White v. Burlington Northern

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 14, 2004
• Docket: 01-5024
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 White v. Burlington Northern Nos. 00-6780; 01-5024 ELECTRONIC CITATION: 2004 FED App. 0102P (6th Cir.) & Santa Fe Ry. Co. File Name: 04a0102p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Bryan P. Neal, THOMPSON & KNIGHT, _________________ Dallas, Texas, for Appellant. William B. Ryan, DONATI LAW FIRM, Memphis, Tennessee, for Appellee. SHEILA WHITE , X ON BRIEF: Bryan P. Neal, THOMPSON & KNIGHT, Plaintiff-Appellee/ - Dallas, Texas, Ralph T. Gibson, BATEMAN GIBSON, Cross-Appellant, - Memphis, Tennessee, for Appellant. William B. Ryan, - Nos. 00-6780; Donald A. Donati, DONATI LAW FIRM, Memphis, - 01-5024 Tennessee, for Appellee. Ann E. Reesman, Robert E. v. > Williams, McGUINESS, NORRIS & WILLIAMS, , - Washington, D.C., Jenifer M. Bosco, NATIONAL BURLINGTON NORTHERN & - EMPLOYMENT LAWYERS ASSOCIATION, San SANTA FE RAILWAY CO ., - Francisco, California, Ralph E. Lamar IV, Collegeville, Pennsylvania, for Amici Curiae. Defendant-Appellant/ - Cross-Appellee. - _________________ N Appeal from the United States District Court OPINION for the Western District of Tennessee at Memphis. _________________ No. 99-02733—Jon Phipps McCalla, District Judge. GIBBONS, J., announced the judgment and majority Argued: June 11, 2003 opinion of the en banc court on all issues. The entire en banc court joined Parts I (Background) and III (Attorney’s Fees) of Decided and Filed: April 14, 2004 the majority opinion. Part II (Adverse Employment Action) of the majority opinion was joined by BOGGS, C. J., and Before: BOGGS, Chief Judge; MARTIN, KRUPANSKY, KRUPANSKY, BATCHELDER, GILMAN, ROGERS, BATCHELDER, DAUGHTREY, MOORE, COLE, SUTTON, and COOK, JJ., and Part IV (Punitive Damages) CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and was joined by MARTIN, DAUGHTREY, MOORE, COLE, COOK, Circuit Judges. CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51), filed a separate concurring opinion joining Parts I, III, and IV of the majority opinion and writing separately as to Parts II and V, in which he was joined by MARTIN, DAUGHTREY, MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an opinion concurring in Parts I - III and dissenting from Parts

1 Nos. 00-6780; 01-5024 White v. Burlington Northern 3 4 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

IV and V, in which he was joined by BOGGS, C. J., and I. BACKGROUND KRUPANSKY, BATCHELDER, and ROGERS, JJ. Before June 1997, Ralph Ellis operated the stationary JULIA SMITH GIBBONS, Circuit Judge. In this appeal, forklift for Burlington Northern at its Tennessee Yard in the en banc court addresses the meaning of “adverse Memphis. In June 1997, Ellis resigned from the forklift employment action” for purposes of Title VII. We decide that position in order to work on a mobile track gang, in which a thirty-seven day suspension without pay constitutes an position Ellis earned more pay than he would have if he had adverse employment action regardless of whether the continued working in the forklift position. Marvin Brown, suspension is followed by a reinstatement with back pay. We roadmaster of the Tennessee Yard, interviewed White for a also address several other issues raised by this appeal. job with Burlington Northern and expressed interest in White’s experience operating a forklift. On June 23, 1997, Sheila White brought this action against her employer, Burlington Northern hired White to work in its Maintenance Burlington Northern & Santa Fe Railway Company of Way department at its Tennessee Yard, and following (Burlington Northern), alleging sex discrimination and White’s hire, Brown assigned her to operate the forklift at the retaliation in violation of Title VII of the Civil Rights Act of Tennessee Yard. 1964, as amended, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3. The jury returned a verdict in favor of Burlington Northern on the White was the only female working in the Maintenance of sex discrimination claim and in favor of White on the Way department at the Tennessee Yard. White’s immediate retaliation claim. The jury awarded White compensatory supervisor was foreman Bill Joiner. Joiner had never damages but no punitive damages. After the trial, the district supervised a woman before, and he admitted at trial that he court denied Burlington Northern’s motion for judgment as a treated White differently because of her gender. He also matter of law on the retaliation claim and granted White’s admitted that he did not believe that the Maintenance of Way motion for attorney’s fees. department was an appropriate place for women to work. According to White, Joiner repeatedly expressed this belief to Burlington Northern appeals from the denial of its motion her while she was working under his supervision. According for judgment as a matter of law and from the award of to Joiner, several other Burlington Northern employees also attorney’s fees to White. White cross-appeals, challenging expressed the belief that women should not work on a the district court’s jury instruction regarding punitive railroad. Another Burlington Northern employee agreed at damages. For the reasons set forth below, we affirm the trial that there was “a general anti-woman feeling” among district court’s denial of Burlington Northern’s motion for Burlington Northern employees at the Tennessee Yard. judgment as a matter of law and the district court’s award of attorney’s fees to White. We conclude, however, that the Despite concerns about the propriety of a woman working district court erred in instructing the jury on the issue of on the railroad, the evidence was uncontradicted that White punitive damages, and therefore we remand the case for did not have difficulty performing her job. According to further proceedings consistent with this opinion. Brown, he never received a complaint regarding White’s performance operating the forklift. Joiner testified that White had no problems performing her job. Furthermore, another Burlington Northern foreman testified that no one expressed Nos. 00-6780; 01-5024 White v. Burlington Northern 5 6 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

concern about White’s ability to get along well with others in forklift before she complained of discrimination but that he the workplace or about anything specific to White other than did not remove her from the position until after she her gender. complained of discrimination. On September 16, 1997, White complained to Brown and Brown’s trial testimony is inconsistent with Burlington other company officials about specific incidents of alleged Northern’s interrogatory response. In that response, the sexual harassment committed by Joiner. The company railroad stated that it removed White from the forklift position investigated. Following the investigation, Burlington because a more senior employee claimed the job according to Northern suspended Joiner for ten days and ordered him to the collective bargaining agreement. Brown, however, attend a training session regarding sexual harassment. testified at trial that the forklift job was not governed by the collective bargaining agreement and that he had the discretion On September 26, 1997, Brown met with White to inform to place anyone he chose in that position regardless of her that Joiner had been disciplined pursuant to her complaint. seniority. Moreover, neither the union, nor anyone else, He also, however, told her that the company had learned initiated a grievance about White’s operation of the forklift. during the investigation of several complaints about her A union official testified that the union’s records did not working in the forklift position. According to Brown, the reflect any complaints regarding White’s assignment to the complaints did not relate to her performance but related to the forklift position. Only White and Ellis were qualified to fact that the forklift position was a less arduous and cleaner perform the forklift position. Ellis, who had voluntarily job than other track laborer positions. Brown testified that resigned from the forklift job for a higher-paying job, testified other employees, including Ellis, complained about a junior that he did not complain to Brown or anyone else about White employee being allowed to work the forklift instead of “a operating the forklift and that he did not request that he be more senior man.” Other witnesses testified that the forklift returned to the position. job was generally considered a physically easier and cleaner job than other track laborer positions, although it required On October 10, 1997, White filed a charge with the Equal more qualifications. Joiner testified that other track laborers Employment Opportunity Commission (EEOC) alleging sex complained about White being allowed to hold the position discrimination and retaliation. She filed a second charge with instead of a male employee. the EEOC on December 4, 1997, alleging retaliation. In her second EEOC charge she alleged that Brown had placed her During the September 26 meeting regarding the resolution under surveillance and was checking on her daily activities. of White’s internal sexual discrimination complaint, Brown Her second EEOC charge was mailed to Brown on informed White that he was removing her from the forklift December 8, 1997. position and assigning her to a standard track laborer position because of her coworkers’ complaints. Her pay and benefits On December 11, 1997, White was working in Blytheville, remained the same, but her new job was, by all accounts, Arkansas, supporting a regional tie gang. She was working more arduous and “dirtier” than the forklift position. Brown under the supervision of Burlington Northern foreman Percy replaced White with Ellis, the only other employee qualified Sharkey. At some point during the day, Sharkey instructed to perform the forklift job. Brown admitted at trial that he White to ride in a truck with another foreman, James Key. had heard complaints about White being allowed to work the Sharkey instructed another track laborer, Greg Nelson, to ride Nos. 00-6780; 01-5024 White v. Burlington Northern 7 8 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

with him in his vehicle. According to White, when she her union appealing the decision within fifteen days. White approached Key he told her that she had to ride with Sharkey timely filed such a grievance and also filed another EEOC because Key wanted Nelson to ride with him. Against charge on December 15, 1997, alleging retaliation. Sharkey’s order, Nelson rode away with Key. White testified that Sharkey became very upset when she returned and told While her grievance was pending, White was without a job him that Nelson had ridden away with Key and that she and without income and she did not know if or when she would have to ride with him. Contrary to White’s testimony, would be allowed to return to work. During this period, Sharkey testified that White refused to ride with Key, White sought medical treatment for emotional distress and claiming that she had seniority over Nelson and insisting incurred medical expenses. The grievance remained pending upon riding with Sharkey. through the end of December and the first half of January 1998. After an investigation and a hearing, the hearing According to Sharkey, he called Brown to discuss the officer, who was a Burlington Northern manager, found that situation and Brown told him that, based on Sharkey’s White had not been insubordinate and that she should not description of events, White had been insubordinate and have been suspended. After being suspended without pay for should be removed from service immediately. On the thirty-seven days, White was reinstated to her position with afternoon of December 11, Sharkey informed White that she full back pay on January 16, 1998. was suspended. Although Sharkey had the authority to suspend White himself, Sharkey testified that Brown made After exhausting her avenues for relief before the EEOC, the decision to suspend White. Brown testified that Sharkey White filed this action against Burlington Northern in the made the decision. White testified that Sharkey told her at the district court, alleging sex discrimination and retaliation in time that Brown had instructed him to suspend her. In a letter violation of Title VII. A jury trial was conducted from to the EEOC, Burlington Northern stated that Brown made August 29, 2000, to September 5, 2000. The jury returned a the decision, but Brown testified that this letter was incorrect. verdict in favor of Burlington Northern on White’s sex Nelson received no discipline, although Sharkey discrimination claim and a verdict in favor of White on her acknowledged at trial that Nelson had disobeyed his direct retaliation claim. The jury awarded White $43,500 in order. compensatory damages, including $3,250 in medical expenses, on her retaliation claim. The jury found against White testified that Sharkey had told her at some point White on her claim for punitive damages. After the trial, before her suspension that Brown considered White a pursuant to Federal Rule of Civil Procedure 50(b), Burlington “troublemaker.” Sharkey acknowledged at trial that he had Northern filed a renewed motion for judgment as a matter of told White that the railroad was trying to “get rid” of her. law on the retaliation claim, which the district court denied. White filed a motion for an award of attorney’s fees pursuant The decision to suspend White occurred seven days after to 42 U.S.C. § 2000e-5(k), and the district court awarded White filed her second EEOC charge and three days after the White $54,285, which represented eighty percent of White’s charge was mailed to Brown. The suspension took effect total attorney’s fees. immediately and was without pay. According to company policy, the suspension without pay would automatically become a termination if White did not file a grievance with Nos. 00-6780; 01-5024 White v. Burlington Northern 9 10 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

II. MOTION FOR JUDGMENT AS A MATTER OF insufficient evidence for the jury to conclude rationally that LAW Burlington Northern’s asserted legitimate, non-discriminatory reasons for transferring and suspending White were pretexts We first review the district court’s denial of Burlington for retaliation. Northern’s post-trial motion for judgment as a matter of law pursuant to Rule 50(b). Our standard of review is de novo. In determining whether Burlington Northern is entitled to Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, judgment as a matter of law, we first discuss the meaning of 598 (6th Cir. 2001). The inquiry for resolving a motion for “adverse employment action” for purposes of Title VII. Then judgment as a matter of law pursuant to Rule 50 is the same we discuss whether White’s transfer and suspension were as the inquiry for resolving a motion for summary judgment adverse employment actions. Finally we address whether pursuant to Rule 56. Reeves v. Sanderson Plumbing Prods., there was sufficient evidence for the jury to rationally find Inc., 530 U.S. 133, 150 (2000). We review all of the evidence that Burlington Northern’s asserted legitimate reasons were in the record in the light most favorable to the nonmoving pretexts for unlawful retaliation. party and determine whether there was a genuine issue of material fact for the jury. Gray, 263 F.3d at 598. A. Defining Adverse Employment Action

We must affirm the jury verdict unless there was “no Title VII’s anti-retaliation provision provides: legally sufficient evidentiary basis for a reasonable jury to find for [the prevailing] party.” Fed. R. Civ. P. 50(a). We (a) Discrimination for making charges, testifying, draw all reasonable inferences in favor of the prevailing party, assisting, or participating in enforcement proceedings and we do not make any credibility determinations or weigh the evidence. Reeves, 530 U.S. at 150. Therefore, we “must It shall be an unlawful employment practice for an disregard all evidence favorable to the moving party that the employer to discriminate against any of his employees jury is not required to believe.” Id. at 151. “That is, the court or applicants for employment . . . because he has opposed should give credence to the evidence favoring the nonmovant any practice made an unlawful employment practice by as well as that ‘evidence supporting the moving party that is this subchapter, or because he has made a charge, uncontradicted and unimpeached, at least to the extent that testified, assisted, or participated in any manner in an that evidence comes from disinterested witnesses.’” Id. investigation, proceeding, or hearing under this (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 300 subchapter. (1986)). 42 U.S.C. § 2000e-3(a) (section 704(a) of Title VII) Burlington Northern contends that it is entitled to judgment (emphasis added). Title VII does not define the phrase as a matter of law on White’s retaliation claim because, “discriminate against,” which is repeated in Title VII’s other according to Burlington Northern, neither White’s transfer anti-discrimination provisions, but courts have made clear from the forklift job to a standard track laborer job nor her that not just any discriminatory act by an employer constitutes suspension without pay for thirty-seven days constitutes an discrimination under Title VII. See Burlington Indus., Inc. v. adverse employment action for purposes of Title VII. In the Ellerth, 524 U.S. 742, 761 (1998) (citing cases requiring a alternative, Burlington Northern contends that there was “tangible employment action” to support a Title VII claim). Nos. 00-6780; 01-5024 White v. Burlington Northern 11 12 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Employment actions that are de minimis are not actionable charge with the EEOC. After a bench trial, the district court under Title VII. Bowman v. Shawnee State Univ., 220 F.3d found that “[p]laintiff failed to show any adverse employment 456, 462 (6th Cir. 2000). “If every low evaluation or other action in response to her EEOC charge or any other protected action by an employer that makes an employee unhappy or activity. While additional tension arose after others became resentful were considered an adverse action, Title VII would aware of [plaintiff]’s charge, such ‘predictable tension’ is not be triggered by supervisor criticism or even facial expressions ‘the type of adverse employment action prohibited by Title indicating displeasure.” Primes v. Reno, 190 F.3d 765, 767 VII’s retaliation clause.’” 735 F.2d at 994 (quoting the (6th Cir. 1999). district court). This court affirmed, stating: To prevent lawsuits based upon trivial workplace We agree with the district judge that a general increase of dissatisfactions, we require that a plaintiff prove the existence tension in the workplace would be expected to follow of an “adverse employment action” to support a Title VII revelation that a claim of discrimination in employment claim. Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. had been filed. However, evidence of such an increase 1999) (defining “adverse employment action” as a “materially should be considered, and any discrete act or course of adverse change in the terms and conditions of [plaintiff’s] conduct which could be construed as retaliation must be employment”).1 This case requires us to clarify further the examined carefully. After such examination we conclude meaning of “adverse employment action” for purposes of that the finding that no ‘adverse employment action’ Title VII. resulted from the filing of the EEOC charge is not clearly erroneous, particularly in view of the contrary evidence The first time this court required a plaintiff to prove the .... existence of an “adverse employment action” as part of a Title VII claim was in Geisler v. Folsom, 735 F.2d 991 (6th Cir. 735 F.2d at 996 (quoting the district court’s use of the phrase 1984). In Geisler, the plaintiff alleged that her employer “adverse employment action”). violated Title VII’s anti-retaliation provision by discriminating against her for filing a sex discrimination A few months after deciding Geisler, this court stated that to support a claim for retaliation under Title VII a “plaintiff must establish: (1) that he engaged in activity protected by 1 Although this court and most other courts use the term “adverse Title VII; (2) that he was the subject of adverse employment employment action,” some courts, including the Supreme Court, use the action; and (3) that there exists a casual [sic] link between his term “tangible employment action” or some other variation for the same protected activity and the adverse action of his employer.” concept. See, e.g., Bu rlington In dus., 524 U.S. at 761 (“tangible Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 employment action”); Bowman, 220 F.3d at 461 n.5 (“Courts use the (6th Cir. 1984). The Jackson court did not cite Geisler as a terms ‘tangible employment detriment’ and ‘materially adverse emp loyment action ’ interchangeably.”). basis for including “adverse employment action” among the As the one alternative to showing the existence of an adverse elements of a Title VII retaliation claim; instead it relied upon employment action, a plaintiff may support a Title VII claim by showing cases from the Fifth, Tenth, and Eleventh Circuits. Id. (citing that “plaintiff was subjected to severe or pervasive retaliatory [or other Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343 discrimination based] harassment by a supervisor.” Morris v. Oldham (10th Cir. 1982); Jones v. Lumberjack Meats, Inc., 680 F.2d County Fiscal Co urt, 201 F.3d 784, 79 2 (6th Cir. 2000). What constitutes severe or p ervasive harassme nt is not at issue in this appeal. 98, 101 (11th Cir. 1982); Whatley v. Metro. Atlanta Rapid Nos. 00-6780; 01-5024 White v. Burlington Northern 13 14 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Transit Auth., 632 F.2d 1325, 1328 (5th Cir. 1980)). The After Yates, it was almost ten years before we had another cases cited by Jackson, like Jackson itself, each involved a opportunity to develop the definition of adverse employment termination of employment, and so none of these cases action. In Kocsis v. Multi-Care Management Inc., this court addressed the issue of what types of employment actions considered the definition of adverse employment action in the short of termination constitute adverse employment actions.2 context of a discrimination claim under the Americans with Disabilities Act. 97 F.3d 876, 885-87. Relying in part upon Ever since Geisler and Jackson, the adverse-employment- the Seventh Circuit’s definition, this court held that a plaintiff action element has remained a part of a Title VII claim in this claiming employment discrimination must show that she circuit. After Geisler, the first time that this court decided a suffered “a materially adverse change in the terms of her case based on the adverse-employment-action element was in employment.” Id. at 885 (citing Spring v. Sheboygan Area Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987). In Sch. Dist., 865 F.2d 883 (7th Cir. 1989), which involved an Yates, this court reversed a district court’s factual finding of age discrimination claim). A “mere inconvenience or an retaliation, holding that it was clear error for the district court alteration of job responsibilities” or a “bruised ego” is not to find that a temporary job reassignment that resulted in no enough to constitute an adverse employment action. Id. at pay or benefits reduction was an adverse employment action 886 (citing Crady v. Liberty Nat’l Bank and Trust Co., 993 cognizable under Title VII’s anti-retaliation provision. For F.2d 132, 136 (7th Cir. 1993), and Flaherty v. Gas Research this holding, the Yates court relied solely upon a district court Inst., 31 F.3d 451, 456 (7th Cir. 1994)). decision from Delaware. Id. (citing and endorsing Ferguson v. E.I. duPont deNemours and Co., 560 F. Supp. 1172, 1201 Furthermore, according to Kocsis, “reassignments without (D. Del. 1983), which held that a job reassignment is not an salary or work hour changes do not ordinarily constitute adverse employment action if it is only temporary and results adverse employment decisions in employment discrimination in no reduction in pay or benefits). claims.” Id. at 885 (citing Yates, 819 F.2d at 638, which applied to “temporary” reassignments). A reassignment without salary or work hour changes, however, may be an 2 adverse employment action if it constitutes a demotion The decisio ns cited by Jackson from the Tenth and Eleventh Circuits, Burru s and Jones, both c ite Sm alley v. City of Eato nville, 640 evidenced by “a less distinguished title, a material loss of F.2d 765, 769 (5th Cir. 1981), which in turn cites Whatley as the basis for benefits, significantly diminished material responsibilities, or including “adve rse em ploym ent actio n” am ong the elem ents of a Title VII other indices that might be unique to a particular situation.” claim. Whatley cites a treatise published in 1976. 632 F.2d at 1328 Id. at 886 (citing Crady, 993 F.2d at 136). (citing B. Schlei & P. Grossman, Em ployment Discrimination Law, Ch. 15 (1976)). It appears that the inclusion of “adverse employment action” In this circuit, Kocsis is the seminal case for defining as an element of a T itle VII claim originated with the treatise cited by Whatley. See Williams v. Bo orstin, 663 F.2d 109, 120 (D.C. Cir. 1980) adverse employment action.3 The Supreme Court in (J. Bazelon, concurring) (stating that “adverse em ploym ent actio n” is among the elements of a Title VII retaliation claim under “the standard found in B. Schlei & P. Grossman, Employment Discrimination Law 436 3 (1976)”). The first reported case in the nation to include “adverse For instance, in Hollins v. Atlantic Co., this court relied upon Kocsis employment action” as an element of a Title VII claim was decided the to decide that an employee had not suffered an adverse employment year after publication of the treatise. EEO C v. Locals 14 an d 15 Int’l action when she received lower ratings in a performance evaluation. 188 Union of O perating Eng ’rs, 438 F. Supp. 876 , 881 (S.D.N.Y . 1977). F.3d 652, 662 (6th Cir. 1999). The Hollins court held that lower ratings Nos. 00-6780; 01-5024 White v. Burlington Northern 15 16 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Burlington Industries v. Ellerth relied upon Kocsis and the EEOC Guidelines. The EEOC has interpreted “adverse several decisions from other circuits when it stated that “[a] employment action” in the context of a Title VII retaliation tangible employment action constitutes a significant change claim to mean “any adverse treatment that is based on a in employment status, such as hiring, firing, failing to retaliatory motive and is reasonably likely to deter a charging promote, reassignment with significantly different party or others from engaging in protected activity.” EEOC responsibilities, or a decision causing a significant change in Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998). benefits.” 524 U.S. 742, 761 (1998). The Supreme Court Although EEOC Guidelines are not binding on the courts, also observed that: they “constitute a body of experience and informed judgment to which courts and litigants may properly resort for A tangible employment action in most cases inflicts guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 direct economic harm . . . . Tangible employment (1986) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 actions are the means by which the supervisor brings the (1944)). official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act The EEOC claims that this court’s development of the of the enterprise, a company act. The decision in most adverse-employment-action element has been unfaithful to cases is documented in official company records, and the letter and purpose of Title VII’s anti-retaliation provision. may be subject to review by higher level supervisors. According to 42 U.S.C. § 2000e-3(a), it is unlawful for an employer to “discriminate against” an employee for engaging Id. at 762. But see Ray v. Henderson, 217 F.3d 1234, 1242 in protected conduct. The EEOC contends that the most n.5 (9th Cir. 2000) (rejecting the contention that Burlington natural reading of this language is that it prohibits “any form Industries set forth a standard for adverse employment actions of discrimination” against an individual for opposing in the retaliation context). discrimination or filing a charge. The Ninth and Seventh Circuits have also embraced a broad interpretation of Title In this appeal, White and the EEOC, which has filed an VII’s anti-retaliation provision. See Ray v. Henderson, 217 amicus curiae brief on White’s behalf, urge us to revise our F.3d 1234, 1243 (9th Cir. 2000) (“This provision does not definition of adverse employment action for purposes of Title limit what type of discrimination is covered, nor does it VII retaliation cases and adopt the interpretation included in prescribe a minimum level of severity for actionable discrimination.”); Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (“There is nothing in the law of retaliation that restricts the type of retaliatory act that might were not enough in the absence of “evidence to show that the lowered be visited upon an employee who seeks to invoke her rights performance ratings actually had an effect on her wages such that a court may conc lude that there was a m aterially ad verse emp loyment action .” by filing a complaint.”).4 Id. In Bowm an v. Sha wnee Sta te Un iversity, this court relied upon Kocsis and Hollins to hold that the temporary removal of a university instructor from his position as the Coordinator of Sports Studies did not rise to the 4 level of an adverse employment action. 220 F.3d 456, 46 1-62 (6th Cir. W e have recognized that the dictionary definition of “discriminate” 2000). The Bowman court focused on the facts that the removal was for is “to distinguish; to make distinctions in treatment; show partiality or only ten days, the employee maintained his position as a full-time prejudice .” Mattei v. Mattei, 126 F.3d 79 4, 804 (6th Cir. 1997) (quoting university instructor, and he never lost an y incom e. Id. W ebster’s New W orld Dictio nary); see also Oxford English Dictionary Nos. 00-6780; 01-5024 White v. Burlington Northern 17 18 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Despite the EEOC’s contention that “any form of provision, this court’s definition, properly interpreted, also discrimination” falls within the most natural reading of the accomplishes the goal while appropriately counterbalancing statute, the EEOC acknowledges in its brief that its definition the need to prevent lawsuits based upon trivialities. Instead of adverse employment action excludes “petty slights and of requiring district courts to determine on a case-by-case trivial annoyances” and anything that is not reasonably likely basis what actions by an employer are reasonably likely to to deter employees from engaging in protected activity. The deter an employee from engaging in protected activity, we EEOC does not explain how it justifies excluding such have over the last twenty years given some shape to the discriminatory acts under its strictly literal reading of the definition by describing the kinds of material adverse statute, which prohibits discrimination without any explicit employment actions that rise above the level of trivial. As we textual limitation regarding the type of discrimination or level recognized in Kocsis, however, it is impossible to list every of severity required. Therefore, the EEOC admits that a possible employment action that falls into the definition of strictly literal reading of “discriminate against” is not a fair adverse employment action and a court must consider interpretation of Title VII since it is unlikely that Congress “indices that might be unique to a particular situation.” intended to authorize Title VII claims over trivial matters. Kocsis, 97 F.3d at 886. We developed the adverse-employment-action element to In addition, this court’s definition has the benefit of prevent the kind of claims based upon trivial employment applying equally to all Title VII discrimination claims, not actions that a strictly literal reading of Title VII’s anti- only to retaliation claims. Having a different standard for retaliation provision would allow. Because the language of different provisions of Title VII would be burdensome and Title VII does not explicitly provide any limit on the types of unjustified by the text of the statute, which uses the same discriminatory acts prohibited, the language of Title VII does phrase “discriminate against” in each of its anti- not favor the EEOC’s proposed limitations over the discrimination provisions. See Morris v. Oldham County limitations this court has developed during the last twenty Fiscal Court, 201 F.3d 784, 791-92 (6th Cir. 2000) (applying years of defining the adverse-employment-action element of rules of statutory construction to hold that “discriminate a Title VII claim. against” means the same thing each time it appears in Title VII); Mattei v. Mattei, 126 F.3d 794, 806 (6th Cir. 1997) The EEOC argues that the purpose of Title VII’s anti- (presuming that Congress intended the phrase “discriminate retaliation provision supports its definition. “In enacting against” to have the same basic meaning each time it is used section 2000e-3, Congress unmistakably intended to ensure in a statute).5 that no person would be deterred from exercising his rights under Title VII by the threat of discriminatory retaliation.” EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993). 5 Although both § 2 000e-2(a)(1) and § 20 00e-3(a) use the phrase While the EEOC’s proposed definition more overtly “discriminate against,” the former specifies that the prohibited incorporates the purpose of Title VII’s anti-retaliation discrimination must be “with respect to his com pensation, terms, conditions, or privileges of employment,” while the anti-retaliation provision contains no such language. The parties dispute whether this additional language is a limitation or an expansion of the conduct (2d ed. 1989) (“to discriminate against: to make an adverse distinction pro hibited. W e have never before d istinguished between the types of with regard to; to distinguish unfavorably from others”). conduct prohibited in the different provisions, and we do not do so here. Nos. 00-6780; 01-5024 White v. Burlington Northern 19 20 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

We therefore reject White’s and the EEOC’s request that a reinstatement with back pay, is not an adverse employment we adopt a new definition of adverse employment action for action. For this argument, Burlington Northern primarily purposes of Title VII retaliation cases, and we reaffirm the relies upon Dobbs-Weinstein v. Vanderbilt University, 185 definition that we have developed in cases such as Kocsis and F.3d 542 (6th Cir. 1999). its progeny. Since the adverse-employment action element developed by this Circuit is an exception to a broad, strictly In May 1994, a Vanderbilt University dean denied tenure literal reading of Title VII’s anti-discrimination provisions, to Professor Dobbs-Weinstein and advised her that her we will continue to define the exception narrowly so as not to teaching appointment at Vanderbilt would end on August 31, frustrate the purpose of Title VII while deterring lawsuits over 1995. Id. at 543. Dobbs-Weinstein filed an internal trivial matters. grievance with Vanderbilt, alleging gender and national- origin discrimination among other things, and in May 1995, B. Suspension Without Pay she filed an action under Title VII. Id. On August 31, 1995, her employment contract with Vanderbilt ended. Id. at 544. We now apply our definition of adverse employment action In November 1995, while her lawsuit was still pending, the to the actions at issue in the present case. We consider the Vanderbilt Board of Trustees reversed the decision of the suspension first. Burlington Northern argues that a dean and rehired her as a tenured professor. Id. The board suspension without pay, followed thirty-seven days later by also granted her back pay to account for the delayed promotion and the period of unemployment. Id. Dobbs- Weinstein persisted with her lawsuit, however, seeking interest on the back pay and compensation for emotional W e find it untenable to interpret the additional language as an expansion of prohibited conduct because “with respect to” is a phrase comm only distress and injury to reputation. Id. used to limit. But cf. Mattern v. Eastman Kodak Co., 104 F.3d 702, 709 (5th Cir. 19 97) (“Th e anti-retaliation provision speaks only of Despite the facts that she was initially denied tenure and her ‘discrim ination’; there is no mentio n of the vague harms contemplated in employment ended temporarily, this court held that Dobbs- § 2000e-2(a)(2). Therefore, this provision can only be read to exclude Weinstein had not suffered an adverse employment action such vague harms, and to include only ultimate employment decisions.”). cognizable under Title VII. Id. at 545. We recognized that The D.C. Circuit and the United States District Court for the Northern District of Ohio have written well-reasoned opinions that conclude that “‘tenure decisions in an academic setting involve a the absence of the additional language from the anti-retaliation provision combination of factors which tend to set them apart from means that an employer is prohibited from retaliating in materially employment decisions generally.’” Id. (quoting Zahorik v. adverse ways, regardless of whether the retaliatory acts affect Cornell Univ., 729 F.2d 85, 92-93 (2d Cir. 1984)). We relied emp loyment. Passer v. American Chem. Soc., 935 F.2d 322, 330-31 upon the fact that Vanderbilt reversed the decision of its dean (D.C. Cir. 19 91) (holding that an emp loyer’s cancellation of a major pub lic symposium in former employee’s honor could be an act of and granted Dobbs-Weinstein back pay as the result of its retaliation under a statute that parallels Title VII’s anti-retaliation internal grievance procedure. Id. This reversal, we reasoned, provision); EEOC v. Outback Stea khou se of Florida, Inc., 75 F.Supp.2d was the “ultimate employment decision.” Id. We held that 756, 758-60 (N .D. Ohio 199 9) (holding that Title VII’s anti-retaliation “intermediate” tenure decisions that are appealable through a provision is not limited to d iscrimina tion affecting employm ent). It is tenure review process cannot form the basis of a Title VII unnecessary for us to resolve the question addressed in Passer and Outback S teakho use because the actions at issue in the present case (job claim. Id. We did not, however, cite any section of Title VII transfer and suspension) clearly affect employment. that requires exhaustion of internal grievance procedures Nos. 00-6780; 01-5024 White v. Burlington Northern 21 22 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

before one files a lawsuit.6 Instead, we relied upon a decision Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir. from the Fourth Circuit, Page v. Bolger, 645 F.2d 227, 233 2003) (applying “ultimate employment decision” standard (4th Cir. 1981), which we interpreted as holding that Title VII without discussing Burlington Industries or Fierros). And applies only to “ultimate employment decisions such as while the Eighth Circuit has ostensibly adopted the “ultimate hiring, granting leave, discharging, promoting, and employment decision” standard, it has consistently applied a compensating.” Id. Neither the Fourth Circuit nor the broader standard. See, e.g., Manning v. Metro. Life Ins. Co., Dobbs-Weinstein court, however, cited a statutory provision 127 F.3d 686, 692 (8th Cir. 1997) (ultimate employment that limits Title VII’s application to ultimate employment decision includes “tangible change in duties or working decisions. conditions that constituted a material employment disadvantage”); Kim v. Nash Finch Co., 123 F.3d 1046, 1060 Since deciding Page, the Fourth Circuit has retreated from (8th Cir. 1997) (ultimate employment decision includes the “ultimate employment decision” standard. Von Gunten v. reduction of duties, actions that disadvantage or interfere with Maryland, 243 F.3d 858, 865, 866 n.3 (4th Cir. 2001) the employee’s ability to do his or her job, “papering” of an (limiting Page and holding that “‘ultimate employment employee’s file with negative reports and reprimands even decision’ is not the standard in this circuit”). Furthermore, though employee was “not discharged, demoted, or the majority of other circuits have either implicitly or suspended”). explicitly rejected a standard limiting Title VII’s reach to ultimate employment decisions. See id. at 864, 866 n.4 We now join the majority of other circuits in rejecting the (citing cases). Indeed, the only other circuits where this “ultimate employment decision” standard.7 First and standard even arguably has any viability are the Fifth and the foremost, it is contrary to the plain language of Title VII, Eighth. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 which provides that an employer must not “discriminate (5th Cir. 1997) (applying the “ultimate employment decision” against” an employee based upon a prohibited classification. standard); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th As this court has found, the words “discriminate against” Cir. 1997) (same). literally mean “any kind of adverse action.” Mattei, 126 F.3d at 805. Congress could have provided that employers shall The Fifth Circuit, however, has questioned whether the not “discriminate against an employee when making ultimate “ultimate employment decision” standard survived the Supreme Court’s pronouncements in Burlington Industries regarding the definition of tangible employment action. Fierros v. Texas Dep’t of Health, 274 F.3d 187, 192-93 & n.2 7 (5th Cir. 2001) (pretermitting question); but see Hernandez v. W e recognize that our decision in Do bbs-Weinstein was based in part upon the unique nature of “tenure decisions in an academic setting.” 185 F.3d at 545. Other circuits also have acknowledged the unique nature 6 of tenure decisions. See Ta nik v. S. M ethodist Univ., 116 F.3d 775, 776 In fact, as will be mentioned again below, the Supreme Court has (5th Cir. 19 97); Brousard-Norcross v. Augustana Coll. Ass’n, 935 F.2d pointed out to this court before that internal grievance procedures and an 974, 976 (8th C ir. 199 1); Kumar v. Bd. of Trs., U niv. of Mass., 774 F.2d action under Title VII are “legally independent” such that the statute of 1, 11 (1 st Cir. 19 85); Zah orik, 729 F.2d at 92-93 (2d C ir. 1984). Beca use limitations on a Title VII claim is not tolled during the pendency of an we are not presented here with a denial of tenure, we do not decide to internal grievance process. Int’l Union of Elec. Workers v. Ro bbins & what extent our holding in Do bbs-Weinstein survives our d ecision in this Myers, Inc., 429 U.S. 229 , 236 (1976) (reversing a S ixth Circuit decision). case. Nos. 00-6780; 01-5024 White v. Burlington Northern 23 24 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

employment decisions,” but instead it chose to use the words pay, attorney’s fees, and emotional suffering. In this case, the “discriminate against” with no such qualifier. jury found that White had suffered $43,500 in damages other than back pay due to Burlington Northern’s retaliation. Second, the employment action taken in the present case (suspension without pay for thirty-seven days) is not the type Lastly, the “ultimate employment decision” standard is in of employment action that this court developed the adverse- tension with Supreme Court cases holding that the statute of employment-action element to filter. The adverse- limitations on a Title VII claim is not tolled during the employment-action element is a warranted judicial pendency of an internal grievance process. See, e.g., Int’l interpretation of Title VII intended to deter discrimination Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S. lawsuits based on trivial employment actions, such as those 229, 236 (1976). According to the Supreme Court, a Title VII that cause a “mere inconvenience” or a “bruised ego.” claim arises on the date the alleged discriminatory decision Kocsis, 97 F.3d at 886. But as an exception to the strictly occurs, even though an employee has challenged the decision literal reading of the statute, the adverse-employment-action via an internal grievance process. Id. at 234. The Supreme element of a Title VII lawsuit must not be interpreted too Court has rejected the argument that the pendency of an broadly. Taking away an employee’s paycheck for over a internal grievance process renders the employment decision month is not trivial, and if motivated by discriminatory intent, “tentative” or “non-final” for purposes of Title VII. Id. The it violates Title VII. See Lovejoy-Wilson v. NOCO Motor Supreme Court has also rejected the argument that “the Fuel, Inc., 263 F.3d 208, 223-24 (2d Cir. 2001) (holding that danger of possible conflict between the concurrent pursuit of a suspension without pay for one week was an adverse both collective-bargaining and Title VII remedies should employment action even though the employee was later result in tolling the limitations period for the latter while the reimbursed for lost wages because the employee “suffered the former proceeds to conclusion.” Id. at 239. The alleged loss of the use of her wages for a time”). discriminatory decision in the present case was the suspension without pay. White’s election to challenge this decision Third, the “ultimate employment decision” standard through an internal grievance process does not render the contravenes “the purpose of Title VII to make persons whole decision not actionable under Title VII. for injuries suffered on account of unlawful employment discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. The Equal Employment Advisory Council (the EEAC) 405, 418 (1975). While the standard ensures that a argues in its amicus curiae brief on behalf of Burlington wrongfully suspended employee eventually receives back Northern that employers must maintain the prerogative to pay, it allows an employer unilaterally to cut off the suspend summarily employees suspected of wrongdoing employee’s claims for other damages, which have been pending an investigation without facing the risk of Title VII explicitly authorized by Title VII since the Civil Rights Act liability. Otherwise, according to the EEAC, employers will of 1991, such as interest on the back pay, attorney’s fees, be faced with the dilemma of either allowing potentially emotional suffering, and punitive damages. 42 U.S.C. dangerous or disruptive individuals to remain in the §§ 1981a(b); 2000e-5(g), (k). Although Burlington Northern workplace or suspending them pending an investigation, argues that it made White whole when it granted her back thereby risking Title VII liability. pay, Congress has declared that part of making a Title VII plaintiff whole is compensating her for interest on the back Nos. 00-6780; 01-5024 White v. Burlington Northern 25 26 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

In response to the EEAC’s concerns, we initially note that (finding that the plaintiff had failed to show an adverse an employer taking an adverse employment action against an employment action because, among other things, her job employee, including a suspension without pay, only risks reassignment did not entail any loss in prestige). According Title VII liability if there exists sufficient evidence to prove to Burlington Northern’s own witnesses, the transfer occurred that the employer took the action based upon illegal because the forklift operator position was objectively discrimination. To the extent the EEAC’s concerns for an considered a better job and the male employees resented employer’s risk of Title VII liability are valid, however, they White for occupying it. In essence, as the district court found, are allayed by Jackson v. City of Columbus, which holds that the reassignment was a demotion evidenced by “indices . . . a suspension with pay and full benefits pending a timely unique to [the] particular situation.” Kocsis, 97 F.3d at 886; investigation into suspected wrongdoing is not an adverse see also Burlington Indus., Inc., 524 U.S. at 761 (defining employment action. 194 F.3d 737, 752 (6th Cir. 1999). In “tangible employment action” for purposes of Title VII Jackson, we held that there was no adverse employment liability as including a job “reassignment with significantly action when a mayor effectively suspended with pay a police different responsibilities”); Mattei, 126 F.3d at 808 (stating chief for four days pending an investigation of the police that transferring an employee at the same salary to “some chief’s alleged improper conduct in office. See id. at 744 wretched backwater” is “clearly” actionable in a retaliation (noting that the mayor referred to the suspension with pay of claim). the police chief as a reassignment “to his residence”).8 D. Evidence of Pretext C. Job Transfer Having rejected Burlington Northern’s arguments that there Next we consider whether the job transfer at issue in the was no adverse employment action taken against White, we present case was an adverse employment action. Burlington now address Burlington Northern’s alternative argument in Northern appeals the district court’s decision that transferring support of reversing the district court’s denial of its motion White from her forklift operator job to a standard track for judgment as a matter of law. Burlington Northern appeals laborer job was an adverse employment action. We agree the district court’s decision that there was sufficient evidence with the district court. from which the jury reasonably concluded that Burlington Northern’s asserted legitimate, non-discriminatory reasons for While the standard track laborer job paid the same as the removing White from the forklift position and then forklift operator position, White’s new position was by all suspending her were pretexts for unlawful retaliation. We accounts more arduous and “dirtier.” Furthermore, the agree with the district court. forklift operator position required more qualifications, which is an indication of prestige. See Kocsis, 97 F.3d at 886-87 White presented to the jury substantial evidence to contradict Burlington Northern’s asserted legitimate reasons, including contradictory statements from Burlington 8 The National Employment Lawyers Association in its amicus curiae Northern’s own officers. Burlington Northern asserted one brief on behalf of White concedes that a suspension with pay pending a reason for transferring White in its interrogatory response, but timely, good-faith investigation does not constitute an adverse then Brown, the official who made the decision to transfer employment action and recommends this course to employers concerned abo ut possible m isconduct. White, asserted a different, contradictory reason at trial. Nos. 00-6780; 01-5024 White v. Burlington Northern 27 28 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Furthermore, Brown testified that he transferred White in part III. ATTORNEY’S FEES based upon complaints from Ellis, but at trial Ellis denied complaining about White. Regarding the suspension, the Burlington Northern’s last issue on appeal is a challenge to evidence was not even consistent regarding who made the the amount the district court awarded White in attorney’s decision, much less the motivation for the decision. Brown fees. The district court awarded White eighty percent of her testified that Sharkey made the decision to suspend White, attorney’s fees based on her degree of success in the lawsuit. while Sharkey testified that Brown made the decision. Burlington Northern argues that White was not as successful Burlington Northern asserts that Brown suspended White for as the district court found and that her attorney’s fee award insubordination, but another Burlington Northern official who should be reduced. served as a hearing officer for White’s internal grievance concluded that White had not been insubordinate. White’s We review a district court’s determination regarding the second EEOC charge accused Brown of violating Title VII, amount of an award of attorney’s fees under Title VII for an and White was suspended three days after this charge was abuse of discretion. Scales v. J.C. Bradford and Co., 925 mailed to Brown. F.2d 901, 909 (6th Cir. 1991). “This deference, ‘is appropriate in view of the district court’s superior Based upon all the evidence, including the contradictory understanding of the litigation and the desirability of avoiding evidence from Burlington Northern’s own officers, the jury frequent appellate review of what essentially are factual was entitled to find that Burlington Northern’s asserted matters.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, legitimate reasons were false and were pretext for unlawful 437 (1983)). Under Title VII, a district court has discretion retaliation. See Reeves, 530 U.S. at 147 (holding that a jury to award a prevailing party “a reasonable attorney’s fee.” 42 is entitled to treat a party’s dishonesty about a material fact as U.S.C. § 2000e-5(k). In determining what constitutes a evidence of culpability). reasonable attorney’s fee, the degree of success achieved in the lawsuit is a crucial factor. Scales, 925 F.2d at 910. Although we may have awarded a different amount if we were considering the issue de novo, we do not find that the district court abused its discretion in awarding White eighty percent of her attorney’s fees. White brought two claims in this lawsuit (sex discrimination and retaliation) but only prevailed on one (retaliation). As the district court correctly stated in its written decision, however, both of these claims arose from a common set of facts, and it would be difficult to divorce work done on one claim from work done on the other. In light of this consideration and others addressed by the district court in its decision, we find that the district court did not abuse its discretion in awarding White eighty percent of her attorney’s fees. Nos. 00-6780; 01-5024 White v. Burlington Northern 29 30 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

IV. PUNITIVE DAMAGES 1990) (declining to apply a higher standard of proof than preponderance of the evidence for punitive damages award in In her cross-appeal, White asserts that the district court products liability case because “such a change is best left for erred in charging the jury on punitive damages. The district Congress or for higher judicial authority”); In re Exxon court instructed the jury that punitive damages may be Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001) (applying considered if White showed by “clear and convincing” preponderance standard to award of punitive damages in evidence that Burlington Northern acted “either intentionally, maritime case because Congress has not legislated a higher recklessly, maliciously, or fraudulently.” The jury did not standard), and with respect to punitive damages in Title VII award White punitive damages. White contends that the suits, see Karnes v. SCI Colorado Funeral Servs., Inc., 162 appropriate burden of proof on a claim for punitive damages F.3d 1077, 1080-82 (10th Cir. 1998) (concluding that a under Title VII is a preponderance of the evidence, not clear preponderance of the evidence standard is applicable to and convincing evidence. White is correct. claims for punitive damages under Title VII); Notter v. N. Hand Prot., No. 95-1087, 1996 WL 342008, at *10-11 (4th According to Title VII, “[a] complaining party may recover Cir. June 21, 1996) (rejecting argument that the standard of punitive damages under this section against a respondent . . . proof for punitive damages in Title VII case is clear and if the complaining party demonstrates that the respondent convincing evidence because “[i]n discrimination cases engaged in a discriminatory practice or discriminatory brought under federal law, punitive damages need be proven practices with malice or with reckless indifference to the only by a preponderance of the evidence”). federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1); see also Kolstad v. Am. Dental Ass’n, The dissenting opinion states that punitive damages are an 527 U.S. 526 (1998) (discussing what a plaintiff must prove unconventional form of relief and therefore deserve a to recover punitive damages under Title VII). Title VII is heightened standard of proof. Unquestionably, punitive silent concerning the evidentiary standard for demonstrating damages serve a different purpose than compensatory malice or reckless indifference for purposes of a punitive damages. The requirement that punitive damages be awarded damages claim. In the absence of more specific guidance, only when a defendant acts maliciously or recklessly “[c]onventional rules of civil litigation generally apply in recognizes this difference in purpose and ensures that punitive Title VII cases, and one of these rules is that parties to civil damages will be awarded only in the most egregious cases. litigation need only prove their case by a preponderance of Punitive damages are not, however, unconventional in the the evidence.” Price Waterhouse v. Hopkins, 490 U.S. 228, sense that they are a new or nontraditional form of relief. In 253 (1989) (plurality decision) (internal citation omitted); see fact, punitive damages have a long history in American civil also Desert Palace, Inc. v. Costa, 123 S.Ct. 2148, 2154 litigation, where the traditional standard of proof has been (2003) (holding that Title VII’s silence with respect to an “preponderance of the evidence.” See generally Jury evidentiary standard suggests that a conventional Determination of Punitive Damages, 110 Harv. L. Rev. 1513, preponderance of the evidence standard applies). 1531-32 (1997) (recognizing that preponderance of the evidence is the traditional civil standard of proof). Cf. Smith Other circuits have reached this same conclusion with v. Wade, 461 U.S. 30, 53-56 (1983) (noting that “[t]here has respect to punitive damages claims generally, see Simpson v. never been any general common-law rule that the threshold Pittsburgh Corning Corp., 901 F.2d 277, 282-83 (2d Cir. for punitive damages must always be higher than that for Nos. 00-6780; 01-5024 White v. Burlington Northern 31 32 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

compensatory liability” and rejecting actual malicious intent restrictions on punitive damage awards guard against requirement for punitive damage award in § 1983 cases, even excessive awards. when underlying standard of liability for compensatory damages is recklessness). Besides identifying trends at the state level, the dissent also cites cases that involve due process challenges to the The dissent, unable to point to any precedent imposing a application of a preponderance of the evidence standard of higher standard of proof for Title VII punitive damages proof. Some of these cases concern situations wholly claims than preponderance of the evidence, also relies on unrelated to punitive damages claims. See Addington v. authority not directly germane to the issue at hand. For Texas, 441 U.S. 418, 431-33 (1979) (resolving, in the face of instance, the dissent notes that, in recent years, public policy a due process challenge, the standard of proof required in a concerns, primarily about excessive punitive damage awards, civil commitment hearing); Santosky v. Kramer, 455 U.S. have prompted many states to adopt a “clear and convincing” 745, 747-48 (1982) (determining the standard of proof that standard of proof for punitive damages. Trends at the state due process demands in the context of a parental rights level, however, do not inform our consideration of punitive termination proceeding). Other cases cited by the dissent damages claims under the federal Title VII statute. In fact, implicate a due process challenge to large punitive damage the dissent’s statistics indicate that, while many states applied awards. See State Farm Mut. Auto. Ins. Co. v. Campbell, 123 a heightened standard of proof to state punitive damage S. Ct. 1513, 1519-20 (2003); Pacific Mut. Life Ins. Co. v. claims at the time that Title VII was amended to permit such Haslip, 499 U.S. 1, 19 (1991). While the Supreme Court has claims in 1991, a majority of states at that time chose not found excessive punitive damages awards to be violative of apply a heightened standard. due process, State Farm, 123 S. Ct. at 1526, the Court has specifically rejected the notion that the Due Process Clause Moreover, to the extent that concerns about excessive requires a higher standard of proof for punitive damages punitive damage awards prompted the adoption of heightened claims than preponderance of the evidence. Pacific Mut. Life standards of proof before or after 1991, those concerns do not Ins., 499 U.S. at 23 n.11. The sole bit of assistance derived exist under the Title VII statutory scheme. Under Title VII, from any of these cases is the Court’s direct rejection in damage awards – both compensatory and punitive – are Pacific Mutual of the notion that the Constitution requires a capped, with $300,000 being the largest sum that can be standard of proof any higher than preponderance of the awarded to a claimant against the largest employers, those evidence for punitive damages claims. with 500 or more employees.9 42 U.S.C. § 1981a(b)(3)(D). The $300,000 limit is imposed on the sum of the The only case relied on by the dissent that could be compensatory and punitive damage awards; there is no instructive is Woodby v. INS, 385 U.S. 276 (1966), where the separate limit for each type of damages. 42 U.S.C. Supreme Court considered the standard of proof for a § 1981a(b)(3). Thus, Title VII’s own quite substantial deportation hearing. As in the instant case, the Court in Woodby was confronted with determining the standard of proof when “Congress has not addressed itself to the question 9 of what degree of proof is required . . . .” Id. at 284. In The limits are lower for smaller employers, with the lowest limit being $50,000 for employers with 15-100 employees. 42 U.S .C. Woodby, the Court held that for deportation proceedings, the § 1981 a(b)(3)(A)-(D). standard of proof was “clear, unequivocal, and convincing Nos. 00-6780; 01-5024 White v. Burlington Northern 33 34 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

evidence,” id. at 286, which the dissent apparently references generally apply in Title VII cases.” Price Waterhouse, 490 for the proposition that we should apply the same standard of U.S. at 253. proof here. While Woodby is helpful in its reminder that the judiciary has traditionally resolved the question of the proper Therefore, the district court erred when it instructed the jury standard of proof under a federal statute when Congress has that White must prove her case for punitive damages by clear not addressed the issue, id. at 284, it gives us no direction in and convincing evidence. The district court, however, also this case. Its reasoning is based on the immediate hardship of erred when it instructed the jury that White only needed to deportation. Deportation, as an outcome of an administrative prove that Burlington Northern acted “either intentionally, and judicial proceeding, bears little similarity to an award of recklessly, maliciously, or fraudulently.” As noted above, a damages, particularly an award under Title VII, which plaintiff seeking punitive damages under Title VII must prove Congress has carefully restricted to limit its potential harm to that the defendant acted “with malice or with reckless employers. indifference to the federally protected rights of an aggrieved individual.” This standard requires a plaintiff to prove more Accordingly, in determining the proper standard of proof than merely intentional discrimination. Kolstad, 527 U.S. at for a punitive damage claim under Title VII, we receive no 536-37 (explaining standard). In addition, the Supreme Court specific guidance from the statutory language of the Act. has stated that only under certain conditions may an employer Supreme Court precedent offers some assistance, however. be vicariously liable for punitive damages under Title VII. Deriving that guidance from Price Waterhouse and Desert Id. at 545 (specifying conditions). Palace – both of which specifically discuss standards of proof in Title VII cases – is more appropriate than looking to the Finally, the dissent questions whether plaintiff has Supreme Court’s views on the standard of proof in dissimilar presented sufficient evidence to submit the punitive damages contexts or its stray comments about state or federal standards issue to a jury under either standard and would resolve the of proof in the course of deciding other issues. While there issue in defendant’s favor without remand. While defendant have been developments concerning the standard of proof for argues generally that plaintiff’s evidence was insufficient to punitive damages claims at the state level, these trends do not permit an award of punitive damages, the parties did not support the conclusion that the “clear and convincing” analyze the evidence with any specificity under either standard applies to federal punitive damage claims under Title potentially applicable standard of proof in their briefing to VII, which has its own limitations on punitive damage this court. Nor have we focused on the sufficiency of the awards. Furthermore, as this case does not implicate a due evidence to permit a punitive damage award, since this was process challenge to the size of a punitive damages award, or not the reason we granted an en banc hearing. We cannot to the standard of proof used in civil commitment hearings, find that the evidence is insufficient on a damage issue simply hearings terminating parental rights, or in the context of because judicial officers may disagree on an issue relating to deportation, we do not find the dissent’s cited authority to be liability, as the dissent suggests. Rather, in order to decide persuasive. Rather – in deciding the standard of proof to be whether a trier of fact could award punitive damages in this applied to plaintiff’s claim for punitive damages under Title case, a careful examination of the entire record is required. VII – we choose to follow the guidance provided by the This exercise is most appropriately undertaken in the first Supreme Court that “[c]onventional rules of civil litigation instance by the district court. If the district court determines on remand that the evidence is sufficient to support a claim Nos. 00-6780; 01-5024 White v. Burlington Northern 35 36 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

for punitive damages under the standard announced by the _____________________ Supreme Court in Kolstad, then the district court should conduct a new trial on the issue of punitive damages only. CONCURRENCE _____________________ V. CONCLUSION CLAY, Circuit Judge, concurring. I join Parts I, III, and IV For all these reasons, we affirm the district court’s denial of of the majority opinion. I also agree with Part II insofar as it Burlington Northern’s motion for judgment as a matter of law rejects the untenable “ultimate employment action” doctrine, and the district court’s award of attorney’s fees to White. We concludes that Sheila White’s removal from her forklift conclude, however, that the district court erred in instructing position and her thirty-seven-day suspension constitute the jury on the issue of punitive damages, and therefore we adverse employment actions within the meaning of Title VII, remand the case for further proceedings consistent with this and affirms the district court’s denial of Burlington’s Rule 50 opinion. motion. Although the majority properly rejected the “ultimate employment action” doctrine this court embraced in Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545-46 (6th Cir. 1999), I would be remiss if I failed to point out that such an express rejection of the “ultimate employment action” doctrine effectively overrules Dobbs-Weinstein. I write separately, however, because I disagree with the rule the majority today embraces with respect to what constitutes an adverse employment action within the meaning of Title VII’s anti-retaliation provision, 42 U.S.C. 2000e-3(a). Instead, I believe that the appropriate standard is the one articulated in the Ninth Circuit and advocated by the EEOC; i.e., an employer’s retaliatory action is sufficiently adverse for § 704(a) purposes if it would be “reasonably likely to deter [employees] from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). The “reasonably likely to deter” standard is more consistent with § 704(a)’s statutory language and congressional intent, as well as Supreme Court case law. Nos. 00-6780; 01-5024 White v. Burlington Northern 37 38 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

A. Why the “Reasonably Likely to Deter” Rule is the a decision to undertake retaliatory action must materially Appropriate Standard for a Retaliation Case affect the terms and conditions of employment in order to violate its proscriptions. Indeed, the most natural reading of 1. Statutory and Case Law Support this language is that it prohibits any form of discrimination against an individual for opposing discrimination or filing a The Supreme Court has repeatedly instructed courts, as a charge, regardless of whether that discrimination takes the first step in interpreting a statute, “to determine whether the form of, for example, termination, suspension, lateral transfer, language at issue has a plain and unambiguous meaning with harassment, or discipline. At least some of the circuits have regard to the particular dispute in the case.” Robinson v. Shell expressly agreed. Smith v. Sec’y of Navy, 659 F.2d 1113, Oil Co., 519 U.S. 337, 340, (1997). The inquiry is at an end 1119 n.56 (D.C. Cir. 1981) (noting that the language of the “if the statutory language is unambiguous and ‘the statutory anti-retaliation provision “speaks unconditionally” and is not scheme is coherent and consistent.’” Id. (quoting United “limit[ed] to acts causing particular harms such as the loss of States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)). a particular job or promotion”); Ray, 217 F.3d at 1243 (noting It is readily apparent from a reading of § 704(a) that Congress that language of the anti-retaliation provision “does not limit placed no limitations on the reach of the anti-retaliation what type of discrimination is covered, nor does it prescribe provision. a minimum level of severity for actionable discrimination”); Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) Section 704(a) states that “[i]t shall be an unlawful (“There is nothing in the law of retaliation that restricts the employment practice for an employer to discriminate against type of retaliatory acts that might be visited upon an any of his employees . . . because [the employee] has opposed employee . . . .”). any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . under this Incorporating by reference the limitations placed on subchapter.” 42 U.S.C. § 2000e-3(a). The word “discriminate” in § 703(a) into “discriminate” in § 704(a) is “discriminate,” in turn, is not defined in Title VII, but the altogether inappropriate. Such incorporation by reference is scope is impliedly quite broad. A review of other Title VII appropriate only when it is consistent with Congress’ provisions is revealing, inasmuch as § 703(a) prohibits expressed intent. Section 704(a)’s legislative history is scant, employers from “fail[ing] or refus[ing] to hire or to discharge and therefore we are left to look to its plain legislative text. any individual, or otherwise to discriminate against any Congress could quite easily have placed the same limitation individual with respect to his compensation, terms, on § 704(a) as it did on § 703(a), yet it chose not to do so. conditions, or privileges of employment, because of such Congress’ legislative intent, by all indications, was to remove individual's race, color, religion, sex, or national origin.” 42 all obstacles from an employee’s ability to defend his or her U.S.C. § 2000e-2(a)(1) (emphasis added). Thus, both Title VII rights by filing EEOC charges. §§ 703(a) and 704(a) use the term “discriminate,” but only the general discrimination provision (§703(a)) places limitations The Supreme Court, in Russello v. United States, confirmed on the word “discriminate.” Congress chose not to place any its view against narrowly construing the meaning of a statute limitations on “discriminate” within the meaning of § 704(a). when the plain language unambiguously expressed its Thus, a straightforward reading of the § 704(a)’s plain text legislative purpose and intent. 464 U.S. 16, 23 (1983). In makes clear that there is no statutory support for the idea that determining the proper applicability of the word “interest” as Nos. 00-6780; 01-5024 White v. Burlington Northern 39 40 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

used in 18 U.S.C. §1963(a)(1) in the context of a RICO case, him a negative employment reference to a potential employer. the Supreme Court held that ‘“[w]here Congress includes Id. There was no allegation that the former employer itself particular language in one section of a statute but omits it in had made an ultimate employment decision, or that it took another section of the same Act, it is generally presumed that any adverse action that materially altered the plaintiff’s job Congress acts intentionally and purposely in the disparate responsibilities. (Indeed, it could not have done so, given that inclusion or exclusion.”’ Russello, 464 U.S. at 23 (quoting the plaintiff was no longer working for the employer at the United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. time.) Nevertheless, a unanimous Court allowed the 1972). Specifically, in discussing the particular statutory plaintiff’s claim to proceed after holding that former provision at issue, the Court noted that “[t]he argument for a employees may challenge retaliatory actions. Id. at 346. narrow construction of § 1963(a)(1) is refuted by the language Although Robinson dealt specifically with the issue of of the succeeding subsection (a)(2). The former speaks determining who is an “employee” for purposes of Title VII’s broadly of ‘any interest . . . acquired,’ while the latter reaches anti-retaliation provision (as opposed to what constitutes an only ‘any interest in . . . any enterprise which [the defendant] adverse employment action), its reasoning is pertinent: a has established[,] operated, controlled, conducted or former employee counts as an employee within the meaning participated in the conduct of in violation of section 1962.’” of § 2000e-3(a), because otherwise an employee could be Id. (quoting 18 U.S.C. § 1962). The Court went on to express fired in retaliation and not be able to sue. In so holding, the its belief that if Congress had intended to restrict § 1963 Court noted that an alternative statutory interpretation would (a)(1), it presumably would have done so expressly as it did have undermined or vitiated one of Title VII’s most important in the immediately following subsection. Id. purposes–maintaining “unfettered access to statutory remedial mechanisms.” Id. Contrary to the majority opinion, this Court has already embraced this logic. In Lynch v. Johns-Manville Sales Corp., In line with the teachings of Robinson and the Supreme we held that when looking to stay proceedings in a Court’s view that § 704(a) should not be limited in its Chapter 11 bankruptcy context, a solvent co-defendant may construction, this Court, in EEOC v. Ohio Edison, also not use the automatic stay provision in 11 U.S.C. § 362(a), interpreted § 704(a) to be a broad anti-retaliation provision when the said provision facially stays proceedings “against that should reach as far as its intended protections allow. the debtor,” and fails to suggest that these rights may be 7 F.3d 541, 545-46 (6th Cir. 1993) (holding that Title VII’s invoked by any one other than the defendant. 710 F.2d 1194, protections against retaliation extended to situations where an 1198 (6th Cir. 1983). The Court noted “[it] is a fundamental employee was discriminated against because his rule of statutory construction that inclusion in one part of a representative opposed an unlawful employment practice). In congressional scheme of that which is excluded in another reaching this result, we stated that “[i]n enacting section part reflects a congressional intent that the exclusion was not 2000e-3, Congress unmistakably intended to ensure that no inadvertent.” Id. at 1197. person would be deterred from exercising his rights under Title VII by the threat of discriminatory retaliation.” Id. at The Supreme Court case, Robinson v. Shell Oil Co., 519 543. We relied, in part, on the Supreme Court’s analysis of U.S. 337, 340 (1997), views § 704(a)’s legislative intent in statutory interpretation in NLRB v. Scrivener, which held that this manner. In Robinson, the plaintiff sued his former “the language of a statute should not be read strictly, but employer, alleging that it had retaliated against him by giving should ‘be read more broadly’ if such a reading was also Nos. 00-6780; 01-5024 White v. Burlington Northern 41 42 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

consistent with the ‘purpose and objective’ of the prohibition ‘demonstrat[e]’ that an employer used a forbidden made illegal by the statute.” Id. at 545 (quoting NLRB v. consideration with respect to ‘any employment practice.’” Id. Scrivener, 405 U.S. 117, 122 (1972)). On its face, “the statute does not mention, much less require, that a plaintiff make a heightened showing through direct Additionally in Mattei v. Mattei, this Court once again evidence.” Id. The Court was further persuaded by a review chose to interpret the Title VII’s anti-retaliation provision of the term “demonstrates,” which Title VII, as amended in broadly, as to prohibit any kind of adverse action. 126 F.3d the 1991 Civil Rights Act, defined as “to ‘mee[t] the burdens 794, 798 (6th Cir. 1997). There, we were asked to give of production and persuasion.’” Id. at 2154 (citing 42 U.S.C. meaning to the concept of discrimination as it is used in the § 2000e(m)). The Court added, “If Congress intended the Employee Retirement Income Security Act (“ERISA”). Id. term‘demonstrates’ to require that the ‘burdens of production The ERISA provision at issue was § 510 which made it and persuasion’ be met by direct evidence or some other unlawful, under certain circumstances, to “discriminate heightened showing, it could have made that intent clear by against” a participant or beneficiary. Id. at 797 (quoting 29 including language to that effect in § 2000e(m). Its failure to U.S.C § 1140). The majority found guidance in Title VII’s do so is significant, for Congress has been unequivocal when and the ADEA’s interpretive use of the phrase “discriminate imposing heightened proof requirements in other against,” noting that neither of these Acts defined this phrase, circumstances, including in other provisions of Title 42.” Id. but rather their respective provisions “are consistently at 2154. Desert Palace is instructive, inasmuch as it interpreted . . . to forbid an employer to take any kind of cautioned courts not to read limitations into statutory adverse action against an individual because he has engaged language, particularly where Congress expressly limited such in [] protected activity . . . .” Id. at 806 (emphasis in original). terms in other provisions of the same title yet declined to do We concluded that because the ERISA anti-retaliation so in the presently reviewed statutory provision. We are provision at issue used the same phrase (“discriminate faced with precisely the same situation. Section 703(a) against”) as the Title VII and ADEA provisions, and was expressly limited the scope of “discriminate” to actions enacted after them, it was proper to assume that Congress relating to the employee’s “compensation, terms, conditions, intended for the ERISA provision “to have the same basic or privileges of employment.” Section 704(a) could just as meaning.” Id. at 806. easily have limited its scope of “discriminate,” yet chose not to do so. It is abundantly clear that the lessons of Desert Even more recently, the Supreme Court has cautioned Palace dictate that we not read such limitations into § 704(a) courts against unwarranted limitations on otherwise now. unambiguous statutory text. In Desert Palace, Inc. v. Costa, the Supreme Court rejected the approach of many circuits to 2. Administrative Agency Support limit a Title VII plaintiff’s ability to receive a mixed-motive jury instruction in cases where direct evidence of In addition to support from the statutory text and Supreme discrimination had not been submitted at trial, determining Court case law, there is administrative agency support for the that a “direct evidence” requirement “is inconsistent with the “reasonably likely to deter” view, inasmuch as the EEOC has text of [42 U.S.C. § 2000e-2(m)].” 123 S.Ct. 2148, 2153 interpreted 42 U.S.C. § 2000e-3 in this manner. While it is (2003). The Court reasoned, in pertinent part, that the true that the EEOC Compliance Manual on Retaliation is not § 2000e-2(m) “unambiguously states that a plaintiff need only binding authority, the guidelines nevertheless “constitute a Nos. 00-6780; 01-5024 White v. Burlington Northern 43 44 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

body of experience and informed judgment to which courts Title VII by the threat of discriminatory retaliation.’” EEOC and litigants may properly resort for guidance.” Meritor Sav. v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993). Bank v. Vinson, 477 U.S. 57, 65 (1986) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). It is persuasive Indeed, the “materially adverse” rule would allow many authority. According to the EEOC, an “adverse employment types of retaliatory actions to go completely unaddressed and action” means “any adverse treatment that is based on a unpunished. For instance, the D.C. Circuit has held that retaliatory motive and is reasonably likely to deter the negative job references to prospective employers and charging party or others from engaging in protected activity.” cancelling public events honoring an employee constitute EEOC Compliance Manual Section 8, “Retaliation,” ¶ 8008 retaliatory behavior, even though such retaliatory actions do (1998). Under this approach, a number of retaliatory actions not affect the terms and conditions of one’s employment. which are not expressly encompassed in a “materially Passer v. Am. Chem. Soc’y, 935 F.2d 322, 331 (D.C. Cir. adverse” standard would fall into the ambit of a § 704(a) 1991). The “materially adverse” rule does not make clear violation, so long as they are reasonably likely to deter whether such adverse behavior on an employer’s part would employees from engaging in protected activity. The EEOC’s fall within the ambit of § 704(a). It also seems to leave open test is not unlimited however, for instance, “petty slights and the issue of retaliatory harassment. See Causey v. Balog, 162 trivial annoyances are not actionable, as they are not likely to F.3d 795, 803 (4th Cir. 1998) (recognizing the validity of a deter protected activity.” EEOC Compliance Manual Section § 704(a) retaliatory harassment claim). 8, “Retaliation,” 8-14. As the Ninth Circuit observed, the focus is not on the “ultimate effects of each employment Contrary to the majority’s position, the Ninth Circuit’s action,” but rather on the “deterrent effects.” Ray, 217 F.3d “reasonably like to deter” standard adequately addresses the at 1243. Given the primary purposes of Title VII’s anti- many varied forms of retaliation while safeguarding against retaliation provision, this is where the emphasis properly lies. a slippery slope effect by disallowing employees from litigating trivial annoyances. The inquiry would not be 3. Policy Considerations whether any adverse action has been taken but whether, as a matter of law, the adverse action would deter a reasonable From a policy (and logical) perspective, many factors employee from engaging in protected activity. This ferrets support an interpretation of adverse employment action that out suits alleging frivolous harms, while maintaining suits for extends beyond the boundaries of an employment decision very deleterious actions such as supervisor harassment. that materially affects the terms and conditions of Moreover, there are no indications that the broad rules still employment. employed in the Ninth, Tenth, and Eleventh Circuits1 have As noted above, a “materially adverse” standard would undermine the driving force behind § 704(a), which is to 1 See Hashimoto v. Dalton, 118 F.3d 6 71 (9th Cir. 1997) (holding that maintain “unfettered access to statutory remedial negative job references are actionable under § 704(a)); Ray, 217 F.3d at mechanisms.” Robinson, 519 U.S. at 346. This Court has 1243; Jeffries v. Kansa s, 147 F.3d 122 0, 12 31-3 2 (10th Cir. 1998) similarly observed that Congress, in enacting Title VII’s anti- (holding that, “[i]n recognition of the remedial nature of Title VII, the law retaliation provision, “‘unmistakably intended to ensure that in this circuit liberally defines adverse emp loyment action” and “takes a case-by-case approach to determining whether a given employment action no person would be deterred from exercising his rights under is ‘adverse’”); Berry v. Stevinso n Chevrolet, 74 F .3d 9 80, 9 84-8 6 (10th Nos. 00-6780; 01-5024 White v. Burlington Northern 45 46 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

opened unmanageable floodgates to aggrieved Title VII In fact, this Court, in Thaddeus-X v. Blatter, previously plaintiffs. embraced such an objective standard which the majority now claims to be unreasonable. 175 F.3d 378, 396 (6th Cir. 1999) B. Why the Majority Opinion Incorrectly Rejected the (en banc). In Thaddeus-X, a case involving a § 1983 action “Reasonably Likely to Deter” Rule brought by the state inmates against prison officials based on alleged retaliation, we adopted an objective standard in Notwithstanding legislative, Supreme Court, and determining what constitutes an “adverse action.” Id. at 396. administrative support for a broad rule, the majority rejects In determining “whether actions of lesser severity merit being the “reasonably likely to deter” standard, citing reasons that deemed ‘adverse’ for purposes of a retaliation claim, we are less than persuasive. The majority suggests that the adopt[ed] the standard suggested by Judge Posner in Bart v. “reasonably likely to deter” standard is too broad. Yet the Telford, 677 F.2d 622, 625 (7th Cir. 1982), that an adverse rule is no broader than the statutory language requires; nor is action is one that would ‘deter a person of ordinary firmness’ it any broader than that which is utilized in tort cases, which from the exercise of the right at stake.” Id. We reasoned that often involves a “case-by-case” analysis when compelling “[t]he benefits of such a standard are that it is an objective courts to employ a “reasonable person” standard in inquiry, capable of being tailored to the different determining what constitutes a duty of care. The reasonable circumstances in which retaliation claims arise, and capable person standard is readily understandable, is not burdensome of screening [out] the most trivial of actions from and is commonly used in legal discourse.2 constitutional cognizance.” Id. at 398. Moreover, The Ninth, Tenth, and Eleventh Circuits all employ such an objective standard, specifically in the Title VII context, and by so doing, none of the Circuits appear to Cir. 1996) (construing Title VII’s anti-retaliation provision to protect an have had any difficulty in determining what is adverse and employee from a malicious prosec ution action brought by a former what is frivolous. See, e.g., Doe v. Dekalb County School employer); Wideman v. Wal-Mart Sto res, Inc ., 141 F.3d 145 3, 14 56 (11th Cir. 1998) (holding that negative job ev aluations, demo tions, suspensions, Dist., 145 F.3d 1441, 1449 (11th Cir. 1998) (taking an disadvantageous transfer and toleration of harassmen t may be actionable “objective approach” to its case-by-case standard). as a retaliation claim). Furthermore, retaliation requires a broad rule because 2 Cf. Mo rris v. Wa l-ma rt Stores, Inc., 330 F.3d 854 (6th C ir. 2003) retaliation can take many forms, perhaps more than Congress (holding, under Tennessee law, that the reasonable person standard is at the time of its drafting could think of or reasonably utilized to determine whether or not sufficient evidence exists when anticipate. Nevertheless, it is not the function of this Court to contemplating a directed verdict motion in a res ipsa loquitur negligence case); U.S. v. Jones, 335 F.3d 52 7 (6th Cir. 2003) (employing a graft its own policy values onto a statute; rather, it is this reaso nable person standard when adjudicating the presence of apparent Court’s responsibility to discern Congress’ legislative intent authority to determine whether entry was consensual in a Fourth in enacting the statute. In other words, we must determine Amendm ent context); Five Cap, Inc., v. National Labor Relations Boa rd, whether Congress, not this Court, would envision a plaintiff 294 F.3d 768, 786 (6th Cir. 2002) (emp loying the objective “reasonable like Sheila White receiving relief from the retaliatory actions person” standard when determining whether or not work conditions are so “unbe arable” as to violate § 8(a)(3) of the National Labor Relations allegedly perpetrated against her by Burlington Northern. Act). Congress’ intent is manifest: to provide employees who have Nos. 00-6780; 01-5024 White v. Burlington Northern 47 48 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

been victimized by discrimination with access to appropriate situation.” Accordingly, if the goal is to provide guidance statutory remedies under Title VII. Robinson, 519 U.S. at while making individual review obsolete, it would be more 346. advantageous to utilize a better defined inquiry than that of Kocsis’ “indices unique to a particular situation.” This is The majority’s approach would utilize the same standard particularly so when there is an alternative approach available for §§ 703 and 704 so that it would not be necessary to which would also advance Title VII’s goal of equal access to undertake individual reviews under the separate sections of its protections under the law. In the present case, the majority the statute when cases arise. This approach similarly is opinion concluded that the forklift transfer constituted an unavailing since Title VII’s statutory language indicates that adverse employment action by classifying Burlington Congress intended for courts to treat general discrimination Northern’s action as an example of “indices unique to a differently than retaliatory discrimination. Indeed, the recent particular situation.” While that may satisfactorily dispose of Supreme Court case of Desert Palace emphasized the the present case, the majority opinion leaves unclear what importance of statutory construction and the significance of other types of adverse actions would fall within the ambit of statutory language as the starting point for a court’s analysis. this category, absent a better delineation of the category. As 123 S.Ct. at 2153. Moreover, different purposes are involved a result, employers like Burlington Northern could continue here and it is logical that the two sections would be treated to hide behind mere technicalities and claim that other differently. Section 703(a) of Title VII never expected to deleterious harms not encompassed in today’s ruling, such as shield protected groups from every little slight they employer-sanctioned retaliatory harassment, do not qualify as encounter; its purpose was to assist in getting discriminated- adverse employment actions when the employee does not against plaintiffs into the American workforce and to keep experience a demotion or a material change of duties. them there. As far as retaliation is concerned, congressional intent was clear: to provide “unfettered access to statutory The majority suggests that the EEOC’s position, in remedial mechanisms.” Robinson, 519 U.S. at 346. advocating the “reasonably likely to deter” standard, is inconsistent with its concession that legally cognizable Contrary to the majority’s suggestion, the rule on adverse adverse action should not encompass trivial slights. Yet no employment actions to which the majority opinion adheres is inconsistency is apparent. It is logical that a person pursuing quite ambiguous. In an attempt to obviate the need for a solutions prescribed by EEOC standards would reasonably court’s case-by-case determination of what actions by an expect some backlash, in the form of a limited number of employer would be “reasonably likely to deter” an employee negative consequences, some unhappy colleagues and perhaps from engaging in protected activity, the majority points to this even some ostracism. The EEOC’s recommendation, Court’s case law regarding what constitutes a “material however, allows redress only for those plaintiffs who can adverse employment action.” The majority relies on Kocsis show that such retaliatory actions would reasonably deter the v. Multi-Care Management, Inc., which requires courts to charging party from engaging in protected activity. EEOC look to “indices unique to a particular situation,” when Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998). The considering whether or not an employment action is majority essentially seeks to dismiss the EEOC’s approach materially adverse. 97 F.3d 876, 886 (6th Cir.1996). This because it supposedly lacks safeguards against trivial and approach ultimately requires a case-by-case review to petty allegations; however, by purporting to exclude trivial determine what is “unique” and what is not in each “particular and unsubstantiated allegations in order to define the Nos. 00-6780; 01-5024 White v. Burlington Northern 49 50 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

“adverse-employment-action element” narrowly so as not to misplaced. In Burlington, the Supreme Court, in devising an frustrate the purpose of Title VII, the majority actually agency principle to govern employer liability for a impedes Title VII’s effectiveness. supervisor’s harassment of an employee, observed that an employer is always liable for a discriminatory “tangible Moreover, the majority suggests that the “materially employment action.” The Court distinguished tangible adverse” requirement, “properly interpreted . . . accomplishes employment actions from actions not obviously attributable [§ 704(a)’s purposes] while appropriately counterbalancing to the employer, defining tangible employment actions as “the the need to prevent lawsuits based upon trivialities” and that means by which the supervisor brings the official power of the “indices . . . unique to a particular situation” standard the enterprise to bear on subordinates.” Id. at 762. A tangible accurately captures all other non-trivial actions taken against employment action “requires an official act of the enterprise, the employee. Yet Hollins v. Atlantic Co., 188 F.3d 652, 662 a company act,” and would include such acts “as discharge, (6th Cir. 1999), which utilized the “materially adverse” demotion, or undesirable reassignment.” Id. at 765. standard, rejected the employee’s argument that her Elsewhere in the opinion the Court observed that “[a] tangible unwarranted negative job evaluation constituted an adverse employment action constitutes a significant change in employment action simply because it was not accompanied employment status, such as hiring, firing, failing to promote, by monetary loss or anything else falling into the penumbra reassignment with significantly different responsibilities, or of adverse actions listed in Kocsis, 97 F.3d at 886. In other a decision causing a significant change in benefits.” words, the “materially adverse” standard was ineffective in Burlington, 524 U.S. at 761. However, Burlington addressed Hollins, because a negative job evaluation is not trivial; it is Title VII’s § 703(a), not § 704(a) and, as discussed earlier, the tangible. It is a black mark on one’s record that can have respective scopes of § 703(a) and 704(a) necessarily differ.3 severe future consequences for an employee, inasmuch as an employer can use the unwarranted negative job evaluation to C. Conclusion deny the employee future promotions. Similarly, it leaves unaddressed such other deleterious harms such as employer- In 1999, a panel of this Court held that an adverse sanctioned retaliatory harassment. The Hollins court made no employment action, for purposes of a Title VII retaliation attempt to utilize the “unique indices” category in order to claim, must materially affect the terms and conditions of the afford the plaintiff relief. 188 F.3d at 662. plaintiff’s employment. Hollins, 188 F.3d at 662. Our grant of the petition for rehearing en banc provided this Court with What the majority evidently intends (but fails to state an opportunity to reconsider the validity of Hollins’ expressly) is that it is unwilling to consider actionable a wide unreasoned importation of § 703(a)’s definition of an variety of non-trivial, tangible adverse employment actions in “adverse employment action” into § 704(a) and to clarify order to limit the number of legitimate, legally cognizable claims that can be filed by aggrieved employees. There is no 3 other apparent reason for its analysis. The Ninth Circuit in Ray v. Henderson found defendant’s reliance on Burlington similarly misplaced when advocating that Title VII Finally, the majority also attempts to rely in part on the qualifies the type of employment actions that would constitute an Supreme Court decision, Burlington Indus., Inc. v. Ellerth, “adverse” action. 217 F.3d at 1242, n.5. The Co urt stated that Burlington did not set forth a standard for adverse emplo yment actions in the anti- 524 U.S. 742 (1998). However, such reliance is also retaliation context. Id. Nos. 00-6780; 01-5024 White v. Burlington Northern 51 52 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

what actions are sufficiently adverse with respect to ______________________________________________ retaliation claims. A traditional statutory analysis and recognition of Title VII’s legislative intent does not dictate CONCURRING IN PART, DISSENTING IN PART the majority’s continuing adherence to the “materially ______________________________________________ adverse” standard, and the rule set forth by the majority fails to provide the clarity desperately needed in this pervasive area SUTTON, Circuit Judge, concurring in part and dissenting of litigation. The lack of clarity in the majority’s approach in part. I agree with the majority’s treatment of “adverse could result in more court decisions against true victims of employment actions” under Title VII, and accordingly join § 704(a) retaliation because the employer’s retaliatory actions Parts I–III of its opinion in full. I respectfully dissent, conveniently manage to elude the confines of the “materially however, from the majority’s resolution of the punitive adverse” definition. Instead of following the majority damages issues, and accordingly write separately to explain approach, I would hold that the retaliatory actions Burlington my disagreement with Parts IV–V of the Court’s opinion. Northern took against White constituted adverse employment actions because such actions are reasonably likely to deter an At the trial in this case, the district court instructed the jury employee from engaging in protected activity. that it may award punitive damages under Title VII only if the plaintiff proved that she was entitled to them by “clear and convincing” proof. In arguing that the district court erred in this respect and in contending that a punitive damages claim may be proved by a “preponderance” of the evidence under Title VII, the plaintiff relies on two United States Supreme Court decisions and one court of appeals decision. Whether considered together or singly, however, these cases do not support the plaintiff’s position. The first case, Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003), holds that “circumstantial” evidence, in addition to “direct” evidence, may be used to prove discrimination in a Title VII mixed-motive case. That holding, however, does not answer today’s question since circumstantial evidence may be used to prove facts in cases that require a preponderance of the evidence and cases that require proof beyond a reasonable doubt, including criminal cases. See id. at 2154 (“[W]e have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”). In reaching its circumstantial-evidence conclusion, it is true, Desert Palace noted that Congress’s “failure” to specify that only “direct” evidence could be used to prove discrimination Nos. 00-6780; 01-5024 White v. Burlington Northern 53 54 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

was “significant, for Congress has been unequivocal when Title VII cases,” id., the plurality of course did not establish imposing heightened proof requirements in other that these conventional rules apply to requests for circumstances, including in other provisions of Title 42.” Id. unconventional relief, and if anything suggested just the But that mode of analysis bears on our inquiry only if opposite. punitive damages represent a form of conventional relief in the same way that circumstantial evidence represents a form Karnes v. SCI Colorado Funeral Services, Inc., 162 F.3d of conventional proof. In my view, that is not the case and 1077 (10th Cir. 1998), is even less helpful. In that case, the accordingly Desert Palace does not advance the point. If defendant argued that the higher burden of proof for punitive punitive damages are not a conventional remedy, Congress’s damages claims under Colorado law should apply to Title VII “failure” to speak to the question would suggest that the claims. The court disagreed, concluding that state law does burden of proof traditionally applied to unconventional not control the answer to the question, then summarily (and remedies in general or punitive damages in particular should mistakenly) relied on Price Waterhouse to say that a be used. preponderance standard applies. Id. at 1080–81.

Two months before the Court decided Desert Palace, it It is one thing, I recognize, to say that the cited cases do not made clear that punitive damages are not a conventional answer the question; it is another to determine the answer. In remedy. In State Farm Mutual Automobile Insurance Co. v. the plaintiff’s defense, the statute does not give us a lot to Campbell, 123 S. Ct. 1513, 1519–20 (2003), the Court work with in determining what Congress meant. As an initial explained that punitive damages and compensatory damages matter, the statute itself fails to specify a burden of proof, “serve different purposes,” that punitive damages “are aimed stating only that a plaintiff may recover punitive damages if at deterrence and retribution” and “serve the same purposes she “demonstrates” that the defendant intentionally engaged as criminal penalties,” and that special constitutional rules of in discriminatory practices. 42 U.S.C. § 1981a(b)(1). In a review apply to such awards. If there is a lesson to be drawn later subchapter, Congress defines “demonstrates” from Desert Palace and State Farm, it would seem to be that unhelpfully to mean “meets the burdens of production and a punitive damages claim represents an unconventional form persuasion,” id. § 2000e(m), a definition that chases the tail of relief, which deserves a heightened rather than a run-of- of the initial inquiry. Nor does the context in which the the-mill standard of proof. relevant words appear or the legislative history to the Civil Rights Act of 1991 offer any other insights into the The two other cases upon which the plaintiff relies are no appropriate burden of proof. Pub. L. No. 102-166, § 102, 105 more helpful in establishing that a preponderance standard Stat. 1072. applies to punitive damages claims. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), also Under these circumstances, it is appropriate to consider concerned an issue of conventional relief (namely, the other indicators of statutory meaning, analogous Supreme quantum of proof in Title VII mixed-motive cases), not an Court precedents and relevant state laws predating the issue related to punitive damages. Id. at 253 (“Only rarely legislation. See Steadman v. SEC, 450 U.S. 91, 95 (1981) have we required clear and convincing proof where the action (“Where Congress has not prescribed the degree of proof defended against seeks only conventional relief.”). In saying which must be adduced . . . this Court has felt at liberty to that “[c]onventional rules of civil litigation generally apply in prescribe the standard, for ‘[i]t is the kind of question which Nos. 00-6780; 01-5024 White v. Burlington Northern 55 56 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

has traditionally been left to the judiciary to resolve.’”) Waterhouse, 490 U.S. at 253 (plurality opinion) (emphasis (quoting Woodby v. INS, 385 U.S. 276, 284 (1966)); see also added). North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (“[I]t is not only appropriate but also realistic to presume that In analogous settings before 1991, the Supreme Court also Congress was thoroughly familiar with [our] precedents . . . had adopted a clear and convincing evidence standard for and that it expect[s] its enactment[s] to be interpreted in civil cases involving unconventional relief—in the face of conformity with them.”) (citations and quotations omitted); congressional silence about the appropriate burden of proof. Nishikawa v. Dulles, 356 U.S. 129, 135 (1958) (requiring a In Woodby v. INS, 385 U.S. 276 (1966), the Supreme Court clear and convincing standard of proof for voluntary observed that “Congress ha[d] not addressed itself [in the expatriation in the absence of congressional guidance and in Immigration and Nationality Act] to the question of what the light of analogous Supreme Court precedents); cf. degree of proof is required in deportation proceedings,” then Santosky v. Kramer, 455 U.S. 745, 769 (1982) (“A majority observed that this is “the kind of question which has of the States have concluded that a ‘clear and convincing traditionally been left to the judiciary to resolve.” Id. at 284. evidence’ standard of proof strikes a fair balance [in parental- Reasoning that deportation proceedings fall somewhere rights termination cases]. We hold that such a standard between ordinary civil litigation and criminal litigation, the adequately conveys to the factfinder the level of subjective Court held that “clear, unequivocal, and convincing evidence” certainty about his factual conclusions necessary to satisfy must support a deportation order—the same burden used in due process.”); Addington v. Texas, 441 U.S. 418, 431–32 analogous cases involving civil fraud, expatriation, adultery, (1979) (“We note that 20 states, most by statute, employ the illegitimacy, lost wills and oral contracts. Id. at 285 & n.18. standard of ‘clear and convincing’ evidence; 3 states use Compare Nishikawa, 356 U.S. at 135 (holding that, in the ‘clear, cogent, and convincing’ evidence; and 2 states require face of congressional silence on the question, proof of an act ‘clear, unequivocal and convincing’ evidence.”) (footnotes of expatriation must be by clear and convincing evidence), and emphasis omitted). with Vance v. Terrazas, 444 U.S. 252, 265 (1980) (upholding a preponderance of the evidence standard specified by By 1991, when Congress authorized punitive damages in Congress after Nishikawa). Title VII claims, two Supreme Court cases had intimated that a clear and convincing standard ought to apply to punitive Supreme Court decisions analogizing punitive damages to damages claims. In Pacific Mutual Life Insurance Co. v. criminal penalties also suggest that a higher burden of proof Haslip, 499 U.S. 1 (1991), decided before Congress amended ought to apply here. See State Farm, 123 S. Ct. at 1519–20 Title VII, the Court noted that “[t]here is much to be said in (“[P]unitive damages . . . are aimed at deterrence and favor of a State’s requiring, as many do, a standard of ‘clear retribution,” and “serve the same purposes as criminal and convincing evidence’ or, even, ‘beyond a reasonable penalties.”); id. at 1521 (“It should be presumed that a doubt’” for punitive damages. Id. at 23 n.11 (citations plaintiff has been made whole for his injuries by omitted). Two years earlier, Justice Brennan noted that compensatory damages, so punitive damages should only be exceptions exist to the preponderance of the evidence awarded if the defendant’s culpability . . . is so reprehensible standard “when the government seeks to take unusual as to warrant the imposition of further sanctions to achieve coercive action—action more dramatic than entering an award punishment or deterrence.”); City of Newport v. Fact of money damages or other conventional relief.” Price Concerts, Inc., 453 U.S. 247, 266 (1981) (“Punitive damages Nos. 00-6780; 01-5024 White v. Burlington Northern 57 58 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

by definition are not intended to compensate the injured party, 1269, 1278 n.63 (1993) (identifying States with a clear and but rather to punish the tortfeasor.”). convincing standard in 1993). For like reasons, the factual predicate for a punitive When Congress addressed this issue in 1991, it also was damages award—that the defendant acted with “malice” or doing so in the context of a modern trend in favor of the “reckless indifference,” see 42 U.S.C. § 1981a(b)(1)—has a higher standard—a trend that was well underway before the stigmatizing effect that deserves more evidentiary certainty 1991 amendments to Title VII. The American Bar than the preponderance standard provides. See State Farm, Association recommended the higher standard in 1986. See 123 S. Ct. at 1521 (“[P]unitive damages should only be Special Committee on Punitive Damages, Punitive Damages: awarded if the defendant’s culpability is [] reprehensible.”) A Constructive Examination, 1986 A.B.A. Sec. Litig. 33 (emphasis added); Addington, 441 U.S. at 424 (“One typical (“Because one of the purposes of punitive damages is use of the [clear and convincing] standard is in civil cases punishment . . . [t]he committee concludes [] that the ‘clear involving allegations of fraud or some other quasi-criminal and convincing’ burden of proof is appropriate for an award wrongdoing by the defendant . . . [to] reduce the risk to the of punitive damages. This is the standard often used in fraud defendant of having his reputation tarnished erroneously.”); cases, to which there is some analogy.”). The American Law see also Haslip, 499 U.S. at 54 (O’Connor, J., dissenting) Institute did the same in 1991. See 2 American Law Institute, (“[P]unitive damages are quasi-criminal punishment. Unlike Reporters’ Study: Enterprise Responsibility for Personal compensatory damages . . . punitive damages are specifically Injury 264 (1991) (“An enterprise should be liable for designed to exact punishment in excess of actual harm to punitive damages only when there is clear and convincing make clear that the defendant’s misconduct was especially evidence of reckless disregard for the safety of others in the reprehensible. Hence, there is a stigma attached to an award decisions made by management officials or other senior of punitive damages that does not accompany a purely personnel.”). As of today, the supreme courts or legislatures compensatory award.”). from 34 States have addressed the burden of proof issue, with 31 now requiring a heightened burden of proof. See App. B By 1991, the supreme courts or legislatures of 29 States had (identifying the burden of proof for punitive damages in each directly addressed the issue whether punitive damage claims State as of 2004). required a heightened burden of proof. Of those States, 20 of them chose the clear and convincing standard for all punitive The States within the Sixth Circuit, moreover, are nearly damages claims, one State (Colorado) applied the beyond a uniform in applying a clear and convincing standard. By reasonable doubt standard to these claims and two States 1991, Ohio and Kentucky had established the standard by (Florida and Oklahoma) applied the clear and convincing statute, and Tennessee did so by court decision in 1992. See standard when the punitive award was a specific multiple of App. A. Although the Michigan courts have not directly the actual damages in the case. See App. A (identifying the addressed the issue, at least one state appeals court has burden of proof in each State with respect to punitive approved, without discussion, a jury instruction requiring damages in 1991). See also Michael Rustad & Thomas proof by a preponderance of the evidence for an award of Koenig, The Historical Continuity of Punitive Damages exemplary damages. Green v. Evans, 401 N.W.2d 250, 252 Awards: Reforming the Tort Reformers, 42 Am. U. L. Rev. (Mich. Ct. App. 1985). But see Kewin v. Mass. Mut. Life Ins. Co., 295 N.W.2d 50, 55 (Mich. 1980) (noting that exemplary Nos. 00-6780; 01-5024 White v. Burlington Northern 59 60 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

damages serve only to compensate plaintiffs for “humiliation, Moreover, if like the Ninth Circuit we applied an abuse of sense of outrage, and indignity”—and may not serve as discretion to this issue (which we do not), it no doubt would punishment to the defendant). be a very different question whether the district court in this case abused its discretion in imposing the higher standard of While there may not be a Rosetta Stone to guide us here, proof. The Fourth Circuit’s decision in Notter v. North Hand Supreme Court precedents concerning punitive damages and Protection, No. 95-1087, 1996 WL 342008 (4th Cir. June 21, comparable forms of relief, as well as relevant state-law 1996), besides being unpublished, rejects only one argument practices, suggest that a clear and convincing standard of by the employer in that case—that the higher burden of proof proof ought to govern these claims. A claim for punitive for punitive damages claims under state law should control damages, in a nutshell, is more akin to claims concerning the Title VII inquiry. Id. at *10. And the Harvard Law fraud, deportation and expatriation, oral contracts and Review piece supports the employer’s position in this case. illegitimacy than it is to more conventional civil claims. In addition to approving “measures that guide and direct Accordingly, the heightened burden of proof associated with juries toward appropriate [] determinations,” it notes that “the these claims and traditionally associated with punitive widespread acceptance of the clear and convincing evidence damages claims in general ought to apply. standard demonstrates [the] states’ acknowledgment of the retributive function of punitive damages.” Jury The additional citations identified by the majority in Determination of Punitive Damages, 110 Harv. L. Rev. 1513, support of the plaintiff’s position do not alter this analysis. 1532–33, 1536 (1997). Smith v. Wade, 461 U.S. 30 (1983), deals with whether actual malice is required to obtain punitive damages under § 1983, Nor does the cap on punitive damages claims under Title not with the preponderance/clear and convincing debate VII advance plaintiff’s argument. While a cap on punitive raised here. Simpson v. Pittsburgh Corning Corp., 901 F.2d damages addresses one issue in this area (the outer limits of 277 (2d Cir. 1990), involved a products liability claim under awards), it does not account for the other issues in this New York law, in which the defendant argued that the Due area—the appropriate quantum of proof required (1) before a Process Clause of the United States Constitution requires a jury may attach a “reprehensibility” label to another’s clear and convincing standard. In rejecting that argument, the conduct, State Farm, 123 S. Ct. at 1521, or (2) before a jury court “acknowledg[ed] the force of the argument that since may award punitive damages that have a significant ratio to punitive damages are awarded primarily to punish a defendant the underlying compensatory award. In ascertaining the for past conduct and to deter it and others from similar constitutional limits of punitive damages, it is the ratio of the conduct in the future, a standard of proof appropriate for two awards, not the size of the punitive damages award, that ‘quasi-criminal wrongdoing’ should be required.” Id. at 282. the Supreme Court considers in measuring the award’s compliance with Due Process—which is why awards under In re Exxon Valdez, 270 F.3d 1215 (9th Cir. 2001), is an $300,000 may still violate the Constitution and why they still admiralty-law decision in which the Ninth Circuit concluded deserve the prevailing burden of proof for punitive damages that the district court did not “abuse its discretion” in applying claims in this country, namely clear and convincing evidence. a preponderance standard to a punitive damages claim. Id. at See id. at 1524 (ratios involving “[s]ingle-digit multipliers are 1232–33. Again, the primary debate in the case was whether more likely to comport with due process, while still achieving the Due Process Clause required a higher standard. the State’s goals of deterrence and retribution, than awards Nos. 00-6780; 01-5024 White v. Burlington Northern 61 62 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

with ratios in range of 500 to 1, or, in this case, of 145 to 1”) persuasion is. Because we required an en banc hearing to (citation omitted); see also Ross v. Kansas City Power & decide whether White suffered an adverse employment action Light Co., 293 F.3d 1041, 1049 (8th Cir. 2002) (reducing and, notably, to determine whether this Circuit embraced the punitive damages award from $120,000 to $60,000 to correct ultimate-employment-decision test, it would not seem constitutional deficiency); Tyson Foods, Inc. v. Stevens, 783 possible for a jury to conclude that Burlington Northern acted So. 2d 804, 810 (Ala. 2000) (“In this case, the punitive- with reckless disregard for White’s federally-protected rights damages award of $75,000 is 30 times the compensatory- in imposing the suspension. See 42 U.S.C. § 1981a(b)(1) damages award of $2,500. Considering the facts before us, (requiring proof that the employer “engaged in a we find the ratio of 30:1 to be unreasonable.”); Employees’ discriminatory practice or discriminatory practices with Benefit Ass’n v. Grissett, 732 So. 2d 968, 979 (Ala. 1998) malice or with reckless indifference to the federally protected (“The punitive award of $150,000 is 170 times the rights of an aggrieved individual”); Kolstad v. Am. Dental compensatory award of $880. That 170:1 ratio is Ass’n, 527 U.S. 526, 535 (1999) (“The terms ‘malice’ or unacceptable.”). ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its But that is not the most significant problem with invoking awareness that it is engaging in discrimination.”) (emphasis the damages cap in this instance. All agree that Congress did added); id. at 537 (recognizing that imposing punitive not give the courts particularly helpful guidance here, damages would be inappropriate when “[t]he underlying requiring us to answer what the burden of proof for a federal theory of discrimination [is] novel or otherwise poorly punitive damages claim should be in the face of congressional recognized”). silence. An answer that says punitive damages claims receive a preponderance standard when the award is under $300,000 A punitive damages claim with respect to the transfer count but receive a clear and convincing standard when the award is even harder to imagine. Until now, no Sixth Circuit case is some higher amount to be named later does not seem very (to my knowledge) has found a cognizable Title VII claim helpful. Neither do I understand how the damages cap could arising from a lateral transfer, let alone a transfer within an make a difference in the outcome of this case. If, in this employee classification and without a loss in pay. See Kocsis instance, the Court had concluded that a clear and convincing v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996) standard generally applies to punitive damages claims in the (“[R]eassignments without salary or work hour changes do face of congressional silence, the existence of a cap of this not ordinarily constitute adverse employment decisions in sort by itself could not alter the presumption. If instead the employment discrimination claims.”) (citing Yates v. Avco Court had concluded that a preponderance standard generally Corp., 819 F.2d 630, 638 (6th Cir. 1987)). While the opinion applies in this setting, the existence of a damages cap would concludes that this transfer count is cognizable under Title make no difference at all. Either way, in other words, the VII, its reasons for doing so could not support a finding that outcome would be unaffected by the existence of the cap. Burlington Northern acted with “malice” or “reckless indifference” to White’s rights. I have one other qualm with the majority’s decision on this point—which is reaching the burden of proof issue at all. I do not understand how White could prevail on remand in a punitive-damages-only trial, no matter what the burden of Nos. 00-6780; 01-5024 White v. Burlington Northern 63 64 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

For these reasons, I respectfully dissent from Parts IV and APPENDIX A V of the Court’s opinion. State Burdens of Proof for Punitive Damages in 1991 By 1991, the supreme courts or legislatures of the following States had adopted a higher burden of proof for awarding punitive damages:

Alabama Ala. Code § 6-11-20(a) (1991 ) (clear and convincing evidence).

Alaska Alaska Stat. § 09.17.020 (1991 ) (clear and convincing evidence).

Arizona Linthicum v. Nationw ide Life Ins. C o., 723 P.2d 675, 680–81 (Ariz. 1 986) (“[W]hile a plaintiff may collect compensatory dam ages upon proof by a preponderance of the evidence of his injuries due to the tort of another, we conc lude that reco very of punitive dam ages should be awardable only upon clear and convincing evidence of the defendant’s evil mind.”).

California Cal. Civ. Code § 3294(a) (1991) (clear and convincing evidence).

Colorado Colo. Rev. Stat. § 13-25-127(2) (1991 ) (beyond a reasonable doubt).

Florida Fla. Stat. Ann. § 768.73(1)(b) (1991) (punitive damages exceeding three times actual dam ages must be proved by clear and convincing evidence).

Georgia Ga. Code Ann. § 51-12 -5.1(b) (1991) (clear and convincing evidence).

Hawaii Masaki v. Gen. M otors Corp., 780 P.2d 566, 575 (Haw. 1989) (“[F]or all punitive damage claims we adopt the clear and convincing standard of proof.”). Nos. 00-6780; 01-5024 White v. Burlington Northern 65 66 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Indiana Ind. Code § 34-4 -34-2 (1991) (clear and convincing South S.C. Code A nn. § 15-33-135 (19 91) (clear and evidence). Carolina convincing evidence).

Iowa Iowa Code § 668A .1(1)(a) (1991) (clear and convincing Utah Utah Code Ann. § 78-18-1(1)(a) (1991) (clear and evidence). convincing evidence).

Kansas Kan. Stat. Ann. § 60-3702(c) (199 1) (clear and W isconsin Wangen v. Ford Motor Co., 294 N.W.2d 437, 458 (W is. convincing evidence). 1980) (“W e hold that the [clear, satisfactory and convincing evidence] b urden of pro of shall apply to Kentucky Ky. Rev. Stat. Ann. § 411.184 (2) (1991) (clear and punitive damages claims hereafter.”). convincing evidence). By 1991, the supreme courts or legislatures of the following Maine Tuttle v. Raymond, 494 A.2d 1353, 1363 (Me. 1985) (“[W]e hold that a plaintiff may recover exemplary States had rejected a higher burden of proof for awarding damages based upon tortious conduct only if he can punitive damages: prove by clear and convincing evidence that the defendant acted with malice.”). Connecticut Freeman v. Alamo Mgm t. Co., 607 A.2d 370, 375 (Conn. 1992) (“W e disag ree . . . with the . . . conclusion Minneso ta Minn. Stat. § 549.20(1)(a) (1991) (clear and convincing . . . that clear and convincing proof is an app ropriate evidence). standard of proof whenever claims of tortious conduct [such as those involving punitive damage s] have serious Mo ntana Mont. Code A nn. § 27-1-221(5) (199 1) (clear and consequences or harsh or far-reaching effects on convincing evidence). individuals or require the proof of willful, wrongful and unlawful acts.”). Nevada Nev. Rev. Stat. 42.005(1) (1991) (clear and convincing evidence). Idaho Idaho Cod e § 6-1604 (1) (1991) (prepo nderance of the evidence). No rth N.D . Cent. Code § 32-03.2-11 (1991) (clear and Dakota convincing evidence). Mississippi Gaylord’s of Meridian, Inc. v. Sicard, 384 So. 2d 1042, 1045 (Miss. 1980) (“Although the damages are by way Ohio Ohio Rev. Code Ann. § 2315.21(C)(3) (1991) (clear of pena lizing the defendant against whom they are and convincing evidence). sought, the proof is by a preponderance of the evidence rather than beyond a reasonable doubt.”) overruled on Oklahoma Okla. Stat. tit. 23 § 9.1.A (1991) (punitive damages other grounds by C & C Trucking Co. v. Smith, 612 So. exceeding the amount of actual damages must be 2d 1092 , 110 5–0 6 (M iss. 199 2); Andrew Jackson Life proved by clear and convincing evidence). Ins. Co. v. Williams, 566 So. 2d 117 2, 1188 (M iss. 1990) ( “[ T]he law requires a finding of ‘bad faith- Oregon Or. Rev. Stat. § 41.315(1) (1991 ) (clear and convincing plus’—based upon a preponderanc e of the evidence). evidence— before punitive damages may be awarded.”). Nos. 00-6780; 01-5024 White v. Burlington Northern 67 68 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Missouri Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 75 Arkansas Nat’l Bank of Comm erce v. McNeill Trucking Co., (Mo. 1990) (“The defendant argues that punitive Inc., 828 S.W.2d 584, 591 (Ark. 1 992 ) (Du dley, J., damage submissions should require ‘clear and concurring) (“I wou ld hope that the possible convincing’ evidence. T his requirement is contrary to changes discussed in this opinion [i.e. the adoption our norm al requirements in the subm ission of civil of a clear and convincing standard for punitive cases. W e are not disp osed so to hold, o r to follow dama ges] might be brought before this court in an cases from other jurisdictions so holding.”). adversarial manner . . . . It is a matter which we have never addressed .”). New United Nuclear Corp. v. A llendale M ut. Ins. Co ., 709 Mexico P.2d 649, 654 (N.M. 1985) (“It is the general rule . . . Delaware Cloroben Chem. Corp . v. Comegys, 464 A.2d 887, that issues of fact in civil cases are to be determined 891–92 (Del. 198 3) (“W e now turn to C loroben’s according to the preponderance of the evidence . . . . contention that the jury improperly awarded W e are not convinced that the degree of proof should be punitive damages in that they were not supported changed [to require clear and convincing evidence] in by a preponderance of the evidence . . . . Our punitive damage areas.”). review of the record indicates that there is sufficient evidence to support a finding . . . [and] South Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991) we must reject the argument that there was Dakota (“[S.D. Codified Laws § 2 1-1-4.1] d oes not establish a insufficient evidence to support an award of clear and convincing evid ence standa rd but merely punitive dam ages.”); Gu thridge v. Pen-Mod, Inc., requires clear and convincing evidence to show a 239 A.2d 709, 715 (Del. Super. Ct. 1967) reaso nab le basis [to believe the defendants committed (instructing the jury that “[p]unitive damages may acts warranting punitive damages]. The clear and be awarded only if the jury find s by a convincing language merely mo difies the ‘reasonable preponderance of the evidence that the defendants’ basis’ language to make a prima facie showing that actions were motivated by some form of malice.”). punitive dam ages may be in order.”). Illinois Illinois Terminal R.R. Co. v. Thompson, 71 N.E. By 1991, the supreme courts and legislatures of the 328, 333 (Ill. 1904) (approving a jury instruction that “left it to the discretion o f the jury to impose following States had yet to address the question whether whatever damages they might choose, even to the claims for punitive damages require a heightened burden of extent of allowing punitive da mages” by a proof, though (as noted below) some lower courts had preponderance o f the evidence). addressed the issue and some supreme courts had mentioned, without discussing, jury instructions requiring a preponderance of the evidence: Nos. 00-6780; 01-5024 White v. Burlington Northern 69 70 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Louisiana Galjour v. Ge n. Am. Tank Car Corp., 764 F. Supp. Massachusetts Santos v. Chrysler C orp., No. 921039, 1996 W L 1093, 1100–01 (E.D. La. 1991) (“In fact, there are 1186818, at *3 (Mass. Super. Ct. Sept. 18, 1996) no Louisiana ca ses which specifically discuss the (“Chrysler contends that the court erred beca use it app ropriate burden of proof for exemplary failed to instruct the jury that they must find by damages . . . . The defendants’ argument that a clear and convincing evidence that Chrysler was heightened burd en of p roof should apply to grossly negligent before they could award punitive exemplary damages is not without merit, as shown dama ges. The contention is meritless. Under by recent legislative enactments in other Massachusetts law the burden of pro of in civil jurisdictions, but it is not the law in Louisiana. proceedings of this kind is satisfied ‘by a fair Until the Louisiana legislature takes action to raise preponderance of the evidence.’”) (citation the burden, the law is that the burden of proof for omitted), aff’d in part a nd re ma nde d on other exemplary damages is by a preponderance of the grounds, 715 N.E.2d 47 (M ass. 1999). evidence.”) (footnote omitted); see also Int’l Harvester Credit Corp. v. Seale, 518 So. 2d 1039, Michigan Green v. Evans, 401 N.W.2d 250, 252 (M ich. Ct. 1041 (La. 1988) (“U nder Louisiana law, punitive App. 198 5) (ap proving, without discussing the or other ‘penalty’ dama ges are not allowable unless burden of proof, a jury instruction stating: “Such expressly authorized by statute.”). exemplary damages only are recoverable if the Plaintiff has proven by a p repo nderance of the Maryland Gorman v. Sabo, 122 A.2d 475, 479 (Md. 1956) evidence, malice, willful and wanton misconduct (“There is no doubt that punitive damages may be or negligence so great as to indicate reckless recovered in [this] case . . . . The applicable law disregard of the rights of another.”). But see Kew in was correctly put to the jury by the trial court in his v. Ma ss. Mut. Life Ins. Co., 295 N.W.2d 50, 55 charge. He told them the Sab os must prove their (Mich. 1980) (noting that exemplary dam ages o nly case ‘by a fair prepo nderance of the evidenc e.’”) serve to compensate plaintiffs for “humiliation, (citation omitted ); Thorne v. Contee, 565 A.2d 102, sense of outrage, and indignity”—exemp lary 108 (Md. Ct. Spec. App. 1989 ) (“In order for the damages may not serve as punishment to the issue of pun itive dam ages to go to the jury, Thorne defendant). must have produced sufficient evidence of Contee’s wanton or reckless conduct to meet the Nebraska Distinctive Printing & Packaging Co. v. Cox, 443 preponderance of the evidence test.”), cert. denied, N .W .2d 566, 574 (Neb. 1989) (“[P]unitive, 569 A.2d 643 (Md. 1990); 569 A.2d 1242 (Md. vindictive, or exemplary damages contravene Neb. 1990). Const. art. VII, § 5, and thus are not allow ed in this jurisdiction.”).

New New Hampshire has not addressed the burden of Hamp shire proof for punitive da mages. See N.H. Rev. Stat. Ann. § 507:16 (2004) (“No punitive dam ages shall be awarded in any action, unless otherwise provided by statute.”). Nos. 00-6780; 01-5024 White v. Burlington Northern 71 72 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

New Jersey Fischer v. Joh ns-M anv ille Corp., 512 A.2d 466, Pen nsylvania Ma rtin v. John s-Ma nville Corp ., 494 A.2d 1088, 482 (N.J. 1986) (refusing to address the burden of 1098 n.14 (Pa. 1985) (Hutchinson, J., delivering proof in punitive damages cases because “the the judgment of the court and an opinion joined by parties have not briefed or argued the issue, nor only one o f the five remaining justices) have the courts belo w addressed it”); see also (recognizing that many jurisdictions have adopted Jackson v. Consol. Rail C orp., 538 A.2d 1310, a clear and convincing standard and concluding: 1321 n.5 (N .J. Sup er. Ct. App. Div. 1988) “W e believe the goal of limiting punitive damage (“Defendant also attacks the punitive damage awards in the context of products liability litigation verdict because the court in its charge did not place is best served by focusing on the nature of the the burden on plaintiff to prove same by ‘clear and defendant’s conduct instead of increasing the convincing’ evidence. However, that is not the plaintiff’s burden of persuasion.”); Rizzo v. present standard applicable in New Jersey.”). Michener, 584 A.2d 973, 979 (Pa. Super. Ct. 1990) (“The trial judge must determine in the first New Y ork Greenbaum v. Handelsbanken, 979 F.Supp. 973, instance whether the plaintiff has presented 982 (S.D.N.Y. 199 7) (“[T ]he Court determines that sufficient evidence to support a punitive damage until . . . higher authorities elect[] to address the claim, which requires evidence on which the jury question, the preponderance of the evidence might reasonably conclude that outrageous conduct standard should apply to punitive damages has been established by a preponderance of the deliberations.”). evidence.”), appeal denied, 596 A.2d 159 (Pa. 1991). No rth Carolina Caudle v. Benbow, 45 S.E.2d 361, 362 (N.C. 1947) (approving, without discussing, a jury instruction Rhode Island Rhode Island has not addressed the burden of proof requiring the jury to “first find by the for recovering punitive dam ages. preponderance of the evidence the presence of actual malice”). Tennessee Tennessee first addressed the burden of proof for punitive damages in 1992 in Hodges v. S.C. T oof & Co., 833 S.W.2d 896, 900–0 1 (Tenn. 199 2), and held that the clear and convincing standard applies to all claims for punitive dam ages.

Texas Law son-Avila Con st., Inc. v. Stoutam ire, 791 S.W.2d 584, 594 (Te x. Ct. App . 199 0) (“W e . . . continue to follow the Texas precedent established by the Co urts of this State and hold that the burden of proof in cases involving . . . exemplary damages is by a preponderance of the evidence [and not clear and convincing evidence].”) (internal quotations omitted ), writ of error denied (Dec. 12, 1990). Nos. 00-6780; 01-5024 White v. Burlington Northern 73 74 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Vermo nt Vermo nt has not addressed the burden of proof for W yoming Campen v. Stone, 635 P.2d 1121, 1127 (Wyo. recovering punitive damages. 1981) (approving, without discussing the burden of proof, a jury instruction stating: “Punitive damages Virginia Peacock Buick, Inc . v. Du rkin, 277 S.E.2d 225, 227 can properly b e awarded . . . only if, one of the n.3 (Va. 1981 ) (approving, without discussing the following [acts] ha s bee n pro ven b y a burden of pro of, a jury instruction stating: “[I]f you preponderance of the evidence.”) (internal believe from a preponderance of the evidence that quotations omitted). the defendant acted wantonly, opp ressively, or with such recklessness as evinced a conscious disregard of the rights of others, or with such malice as implied a spirit of mischief, or criminal indifference to civil obligations, you may award the plaintiff such additional sum as punitive damages.”).

Washington Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566 (W ash. 1997) (holding, without addressing the burden of proof, that the trial court pro perly instructed the jury that it could award punitive damages on the 42 U .S.C. § 1 983 claim ‘only if you find [by a preponderance of the evidence] that the cond uct of an individual defendant was malicious or taken in reckle ss disregard of plaintiffs’ rights’”) (alteration in original). But see Dailey v. North Coa st Life Ins. Co., 919 P.2d 589, 590 (Wa sh. 1996) (“Since its earliest decisio ns, this court has consistently disapproved of punitive damages as contrary to public policy.”).

W est Virginia Go odw in v. Thomas, 403 S.E.2d 13, 16 (W . Va. 1991) (reinstating an award of punitive dam ages, without discussing the burden of proof, based on the following jury instruction: “[I]f you find from a preponderance of all the evidence in this case, that the actions of the Defendants in evicting the Plaintiff were in total disre gard of the P laintiff’s rights as a lessee in the leased premises and that such actions were willful and wanton then you may award the Plaintiff punitive damages.”). Nos. 00-6780; 01-5024 White v. Burlington Northern 75 76 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

APPENDIX B Georgia Ga. Code A nn. § 51-12-5.1(b) (2004) (clear and convincing evidence). State Burdens of Proof for Punitive Damages in 2004 Hawaii Schefke v. Reliable Collection Agency, Ltd., 32 P.3d As of today, the supreme courts or legislatures from the 52, 71 (Haw. 2001) (“Clear and convincing evidence following States have adopted the higher burden of proof for of ‘some wilful misconduct or . . . entire want of care awarding punitive damages: which would raise presum ption of a conscious indifference to conseq uences’ supports an award of punitive damages.”) (internal quotations omitted). Alabama Ala. Code § 6-11-20(a) (2004) (clear and convincing evidence). Idaho Idaho Code § 6-1604(1) (2004) (clear and convincing evidence). Alaska Alaska Stat. § 09.17.020(b) (2004) (clear and convincing evidence). Indiana Ind. Code § 34-51-3-2 (2004 ) (clear and convincing evidence). Arizona Linthicum v. Nationw ide Life Ins. Co., 723 P.2d 675, 680–82 (Ariz. 1986) (“[W]hile a plaintiff may collect Iowa Iowa Code § 668A.1(1 )–(2) (2004) (clear and compensatory dama ges upon p roo f by a convincing evidence). preponderance of the evidence of his injuries due to the tort of another, we conclude that recovery of Kansas Kan. Stat. Ann. § 60-3702(c) (20 04) (clear and punitive damages should be awardable only upon convincing evidence). clear and convincing evidence of the defendant’s evil mind.”); Saucedo ex rel. Sinaloa v. Salvation Army, Kentucky Ky. Rev. Stat. Ann. § 411.18 4(2) (2004 ) (clear and 24 P.3d 12 74, 1277 (Ariz. Ct. App. 2001) (“In convincing evidence). Arizona, to recover punitive dam ages, a plaintiff must prove by clear and convincing evidence that a Maine St. Francis De Sales Fed. Credit Union v. Sun In s. ‘defendant’s wrongful conduct was guided by evil Co. of N.Y., 818 A.2d 995 , 1001 (M e. 2002) (“‘[I]n motives or wilful or wanto n disregard of the interests order to recover punitive dam ages, a plaintiff must of others.’”) (citation omitted), review denied (Oct. 3, prove by clear and convincing evidence that the 2001). defendant acted with malice.’”) (quoting Tuttle v. Raymond, 494 A.2d 13 53, 1354 (Me. 198 5)). California Cal. Civ. Code § 329 4(a) (2004) (clear and convincing evidence). Maryland Ow ens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 657 (Md. 1992) (“[I]n any tort case a plaintiff must Colorado Colo. Rev. Stat. § 13-25-127(2) (2004) (beyond a establish by clear and convincing evidence the basis reasonable doubt). for an award of p unitive damages.”); Carter v. Aram ark Spo rts and Entm’t Servs., Inc., 835 A.2d Florida Fla. Stat. Ann. § 768.725 (2004) (clear and 262, 287 (Md. Ct. Spec. App. 2003) (“T he ‘clear and convincing evidence). convincing’ standard of proof applies to make o ut a claim fo r punitive dam ages.”). Nos. 00-6780; 01-5024 White v. Burlington Northern 77 78 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Minneso ta Minn. Stat. § 549.20(1)(a) (2004) (clear and Oregon Or. Rev. Stat. § 18.537(1) (2004 ) (clear and convincing evidence). convincing evidence).

Mississippi Miss. Code A nn. § 11-1-65(1)(a) (2004) (clear and South S.C . Code A nn. § 15-33-135 (20 04) (clear and convincing evidence). Carolina convincing evidence).

Missouri Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, Tennessee Hodges v. S.C. Too f & Co., 833 S.W.2d 896, 901 111 (Mo. 1996) (“For commo n law punitive damage (Tenn. 1992) (“[A] plaintiff must prove the claims, the evid ence must meet the clear and defendant’s intentional, fraudulent, malicious, or convincing standa rd of proo f.”); Hoskins v. Bus. reckless conduct by clear and convincing evidence.”); Men ’s Assurance, 116 S.W .3d 5 57, 5 64 (Mo. Ct. Barnett v. Lane, 44 S.W.3d 924, 928 (Tenn. Ct. App. App. 200 3) (“P unitive damages are properly 2000) (“[A]n award [of punitive damages] is only submitted in a negligence [or strict liab ility] case only app ropriate when the necessary conduct has been if there is clear and convincing evidence that ‘at the shown ‘by clear and convincing evidence.’”). time of the negligent act, the defendant[s] knew or had reason to know that there was a high degree of Texas Tex. Civ. Prac. & Rem. Code Ann. § 41.003(b) probab ility that the action would result in injury.’”) (2004) (clear and convincing evidence). (citation omitted). Utah Utah Code Ann. § 78-18-1(1)(a) (2004) (clear and Mo ntana Mont. Code Ann. § 27-1-221(5) (2004) (clear and convincing evidence). convincing evidence). W isconsin Wangen v. Ford Motor Co., 294 N.W.2d 437, 458 Nevada Nev. Rev. Stat. 42.005(1) (2004) (clear and (W is. 1980) (“W e hold that the [clear, satisfactory convincing evidence). and convincing evidence] burden of proof shall apply to punitive damages claims hereafter.”); City of West New Jersey N.J. Stat. Ann. § 2A:15-5.12(a) (2004) (clear and Allis v. Wis. Elec. Power Co., 635 N.W.2d 873, 881 convincing evidence). (W is. Ct. Ap p. 2001) (“The evidence [supporting a punitive damages award] must also be ‘clear and No rth N.C. Gen. Stat. § 1D-15(b) (200 4) (clear and convincing.’”), pet. for review denied, 643 N.W.2d Carolina convincing evidence). 93 (W is. 2002).

No rth Dakota N.D. Cent. Code § 32-03.2-11(1) (2004) (clear and convincing evidence).

Ohio Ohio Rev. Code A nn. § 2315.21(C)(2) (2004) (clear and convincing evidence).

Oklahoma Okla. Stat. tit. 23, § 9.1.B–.D (2004) (clear and convincing evidence). Nos. 00-6780; 01-5024 White v. Burlington Northern 79 80 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

As of today, the supreme courts or legislatures from the As of today, the supreme courts and legislatures from the following States have rejected a higher burden of proof for following States have yet to address the question whether awarding punitive damages: claims for punitive damages require a heightened burden of proof, though (as noted below) some lower courts have Connecticut Freeman v. Alamo M gm t. Co., 607 A.2d 370, 375 addressed the issue and some supreme courts had mentioned, (Conn. 1992) (“We disagree . . . with the . . . without discussing, jury instructions requiring a conclusion . . . that clear and convincing proof is an preponderance of the evidence: app ropriate standard of proof whenever claims of tortious conduct [such as those involving punitive dama ges] have serious consequences or harsh or far- Arkansas Nat’l Bank of Commerce v. M cNeill Truck ing C o., reach ing effects on individuals or require the proof of Inc., 828 S.W .2d 58 4, 590 (Ark. 1 992 ) (Du dley, J., willful, wrongful and unlawful acts.”). concurring) (“I would hope that the possible changes discussed in this opinion [i.e. the adoptio n of a clear New United Nuclear Corp. v. A llendale Mu t. Ins., 709 P.2d and convincing standard for punitive damages] might Mexico 649, 654 (N.M. 1985) (“It is the general rule . . . that be brought before this court in an adversarial manner issues of fact in civil cases are to be determined . . . . It is a matter which we have never addressed.”). according to the prep onderanc e of the e vidence . . . . W e are not convinced that the degree o f proo f should Delaware Cloroben Chem . Corp. v. Comegys, 464 A.2d 887, be changed [to require clear and convincing evidence] 891–92 (Del. 1983) (“W e now turn to Cloroben’s in punitive damages areas.”). contention that the jury imp roperly awarded punitive damages in that they were not supp orted by a South Flockhart v. Wya nt, 467 N.W.2d 473, 475 (S.D. 1991) preponderance of the evidenc e . . . . Our review of Dakota (“[S.D. Codified Laws § 21-1-4.1] does not establish the record indicates that there is sufficient evidence a clear and co nvincing evidence standard but merely to support a finding . . . [and] we must reject the requires clear and convincing evidence to show a argument that there was insufficient evidence to reaso nab le basis [to believe the defendants committed support an award of punitive damages.”); Guthridge acts warranting punitive damages]. The clear and v. Pen-Mod, Inc., 239 A.2d 709 , 715 (Del. Supe r. Ct. convincing language merely mod ifies the ‘reasonable 1967) (instructing the jury that “[p]unitive damages basis’ language to make a prima facie showing that may be awarded only if the jury finds by a punitive dam ages may be in order.”). preponderance of the evidence that the defendants’ actions were motivated b y some form of malice.”).

Illinois Illinois Terminal R.R. Co. v. Thompson, 71 N.E. 328, 333 (Ill. 1904) (app roving a jury instruction that “left it to the discretion of the jury to impose whatever damages they might choose, even to the extent of allowing punitive damages” by a preponderance of the evidence). Nos. 00-6780; 01-5024 White v. Burlington Northern 81 82 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

Louisiana Hill v. Sampson, 628 So. 2d 81, 84 (La. Ct. App. Michigan Green v. Evans, 401 N.W.2d 250, 252 (Mich. Ct. 1993) (“W hile this argument has theo retical ap peal, App. 198 5) (ap proving, witho ut discussing the we are not inclined by these judicial means to burden of proof, a jury instruction stating: “Such establish ‘clear an d convincing evidence’ as the exemplary damages only are recoverable if the standard of proof for exemplary damages under Plaintiff has proven by a prepond erance of the [Louisiana’s DU I law]. In our view, had the evidence, malice, willful and wanton misconduct or legislature intended a higher standard of proo f than negligence so great as to indicate reckless disregard that of a preponderance of the evidence, it would of the rights of another”). But see Kew in v. Ma ss. have clearly so indica ted.”); Rivera v. United Gas Mut. Life Ins. Co., 295 N.W.2d 50, 55 (M ich. 1980) Pipeline Co., 697 So. 2d 327, 335 (La. Ct. App. (noting that exemplary damages only serve to 1997) (holding that earlier interpretation of com pensate plaintiffs for “humiliation, sense of Louisiana’s hazardous substance handling statute outrage, and indignity”—exemplary damages may “says nothing of creating a ‘clear and convincing’ not serve as punishment to the defendant). burden of proof, and this Court is not prep ared to create one . . . . Ergo, until the Louisiana legislature Nebraska Distinctive Printing & Packaging Co. v. Cox, 443 takes direct action, the burden of proof for exemplary N.W.2d 566, 574 (Neb. 1989) (“[P]unitive, damages is by a preponderance o f the evidence.”), vindictive, or exemplary damages contravene Neb. cert. denied, 704 So. 2d 1 196, 119 7 (La. 1997). Const. art. VII, § 5, and thus are not allowed in this jurisdiction.”). Massachusetts Santos v. Chrysler C orp., N o. 92 10 39 , 19 96 W L 1186818, at *3 (M ass. Sup er. Ct. Sept. 18, 1996) New New Hamp shire has not addressed the burden of (“Chrysler contends that the court erred because it Hamp shire proof for punitive da mages. See N.H. Rev. Stat. Ann. failed to instruct the jury that they must find by clear § 507:16 (2004) (“No punitive damages shall be and convincing evidence that Ch rysler was grossly awarded in any action, unless otherwise provided by negligent before they could awa rd punitive damages. statute.”). The contention is meritless. Under Massachusetts law the burden of proof in civil proceedings of this kind is satisfied ‘by a fair preponderance of the evidence.’”), affirmed in part and remanded on other grounds, 715 N.E.2d 47 (M ass. 1999). Nos. 00-6780; 01-5024 White v. Burlington Northern 83 84 White v. Burlington Northern Nos. 00-6780; 01-5024 & Santa Fe Ry. Co. & Santa Fe Ry. Co.

New York Greenbaum v. Svenska Handelsbanken, 979 F. Supp. Vermo nt Vermo nt has no t addressed the burden of proof for 973, 978 –82 (S.D .N.Y. 1997 ) (“[T]he Court recovering punitive dam ages. determines that until . . . higher authorities elect[] to address the question, the preponderance of the Virginia Peacock Buick, Inc . v. Du rkin, 277 S.E.2d 225, 227 evidence standard should apply to punitive damages n.3 (Va. 1981 ) (approving, without discussing the deliberations.”). Com pare M unoz v. Puretz, 753 burden of pro of, a jury instruction stating: “[I]f you N.Y.S.2d 463, 466 (N.Y. App. Div. 2003) (“In order believe from a preponderance o f the evidence that the to recover p unitive damages, a plaintiff must show defendant acted wantonly, oppressively, or with such [certain cond uct] by ‘clear, unequivocal and recklessness as evinc ed a c onscious disregard of the convincing evidence.’”) (citation omitted ), with In re rights of others, or with such malice as implied a Seventh Judicial Dist. Asbesto s Litig., 593 N.Y.S.2d spirit of mischief, or criminal indifference to civil 685, 686–87 (N.Y. App. Div. 1993) (“The trial court obligations, you may award the plaintiff such properly instructed the jury that the evidentiary additional sum as punitive damages.”); RF & P Corp. standard for proving entitlement to punitive damages v. Little, 40 S.E.2d 908, 914 (Va. 1994) (holding that is preponderance of the evidence, not clear and a prep ond eranc e of the e vidence standard applies to convincing evidence.”). a knowing and willful violation of a statute resulting in a civil fine, and the clear and convincing evidence Pennsylvania Ma rtin v. Johns-Manville Co rp., 494 A.2d 1088, standard applies only “to certain cases that are 1098 n.14 (Pa. 1985 ) (Hutchinson, J. delivering the equitable in nature, such as suits involving fraud and judgment of the court and an opinion jo ined b y only misrepresentation, undue influence, [or] estoppel.”). one of the five remaining justices) (recognizing that many jurisdictions have adopted a clear and Washington Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566 convincing standard an d conc luding: “W e believe the (W ash. 1997) (stating, without addressing the burden goal of limiting punitive damage awards in the of proof, that the trial court properly instructed the context of products liability litigation is best served jury that it could awa rd punitive damages on a 42 by focusing on the nature of the defendant’s conduct U.S.C. § 19 83 claim “only if you find [by a instead of increasing the plaintiff’s burden of preponderance of the evidence] that the conduct of an persuasion.”); Rizzo v. Michener, 584 A.2d 973, 979 individual defendant was malicious or taken in (Pa. Super. Ct. 1990 ) (“The trial judge must reckless disregard of plaintiffs’ rights.”) (quotation determine in the first instanc e whether the p laintiff omitted and alteration in origina l). But see Dailey v. has presented sufficient evid ence to sup port a North Coast Life Ins. Co., 919 P.2d 5 89, 590 (W ash. punitive damage claim, which requires evidence on 1996) (“Since its earliest decisions, this court has which the jury might reasonably conclude that consistently disapproved of punitive damages as outrageous conduct has been established by a contrary to public policy.”). preponderance of the evidence.”), appeal denied, 596 A.2d 159 (Pa. 1991).

Rhode Island Rhode Island has not addressed the burden of proof for recovering punitive dam ages. Nos. 00-6780; 01-5024 White v. Burlington Northern 85 & Santa Fe Ry. Co.

W est Goodwin v. Thomas, 403 S.E.2d 13, 16 (W. Va. Virginia 1991) (finding sufficient evidence to support an award of punitive damages, without discussing the burden of pro of, based o n the follo wing jury instruction: “[I]f you find from a prep onderanc e of all the evidence in this case, that the actions of the Defendants in evicting the Plaintiff were in total disregard of the Plaintiff’s rights as a lessee in the leased prem ises and that such actions were willful and wanton.”).

W yoming Campen v. Stone, 635 P.2d 1121, 1127 (Wyo. 1981) (approving, without discussing the burden of proof, a proposed jury instruction stating: “Punitive damages can properly be award ed . . . only if, one of the following [acts] has been proven by a preponderance o f the evidence.”).