: "[A]re we to judge whether FedEx acted in good faith to comply
with the law based on the company’s stated policies and procedures, or
on the Baltimore ramp’s performance complying with those policies and
procedures?" J.A. 588. In response, the court simply referred the jury to
its earlier instructions.
EEOC v. FEDERAL EXPRESS CORPORATION 13
($108,000) was below the $300,000 statutory maximum prescribed
for such employers as FedEx.7
C.
In the post-trial proceedings, FedEx renewed its motion for judg-
ment as a matter of law under Federal Rule of Civil Procedure 50(b),
maintaining that the evidence was insufficient to support the jury’s
award of punitive damages. FedEx moved in the alternative for a
remittitur. The trial court denied the Rule 50 relief by its Opinion and
Order of April 25, 2006, concluding simply that "[t]he EEOC . . . pro-
duced sufficient evidence — accepted by the jury — contradicting
FedEx’s contentions." J.A. 654. The court also denied the motion for
a remittitur of the punitive damages award, being satisfied that "the
award in this case falls within the range that Congress has determined
to be reasonable." Id. at 655. FedEx has filed a timely appeal, main-
taining that the trial court erred in denying its motion for judgment
as a matter of law, because the evidence was insufficient to support
the punitive damages award. Additionally, FedEx contends that the
court erred in rejecting its alternative request for a remittitur, in that
the punitive damages award was unconstitutionally excessive.8 We
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s denial of a post-trial motion
for judgment as a matter of law on a punitive damages award. See
Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443 (4th Cir. 2000).
Upon conducting such review, we are obliged to affirm the district
court’s ruling unless we conclude — viewing the evidence in the light
most favorable to the plaintiff, and giving the plaintiff the benefit of
all reasonable inferences — that no reasonable jury could have made
the punitive damages award being challenged. See id.
7
Under the ADA, the sum of any compensatory and punitive damages
awarded by a jury is limited, "in the case of a respondent who has more
than 500 employees," to $300,000. 42 U.S.C. § 1981a(b)(3)(D).
8
FedEx does not, in its appeal, challenge the propriety of the jury’s
compensatory damages award.
14 EEOC v. FEDERAL EXPRESS CORPORATION
We generally review for abuse of discretion a district court’s denial
of a motion for a remittitur. See Cline v. Wal-Mart Stores, Inc., 144
F.3d 294, 305 (4th Cir. 1998). When, however, a remittitur is being
sought on a punitive damages award alleged to be constitutionally
excessive, our review must be de novo. See Cooper Indus., Inc. v.
Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001) ("[C]ourts of
appeals should apply a de novo standard of review when passing on
district courts’ determinations of the constitutionality of punitive
damages awards.").
III.
A.
We first address FedEx’s contention that the district court erred in
denying its Rule 50 motion for judgment as a matter of law on the
punitive damages award. The ADA was enacted in 1990 to expand
the civil rights protections of individuals with disabilities. See 42
U.S.C. § 12101(b)(3)-(4) (declaring purpose of ADA to "ensure that
the Federal Government plays a central role in enforcing the standards
established in [the ADA] on behalf of individuals with disabilities"
and "to invoke the sweep of congressional authority, . . . to address
the major areas of discrimination faced day-to-day by people with dis-
abilities"). Title I of the ADA prohibits discriminatory acts and omis-
sions that abrogate the employment rights of disabled people,
including the failure of an employer to make reasonable accommoda-
tions for an applicant or an employee’s disability. See 42 U.S.C.
§ 12112(b)(5)(A) (defining "discriminate" as, inter alia, the failure to
make "reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who
is an applicant or employee, unless [the employer] can demonstrate
that the accommodation would impose an undue hardship on the oper-
ation of the business of [the employer]"). The ADA incorporates the
enforcement provisions of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq., which are governed in turn by § 1981a of
the Civil Rights Act of 1991, 42 U.S.C. § 1981a. See 42 U.S.C.
§ 12117(a).
Pursuant to § 1981a, a plaintiff seeking punitive damages on an
ADA claim must prove that his employer acted with the requisite
EEOC v. FEDERAL EXPRESS CORPORATION 15
state of mind — that is, that it "engaged in a discriminatory practice
. . . with malice or with reckless indifference to the federally protected
rights of [the plaintiff]." 42 U.S.C. § 1981a(b)(1). In 1999, the
Supreme Court recognized, in Kolstad v. American Dental Associa-
tion, that the statutory requirement of malice or reckless indifference
may be proven in the alternative. As a result, proof of "actual malice"
is unnecessary for a finding of punitive damages liability if, at a mini-
mum, the plaintiff is able to prove "recklessness in its subjective
form." 527 U.S. 526, 536 (1999) (citing Smith v. Wade, 461 U.S. 30,
45-48 (1983)). The Kolstad Court explained that, in order to prove
such recklessness, a plaintiff must establish that his employer "at least
discriminate[d] in the face of a perceived risk that its actions [would]
violate federal law." Id. The Court also observed that the evidence
must be sufficient to impute punitive damages liability to the
employer. Id. at 539. In this regard, the Court explained that, "in the
punitive damages context, an employer may not be vicariously liable
for the discriminatory employment decisions of managerial agents
where these decisions are contrary to the employer’s good-faith
efforts to comply with" the applicable federal law. Id. at 545 (internal
quotation marks omitted).
In this trial, the EEOC relied on a theory of reckless indifference
to prove its claim for punitive damages against FedEx.9 Applying the
Kolstad principles, we have heretofore explained that, for a punitive
damages award to be justified on the basis of reckless indifference,
the evidence must be sufficient for a reasonable jury to make four
findings:
(1) That the employer’s decision maker discriminated in
the face of a perceived risk that the decision would
violate federal law;
9
Notably, the trial court instructed the jury that it was entitled to award
punitive damages if it found that a FedEx managerial official had acted
with either malice or reckless indifference. Although the EEOC has not
conceded that there was insufficient evidence of malice, the evidence
need not have proven malice. To sustain the punitive damages award, the
evidence must only have been sufficient to prove reckless indifference.
We therefore focus our analysis on the reckless indifference issue.
16 EEOC v. FEDERAL EXPRESS CORPORATION
(2) That the decision maker was a principal or served the
employer in a managerial capacity;
(3) That the decision maker acted within the scope of his
employment in making the challenged decision; and
(4) That the employer failed to engage in good-faith
efforts to comply with the law.
See Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443-45 (4th Cir.
2000). In this appeal, FedEx does not contest the punitive damages
award on the basis of a lack of proof on either the second or third of
the Lowery factors. That is, it acknowledges that Lockhart’s supervi-
sors served FedEx in a managerial capacity, and that in dealing with
Lockhart’s ADA accommodation issues they acted within the scope
of their employment with FedEx. Rather, FedEx maintains that the
evidence failed to prove the first and fourth of the Lowery factors —
first, that Lockhart’s supervisors failed to reasonably accommodate
Lockhart in the face of a perceived risk that such failure violated the
ADA; and, second, that FedEx failed to engage in good-faith efforts
to comply with the ADA.10 We address these two evidentiary argu-
ments in turn.
1.
On the first of the contested Lowery issues, FedEx maintains that
the punitive damages award should have been vacated by the district
court because, on the evidence, the jury was not entitled to find that
Cofield or Hanratty (or others) acted with reckless indifference in fail-
ing to provide reasonable ADA accommodations for Lockhart’s deaf-
ness. More specifically, FedEx contends that Cofield and Hanratty
"knew that accommodations were required," and that they "believed
they were making sufficient accommodations" for Lockhart. Appel-
lant’s Br. 23. A showing of reckless indifference required proof that
10
Although the jury was not instructed in the precise language of the
Lowery factors, the instructions, viewed as a whole, sufficiently apprised
the jury of the applicable legal principles on the Lowery issues being pur-
sued on appeal. In any event, the propriety of the instructions was not
objected to and is not challenged on appeal.
EEOC v. FEDERAL EXPRESS CORPORATION 17
a FedEx managerial official failed to accommodate Lockhart in the
face of a perceived risk that such a failure would violate the ADA.
See Kolstad, 527 U.S. at 536. Significantly, we have heretofore found
evidence sufficient to support a jury finding of a perceived risk in
cases where the employer’s managerial agent had "at least a rudimen-
tary knowledge" of the import of a federal anti-discrimination statute.
Anderson v. G.D.C., Inc., 281 F.3d 452, 460 (4th Cir. 2002) (conclud-
ing jury entitled to find that supervisor who saw EEOC poster warn-
ing against sexual harassment perceived risk of violating Title VII);
see also Lowery, 206 F.3d at 443 (determining evidence sufficient to
prove that supervisors perceived risk of contravening Title VII by
refusing to promote African-American employees, in that employer
provided training on such legal obligations); EEOC v. Wal-Mart
Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999) (recognizing that,
because Wal-Mart manager was familiar with ADA, jury could con-
clude that Wal-Mart perceived risk of violating ADA by failing to
accommodate employee and then transferring and discharging him).
Here, the instructions (to which FedEx did not object) did not spec-
ify who — for example, Hanratty, Cofield, Thompson, or someone
else — could be considered as a relevant FedEx managerial official.
Therefore, if the jury could have found that any one of them per-
ceived the risk that their failure to accommodate Lockhart would vio-
late the ADA, we are not entitled to vacate the punitive damages
award for lack of sufficient evidence to support the first Lowery find-
ing.
On this evidence, the jury was entitled to find, by way of example,
that Hanratty, as an undisputed managerial official, failed to accom-
modate Lockhart in the face of a perceived risk of violating the ADA.
Such a finding could be made on the basis of the following:
• Hanratty was specifically aware of FedEx’s internal
ADA compliance policy, and had received training from
FedEx on the ADA’s compliance requirements;
• Hanratty was responsible for all personnel matters at the
FedEx-BWI Ramp, and he directly supervised Thomp-
son and Cofield;
18 EEOC v. FEDERAL EXPRESS CORPORATION
• Hanratty was aware — during Lockhart’s entire employ-
ment period — of Lockhart’s deafness disability. More-
over, when Thompson first advised Hanratty that he had
hired a deaf employee, Hanratty responded by asking
"why" Thompson had done so;
• Under Hanratty’s supervision, Thompson and Cofield
continually denied or ignored Lockhart’s repeated
requests for, inter alia, complete notes at daily meetings,
and ASL translation (and close-captioning assistance,
where appropriate) at his job interview, orientation train-
ing, and monthly meetings. As a consequence, Lockhart
rarely received notes summarizing daily meetings. For
two years, he was repeatedly denied ASL interpretation
and closed-captioning at monthly meetings;
• Hanratty convened quarterly meetings that Lockhart was
required to attend, and no ASL interpretation was ever
made available to Lockhart at those meetings;
• Hanratty denied Cofield’s request for training on
FedEx’s ADA compliance policy;
• Although Hanratty was familiar with the ADA compli-
ance policy included in FedEx’s People Manual, he
never consulted the policy or encouraged Cofield to read
it;
• Hanratty knew that Russell, his managerial counterpart
at Dulles, was supervising deaf employees, but Hanratty
never contacted Russell to find out what accommoda-
tions were being provided to those employees. Eventu-
ally, in 2002, Cofield contacted Russell and obtained
O’Quinn’s services; and
• Hanratty knew about Lockhart’s October 2001 EEOC
charge for years, but failed to inform Cofield about it.
Cofield only found out about the charge from another
FedEx official more than a year after it was filed.
EEOC v. FEDERAL EXPRESS CORPORATION 19
The jury was further entitled to find that Cofield knew of his ADA
obligation to provide reasonable accommodations to Lockhart for his
deafness disability, and thus perceived the risk that his failure to do
so would violate the ADA. For example, although Cofield did not
receive any ADA training from FedEx, he had contacted other FedEx
officials, including Connors in FedEx’s "corporate headquarters," an
unnamed official in FedEx’s legal department, and Arrington (Senior
Personnel Representative for the FedEx-BWI Ramp) seeking clarifi-
cation on what might constitute reasonable ADA accommodations for
Lockhart.
In sum, the trial evidence was sufficient for the jury to find, by a
preponderance thereof, that a managerial official of FedEx perceived
the risk that his failure to provide Lockhart with reasonable accom-
modations would contravene the ADA. Thus, the jury was entitled to
find that FedEx had acted, in Kolstad’s terms, with "recklessness in
the subjective form."
2.
On the second of the contested Lowery issues (pertaining to the
fourth Lowery factor), FedEx contends that punitive damages liability
could not properly be imputed to it because it made good-faith efforts
to comply with the ADA. Specifically, FedEx contends that adoption
of its ADA compliance policy, as set forth in the People Manual (pro-
viding that reasonable accommodations should be made for disabled
employees), in conjunction with its internal grievance policy for han-
dling employee complaints, established that it had acted in good faith
to comply with the ADA. FedEx also maintains that the trial evidence
failed to prove otherwise.
Unfortunately for FedEx, the mere existence of an ADA compli-
ance policy will not alone insulate an employer from punitive dam-
ages liability. Rather, in order to avoid liability for the discriminatory
acts of one of its management officials, an employer maintaining such
a compliance policy must also take affirmative steps to ensure its
implementation. As we recognized in our Lowery decision, "[w]hile
an employer’s institution of a written policy against . . . discrimina-
tion may go a long way toward dispelling any claim about the
employer’s reckless or malicious state of mind . . . , such a policy is
20 EEOC v. FEDERAL EXPRESS CORPORATION
not automatically a bar to the imposition of punitive damages." 206
F.3d at 446. In Lowery, Judge Hamilton carefully explained that a
jury is not obliged to find that an employer has engaged in good-faith
efforts to comply with the law if "the sincerity of [the employer’s]
commitment to a company-wide policy against . . . discrimination in
the workplace is called into question" by other evidence. Id.; see also
EEOC v. Wal-Mart Stores, Inc., 187 F.3d at 1248-49 (concluding that
"written policy against discrimination . . . alone is not enough," where
"[o]ur review of the record leaves us unconvinced that [the employer]
made a good faith effort to educate its employees about the ADA’s
prohibitions"); cf. Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d
536, 548-49 (4th Cir. 2003) (rejecting punitive damages liability
where employer "had extensively implemented organization-wide
Equal Employment Opportunity Policy," established grievance policy
encouraging reporting of claims, informed employees of anti-
retaliation stance, developed diversity training program, and voluntar-
ily monitored departmental demographics to ensure diversity);
Marcano-Rivera v. Pueblo Int’l, Inc., 232 F.3d 245, 254 (1st Cir.
2000) (holding that court properly declined to submit punitive dam-
ages question to jury, where record was "replete" with evidence that
employer had "instituted policies prohibiting any type of discrimina-
tion, trained its personnel to ensure equal treatment of employees with
disabilities, and took good faith efforts to comply with the ADA").
On the evidence, the jury was entitled to find that FedEx failed to
sufficiently take affirmative steps to ensure the implementation of its
ADA compliance policy with respect to Lockhart. In this case, FedEx
managerial officials shared responsibility for the failed implementa-
tion of the policy with the company’s managerial agents at the FedEx-
BWI Ramp. For example, through Cofield, at least three higher
FedEx officials received notice that a deaf package handler had
requested or was in need of ADA accommodations at the FedEx-BWI
Ramp. As noted, Cofield initiated contact in 2001 with an official in
FedEx’s legal department to clarify FedEx’s ADA obligations with
respect to Lockhart. In 2002, he contacted Connors at "corporate
headquarters" twice, and he contacted Arrington, the Senior Personnel
Representative for the FedEx-BWI Ramp, at least once, concerning
the need to provide ADA accommodations for Lockhart. Furthermore,
Connors — as well as Hanratty — was placed on notice of ADA
EEOC v. FEDERAL EXPRESS CORPORATION 21
compliance problems at the FedEx-BWI Ramp when Lockhart filed
his charge of discrimination with the EEOC in October 2001.
In spite of such notice, there is no evidence that any alarm bells
sounded in FedEx offices. Neither Hanratty nor any other FedEx offi-
cials took steps to ensure that Cofield, as Lockhart’s immediate super-
visor, was adequately prepared to implement FedEx’s ADA
compliance policy. No one advised Cofield to consult the ADA policy
statement in the People Manual, which emphasizes the mandate of the
ADA and its reasonable accommodations requirement. Although
Hanratty had himself received training from FedEx on ADA compli-
ance, he denied Cofield’s own request for such training. Nor did
FedEx show that the steps Cofield eventually took to provide accom-
modations to Lockhart resulted from Cofield’s reference to the People
Manual or consultations with his superiors at FedEx. These omissions
were significant given that, prior to Lockhart being hired, Cofield had
never supervised a hearing impaired employee.
On appeal, FedEx emphasizes the existence of its internal griev-
ance procedure, which is cross-referenced in the ADA compliance
policy section of the People Manual. FedEx does not, however, assert
that this grievance procedure was ever made available to Lockhart. In
fact, Lockhart was not provided with FedEx’s form for requesting
ADA accommodations until January 2003, almost three years after he
began working at the FedEx-BWI Ramp (and the same month in
which he was discharged). Under the evidence, FedEx failed to relay
basic information about Lockhart’s EEOC charge down the chain of
command. Although Hanratty knew "for years" that Lockhart had
filed an EEOC charge, he failed to inform Cofield about it. J.A. 479.
The jury also heard evidence that Cofield was not notified of Lock-
hart’s EEOC charge until approximately fourteen months after it was
filed, and at least six months after the EEOC issued its initial ruling
thereon.
On this record, viewed in the light most favorable to the EEOC and
Lockhart, there was sufficient evidence for the jury to find that FedEx
failed to engage in good-faith efforts to implement its ADA compli-
ance policy, and that, in the context of this case, FedEx’s commitment
to implementing its grievance process did not go beyond including the
22 EEOC v. FEDERAL EXPRESS CORPORATION
procedure in the People Manual.11 As a result, we must affirm the dis-
trict court’s denial of FedEx’s Rule 50 motion for judgment as a mat-
ter of law on the punitive damages award.
B.
Alternatively, FedEx challenges on appeal the district court’s
denial of its motion for a remittitur on the $100,000 punitive damages
award. FedEx maintains that the award was unconstitutionally exces-
sive and should be reduced because (1) there was insufficient evi-
dence to show that Lockhart’s supervisors had acted reprehensibly;
(2) the award was unconstitutionally out of proportion to the $8,000
compensatory damages award; and (3) the court erred in upholding
the award solely on the basis that it was below the statutory damages
cap.
A punitive damages award is subject to review for compliance with
the procedural and substantive constitutional limitations of the Due
Process Clause of the Fifth Amendment, lest a grossly excessive
award of such damages effect an arbitrary deprivation of property.
See Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993) (recog-
nizing that Fourteenth Amendment due process principles apply to
punitive damages issues pursued under Fifth Amendment); see also
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996) ("Elementary
notions of fairness enshrined in our constitutional jurisprudence dic-
tate that a person receive fair notice not only of the conduct that will
11
As noted earlier, the court’s instructions on the good-faith issue
emphasized that a "party that . . . delays the interactive process is not act-
ing in good faith," and that a "party who fails to communicate, by way
of initiation or response, may also be acting in bad faith." J.A. 573. On
the evidence, the jury could readily conclude that the interactive process
between Lockhart and FedEx on his ADA accommodations issues was
continually obstructed and delayed by the inaction and dilatoriness of
Cofield, Hanratty, and others at FedEx. As a result, it was entitled to find
that FedEx was not acting in good faith. Furthermore, the continuing fail-
ure of Cofield and Hanratty to reasonably communicate with Lockhart on
his accommodation requests — by way of both initiation and response
— sufficiently support a jury finding, under the instructions, that FedEx
was acting in bad faith.
EEOC v. FEDERAL EXPRESS CORPORATION 23
subject him to punishment, but also of the severity of the penalty that
a State may impose."). If a punitive damages award is unconstitution-
ally excessive, it is our obligation to order a remittitur or award a new
trial. See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir.
1998).
In assessing the constitutionality of a punitive damages award, we
are obliged to adhere to three "guideposts" identified by the Supreme
Court: (1) the degree of reprehensibility of the defendant’s conduct;
(2) any disparity between the actual or potential harm suffered by the
plaintiff and the amount of the punitive award; and (3) any difference
between the award and civil penalties that are authorized or imposed
in comparable cases. See State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 418 (2003).
1.
FedEx first maintains that the punitive damages award lacks suffi-
cient evidentiary support on the reprehensibility issue, that is, that the
requisite degree of reprehensibility was not established. Reprehensi-
bility is the first and most important of the three BMW guideposts. We
are obliged to assess a reprehensibility issue on the basis of five fac-
tors: (1) whether the harm done was physical as opposed to economic;
(2) whether the conduct involved indifference to the health or safety
of others; (3) whether the victim was financially vulnerable; (4)
whether the conduct involved repeated actions or was isolated; and
(5) whether the harm suffered by the plaintiff resulted from conduct
that was known or suspected to be unlawful. BMW, 517 U.S. at 576-
77.
Viewed in the light most favorable to the EEOC, there was evi-
dence of at least three of these factors (the second, fourth, and fifth),
sufficient to show that FedEx’s conduct could be deemed reprehensi-
ble by a jury. For example, FedEx’s continuing failure and refusal to
provide ADA accommodations for Lockhart’s deafness disability did
not result from isolated incidents. Lockhart’s deafness was always
known by his supervisors at the FedEx-BWI Ramp, and his disability
never changed. From the time of his request for ASL assistance at his
initial job interview with Thompson in early 2000, Lockhart made
24 EEOC v. FEDERAL EXPRESS CORPORATION
repeated and unsuccessful requests to FedEx for ASL translation
assistance and other accommodations.
Although Lockhart suffered no physical harm from the actions
complained of, his supervisors at FedEx were plainly indifferent to
the fact that their failure to accommodate his disability could jeopar-
dize his safety, and potentially implicate the safety of others. Because
Lockhart was denied the ADA accommodations necessary for him to
understand and participate in employee meetings and training ses-
sions, he consistently missed updates about important subjects such
as workplace safety, handling dangerous goods, interpreting hazard-
ous labels, and potential anthrax exposure. Finally, Lockhart’s super-
visors were familiar with the mandate of the ADA and perceived the
risk that their conduct was unlawful. Under the evidence, the jury was
thus entitled to find that FedEx higher management officials, includ-
ing Cofield and Hanratty, had acted reprehensibly with respect to
Lockhart’s need for ADA accommodations.
2.
FedEx also contends that the "mere proportion" of compensatory
damages to punitive damages warrants a remittitur in this case.
Appellant’s Br. 35. Notwithstanding FedEx’s contention, the 12.5 to
1 ratio between the compensatory and punitive damages awards does
not, as a matter of law, render the punitive damages award unconstitu-
tionally excessive. As the Supreme Court explained in BMW, a puni-
tive damages award should bear some reasonable relationship to the
corresponding award of compensatory damages, but such a relation-
ship is only one factor in an excessiveness analysis. See 517 U.S. at
580; see also TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443,
460 (1993) ("[T]his Court [has] eschewed an approach that concen-
trates entirely on the relationship between actual and punitive dam-
ages."). Indeed, the Court has specifically declined to draw some
mathematical bright line between constitutionally acceptable and
unacceptable ratios. See BMW, 517 U.S. at 582-83; see also Camp-
bell, 538 U.S. at 425-26 (holding that, although ratios are instructive,
they are not binding measures of constitutionality); Cooper Indus. v.
Leatherman Tool Group, 532 U.S. 424, 434-35 (2001) (observing that
constitutionality of punitive damages award is not to be determined
by "simple mathematical formula."); Pacific Mut. Life Ins. Co. v.
EEOC v. FEDERAL EXPRESS CORPORATION 25
Haslip, 499 U.S. 1, 18 (1991) ("We need not, and indeed we cannot,
draw a mathematical bright line between the constitutionally accept-
able and the constitutionally unacceptable that would fit every case.").
Comparatively speaking, the 12.5 to 1 ratio between the compensa-
tory and punitive damages awards in this case is well below the 500
to 1 disparity deemed unconstitutional by the Court in its BMW deci-
sion. It is also less than the 19 to 1 ratio that was upheld by the First
Circuit in Romano v. U-Haul Int’l, 233 F.3d 655 (1st Cir. 2000).
3.
Finally, the fact that the punitive damages award, when aggregated
with the compensatory damages award, was substantially below the
$300,000 statutory cap on such damages, as provided for by 42
U.S.C. § 1981a, provides additional support for the reasonableness
and constitutionality of the punitive damages award. The statutory cap
of $300,000 provided FedEx with fair notice of the range of available
civil penalties for acts of discrimination that contravened the ADA.
See Romano, 233 F.3d at 673 ("[A] punitive damages award that com-
ports with a statutory cap provides strong evidence that a defendant’s
due process rights have not been violated."); see also Baty v. Willam-
ette Indus., Inc., 172 F.3d 1232, 1245 (10th Cir. 1999) (rejecting con-
tention that award of maximum damages allowable under § 1981a
statutory cap is excessive).
FedEx contends that the district court erred on this point, however,
in that it based its refusal to reduce the punitive damages award solely
on the fact that the award was below the statutory cap, and thus that
it was reasonable per se. See J.A. 654-55. Even if the court had so
ruled, we would yet affirm its denial of FedEx’s request for a remitti-
tur, because the punitive damages award was plainly reasonable in
light of at least three relevant factors: reprehensibility, proportional-
ity, and the statutory cap.12
12
In seeking relief in the district court, FedEx addressed all three of
these factors (reprehensibility, proportionality, and statutory cap).
Although the district court specified the importance of the award being
less than the statutory cap, that specification does not necessarily indicate
that it ignored FedEx’s other assertions on reprehensibility and propor-
tionality. In any event, we have carefully considered — and rejected —
each of these contentions.
26 EEOC v. FEDERAL EXPRESS CORPORATION
As a result, we reject FedEx’s contention that the punitive damages
award is unconstitutionally excessive. In the circumstances, there is
no basis for us to order a remittitur of the punitive damages award,
and FedEx’s alternative request for such relief must be denied.
IV.
Pursuant to the foregoing, we affirm the judgment of the district
court.
AFFIRMED