F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 2 2000 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
VICKI POWELL,
Plaintiff-Appellant and Cross-Appellee,
v. Nos. 98-1350 & 98-1363 (D. Colo.) COBE LABORATORIES, INC., a corporation, (D.Ct. No. 96-Z-2691)
Defendant-Appellee and Cross-Appellant. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, McWILLIAMS, Circuit Judges, and WEST, District Judge. **
Plaintiff-Appellant Vicki Powell brought a gender-discrimination suit
against her employer, COBE Laboratories, Inc., pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17. Ms. Powell also brought
related state and federal claims. After the district court dismissed her related
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable Lee R. West, District Judge for the Western District of **
Oklahoma, sitting by designation. claims, a jury found in favor of Ms. Powell and awarded her $571,144 in back pay
and compensatory and punitive damages. The district court struck all punitive
damages, reduced the compensatory damages to a level deemed reasonable, and
entered an amended judgment awarding Ms. Powell $121,144 in back pay and
compensable damages, plus costs and attorney fees. Ms. Powell now appeals
numerous rulings of the district court, including the reduced damages award.
COBE cross-appeals the district court’s denial of its post-trial motion for new
trial pursuant to Fed. R. Civ. P. 59(a) and 60(b)(3). We exercise jurisdiction
pursuant to 28 U.S.C. § 1291, affirm in part, vacate in part, and remand to the
district court for further proceedings. 1
BACKGROUND
Ms. Powell began working for COBE in 1975. Over the next twenty years,
Ms. Powell worked in several positions in the company, including thirteen years
as an administrative clerk in a warehouse. On July 24, 1995, COBE promoted
Ms. Powell from her warehouse position to a position as a planner. A committee
1 As a preliminary matter, Ms. Powell filed a motion to waive oral argument, which we granted in part. Pursuant to this Court’s order, counsel for COBE was allowed to proceed with oral argument despite Ms. Powell’s requested absence. The appearance or absence of a particular party at oral argument has no impact on the disposition of a case.
-2- of several individuals, including her new supervisor, Jim Koehler, selected Ms.
Powell for the planner position.
In her new planner position, Ms. Powell worked as a member of the
purchasing management team supervised by Mr. Koehler, which included four
women in addition to Ms. Powell. Ms. Powell earned $2,328 per month in the
planner position, which amounts to $27,936 per year. Within several months of
her appointment as planner, the other women in Ms. Powell’s team began to
complain to Mr. Koehler about her job performance. The women felt Ms. Powell
lacked motivation, initiative and ability to do the planner job. Ms. Powell, on the
other hand, felt the problem could be traced to the lack of procedures or quality
training provided by COBE. Ms. Powell frequently inquired about formal
procedures for the planner position but was told none existed. The problems
culminated in a meeting with Mr. Koehler on December 19, 1995, at which time
he asked Ms. Powell to prepare a document the two of them might use to evaluate
her progress in her job and her training needs. After several subsequent requests,
Ms. Powell submitted the document, albeit in an admittedly deficient state, during
a follow-up meeting on January 12, 1996. After glancing at the document, Mr.
Koehler passed it back to Ms. Powell and informed her of his decision to remove
her from the planner position.
-3- Mr. Koehler reassigned Ms. Powell, and gave her five weeks on the payroll
to look for alternative employment within the company. In the event Ms. Powell
did not find a job with COBE during this time, she was offered an entry-level
production job to allow her to continue to search for what she determined to be
suitable employment within the company. Ms. Powell eventually decided the
open jobs at COBE either constituted demotions, or were positions for which she
did not qualify, and she chose not to accept further employment at COBE. Ms.
Powell claims it was during this time period, mid-February, when she complained
to COBE personnel about possible gender discrimination.
During this five-week period, COBE also gave Ms. Powell the option of
taking a severance package. Signing the severance agreement entitled Ms. Powell
to twenty-three weeks of severance pay and a designation of her separation from
the company as a voluntary termination/resignation. At one point, after she told a
company official she did not wish to take the lower-level positions offered her,
that official told Ms. Powell if she did not take the offered severance package or
available positions, her separation would be designated a termination for
cause/poor performance and she would receive just two weeks of pay in lieu of
notice. Ms. Powell informed COBE officials she wished to take the severance
package. However, when the day arrived for her to sign the package, Ms. Powell
-4- refused to sign, and instead read a prepared statement claiming COBE
discriminated against her based on gender, and the company coerced her to sign
the severance package in an attempt to force her to relinquish her civil rights. 2
COBE then withdrew the severance package, gave Ms. Powell the lesser package
of two weeks’ pay, and escorted her out of the building.
COBE replaced Ms. Powell with a male – Wayne John Scheck. Mr.
Scheck, a temporary employee at COBE, had no experience related to the planner
position. Mr. Scheck’s experience with the women in the purchasing management
team starkly contrasted Ms. Powell’s. Mr. Scheck described his team as
“wonderful.... very helpful, very knowledgeable, very professional, reliable.”
While one of the reasons Mr. Koehler listed for removing Ms. Powell from the
planner position centered on her lack of willingness to begin work every day
2 The entire text of the statement is as follows:
I have prepared a statement and would like to read it. 1. I decline to sign this separation agreement and release. 2. I wish to return to work tomorrow at my old job or at a comparable job. 3. I wish the company to do a job search and place me elsewhere. 4. I will consider any job opening at COBE commensurate with my experience, training and salary level. 5. I believe that I am being discriminated against because of my sex. 6. I also believe that COBE has illegally tried to coerce me into waiving my rights under the Civil Rights Act of 1964 by telling me that I would be fired if I did not sign the Separation Agreement and RELEASE.
-5- between the hours of 6:00 and 7:00 a.m., Mr. Scheck began his day after 7:30
a.m. In addition, Mr. Scheck’s starting salary was $32,000 per year, just over
$4,000 more per year than Ms. Powell’s salary.
Ms. Powell’s suit originally stated several causes of action: a gender
discrimination claim in violation of Title VII of the Civil Rights Act, a retaliation
claim under Title VII, retaliation claims as violative of the public policy of the
State of Colorado and the United States, and a breach of contract/promissory
estoppel claim. The district judge dismissed all the claims save the gender-
discrimination claim. The jury found COBE discriminated against Ms. Powell
based on gender, and awarded her $71,144 in back pay and benefits, $300,000 in
compensatory damages, and $200,000 in punitive damages. In response to
numerous post-judgment motions, the district court reduced the compensatory
damages to $50,000, struck all punitive damages by granting COBE’s motion for
judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b),
and awarded Ms. Powell $19,125 of the requested $126,891 in attorney fees. The
court also denied COBE’s motion for new trial based on attorney misconduct.
-6- DISCUSSION
Ms. Powell appeals a plethora of issues, including the district court’s: (1)
various evidentiary and discovery rulings; (2) dismissal of her retaliation,
contract, and public policy claims; and (3) reduction of compensatory and
punitive damages, and attorney fees. COBE cross-appeals the trial court’s denial
of its motion for new trial. We examine each claimed error in turn.
Outstanding Motions
We must dispose of two outstanding motions before getting to the
substance of this case. First, we deny Ms. Powell’s Motion to File Supplemental
Appendix as the additional material offered was either provided by COBE, or
would not aid in the determination of this case. We also deny COBE’s Motion for
Sanctions, and instead express our concern with counsel for their conduct in this
lawsuit. Unfortunately, this suit often seemed driven by a conflict between the
attorneys as opposed to the facts of this particular case. We do not have the time
or resources to catalogue every objection we have to the attorneys’ conduct other
than to echo the lament voiced by Senior District Judge Stuart, sitting by
designation with the Eighth Circuit:
The most troublesome aspect of this lawsuit is the lack of professionalism and civility displayed by the lawyers.... This case serves as an example of the unfortunate lack of civility in the practice of law which is receiving considerable attention at this
-7- time.... The adversary process in the judicial arena does not require attorneys to be clothed in a suit of armor and fight to the bitter end. The parties, the profession, and the public all lose when the attorneys fail to treat each other with common courtesy.
Miller v. Bittner, 985 F.2d 935, 941 (8th Cir. 1993). The motions are denied.
Case No. 98-1350: Ms. Powell’s Appeal
I. Evidentiary and Discovery Matters
Ms. Powell argues the district court erred by: (1) restricting her attorney’s
ability to contact non-managerial employees at COBE; (2) denying a motion for a
preservation deposition of an unavailable witness; and (3) excluding hearsay
evidence that certain members of Ms. Powell’s hiring team wanted a man for the
position for which she was hired. We review evidentiary and discovery rulings
for an abuse of discretion. McCue v. Kansas, 165 F.3d 784, 788 (10th Cir. 1999)
(citing Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995) (evidentiary
rulings); Davoll v. Webb, 194 F.3d 1116, 1139 (10th Cir. 1999) (discovery
rulings). Both types of rulings are subject to harmless error analysis. Cf. Davoll,
194 F.3d at 1139; Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1246 (10th Cir.
1998), cert. denied, 119 S. Ct. 1253 (1999). Having prevailed on her gender
discrimination claim, we conclude Ms. Powell cannot show prejudice from the
district court’s rulings, and therefore we need not reach the issue of whether the
-8- court abused its discretion. 3
Ms. Powell first claims the trial court improperly prevented her counsel
from contacting certain COBE employees. This characterization of the record is a
stretch. The record shows the district court exhorting the attorneys on both sides
of this dispute to work together:
I think there [are] problems with your talking to defendant’s employees out of the presence of defense counsel and not in a deposition, so I think you folks better talk about that. You know the ethical rule about not talking to someone represented by opposing counsel; and if someone works for defendant, that’s really an issue of whether that person is represented by opposing counsel through their employer.
Why don’t you talk about it and see if you can work out some solution.
...
Why don’t you try to work something out with [COBE’s attorneys] – I’m sure [they] will be cooperative ... – so that you can find out the information you need to find out from [COBE’s] employees.
In her opening brief to this Court, Ms. Powell argues Colorado Formal Ethics
Opinion 69 states counsel may contact any non-managerial employee of an
adverse party, in his or her capacity as a bystander witness, without violating the
3 We note all the rulings cited as error on appeal related to proposed evidence of liability, not damages.
-9- Colorado Rules of Professional Conduct. This argument may have merit, but it is
precisely the type of formal argument and briefing Ms. Powell should have made
to the district court. Ms. Powell’s attorney chose a different path and arguably
abandoned the issue, when in response to the district court’s comments, counsel
stated:
Based upon the [c]ourt’s comments, we won’t be trying to contact any of them, because I fear the [c]ourt will find we shouldn’t have. And we feel the ethical rule is very clear that if they are not managerial employees and not in a position to bind the company, we may call them. But we’re not going to take that chance in this case. So all of this has gone for naught, and we won’t take a chance on talking with them.
Before an issue can be raised on appeal, it must be “presented to, considered, and
decided by the trial court.” Tele-Communications, Inc. v. Commissioner, 104
F.3d 1229, 1233 (10th Cir. 1997) (quotation marks and citations omitted).
Because Ms. Powell abandoned the argument, it is not clear the district court
issued a final ruling on her interview request. However, even if Ms. Powell
properly presented and preserved this issue at the district court level, and
assuming the court’s preliminary ruling amounted to an abuse of discretion, given
her success at trial, Ms. Powell cannot show prejudice from the court’s ruling.
For the same reason, Ms. Powell cannot show prejudice on the remaining
evidentiary and discovery issues. In addition, Ms. Powell’s briefing on these
-10- issues is totally void of citations to legal authority. In such a case, we have the
discretion to decline to consider the issues presented, including whether the
district court erred by excluding hearsay testimony of Ms. Powell’s hiring team’s
state of mind, or by denying her motion for a preservation deposition. See
Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992); Fed. R. App. P.
28(a)(9)(A) (“the argument ... must contain appellant’s contentions and the
reasons for them, with citations to the authorities ... on which the appellant relies
....”). Thus, given Ms. Powell’s briefing shortcomings, together with the lack of
any showing of prejudice, we need not reach the evidentiary and discovery
matters raised on appeal.
II. Dismissals
A. Public Policy Claims
Pursuant to Fed. R. Civ. P. 12(b)(6), the district court granted COBE’s
motion to dismiss Ms. Powell’s claims for relief alleging COBE’s actions violated
the public policies of the State of Colorado and the United States. We review a
Rule 12(b)(6) dismissal de novo. Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999).
[A]ll well-pleaded factual allegations in the amended complaint are accepted as true and viewed in the light most favorable to the nonmoving party. A 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in
-11- support of his claim which would entitle him to relief. The court’s function ... is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.
Id. (quotation marks and citations omitted). Finding no set of facts entitling Ms.
Powell to relief on her public policy claims, we affirm the district court’s grant of
the motion to dismiss.
We begin by reviewing Colorado’s law concerning public policy claims.
Specifically,
Colorado adheres to the employment at-will doctrine, which provides that an employee who is hired for an indefinite period of time “is an ‘at-will employee,’ whose employment may be terminated by either party without cause and without notice, and whose termination does not give rise to a cause of action."
Crawford Rehabilitation Serv., Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997)
(quoting Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987).
However, Colorado recognizes “an exception to this general rule in situations
where the employer terminated the employment contract in violation of public
policy.” Rocky Mountain Hosp. & Med. Serv. v. Mariani, 916 P.2d 519, 523
(Colo. 1996) (en banc) (citing Martin Marietta Corp. v. Lorenz, 823 P.2d 100,
108-09 (Colo. 1992) (en banc)). In order for Ms. Powell to establish a prima
facie case for wrongful discharge under the public policy exception, the Colorado
Supreme Court requires evidence of four elements: (1) COBE directed Ms.
-12- Powell to forego the exercise of an important job-related right or privilege; (2)
COBE’s direction violated a specific statute relating to the public health, safety,
or welfare, or undermined a clearly expressed public policy relating to Ms.
Powell’s right or privilege as a worker; (3) COBE terminated Ms. Powell because
she refused to perform the act directed by COBE; and (4) COBE was aware, or
reasonably should have been aware, that Ms. Powell’s refusal to comply with the
directive centered on her reasonable belief the action ordered violated her legal
right or privilege as a worker. Lorenz, 823 P.2d at 109. As we understand Ms.
Powell’s complaint, it alleges COBE fired her because she refused to sign the
severance package which included a waiver of her right to file any future
discrimination suit against the company.
In examining Ms. Powell’s argument, we focus on the second articulated
element Ms. Powell is required to show. Specifically, Ms. Powell fails to point to
a single statute or case demonstrating the actions alleged in the complaint
“undermined a clearly expressed public policy” relating to her right or privilege
as a worker. 4 Instead, Ms. Powell’s counsel merely argued to the district court
4 The only Colorado case Ms. Powell cites in support of her position is Lorenz, but she does so only to highlight the underlying rationale behind the exception. The actual facts of Lorenz are inapposite here. In Lorenz, the employee was fired after refusing a superior’s order to cover-up quality control deficiencies in several NASA projects. The employee was forced to choose between losing his job and violating provisions of 18
-13- that neither federal nor state anti-discrimination statutes provided any remedy to
Ms. Powell for refusing to waive her civil rights. By failing to point to a
violation of a specific statute, constitutional provision, case law, or some other
valid expression of public policy, Ms. Powell cannot establish a prima facie case
for wrongful discharge under the public policy exception. Instead, Ms. Powell’s
argument seems to suggest COBE’s behavior so obviously violated some
unidentified Colorado public policy that the district court could allow her claim to
go forward without meeting the strict dictates set out by the state legislature or
courts. We hold the district court correctly rejected this invitation to impinge on
Colorado’s desire to keep the public policy exception a narrowly-tailored one.
See Sanchez v. Philip Morris Inc., 992 F.2d 244, 249 (10th Cir. 1993).
B. Contract Claim
The district court granted COBE’s motion for summary judgment pursuant
to Fed. R. Civ. P. 56(c), dismissing Ms. Powell’s claim, asserting contract and
estoppel causes of action. We detailed our standard of review in such cases in
Simms v. Oklahoma, 165 F.3d 1321 (10th Cir.), cert. denied, 120 S. Ct. 53 (1999):
We review the district court's grant of summary judgment de
U.S.C. § 1001. See Lorenz, 823 P.2d at 111. The choice allegedly offered Ms. Powell was quite different.
-14- novo, applying the same legal standard used by the district court. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.
Although the movant must show the absence of a genuine issue of material fact, he or she need not negate the nonmovant's claim. Once the movant carries this burden, the nonmovant cannot rest upon his or her pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which [he or she] carries the burden of proof.
Id. at 1326 (quotation marks and citations omitted). After reviewing the
extremely sparse record on appeal concerning this issue, we affirm the district
court’s grant of summary judgment dismissing the contract and estoppel claims. 5
We begin by noting the Colorado courts recognize companies can
5 Apparently because the district court struck it as prolix, the record on appeal does not contain Ms. Powell’s responsive brief to COBE’s motion for summary judgment. See 10th Cir. R. 10.3(D)(2). This makes it difficult for us to perform our appellate function. Normally we could try to discern what a party presented to the district court by looking to the court’s order. Unfortunately, the entire extent of the district court’s rationale for granting the motion is contained in the following statement at the hearing: “We do have a breach of contract/estoppel claim by the plaintiff; and ... the law is pretty clear, at least to me, that just because someone posts some policies does not create an enforceable contract.... [T]he motion for summary judgment must be granted.” However, despite the absence of Ms. Powell’s brief and the district court’s short analysis, we are nonetheless able to make a determination on the contract claim given Ms. Powell’s inability to provide evidence supporting her claim an employment contract existed.
-15- effectively alter the at-will status of employees through published employee
handbooks and policies. The policies can lead to the creation of a contract
between employer and employee, or can induce justifiable reliance by the
employee, creating causes of action based on breach of contract and promissory
estoppel. See Keenan, 731 P.2d at 711-12. In order for a company policy to
qualify as an offer in the contract context, it must “contain terms ‘sufficiently
definite to enable the court to determine whether the contract has been
performed.’” Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1464 (10th Cir.
1994) (quoting Stice v. Peterson, 355 P.2d 948, 952 (Colo. 1960)). “[W]hile the
existence of an implied contract is normally a factual inquiry for the jury, the
issue may be decided as a matter of law if the alleged promises are nothing more
than vague assurances.” Id. (quotation marks and citations omitted).
COBE’s employee handbooks or manuals are not at issue here. Ms. Powell
admitted she had no knowledge of any COBE personnel policy dealing with
discrimination. Ms. Powell’s contract claim is based solely on her observation of
an 8 ½ by 11 sheet of paper posted on a bulletin board near the human resource
area at COBE announcing job openings. While Ms. Powell could not remember
exactly what the paper said, she did agree with the characterization of the paper
as a document explaining the illegality of discrimination. In its brief
-16- accompanying the motion for summary judgment, COBE stated the document
contained only the mandatory notice all employers must post pursuant to Title
VII. See 42 U.S.C. § 2000e-10(a). However, the document itself is not in the
record on appeal, and we have no other way of knowing the context or actual
language of the document.
COBE, as the movant for summary judgment, had the initial burden of
showing the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
670-71 (10th Cir. 1998). Once COBE met that burden, which it did by drawing
the district court’s attention to the lack of evidence presented by Ms. Powell on
the contract and estoppel claims (id. at 3427-29), the burden shifted to Ms. Powell
to come forward with specific facts, admissible in evidence at trial, which could
allow a rational jury to find in her favor. Id. at 671. “To accomplish this, the
facts must be identified by reference to affidavits, deposition transcripts, or
specific exhibits incorporated therein.” Id. We do not know what Ms. Powell
argued to the district court on this matter, but in her brief to this Court, Ms.
Powell fails to make any argument or point to any evidence in the record
supporting her assertion this document constituted an offer under contract law. In
fact, her brief on this issue is limited to two sentences stating the basic rule,
-17- which is not disputed here, that a posted policy of a corporation forbidding
discrimination in the workplace can be the basis of a contract claim under
pertinent case law. Ms. Powell failed to present any evidence tending to show the
document at issue in this case constituted a policy of the corporation, or that the
document’s specific language was sufficient to form the basis of a contract claim.
Having studied the limited record on this issue, we determine the district court
properly granted summary judgment and dismissed Ms. Powell’s contract claim.
C. Retaliation Claim
At the close of Ms. Powell’s case, the district court dismissed her Title VII
retaliation claim in response to COBE’s motion for judgment as a matter of law
under Fed. R. Civ. P. 50(a)(1).
We review de novo a district court’s disposition of a motion for judgment as a matter of law, applying the same standard as the district court. Such a judgment is warranted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.... We must view the evidence and any inferences to be drawn therefrom most favorably to the non-moving party.
Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (quotation
marks and citations omitted).
Keeping this standard of review in mind, we note Title VII states an
-18- employer may not “discriminate against any of his employees ... because [s]he has
opposed any practice made an unlawful employment practice by this subchapter,
or because [s]he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, Ms. Powell
must prove: “(1) protected opposition to discrimination or participation in a
proceeding arising out of discrimination; (2) adverse action by the employer; and
(3) a causal connection between the protected activity and the adverse action.”
Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993).
Viewing the evidence most favorably to Ms. Powell, she participated in a
protected activity in mid-February by complaining to the Director of COBE’s
Human Resources Department, Kathe Burke, about discrimination based on her
gender. However, the district court determined the only adverse action in this
case occurred on January 12, when Mr. Koehler removed Ms. Powell from the
planner position and gave her five weeks on the payroll to find other employment
within COBE or take a production job. Placing the adverse action one month
prior to Ms. Powell’s protected activity clearly defeats any causal connection
between the two events, and therefore the district court found no prima facie case
for retaliation.
-19- On appeal, Ms. Powell argues a second adverse action arose when COBE
personnel (1) told her on February 26 that the consequences of not signing the
severance agreement or taking a position would be termination for cause and only
two weeks’ pay, as opposed to the large severance package, and (2) subsequently
discharged her on February 29 because she refused to sign the severance
agreement.
In determining whether Ms. Powell’s retaliation claims lack merit, we
liberally define the term “adverse employment action” and must make our
determination of whether a given employment action is “adverse” on a case-by-
case basis. See Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998). Given
the specific facts of this case, we agree no adverse action existed after January
12, and affirm the district court’s grant of the motion for judgment as a matter of
law.
We reach this conclusion based on an exhaustive review of the record,
which reveals several relevant facts. First, COBE removed Ms. Powell from her
planner position on January 12. (Apt. App. Vol. III at 869.) On her removal from
the planner position and reassignment to a temporary position within the
company, COBE gave Ms. Powell five weeks, which meant until February 19, to
-20- either take another position within COBE or be severed from COBE’s payroll.
All parties involved, including Ms. Powell, understood this arrangement.
Specifically, during a meeting on January 29 with Kathe Burke, Ms. Powell
stated, “I have ... until the nineteenth of February ... [a]nd then I’m not, I won’t
be on salary any more.” The only open question at this point was whether Ms.
Powell would choose to take the employment opportunities available within
COBE, take a severance package, or leave COBE without taking the severance
package. During a meeting with Mr. Koehler on the decision day of February 19,
Ms. Powell stated she could not find a job within COBE she wanted, and she
flatly turned down the production job COBE promised to provide in order to give
her more time to search for employment within the company. Ms. Powell made it
clear she wanted to pursue the severance package option, and Mr. Koehler
accommodated her by offering to keep her on the payroll until such time as she
could sit down with company representatives and fill out the paperwork required
for the severance package. During a meeting on February 22, Ms. Powell again
confirmed February 19 as the date her employment with COBE officially
terminated. At this same meeting, Ms. Burke fully explained the provisions of the
severance package and informed Ms. Powell she would remain on the payroll
until February 29, the day she was to sign the severance package. Four days later,
on February 26, Ms. Burke told Ms. Powell the consequences of not signing the
-21- severance package: two weeks’ pay instead of twenty-three weeks’ and a
termination for cause instead of a voluntary resignation. On February 29, after
Ms. Powell refused to sign the severance package, COBE discharged her.
Under the circumstances, we cannot characterize the events of February 26
and 29 as adverse employment actions when Ms. Powell’s discharge was
predetermined on January 12. Cf. Connell v. Bank of Boston, 924 F.2d 1169,
1179-80 (10th Cir.), cert. denied, 501 U.S. 1218 (1991). On appeal, Ms. Powell
takes exception to this statement, pointing to the company’s efforts to find her
alternative employment as proof the parties did not know for certain Ms. Powell
would be leaving the company. While technically true, this logic fails to
recognize that as of January 12, Ms. Powell controlled her employment or
discharge destiny. On February 19, at the first documented meeting with Ms.
Powell after she allegedly complained she would have been treated differently if
she were a man, Mr. Koehler continued to offer her a production job within
COBE. Ms. Powell flatly turned him down. After this meeting, COBE continued
to offer Ms. Powell the severance agreement, which she also refused to accept.
Having personally eliminated the alternatives to discharge, we fail to comprehend
how Ms. Powell can claim the end result constituted an adverse employment
action separate and distinct from the January 12 removal. In sum, Ms. Powell
-22- fails to establish a prima facie case on her retaliation claim by failing to show a
casual connection between the assumed protected activity of raising her
discrimination complaints and any adverse action. Therefore, we affirm the
district court’s grant of the motion for judgment as a matter of law.
III. Reduction of Damages and Attorney Fees
Ms. Powell also appeals the district court’s reduction of the jury’s award of
emotional distress damages, the setting aside of all punitive damages awarded by
the jury, and the reduction of Ms. Powell’s requested attorney fees. We review
the district court’s reduction of compensatory damages for a manifest abuse of
discretion. Baty, 172 F.3d at 1241. The district court’s decision to grant the
motion for judgment as a matter of law and set aside the punitive damage award is
a question of law we review de novo. Id.; Woodworker’s Supply, Inc. v. Principal
Mut. Life Ins. Co., 170 F.3d 985, 995 (10th Cir. 1999). We review the award of
attorney fees for abuse of discretion. Case v. Unified Sch. Dist. No. 233, 157
F.3d 1243, 1249 (10th Cir. 1998).
A. Emotional Distress Damages
The jury awarded Ms. Powell $300,000 for pain, mental anguish, and
emotional distress. The district court found this award excessive and unsupported
-23- by substantial evidence, and reduced it to $50,000. Ms. Powell offered limited
evidence in support of her emotional distress damages. Ms. Powell testified she
was “very sad, very depressed, very upset” after her employment at COBE ended.
She also testified the experience had a “major impact” on her entire family, she
cried every day, sought help from a psychotherapist, and sought treatment from a
physician for migraine headaches. Ms. Powell’s psychotherapist also testified
briefly, stating she observed symptoms of stress, anxiety, worry, depression, anger
and a sense of powerlessness in Ms. Powell. In reducing the jury award, the
district court found the scant evidence presented in this case analogous to the
evidence presented in Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989). In
Wulf, the plaintiff testified his job loss caused stress, anger, depression, and
frustration; his wife testified the job loss caused severe emotional strain and
financial difficulties. Id. at 875. We found this evidence wanting, and reduced
an award for emotional distress of $250,000 to $50,000. Id. While the jury in the
current case heard testimony from Ms. Powell’s treating psychotherapist which
seemed to corroborate Ms. Powell’s testimony, the limited depth and detail of the
testimony here is comparable to Wulf. For instance, the extent of the evidence
offered in support of emotional distress damages filled less than five of the nearly
550 trial transcript pages required for the presentation of Ms. Powell’s case.
Neither the psychotherapist’s nor Ms. Powell’s testimony was developed to any
-24- significant degree. Given the facts of this case, the district court did not
manifestly abuse its discretion by looking to comparable cases and reducing the
jury’s award to $50,000. 6
B. Punitive Damages
Consistent with 42 U.S.C. § 1981a(b)(1), 7 the jury received instructions that
punitive damages were appropriate only if COBE discriminated against Ms.
Powell with “malice or reckless indifference” to her rights to be free from such
conduct. In its order striking the jury’s award of $200,000 in punitive damages,
the district court relied on our language in Fitzgerald v. Mountain States Tel. &
Tel. Co., 68 F.3d 1257, 1263 (10th Cir. 1995), to find insufficient evidence
existed for the jury to find the discrimination in this case “malicious, willful, and
6 We note the district court failed to provide Ms. Powell a choice between accepting the remittitur or a new trial on damages. See Hetzel v. Prince William County, 523 U.S. 208 (1998). However, Ms. Powell did not raise the issue with the district court, nor did she ever point to the oversight as error on appeal. She does mention Hetzel in her reply brief, but she does so only to argue Hetzel is inapposite because the court’s reduction of the damage award in this case was not a remittitur. Given the woefully inadequate understanding both parties have of Hetzel, and the resulting low quality of the briefing, we will enforce our general rule of not considering issues raised for the first time in the reply brief. See Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (holding one reason for general rule is our reliance on the adversarial process to develop issues on appeal and well-reasoned opinions).
7 This statute allows a litigant, successful in bringing a civil rights action under § 2000(e), to recover compensatory and punitive damages under certain circumstances.
-25- in gross disregard of plaintiff’s rights.”
Subsequent to the district court’s order, the United States Supreme Court
clarified the test used when determining whether punitive damages are
appropriate in a Title VII case. See Kolstad v. American Dental Ass’n, 527 U.S.
526, 119 S. Ct. 2118 (1999). The Court ruled “the terms ‘malice’ or ‘reckless
indifference’ pertain to the employer’s knowledge that it may be acting in
violation of federal law, not its awareness that it is engaging in discrimination.”
Kolstad, 527 U.S. at ___, 119 S. Ct. at 2124. The Court also held a plaintiff is
not required to make a “showing of egregious or outrageous discrimination
independent of the employer’s state of mind” in order to make a case for punitive
damages under § 1981a. Id. However, the Court also recognized the traditional
limits on vicarious liability for punitive damages and held “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.” Id. at 2129
(quotation marks and citation omitted).
Given the Court’s pronouncements in Kolstad, many intentional
discrimination cases may meet the “malice or reckless indifference” requirement
-26- of § 1981a. See id. at 2125 (listing limited circumstances where intentional
discrimination would not give rise to punitive damages under the standard
developed). However, just as apparent is Chief Justice Rehnquist’s observation
“that principles of agency law place a significant limitation, and in many
foreseeable cases a complete bar, on employer liability for punitive damages.” Id.
at 2130 (Rehnquist, C.J., concurring in part and dissenting in part).
The parties in this case did not have the opportunity to brief the
implications of Kolstad on appeal, nor are we convinced the record is sufficiently
developed for us to review the district court’s grant of COBE’s Rule 50 motion
using the Kolstad standard. Therefore, we will vacate the district court’s grant of
the motion for judgment as a matter of law as it relates to punitive damages, and
remand for further proceedings consistent with this opinion. As in Kolstad, we
expect it may be necessary for the district court to determine the extent, if any, of
COBE’s good faith efforts to comply with Title VII.
C. Attorney Fees
Finally, we turn to the issue of attorney fees. Ms. Powell requested
attorney fees in the amount of $126,891. In support of this request, Ms. Powell’s
counsel, John Olsen, submitted billing records claiming he and his co-counsel
-27- worked over 613 hours on the case. Mr. Olsen also provided the district court
with his own affidavit, and a supporting affidavit from one other attorney,
claiming the appropriate fee in this case equaled $200 per hour for out-of-court
work and $300 per hour for courtroom appearances. The district court found the
affidavits “conclusory and insufficient,” and based on its own experience in
employment discrimination cases, reduced the reasonable rate recoverable for all
time spent on the case to $125 per hour. The court also examined Mr. Olsen’s
billing records and determined they were “suspect,” not prepared
contemporaneously, or in a meticulous manner. Citing the inadequate nature of
the records, “countless instances of inappropriate and unprofessional conduct by
plaintiff’s counsel,” time wasted on unnecessary activity, and the fact Ms. Powell
prevailed on only one of her five original claims, the district court reduced the
total time claimed for the lawsuit by seventy-five percent, to 153 hours, and
limited the award of attorney fees to $19,125. Based on the unique facts of this
case, we hold the district court did not abuse its discretion in arriving at this
award.
1. Hours
The first step in calculating the “lodestar” figure used to award attorney
fees is to determine the reasonable number of hours counsel spent on the case.
-28- Counsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records .... A district court is justified in reducing the reasonable number of hours if the attorney’s time records are sloppy and imprecise and fail to document adequately how he or she utilized large blocks of time.
Case, 157 F.3d at 1250 (quotation marks and citation omitted). In support of its
conclusion Ms. Powell’s counsel submitted inadequate records, the district court
pointed out the records failed to mention at least two court appearances. While
we agree with Ms. Powell’s observation that an attorney should not be punished
for failing to bill a client for work, the omission here does tend to show the time
records were not contemporaneous, especially considering Mr. Olsen was careful
enough to include billing requests for his travel time to and from the courthouse
for his other court appearances, including one entry for travel, parking, and
walking which amounted to ninety minutes of billable time for a fifteen minute
hearing with the magistrate judge. In addition, the entries submitted are
insufficiently detailed to allow the district court to determine how much time Ms.
Powell’s attorneys spent on her unsuccessful claims. The district court further
found both parties to this litigation expended much of their time on frivolous
issues. Having reviewed the correspondence between the attorneys in the record,
much of which contained sophomoric accusations of some type of misconduct by
the other party, we must agree. As further evidence of wasted time in this case,
the district court points to Ms. Powell’s filing of a ninety-six-page response to
-29- COBE’s motion for summary judgment, which it struck as prolix. The district
court estimated the response should have been no longer than fifteen pages.
Mindful of the district court’s unique expertise in determining the reasonable
amount of time required for a particular case, see id. at 1256, and based on our
review of the record before us, we hold the district court did not abuse its
discretion by reducing the requested hours by seventy-five percent.
2. Hourly Rate
While the district court must rely on its own experience in determining the
reasonable number of hours spent on litigation, the court “should base its hourly
rate award on what the evidence shows the market commands for ... analogous
litigation.” Id. at 1255. However, the court may utilize its own knowledge and
experience in establishing the reasonable rate when the evidence presented on the
prevailing market rate is inadequate. Id. at 1257. We agree with the district
court’s characterization of the affidavits submitted in support of the requested
hourly rates as “conclusory and insufficient.” Neither affidavit sufficiently
addresses the prevailing market rate for civil rights litigation – a requirement we
found important in Case. Id. at 1255-56. Mr. Olsen’s affidavit attests his
hourly legal fee rate is $200 per hour out-of-court and $300 in- court.... The $200/$300 rate ... reflects the market rate in the Denver metropolitan area for attorneys of 20 years’ experience practicing in the area of litigation.... It is my experience that attorneys
-30- specializing in litigation in the Denver area charge $200 or more per hour, and said rate is reasonable in this market area.
Counsel’s conclusory statements of his normal billing practice and market rate are
insufficient to adequately show the prevailing market rate:
To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence – in addition to the attorney’s own affidavits – that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984) (quoted in Malloy v. Monahan, 73
F.3d 1012, 1018 (10th Cir. 1996); Beard v. Teska, 31 F.3d 942, 955 (10th Cir.
1994)). In addition, the affidavit speaks to reasonable rates for “litigation,” but
does not address rates for civil rights litigation specifically.
The supporting affidavit of attorney Mary Casey suffers from a similar
deficiency. Ms. Casey does not purport to be an expert on civil rights litigation,
nor does her affidavit mention prevailing market rates for civil rights litigation.
Instead, Ms. Casey asserts
[a]ttorneys of 20-years’ experience routinely charge $200 per hour for the provision of legal services out of court. The partners at Denver’s larger law firms with fifteen or more years of experience routinely charge $300 to $450 per hour for the provision of legal services. Moreover, litigation specialists, which both Mr. Olsen and Ms. Brown are, routinely charge $300 per hour when they are actually in court.
Ms. Casey concludes by stating the rates claimed by Mr. Olsen are “fair” in this
-31- case. These bald, conclusory assertions similarly provide insufficient guidance to
the district court on the issue of the prevailing market rate for civil rights
litigation in the Denver area. Under these circumstances, the district court did not
abuse its discretion by rejecting these affidavits, and applying its own knowledge
and experience to arrive at the $125 per hour rate.
Case No. 98-1363: COBE’s Cross-Appeal
COBE cross-appeals the district court’s denial of its motion for new trial
pursuant to Fed. R. Civ. P. 59(a) and Fed. R. Civ. P. 60(b)(3). We review the
court’s decision to deny the motion for a new trial for an abuse of discretion. See
Yapp v. Excel Corp., 186 F.3d 1222, 1230-31 (10th Cir. 1999); Angelo v.
Armstrong World Indus., Inc., 11 F.3d 957, 962 (10th Cir. 1993). In support of
its claim a new trial is warranted, COBE points to repeated acts of alleged
attorney misconduct throughout the trial. Rule 60(b)(3) provides discretionary
relief from a judgment for “fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party.” Relief
under this section is “extraordinary and may only be granted in exceptional
circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d
1437, 1440 (10th Cir. 1990). COBE must prove this misconduct by clear and
convincing evidence. Yapp, 186 F.3d at 1231. A new trial based on attorney
-32- misconduct is only appropriate when the moving party is prejudiced by the
misconduct. Ryder v. City of Topeka, 814 F.2d 1412, 1424 (10th Cir. 1987). The
district court did not abuse its discretion in finding COBE was not sufficiently
prejudiced in this case to warrant a new trial.
The vast majority of COBE’s complaints go to counsel’s misstatement of
the evidence during opening and closing arguments, and counsel testifying during
examination of witnesses. 8 However, the district court properly instructed the
jury that the statements of counsel were not evidence in the case. In addition, the
district court sustained numerous objections to the improper questions, and
instructed the jury to ignore this evidence. COBE fails to show counsel’s
arguable misconduct overcame these corrective measures and prejudiced the trial,
or preparation for trial, in any way. We do not give short shrift to COBE’s claim.
After reviewing the record, we agree with the district court’s characterization of
Ms. Powell’s counsel’s conduct during the course of this case as “inappropriate
8 COBE also claims Ms. Powell’s attorney’s misrepresentations caused the district court to disallow evidence of a plaintiff’s witness’ bias, and contributed to the district court’s decision to deny a motion to endorse additional witnesses as untimely. We hold these arguments lack merit. The district court was concerned throughout trial with avoiding mini-trials on issues unrelated to the alleged discrimination at issue in this case. The district court’s rulings were designed to avoid such periphery issues and fall well within the court’s discretion. In addition, nothing in the record convinces us a new trial is warranted.
-33- and unprofessional,” and that he made numerous “inappropriate or inadmissible”
statements. However, “[a] new trial is not to be granted simply as a punitive
measure to punish the misconduct of counsel.” Id. at 1425. We have carefully
reviewed all of COBE’s claimed acts of misconduct and simply do not find
grounds for holding the district court abused its discretion in denying its motion
for a new trial.
Accordingly, we AFFIRM in part, VACATE in part, and REMAND for
the sole purpose of re-examining the punitive damage issues consistent with this
decision and Kolstad v. American Dental Ass’n, 527 U.S. 526, 119 S. Ct. 2118
(1999).
Entered by the Court:
WADE BRORBY United States Circuit Judge
-34-