Rubinstein v. Administrators of the Tulane Educational Fund

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?

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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