Hall v. Consol Freightways

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 25, 2003
• Docket: 00-4431
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hall v. Consolidated Nos. 00-4316/4431 ELECTRONIC CITATION: 2003 FED App. 0248P (6th Cir.) Freightways File Name: 03a0248p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Edward L. Gilbert, SLATER, ZURZ & _________________ GILBERT, Akron, Ohio, for Appellant. Todd H. Lebowitz, BAKER & HOSTETLER, Cleveland, Ohio, for Appellee. JAMES HALL , X ON BRIEF: Edward L. Gilbert, SLATER, ZURZ & Plaintiff-Appellant/ - GILBERT, Akron, Ohio, for Appellant. Todd H. Lebowitz, Cross-Appellee, - Jose C. Feliciano, Sr., BAKER & HOSTETLER, Cleveland, - Nos. 00-4316/4431 Ohio, for Appellee. - v. > CLAY, J., delivered the opinion of the court, in which , WILLIAMS, D. J., joined. DAUGHTREY, J. (p. 20), - CONSOLIDATED delivered a separate concurring opinion. - FREIGHTWAYS CORPORATION - _________________ OF DELAWARE , - Defendant-Appellee/ - OPINION Cross-Appellant. - _________________ - N CLAY, Circuit Judge. In Case No. 00-4316, Plaintiff- Appeal from the United States District Court Appellant/Cross-Appellee, James Hall, appeals from the for the Northern District of Ohio at Akron. district court’s order granting in part the motion brought by No. 98-02554—Dan A. Polster, District Judge. Defendant-Appellee/Cross-Appellant, Consolidated Freightways Corporation of Delaware, under Federal Rule of Argued: June 14, 2002 Civil Procedure 50 for partial judgment as a matter of law or, in the alternative, to alter judgment, grant remittitur, or grant Decided and Filed: July 25, 2003 a new trial, following the jury verdict awarding Plaintiff $50,000 in compensatory damages and $750,000 in punitive Before: DAUGHTREY and CLAY, Circuit Judges; damages in this case alleging race discrimination, wrongful WILLIAMS, Senior District Judge.* termination, hostile work environment, and retaliation under state and federal law. Specifically, Plaintiff challenges the district court’s order granting Defendant’s Rule 50 motion as it relates to reducing Plaintiff’s jury award from a total of $800,000 to $302,400 in order to comply with the federal * statutory cap. The Honorable Glen M. Williams, Senior United States District Judge for the Western District of Virginia, sitting by designation.

1 Nos. 00-4316/4431 Hall v. Consolidated 3 4 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

In Case No. 00-4431, Defendant cross appeals from the damages. Defendant filed this timely cross-appeal district court’s order denying its Rule 50 motion as it relates challenging the district court’s order denying partial judgment to Plaintiff receiving punitive damages in any amount. as a matter of law with respect to the award of punitive Specifically, Defendant maintains that the evidence in this damages to Plaintiff in any amount. case did not support an award of punitive damages under federal or state law. Facts

For the reasons set forth below, in Case No. 00-4316, we Plaintiff began his employment as a truck driver at REVERSE the district court’s order remitting Plaintiff’s jury Defendant’s facility located in Richfield, Ohio, in February of award on punitive damages and REMAND with instructions 1984. Plaintiff had an excellent work record, having missed for the court to reinstate the full jury award; in Case No. 00- only one day of employment in approximately fifteen years of 4431, we AFFIRM the district court’s order denying service. Plaintiff claimed, however, that during the course of Defendant’s Rule 50 motion for judgment as a matter of law his employment, he had to endure numerous incidents of regarding the award of punitive damages to Plaintiff. racist graffiti on company property, and numerous incidents of racial slurs such as having his supervisors profess to STATEMENT OF FACTS Plaintiff that he was a problem because of his race—African American. In addition, Plaintiff claimed that he was Procedural History demeaned and harassed by co-workers without objection from supervisors. Plaintiff, a truck driver employed by Defendant since 1984, filed suit against Defendant on November 6, 1998, alleging After several years of enduring these racial attacks, Plaintiff race discrimination, racially hostile work environment, filed a complaint with the Ohio Civil Rights Commission and wrongful termination based on race, and retaliation in the Equal Employment Opportunity Commission (“EEOC”) violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. on December 27, 1996. Thereafter, according to Plaintiff, the § 2000(e) et seq., and in violation of Ohio Revised Code incidences of racial harassment increased. For example a Klu § 4112 et seq. The case was tried before a jury beginning on Klux Klan symbol and membership card solicitation were May 9, 2000. Ten days later, on May 19, 2000, the jury placed on Plaintiff’s locker. This escalated racial harassment returned a verdict in favor of Plaintiff on all counts, and led Plaintiff to file a second complaint of discrimination and awarded Plaintiff $50,000 in compensatory damages and retaliation on August 8, 1997. $750,000 in punitive damages. About three months later, on November 7, 1997, Plaintiff Defendant filed a Rule 50 motion for partial judgment as a was abruptly and inappropriately terminated for what Plaintiff matter of law or, in the alternative, to alter judgment, grant characterized as minor and false reasons. Plaintiff claimed remittitur, or grant a new trial. The district court granted that the termination was actually in retaliation for his filing of Defendant’s motion in part, by remitting the award of the discrimination complaints, and because of his race. punitive damages to the federal statutory cap ($750,000 to Plaintiff filed a third complaint of racial discrimination, and $252,400). Plaintiff then filed this timely appeal, challenging the Ohio Civil Rights Commission found probable cause to the district court’s order remitting the award of punitive sue. In the meantime, through the union contract, it was ruled Nos. 00-4316/4431 Hall v. Consolidated 5 6 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

that Plaintiff’s termination was improper and he was ordered evidentiary basis for a reasonable jury to have found for that reinstated to his job. Plaintiff was issued his right to sue letter party with respect to that issue.” Fed. R. Civ. P. 50(a)(1). on September 22, 1998, and this case ensued. For plaintiffs who did not obtain compensatory or punitive DISCUSSION damages under 42 U.S.C. § 1981, but prevailed in a Title VII case other than one relying on a disparate impact theory of Case No. 00-4431 – Cross-Appeal by Defendant1 discrimination, § 1981a permits but limits such awards. See 42 U.S.C. §§ 1981(a)(1), 1981a(b)(3)(D) (capping This Court reviews de novo a district court’s decision to compensatory and punitive damages, exclusive of any grant judgment as a matter of law pursuant to Rule 50(a) of backpay award, at $300,000 for those defendants employing the Federal Rules of Civil Procedure. See Monday v. more than 500 employees). In adopting this provision, Ouellette, 118 F.3d 1099, 1101-102 (6th Cir. 1997). In “Congress sought to expand the available remedies by reviewing the decision, we must consider the evidence in the permitting the recovery of compensatory and punitive light most favorable to the nonmovant, giving that party the damages in addition to previously available remedies, such as benefit of all reasonable inferences. See Tuck v. HCA Health front pay.” Pollard v. E.I. du Pont de Nemours & Co., 532 Servs. of Tenn., 7 F.3d 465, 469 (6th Cir. 1993). U.S. 843, 854 (2001). To recover punitive damages under the Accordingly, when faced with a Rule 50(a) motion, a district statute, a plaintiff must demonstrate that his employer court may not weigh the evidence or make credibility engaged in a discriminatory practice “‘with malice or with determinations, as these are jury functions. See Lytle v. reckless indifference to the [plaintiff’s] federally protected Household Mfg., Inc., 494 U.S. 545, 554-55 (1990). A rights.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 dismissal pursuant to Rule 50(a) is improper where the (1999) (quoting 42 U.S.C. § 1981a(b)(1) and resolving circuit nonmovant presented sufficient evidence to raise a material spilt by rejecting the argument that a defendant’s conduct issue of fact for the jury. See Sawchik v. E.I. du Pont de must be egregious to support an award of punitive damages). Nemours & Co., 783 F.2d 635, 636 (6th Cir. 1986) (citing “Malice” and “reckless indifference” under the statute refer to O’Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir. 1975)). In “the employer’s knowledge that it may be acting in violation other words, the decision to grant judgment as a matter of law of federal law, not its awareness that it is engaging in or to take the case away from the jury is appropriate discrimination.” Id. at 535. That is, “in the context of “whenever there is a complete absence of pleading or proof § 1981a, an employer must at least discriminate in the face of on an issue material to the cause of action or when no a perceived risk that its actions will violate federal law to be disputed issues of fact exist such that reasonable minds would liable in punitive damages.” Id. at 536. not differ.” Id. Judgment as a matter of law pursuant to Rule 50(a) is appropriate only where “a party has been fully heard In considering Defendant’s Rule 50 motion with respect to with respect to an issue and there is no legally sufficient the jury’s award of punitive damages, the district court recognized that the Supreme Court’s decision in Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999) was controlling, inasmuch as in Kolstad the Supreme Court clarified that 1 W e shall address Defendant’s cross-appeal first inasmuch as standards to be applied when determining the appropriateness resolution of the cross-appe al affects P laintiff’s appeal. of punitive damages in a Title VII case. Specifically, the Nos. 00-4316/4431 Hall v. Consolidated 7 8 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

district court recognized that under Kolstad, “malice or Defendant goes on at length in the statement of facts reckless disregard for federally protected rights is sufficient section of its brief regarding its alleged “good faith” measures to support a punitive damages award.” (J.A. at 72.) In light to comply with Title VII. That is, Defendant claims that it is of this, the district court opined: “undisputed” that it made extensive efforts to comply with Title VII by having and posting a comprehensive zero- The jury for this case was not a “runaway” jury in any tolerance racial harassment policy since 1994, by holding sense of the word. It was an all white jury that heard the meetings to educate the staff about the policy, and by evidence as it was presented to them by both sides. enforcing the policy. In response, Plaintiff claims that the There were numerous instances throughout the trial facts are very much in dispute, and cites trial testimony from where the two parties to a conversation or meeting various witnesses refuting Defendant’s claims. For example, testified in a diametrically opposing fashion and the in refuting Defendant’s statement that it “takes the additional testimony could not be reconciled. The jurors had to affirmative step of holding anti-discrimination meetings every conclude that one witness or the other was not telling the year to ensure that every employee and every manager was truth. They weighed the credibility of the witnesses and familiar with the [anti-discrimination/anti-harassment] found Plaintiff and his witnesses to be more credible than policy,” (Defendant’s Brief at 10), Plaintiff states that “as the Defendant’s witnesses. That is their role. historical testimony of Rick Peterson, the company’s [Defendant’s] highest ranking black employee, helped to As an aside, the Court notes that had Consolidated establish, the existence of such meetings has long been in Freightways been as aggressive in responding to graffiti, dispute.” (Plaintiff’s Final Reply Brief at 4.) Plaintiff adds flyers, and persistent offensive slurs as it was to that Peterson’s testimony was buttressed by the trial allegations that an African American supervisor, Ricky testimony of several other witnesses who claimed that they Peterson, had engaged in verbal sexual harassment of a were never at any such meetings. (Plaintiff’s Final Reply subordinate, the unlawful conduct would have been Brief at 6-7, citing trial testimony of African American as eliminated. The jury concluded that Plaintiff was well as Caucasian employees such as Willie Askew, James subjected to years of discriminatory treatment and Adams, William Barrow, Ed Clay, Clarence Chapman, and hostility, and that the company did not take meaningful Frederick Armstrong). action. These are things that should have and could have been corrected, but weren’t. While the jury could have Similarly, with respect to Defendant’s claim that it posted concluded that the company was merely negligent, there the anti-discrimination policy throughout the facility and was evidence from which the jury could have found made the policy widely available to employees, (Defendant’s “reckless indifference.” Therefore, the punitive damage Brief at 9), Plaintiff states that the policy was not posted award is not unreasonable. For all of these reasons, anywhere that any worker would notice, and that few workers Defendant’s request to vacate the jury’s award is in fact did notice. (Plaintiff’s Final Reply Brief at 3.) In DENIED. support of Plaintiff’s contention, he relies upon the testimony of Peterson who testified that he never saw the policy posted (J.A. at 73 (emphasis in original).) until December of 1997. Likewise, regarding Defendant’s contention that it made good faith efforts to enforce the policy, Plaintiff notes that the two individuals Defendant cites Nos. 00-4316/4431 Hall v. Consolidated 9 10 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

as being disciplined for violating the policy were not However, the record does not support Defendant’s assertion disciplined until 1998, several years before circumstances in this case. existed to enforce the policy (i.e., grounds existed to enforce the policy’s disciplinary measures since 1994). Plaintiff also As illustrated, the record is replete with testimony refuting makes note of the fact that when sexual harassment was Defendant’s alleged “good faith” efforts. The Seventh Circuit alleged by an employee, Defendant offered a $1,000 reward has found that in determining whether punitive damages were for information because “rewards” in the trucking industry properly awarded in the wake of Kolstad, the plaintiff must “always got results;” indeed, the sexual harassment came to first demonstrate that the employer acted with the requisite a stop. However, when the issue was racial harassment, no mental state.2 See Bruso v. United Airlines, Inc., 239 F.3d such reward incentives were offered, and the racial 848, 857 (7th Cir. 2001). The Bruso court found that a harassment did not stop; rather, it escalated. (Plaintiff’s Final plaintiff may demonstrate the requisite mental state by Reply Brief at 7-9 relying upon testimony of Peterson and showing that “the relevant individuals knew of or were Madigan). familiar with the antidiscrimination laws and the employer’s practices for implementing those laws.” Id. Alternatively, The above-referenced testimony indicates that the district the Bruso court opined, a plaintiff may demonstrate that the court was correct in asserting that the decision to award employer acted with the requisite mental state (reckless punitive damages came down to the credibility of witnesses. disregard for the plaintiff’s federally protected rights) by Inasmuch as neither the district court nor this Court is showing the defendant’s employees lied, either to the plaintiff permitted to make credibility determinations or to weigh the or to the jury, in order to cover up their discriminatory evidence on a Rule 50 motion, the jury’s decision to credit the actions. Id. at 858 (citing Passantino v. Johnson & Johnson testimony of Plaintiff’s witnesses over that of Defendant’s witnesses cannot be disturbed. See Lytle, 494 U.S. at 554-55. Moreover, this testimony also indicates that Plaintiff met his 2 burden of proving that punitive damages were appropriate. The Seventh Circuit established a formal three-part test in the wake As Kolstad establishes, “malice” and “reckless indifference” of Kolstad for determining whether punitive damages were appropriate: the first step requires the plaintiff to show that the employer acted with the under the statute refer to “the employer’s knowledge that it requisite mental state; once the plaintiff has met this burden, then the may be acting in violation of federal law . . . .” Kolstad, 527 second step requires a showing by the plaintiff that the employees who U.S. at 535. Defendant argues that its actions cannot be discriminated against him were managerial agents; and finally, if the found to be in knowing violation of federal law because of its showing is made, then the employer may avoid liability by showing that good faith efforts to comply with Title VII, such as having a it engag ed in good faith efforts to implement an antidiscrimination p olicy. policy, posting the policy, having meetings regarding the See Bruso v. United Airlines, Inc., 239 F.3d 84 8, 857-58 (7th Cir. 2001). Although it appe ars that this C ourt ha s not per se adop ted the expre ss policy, and enforcing the policy. Defendant is correct in its three-step process as announc ed by the Seventh C ircuit, the C ourt ha s in assertion that, under Kolstad, “in the punitive damages effect somewhat followed the process in light of Kolstad. See EEOC v. context, an employer may not be vicariously liable for the Harbert-Yeargin, Inc., 266 F.3d 498, 512 -14 (6th Cir. 2001) (discussing discriminatory employment decision of managerial agents the requisite showing of malice/ reckless indifference, but not addressing where those decisions are contrary to the employer’s ‘good the good faith defense); see also Jeffries v. Wal-Mart Stores, Inc., No. 99- 4150, 200 1 W L 84 548 6 (6th Cir. July 20, 2001) (unpublished) (same); faith efforts to comply with Title VII.’” See id. at 545. EEOC v. EMC Corp. of Ma ss., No. 98-1517 , 2000 W L 1918 19 (6th Cir. Feb. 8, 2000) (unpub lished) (same). Nos. 00-4316/4431 Hall v. Consolidated 11 12 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000)). United States v. Spinelle, 41 F.3d 1056, 1057 (6th Cir. 1994); In the matter at hand, the diametrically opposed testimony United States v. Brown, 915 F.2d 219, 223 (6th Cir. 1990). from Defendant’s employee witnesses versus that of Plaintiff’s employee witnesses provides support for the In ruling that the statutory cap applied to the jury’s award conclusion that Defendant’s employees were not truthful in of damages in this case, the district court opined: their actions, such that it may be said that Plaintiff demonstrated that Defendant acted with reckless disregard for Defendant’s final contention with respect to the his federal rights. See id. compensatory and punitive damage award is that it must be reduced to conform to the $300,000 statutory cap for In addition, the Bruso court found that for any employer to noneconomic damages under Title VII. Section 1981a show that it engaged in good faith efforts so as to avoid caps an employer’s exposure to compensatory and liability for punitive damages, it is not enough that the punitive damages along a sliding scale that varies with employer have a written or formal anti-discrimination policy. the employer’s size. . . . See 239 F.3d at 858. Rather, the employer must demonstrate that it engaged in good faith efforts to implement the policy. Pursuant to the statute, Defendant calculates that See id. (emphasis added). “Otherwise, employers would have Plaintiff’s compensatory damages were limited to three an incentive to adopt formal policies in order to escape weeks of missed work and emotional distress. Because liability for punitive damages, but they would have no the Plaintiff earned approximately $20 per hour, three incentive to enforce those policies.” Id.; see also Cadena v. weeks of lost pay would total approximately $2,400 ($20 Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000); per hour x 5 days per week x 3 weeks). The remaining Passantino, 212 F.3d at 517. In this case, Defendant cannot $47,600 of his $50,000 compensatory award is therefore succeed in showing that it implemented its policy in good attributable to emotional distress and is subject to the faith where it did not enforce the policy until 1998, despite $300,000 cap. Thus, in accordance with 42 U.S.C. numerous incidents of racial animus in the prior four years, § 1981a(b)(3), the punitive damages award must not and where Defendant did not implement the policy with the exceed $252,400, which is $300,000 less $47,600 in same force as to race that it did as to sex. emotional distress damages.

We therefore conclude that the district court did not err in Plaintiff argues against the application of the federal denying Defendant’s Rule 50 motion as to the award of cap because his claims were tried under both Title VII punitive damages. and Chapter 4112 of the Ohio Revised Code, and contends damages in excess of the federal cap could be Case No. 00-4316 – Appeal by Plaintiff properly awarded. Citing Laderach v. U-Haul, 207 F.3d 825, 828 (6th Cir. 2000), Plaintiff maintains that the A district court’s construction of the damage caps in “title” of an instruction is irrelevant. He argues that § 1981a is a question of statutory construction and is therefore whether the Court “titled” the jury instructions under reviewed de novo. See Hudson v. Reno, 130 F.3d 1193, 1198 Title VII or under Ohio law is of no consequence, since (6th Cir. 1997), abrogated on other grounds, Pollard v. E.I. state and federal employment discrimination claims de Pont de Nemours & Co., 532 U.S. 843 (2001); see also Nos. 00-4316/4431 Hall v. Consolidated 13 14 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

parallel one another. “If the proof is sufficient to find Accordingly, because the jury was instructed under one, it is sufficient to find the other also.” federal law and under federal standards, the federal cap must be applied. Defendant’s motion to alter judgment Plaintiff further argues that the Court’s punitive and grant remittitur is GRANTED. Pursuant to 42 damage instruction, while applying the federal standards, U.S.C. § 1981a, the punitive damage award is hereby was sufficient to award punitive damages under state reduced to the statutory maximum of $300,000 plus, the standards. However, to so construe Plaintiff’s argument amount of the backpay award ($2,400). Judgment for would be to render the federal cap on damages Plaintiff is amended to reflect a damage award of meaningless. The Court finds that the statutory cap of $302,400. Defendant’s Rule 50 motion for judgment as $300,000 is applicable here. a matter of law is DENIED in all other respects. As a final argument, Plaintiff asserts that the Ohio (J.A. at 74-76 (emphasis in original).) Supreme Court held in Rice v. CertainTeed Corp., 84 Ohio St. 3d 417 (Ohio 1999), that punitive damages are On appeal, Plaintiff argues that the district court erred in unlimited when federal and state claims are tried capping his damages under § 1981a. Plaintiff notes that under together. However, as Defendant points out, the sole federal law, punitive damages are permitted if the jury finds issue before the Ohio Supreme Court in Rice was that a defendant acted with “malice” or “reckless indifference whether punitive damages could be assessed at all under to the rights of others;” while under state law, punitive Ohio law. Furthermore, Rice also restated the Ohio law damages are permitted if the jury finds that a defendant acted requirement that “[i]n Ohio, punitive damages are with “actual malice.” Plaintiff argues, however, that despite awarded only upon a finding of actual malice.” Rice, 84 the difference between the federal and state standards, the jury Ohio St. 3d at 422. made a finding of actual malice in this case sufficient to satisfy Ohio’s statute. Plaintiff makes two arguments in Here the jury was instructed, under the federal support of his position. First, Plaintiff contends that the standard, that punitive damages could be awarded if they jury’s finding of retaliation satisfied Ohio’s actual malice found that Defendant “had engaged in a discriminatory standard; and second, in the alternative, Plaintiff contends that and/or retaliatory practice or practices with malice or “[e]ven if the jury awarded punitive damages based on a reckless indifference to the rights of Plaintiff James Hall finding of reckless indifference, the ‘conscious indifference’ to be free from such intentional discrimination and/or to rights required to find reckless indifference satisfies the retaliation in employment.” (Court’s Jury Instruction at ‘conscious disregard’ for rights standard required to find 15) (emphasis provided). The fact that the jury actual malice under Ohio State law.” (Plaintiff’s Brief on concluded that there was malice or recklessness in the Appeal at 11.) Based upon the jury instructions regarding Defendant’s conduct does not necessarily mean that it what the jury needed to find in order to support a verdict of concluded that there was actual malice – as would be reckless indifference as well as what the jury needed to find required by Ohio law. Because we do not have an in order to support a verdict of malice, we find that the district affirmative finding on malice, the Ohio standard is not court erred in capping the damages. satisfied. Nos. 00-4316/4431 Hall v. Consolidated 15 16 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

In Zoppo v. Homestead Insurance Co., 644 N.E.2d 397, Two, a conscious disregard for the rights and safety of 399, 401-02 (Ohio 1994), the Ohio Supreme Court held that other persons that has a great probability of creating § 2315.21(C)(2) of the Ohio Revised Code, the section which substantial harm. required a court to set the amount of punitive damages even in jury trials, violated the right to trial by jury under the Ohio Reckless indifference means indifference of an Constitution. As a result, unlike the federal statute (§ 1981a), egregious character to the plaintiff’s rights to be free of punitive damages are not capped under Ohio law. See id. such discriminatory or retaliatory conduct. Reckless The Ohio Supreme Court also noted that punitive damages indifference reflects that entire want of care which would may be recovered upon proof of “actual malice.” Id. at 402. raise the presumption of a conscious indifference to “Actual malice” for purposes of satisfying the award of consequences. punitive damages is defined under Ohio law as “‘(1) that state of mind under which a person’s conduct is characterized by (J.A. at 309-10 (emphasis added).) hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a “Indifference” is defined as “the quality, state, or fact of great probability of causing substantial harm.’” Id. (emphasis being indifferent.” See WEBSTER’S NEW COLLEGIATE is original) (quoting Preston v. Murty, 512 N.E.2d 1174 (Ohio DICTIONARY 585 (1974). “Indifferent,” in turn, is defined as 1987)). “that [which] does not matter one way or the other” or to be “marked by a lack of interest in or concern about something.” Here, in charging the jury before deliberations, the district See id. “Disregard” is defined as “to pay no attention to,” or court instructed as follows regarding the award of punitive to “neglect.” See id. at 330. Because the district court damages: instructed the jury that “reckless indifference” was that conduct which would raise a presumption of a “conscious In this case, you may award punitive damages if you indifference” to the consequences of Defendant’s actions, a find that the Defendant Consolidated Freightways finding of “reckless indifference” by the jury was sufficient engaged in a discriminatory and/or retaliatory practice or to meet Ohio’s definition of “actual malice.” See Zoppo, 644 practices with malice or reckless indifference to the N.E.2d at 402 (defining “actual malice” as “‘a conscious rights of Plaintiff James Hall to be free from such disregard for the rights and safety of other persons that has a intentional discrimination and/or retaliation in great probability of causing substantial harm’” (emphasis employment. added)). In other words, because Ohio defines “actual malice” in the alternative as acting with a “conscious Malice is defined as either: disregard,” and because the district court in the matter at hand instructed the jury that “reckless indifference” was that One, that state of mind in which a person’s conduct is conduct which rises to the level of creating a “conscious characterized by hatred, ill-will, or spirit of revenge, or indifference” to the consequences of one’s actions, the district court erroneously concluded that it was unable to determine whether the jury found actual malice for purposes of satisfying Ohio’s requirements for awarding punitive damages. See J.A. at 74-76 (indicating the district court’s Nos. 00-4316/4431 Hall v. Consolidated 17 18 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

ruling that because “the jury concluded that there was malice compensatory damages and $1,286,000 in punitive damages or recklessness in the Defendant’s conduct does not under the D.C. Human Rights Act. Id. at 1339, 1349. necessarily mean that it concluded that there was actual Pursuant to a post-trial motion, the district court, among other malice – as would be required by Ohio law. Because we do things, reduced damages awarded under Title VII to $453,500 not have an affirmative finding of malice, the Ohio standard pursuant to the statutory cap. Id. at 1340. The plaintiff is not satisfied”). We see no appreciable difference between appealed to the D.C. Circuit arguing, among other things, that a “conscious indifference” or a “conscious disregard” for “any Title VII damages exceeding the cap should be purposes the jury’s awarding punitive damages under Ohio reallocated to her D.C. Human Rights Act recovery.” Id. at law in this case. Although Defendant is correct in noting that 1349. The D.C. Circuit agreed. Id. the Ohio Supreme Court has specifically rejected “any definition of ‘actual malice’ which include[s] recklessness as In so ruling, the court began by noting that “[t]he district an element,” “recklessness” was not made an element here; court gave the jury a single set of instructions applicable to rather, pursuant to the jury instructions, “recklessness” was Martini’s claims under both Title VII and the D.C. Human defined as a “conscious disregard” which the Ohio courts Rights Act[,]” and, “[a]s required by law, the court never recognize as meeting the standard for “actual malice.” See informed the jury about Title VII’s damages cap.” Martini, Motorists Mut. Ins. Co. v. Said, 590 N.E.2d 1228, 1234 (Ohio 178 F.3d at 1349. The court went on to reason: 1992), rev’d on other grounds, Zoppo, 644 N.E.2d at 399. Because the jury used exactly the same instructions in We find support for our conclusion in Martini v. Federal evaluating Martini’s Title VII and D.C. law claims, and National Mortgage Assoc., 178 F.3d 1336 (D.C. Cir. 1999), because the jury had no knowledge of Title VII’s damage wherein the United States Court of Appeals for the D.C. cap, it had no legal basis for distinguishing between the Circuit held that punitive damages awarded in excess of the two statutes. Thus, for any one claim against any one federal statutory cap could be reallocated to the plaintiff’s defendant, distinguishing between damages that the jury award for punitive damages awarded under the D.C. Human awarded under Title VII and damages that it awarded Rights Act. See id. at 1349. In Martini, the plaintiff had filed under the D.C. Human Rights Act makes no sense. . . . suit under Title VII and the D.C. Human Rights Act against To be sure, only $300,000 of [the award] may be her former employer, Federal National Mortgage Association awarded under Title VII. But we see no reason why (“Fannie Mae”), and former supervisors, claiming sexual Martini should not be entitled to the balance under the harassment and retaliation. Id. at 1338. The jury found D.C. Human Rights Act, since the local law contains the Fannie Mae liable under both the federal and state statutes, same standards of liability as Title VII but imposes no and awarded a total of nearly seven million dollars. Id. cap on damages. Specifically, pursuant to a verdict form with “special interrogatory questions” for assessing damages for each type of claim against each defendant (Fannie Mae or a named supervisor) under each statute (Title VII or D.C. Human Rights Act), the jury awarded $153,500 in backpay, $1,894,000 in front pay and benefits, and $3,000,000 in punitive damages under Title VII; as well as $615,000 in Nos. 00-4316/4431 Hall v. Consolidated 19 20 Hall v. Consolidated Nos. 00-4316/4431 Freightways Freightways

Id. (emphasis added).3 Similarly, in the matter at hand, where ______________________ the jury was instructed in such a fashion sufficient to support punitive damage awards under both the federal as well as the CONCURRENCE state statute, Plaintiff should be entitled to the balance of the ______________________ award in excess of the federal $300,000 cap under state law. MARTHA CRAIG DAUGHTREY, Circuit Judge, In light of this conclusion, we need not address Plaintiff’s concurring. As the majority notes, the plaintiff in this case alternative argument that the jury’s finding of retaliation advanced alternative theories upon which the jury’s award of necessarily included a finding of actual malice for purposes punitive damages could be sustained under state law, despite of satisfying Ohio’s standard for awarding punitive damages. the federal cap in § 1981a. The majority takes great pains to uphold the award under both theories, including what I find CONCLUSION to be a somewhat strained analysis with regard to whether the jury instructions on “reckless indifference” and “conscious For the reasons set forth above, we AFFIRM the district disregard” can support a finding of “actual malice,” the court’s order denying Defendant’s motion for judgment as a prerequisite in Ohio for an award of punitive damages. matter of law with respect to jury’s award of punitive Nevertheless, I conclude that the jury could, and undoubtedly damages in Case No. 00-4431; we REVERSE the district did, find that the defendant’s retaliation in this case met the court’s order capping the jury’s award of punitive damages Ohio definition of “actual malice” as “that state of mind under under the federal statute in Case No. 00-4316; and REMAND which a person’s conduct is characterized by . . . a spirit of the case to the district court with instructions to reinstate the revenge.” Zoppo v. Homestead Insurance Co., 644 N.E.2d jury’s full award of damages. 397,402 (Ohio 1994). For this reason, and because I concur in the remainder of the majority’s analysis on the issues raised in both the appeal and the cross-appeal in this case, I would reach the same result as the majority does in reinstating the jury’s full award 3 of damages. The jury instructions themselves were not set forth in Ma rtini. However, § 1981a provides that punitive damages may be awarded “if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with m alice or with reckless indifference to federally protected rights of an aggrieved individual,” see 42 U.S.C. § 1981a, while the D.C. Human Rights Act provides that punitive damages are available if the “employee can establish evil motive or actual malice on [the] part of her employer.” See D.C. Code Ann. § 2-1403.16 (2001). Therefore, without knowing precisely how the jury was instructed, it would appear that the fact that the D.C. statute requires actual malice, but the federal statute requires actual malice or reckless indifference , was of no consequence to the court’s finding that damages awarded in excess of the federal cap could be reallocated to the state award.