Revised September 28, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60448
DEBORAH H. HARDIN,
Plaintiff - Appellee-Cross-Appellant,
versus
CATERPILLAR, INC.
Defendant - Appellant-Cross-Appellee.
Appeals from the United States District Court
For the Northern District of Mississippi
September 12, 2000
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PATRICK E. HIGGINBOTHAM:
Approximately three and a half months after Caterpillar fired
Deborah Hardin, she filed suit against Caterpillar asserting claims
under the Family Medical Leave Act, the Pregnancy Discrimination
Act of Title VII, and a claim under the Americans with Disabilities
Act. The latter claim was dismissed, and the remaining claims were
tried to a jury in Mississippi. The jury returned a verdict for
Hardin, awarding her $55,000 in lost wages from the FMLA claim and
$45,000 for the PDA violation. The district court granted Hardin’s
motion for liquidated damages under FMLA but denied her motion for
reinstatement or front pay. By agreement of the parties, it
limited Hardin’s claim for lost wages to the sum of $22,558. It
then awarded the same sum in liquidated damages, together with
$45,000 for mental anxiety, all with interest. Hardin and
Caterpillar appeal.
Caterpillar argues insufficiency of evidence and defends the
other rulings of the trial court. Hardin complains that the
district court erred in not awarding reinstatement or front pay.
The district court refused, pointing out that in the pre-trial
order the plaintiff only asserted “a claim for actual, punitive and
liquidated damages for violations of Title VII and the FMLA” and
made no claim for reinstatement or front pay. The court further
observed that the issues were not tried by consent.
I
After oral argument, we are persuaded that the judgment below
must be affirmed in all respects, except for the district court’s
dismissal of the claim for punitive damages. A final pre-trial
order controls the issues to be tried, and the district court acted
within its discretion in refusing reinstatement or front pay for
the reasons it gave. We reject summarily Caterpillar’s contention
that the verdict is not supported by the evidence. We pause only
to treat the more difficult issue of punitive damages.
II
2
Hardin at all times asserted a claim for punitive damages.
The district court acting without the benefit of the decision of
the Supreme Court in Kolstad v. American Dental Association, 527
U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), declined to
submit the issue to the jury. Kolstad explained that there was no
requirement of egregiousness, and the plaintiff Hardin points to
that ruling. It held that compensatory and punitive damages are
limited to acts of intentional discrimination (Section 1981A(a)(1))
done with malice or reckless indifference. The court in Kolstad
further observed, “... 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 Title VII,’”
119 S.Ct. 2118, 2129, (quoting Kolstad, 139 F.3d 958, 974 (D.C.
Cir. 1998) (Tatel, J., dissenting)).
1
In refusing to submit punitive damages, the trial judge made
explicit reference to Deffenbaugh I. Deffenbaugh-Williams v. Wal-
Mart Stores, Inc., 156 F.3d 581, 592-94 (5th Cir. 1998). We later
took Deffenbaugh I en banc and reinstated the panel opinion except
its treatment of punitive damages. We left to the panel the task
of applying Kolstad’s treatment of punitive damages. Williams v.
Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc).
Kolstad made clear that malice did not require the proof of
“egregious” conduct. In this respect it changed nothing in
3
Deffenbaugh I on which the district court relied. Kolstad also
clarified that punitive damages would not ordinarily be imputed to
an employer if the discriminatory acts upon which they were
predicated were contrary to good faith efforts of the employer to
prevent such conduct. This was a change from Deffenbaugh I. It is
unclear whether when the district court turned to the question of
punitive damages, it considered evidence of the defendant’s efforts
to prohibit discriminatory acts by its policy statements, manuals,
and such. Nonetheless, Kolstad’s announcement of the rules for
attributing malicious or recklessly indifferent conduct to an
employer could not have injured Ms. Hardin. The new rules were
more favorable to Caterpillar than Deffenbaugh I’s approach,
applied by the district court. Indeed, these new rules likely
reinforce the decision of the trial court to not submit punitive
damages. Yet, we cannot apply for the first time on appeal their
fact-based inquiries into Caterpillar’s good faith in reviewing the
decision to not submit punitive damages to the jury.1 Regardless,
there was no error in refusing to submit punitive damages if,
imputation to Caterpillar aside, the question of whether
1
See Deffenbaugh-Williams v. Wal-mart Stores, Inc., 188 F.3d
278, 282-84 (5th Cir. 1999). Caterpillar could not, absent timely
objection at trial, deploy Kolstad in an attack upon a punitive
damage award against it. If punitive damages are to be otherwise
considered afresh, Kolstad must be part of that mix. Caterpillar
offered significant evidence of good faith efforts. It is true
that in awarding liquidated damages under FMLA, the district court
found that Caterpillar did not prove it acted in good faith. It is
not clear whether Caterpillar’s corporate policy directed toward
enforcement of FMLA was considered in that decision.
4
Caterpillar employees acted with malice or reckless indifference
toward Ms. Hardin did not raise genuine issues of material fact.
We turn to that question.
2
First, two caveats: not every sufficient proof of pretext and
discrimination is sufficient proof of malice or reckless
indifference. Nor is there a useful litmus for marking the point
at which proof of violation sufficient to impose liability becomes
sufficient to also support a finding of malice or reckless
indifference.
3
The district court did not explain its decision further than
to say that the case was different from that in Deffenbaugh I.
Kolstad explained the meaning of malice and reckless indifference
drawing on its decision in Smith v. Wade, 461 U.S. 30 (1983).
While the Smith court determined that it was unnecessary
to show actual malice to qualify for a punitive award .
. . its intent standard, at a minimum, required
recklessness in its subjective form. The court referred
to a “subjective consciousness” of a risk of injury or
illegality and a “criminal indifference to civil
obligations.”
Id. at 2125. The court further relied upon Professor McCormick’s
statement that “a positive element of conscious wrongdoing is
always required.” Id. at 2126.
With these standards in mind, we are persuaded that if the
jury credited Ms. Hardin’s version of the events over those of
Caterpillar’s representatives, a reasonable juror could conclude
5
that the representatives were either lying or consciously
indifferent to the truth and the legality of their acts.
There was direct evidence that Ms. Hardin was a good worker
and that she was fired because she was pregnant. Although
Caterpillar asserts a history of difficulties and comments by Ms.
Hardin’s supervisor, the jury could conclude that she was a good
worker who held her own in an overwhelmingly male work environment.
Ms. Hardin’s testimony depicts a management that was unreceptive to
pregnancy and illness claims. Her personnel manager, Gayra Quinn,
and Rick Mercer, the plant manager at Caterpillar’s Prentiss
facility, apparently told workers that doctor’s excuses were “a
dime a dozen” and “not worth the paper they were printed on.”
Although Caterpillar may see this as a proper response to abuse by
the work force of rules regarding absenteeism, the jury may see it
in the context of the events here, as expressing hostility toward
women working in a team environment facing a risk of pregnancy.
According to Ms. Hardin, prior to the birth of her first child in
1995, she also faced criticism from management personnel about her
pregnancy interfering with her work. She testified that Manager
Jeff Vatalaro even required Ms. Hardin to get his permission before
going to the bathroom – a requirement not placed on the plant’s
male employees.2 Moreover, she recalled that while pregnant in
1997, her supervisor, Dale Kendrick, told her that her earlier
2
Ms. Hardin’s pregnancy induced routine bouts of nausea and
vomiting, requiring frequent use of the bathroom.
6
pregnancy had been detrimental to her work and that she needed to
“pull her end” of the team’s responsibilities.
Caterpillar contended at trial that Ms. Hardin failed to
produce required documentation of the medical needs associated with
her pregnancy. Ms. Hardin maintained that she did so and
Caterpillar’s assertion was both false and a pretext for its true
purpose. She testified that Wallace Hurley of the personnel
department called her late on Friday the 14th, 1997, advising that
she needed more documentation from her doctor; that she told him
she would see her doctor on Monday the 17th. Hardin testified that
Hurley told her that he would be out of town the following week and
she should send it to the office. She explained that she asked her
doctor on Monday the 17th to send the information to Caterpillar.
Caterpillar however mailed her a letter on Tuesday the 18th
terminating her employment for “being habitually tardy or absent
from work without prior notification.”
She testified that when she asked why she was being
terminated, she was referred to Chris Glynn, the plant manager, and
met with him on March 24th. Ms. Hardin testified that although
Glynn admitted at the meeting that he had talked to her doctor, he
told her that she was being fired for lack of documentation. Yet
if her testimony be credited, she had earlier left copies of
“everything she had” with Dale Kendrick, her supervisor. The plant
manager’s later drafted memorandum of this meeting with Ms. Hardin
characterized the meeting as an appeal of discharge. It recited
7
that Ms. Hardin had been fired for being absent without leave. The
memorandum also related that the date of discharge was February
25th, 1997, rather than March 8, 1997.
Caterpillar’s defense also ran into problems in the face of
cross-examination. It tendered a similarly situated employee, but
that effort imploded at trial with the disclosure that the tendered
comparable was indeed AWOL – he was in jail, or likely there. This
stretch to use this employee to prove its evenhandedness left the
jury free to conclude that only Ms. Hardin received this treatment.
In sum, Caterpillar and Ms. Hardin offered conflicting
interpretations of the events leading to her discharge. But if Ms.
Hardin be fully credited, a reasonable juror might conclude that
she faced lying and deceit calculated to rid the plant of a
pregnant worker. But even this conclusion is not here a complete
answer.
III
We are urged to reverse the decision not to submit punitive
damages to the jury by examining the evidence in the artificial
legal lab we find ourselves in, post-Kolstad, an artificiality
created by the case’s procedural position and developing law. The
step up from proof sufficient to prove intentional discrimination
to proof of malice or reckless indifferent conduct of employees is
much shorter in a regime that would automatically impute those acts
to an employer than in the regime post-Kolstad, at least where
8
there is evidence that the accused conduct of employees contravenes
corporate policy.
In short, this issue of whether the acts of the employer were
malicious or indifferent, stripped of Kolstad’s rules of
attribution, is sufficiently close that we are persuaded that it
should be decided by the district court in the first instance and
that any new trial must be with the benefit of Kolstad. While it
seems doubtful that the evidence so considered will warrant
submission of the claim for punitive damages from the corporation,
that decision ought be first made by the trial judge. Should the
district court reach a different conclusion – and find that the
issue should have gone to a jury, it will face a second difficulty
to which we now turn.
IV
Hardin wants a new trial at which the issue of punitive
damages alone will be tried. Remanding for a trial of punitive
damages alone, however, is not so simple. The difficulty inheres
in the very nature of a jury’s decision making. The jury’s
decision on the claim of punitive damages would have been
intertwined with its view of the facts determining liability and
its award of damages for emotional injury, here $45,000. The
amount to be awarded for emotional injury was not a sum of
calculable costs. It was a jury’s judgment – the classic black box
decision said to be the quintessential jury question. This, in
part, because its precise sum is not independently defensible, at
9
least not beyond a second judgment by a reviewer that it is not
“unfair” or “unreasonable,” or other equally tautological
description.
A jury deciding whether to award punitive damages and their
amount responds to the evidence of intentional acts essential here
to the underlying finding of liability. But intentional acts span
a range of intensity, purpose, and foreseeability, a range that
oscillates with the perceived level of emotional injury and its
appropriate compensation. Many legal systems reflect this linkage
of actual and punitive damages in locating caps for punitive
awards. It is no answer that liability and damages here come in
distinct legal capsules, because it is equally true that their
expression in a verdict is a meld, a phenomenon providing essential
anchors and focus to the open-ended character of punitive damages.
Courts have struggled with these difficulties in the context of
issues revolving around Rule 42, FED. R. CIV. PROC., and the
structure of trials in complex cases.
Separability issues also arise on appeal, such as today. Even
with the familiar bifurcation of liability and damages, similar
difficulties of intertwined issues arise, such as attempting to try
separately the question of liability and damages in a civil rights
excessive force case. See, e.g., Martin v. Heideman, 106 F.3d 1308
(6th Cir. 1997).
We are persuaded of the practical inseparability of the issues
of intent, of damages for emotional injury, and of punitive damages
10
in this case, a conclusion we can and do reach without deciding
that they are inseparable as a matter of law across all cases; and
we do not suggest that punitive damages may not walk alone in other
contexts. See Black v. Fidelity & Guaranty Insurance Underwriters,
Inc., 582 F.2d 984 (5th Cir. 1978). Nor need we grapple with
questions of a constitutional right to a single jury. Arguably, any
right to a single jury could not be asserted by Caterpillar here,
it having insisted upon the dismissal of punitive damages at the
first trial. In any event, it would not follow from the fact that
Caterpillar had no such constitutional right that Hardin has a right
to try her claim for punitive damages to a jury free of the
discipline and focus of facing decisions of liability and
compensation for emotional injury.
Caught in these conflicting principles of entitlements to a
jury trial of punitive damages and to a unitary trial, by our remand
we leave the choice to Hardin of whether she wants a new trial,
should the district court conclude that the question of punitive
damages ought to have gone to the jury.
We do so because we are persuaded that any right of Hardin to
jury trial of the punitive damages question does not extend to a
trial of that issue divorced from the question of intentional acts
and compensation for emotional injury. Such a trial is too removed
from the disciplinary regime of the framing subsidiary questions.
So the district court cannot grant Hardin a trial of the issue of
punitive damages without the price of risking her victory to date
11
by a second trial. But that choice she must have if she has a right
to try the issue to the jury.
V
We vacate the judgment below and remand the case to the
district court with instructions to consider again the decision
whether to submit punitive damages to a jury, this time with the
benefit of Kolstad. Should the district court reach a different
conclusion, it must grant a new trial on all issues, including
punitive damages, if a new trial is requested by the plaintiff. If
plaintiff elects not to try the case a second time, the district
court will enter judgment awarding the damages for lost wages in the
amount of $22,558, liquidated damages in that amount, together with
$45,000 for mental anxiety, all with interest.
The judgment below is VACATED and the case is REMANDED with
instructions.
12