Sheila White, Plaintiff-Appellee/cross-Appellant v. Burlington Northern & Santa Fe Railway Co., Defendant-Appellant/cross-Appellee

monetary penalties civil imposing therefor. WHITE, Plaintiff-

Sheila

Appellee/Cross-

Appellant, & SANTA NORTHERN

BURLINGTON CO., Defendant-

FE RAILWAY

Appellant/Cross-Appellee. 00-6780,

Nos. 01-5024. Appeals, Court of

United States

Sixth Circuit.

Argued June 2003. April Filed 2004.

Decided and briefed), V, in (argued and from Parts IV and which he was Bryan P. Neal Dallas, TX, BOGGS, J., & Ap- joined by Thompson Knight, C. KRUPANSKY, BATCHELDER,

pellant. ROGERS, JJ. briefed), Ryan (argued B. William TN, Firm, Memphis, Ap- for Donati Law GIBBONS, Judge. Circuit pellee. the en banc court ad- In appeal, this (briefed), Bateman Gib- Ralph T. Gibson meaning dresses the of employ- “adverse TN, son, Memphis, Appellant. for purposes ment action” for of Title VIL We (briefed), thirty-seven day Law decide that a suspension Donald A. Donati Donati Firm, TN, Appellee. pay without constitutes an adverse Memphis, em- ployment regardless action of whether the Reesman, Ann E. Robert E. Williams suspension by a is followed reinstatement Williams, (briefed), McGuiness, Norris & pay. with back alsoWe address several D.C., Washington, Jenifer M. Bosco other by appeal. issues raised this (briefed), Lawyers Employment National CA, Association, Francisco, E. Ralph brought against Sheila White this action San PA, (briefed), employer, Burlington her Northern & Collegeville, Lamar IV Jen- San- Goldstein, ta Equal Employoment Railway Company (Burlington Fe nifer S. Commission, DC, Northern), alleging sex discrimination and Opportunity Washington, in retaliation violation of Title VII of the for Amici Curiae. amended, Rights Civil Act of as BOGGS, Judge; Before: Chief 2000e-2(a)(l), §§ U.S.C. 2000e-3. The MARTIN, KRUPANSKY, jury Burling- returned a verdict in favor of BATCHELDER, DAUGHTREY, ton Northern on the sex discrimination CLAY, GILMAN, MOORE, COLE, claim in on the and favor of White retalia- GIBBONS, ROGERS, SUTTON, and jury tion claim. The awarded com- White COOK, Judges. Circuit pensatory damages no dam- but trial, court ages. After the the district GIBBONS, J., judgment announced Burlington denied Northern’s motion for court majority opinion and of the en banc judgment a matter of law on the retalia- as on all issues. The entire en banc court granted tion claim and motion for White’s joined (Background) Parts I and III attorney’s fees. Fees) majority (Attorney’s opinion. (Adverse Action) Burlington appeals from the Northern Employment Part II judgment motion for as a joined denial of its majority opinion was attor- BOGGS, J., KRUPANSKY, matter of law and from the award of and C. cross-appeals, BATCHELDER, GILMAN, ROGERS, ney’s fees to White. White jury in- SUTTON, COOK, JJ., challenging the district court’s and and Part IV (Punitive punitive damages. joined regarding struction Damages) was below, MOORE, we affirm MARTIN, DAUGHTREY, For the reasons set forth Burlington COLE, CLAY, GILMAN, COOK, the district court’s denial and JJ. a mat- CLAY, 808-17), judgment Northern’s motion for as separate (pp. J. filed I, III, ter of law and the district court’s award concurring opinion joining Parts conclude, attorney’s fees to White. We majority opinion writing IV the however, court erred in V, the district II and in which separately as Parts puni- MARTIN, instructing on the issue joined by he was DAUGHTREY, MOORE, COLE, and therefore we remand damages, tive JJ. SUTTON, 817-42), proceedings the case for further consistent (pp. opinion J. filed an dissenting opinion. in I—III and with this concurring Parts performance complaint regarding White’s I. BACKGROUND testified that operating the forklift. Joiner operated Ralph June Ellis Before her problems performing had no White Burlington stationary forklift Furthermore, Burlington job. another in Yard Mem- Northern at its Tennessee that no one Northern foreman testified resigned from Ellis phis. June ability to expressed concern about White’s to work on a position the forklift order workplace get along well with others position Ellis gang, mobile track which anything specific to White other about if would have he pay earned more than he gender. than her posi- forklift working had continued 16, 1997, September White com- On Brown, roadmaster of the tion. Marvin company to Brown and other offi- plained Yard, for a Tennessee interviewed White alleged sex- specific cials about incidents and ex- job Burlington with Northern committed ual harassment Joiner. op- pressed experience interest in White’s investigated. Following the in- company 23, 1997, Bur- erating a forklift. On June Burlington suspend- Northern vestigation, lington Northern hired White to work him days for ten and ordered to ed Joiner at its Way department its Maintenance training regarding attend a session sexual Yard, following White’s Tennessee harassment. hire, the assigned operate Brown her to 26, 1997, met September On Brown with at Yard. forklift the Tennessee to inform her that Joiner had been White pursuant complaint. to her He disciplined only working female White was the also, however, company told her that the at the Way department the Maintenance of during investigation had learned the super- immediate Tennessee Yard. White’s complaints working her several about had visor was foreman Bill Joiner. Joiner Brown, position. According the forklift to before, and he supervised never a woman per- did not relate to her complaints admitted at trial that he treated White formance but related to the fact that the differently gender. because of her He also position forklift was less arduous and admitted that he did not believe job posi- than other track laborer cleaner Way department Maintenance of was employ- tions. Brown testified that other Ac- appropriate place for women to work. ees, Ellis, including complained about White, ex- cording repeatedly to Joiner junior employee being allowed to work the was pressed this belief to her while she of “a man.” forklift instead more senior According working supervision. under his testified that the forklift Other witnesses Joiner, Burlington to North- several other job generally physically was considered employees expressed ern also the belief job and cleaner than other track easier that women should work on a railroad. not it positions, although required laborer employee Burlington Another Northern testified that qualifications. more Joiner general at “a agreed trial that there was complained track laborers about other Burlington feeling” among anti-woman being position allowed to hold the White the Tennessee employees Northern employee. of a male instead Yard. During September meeting re- Despite propriety concerns about the internal garding the resolution of White’s railroad, the evi- working a woman on the in- complaint, Brown sexual discrimination did removing dence was uncontradicted that White her that he was formed White job. assigning her difficulty performing position not have her from forklift Brown, position track be- to a standard laborer According to he never received checking daily Her and was on her activities. complaints. her coworkers’ cause of same, charge but Her second EEOC was mailed to benefits remained the pay and was, accounts, 8,1997. all more Brown on December job new her po- than the forklift and “dirtier” arduous 11, 1997, On December White was work- Ellis, with replaced sition. Brown White Arkansas, Blytheville, ing supporting a employee qualified per- other regional gang. tie working She was under job. Brown admitted at form the forklift supervision of Burlington Northern complaints had heard about trial that he Percy Sharkey. foreman point At some being allowed to work the forklift WTiite during day, Sharkey instructed White complained she of discrimination before foreman, to ride in a truck with another from the but that he did not remove her Key. Sharkey James instructed another complained until of dis- position after she laborer, Nelson, track Greg to ride with crimination. White, him in According his vehicle. Key testimony approached Brown’s trial is inconsistent when she he told her that Key she had to Burlington interrogatory Sharkey with Northern’s ride with because response. response, Against In that the railroad wanted Nelson ride with him. order, Sharkey’s away stated that it removed White from the Nelson rode with Key. Sharkey testified that position forklift because more senior em- became White job according very upset to the when she told him ployee claimed the returned and Brown, bargaining agreement. away Key that Nelson had ridden with collective however, that to him. testified at trial that the forklift she would have ride with Contrary testimony, Sharkey job governed by was not the collective to White’s that bargaining agreement and that he had the testified White refused to ride with Key, claiming seniority in that that place anyone discretion to he chose she had over position regardless seniority. insisting upon riding More- Nelson and with over, union, else, anyone Sharkey. nor neither grievance opera- initiated a about White’s According Sharkey, to he called Brown A tion of the forklift. union official testi- to discuss the situation and Brown told that the union’s records did not reflect fied that, Sharkey’s him on description based any complaints regarding assign- WTiite’s events, had been insubordinate and White position. Only to the forklift ment White removed from service immedi- should be qualified perform to and Ellis were ately. afternoon of December On the Ellis, position. forklift who had voluntari- Sharkey informed that she was sus- White ly resigned job from the forklift for a Although Sharkey had the au- pended. higher-paying job, testified that he did not himself, Sharkey thority suspend to White anyone complain to Brown or else about to testified that Brown made the decision operating

WTiite the forklift and that he that suspend Brown testified White. request did not that he be returned to the Sharkey made the decision. White testi- position. Sharkey at time that fied that told her 10, 1997, suspend him to her.

On October White filed a Brown had instructed EEOC, Burlington In a letter to the charge Equal Employment Op- with the (EEOC) the de- portunity alleging Northern stated that Brown made Commission cision, that this letter sex discrimination and retaliation. She but Brown testified on incorrect. Nelson received no disci- charge filed a second with the EEOC was 4, 1997, Sharkey acknowledged at alleging pline, although retaliation. December disobeyed trial that Nelson had his direct charge alleged her second EEOC she placed Brown had her under surveillance order. $43,500 in jury claim. The awarded White Sharkey had told testified

White $3,250 in damages, including compensatory suspension her point before her some claim. expenses, medical on her retaliation a “trouble- considered White Brown against found on her claim White acknowledged at trial Sharkey maker.” trial, pur- After the punitive damages. that the railroad that he had told White to Rule of Civil Procedure suant Federal her. trying “get to rid” of was 50(b), Northern filed a renewed Burlington suspend to occurred The decision White a matter of law on judgment motion for as filed her second days seven after White claim, the retaliation which the district days charge and three after EEOC for an court denied. filed motion White suspen- to Brown. The charge was mailed attorney’s pursuant award of fees immediately with- took effect and was sion 2000e-5(k), and the district court U.S.C. According company policy, pay. out $54,285, represented awarded which White pay would automatical- suspension without attorney’s total eighty percent of White’s if did not ly become termination White fees. appealing her union grievance file a with days. within fifteen White the decision II. JUDGMENT MOTION FOR filed timely grievance filed such a and also A MATTER OF AS LAW charge on December another EEOC first review the district We 1997, alleging retaliation. Burlington court’s denial of Northern’s post-trial judgment motion for as matter grievance pending, her was White While 50(b). Rule pursuant of law Our stan job and without income and was without a Gray dard of novo. v. Toshi review is de know if or when she would be she did not Prods., Inc., ba Am. 263 F.3d Consumer this During allowed to return to work. (6th Cir.2001). 595, inquiry The for 598 medical treatment period, sought White resolving judgment a motion for as a mat and incurred medi- for emotional distress Rule 50 pursuant ter of law to is the same grievance expenses. cal remained inquiry resolving as the for a motion for through the end of December and pending summary to 56. judgment pursuant Rule an January the first half of 1998. After Prods., Plumbing Reeves v. Sanderson hearing, hearing investigation and Inc., 133, 150, 2097, 530 120 S.Ct. 147 U.S. officer, Burlington Northern who was (2000). L.Ed.2d 105 review all of the We had not been manager, found White in light evidence in the record most that she should not have insubordinate and nonmoving party favorable to the and de being suspended After suspended. been genuine whether there was a issue termine pay thirty-seven days, without White jury. Gray, of material fact for the position to her with full was reinstated F.3d at 598. 16,1998. pay January on back jury We must affirm the verdict unless exhausting for relief After her avenues evidentiary legally there was “no sufficient EEOC, filed this action before the White jury for a reasonable to find for [the basis against Burlington Northern the district 50(a). prevailing] party.” Fed.R.Civ.P. court, alleging sex discrimination and re- draw all reasonable inferences favor We jury of Title A taliation violation VIL do not prevailing party, we 29, 2000, August trial was conducted from credibility or any make determinations 5, jury September 2000. The returned Reeves, 530 weigh the evidence. U.S. Burlington in favor Therefore, a verdict Northern 150, 120 2097. we “must S.Ct. claim on sex discrimination all favorable to the disregard White’s evidence jury required that the is not moving party on her retaliation verdict favor White It an employment Id. at 120 S.Ct. 2097. shall be unlawful to believe.” is, give credence to “That the court should practice for an employer to discriminate favoring the nonmovant as the evidence any against employees appli- of his or the mov- supporting well as that ‘evidence ... employment cants for because he unim- that is uncontradicted and ing party any opposed practice has made an un- that that peached, at least to the extent employment practice by lawful this sub- comes from disinterested wit- evidence chapter, or because he has made a ” Liberty v. (quoting nesses.’ Id. Anderson testified, assisted, charge, participat- or Inc., Lobby, 106 S.Ct. U.S. in any investigation, ed manner in an (1986)). 91 L.Ed.2d 202 proceeding, hearing under this sub- Northern contends that it is Burlington chapter. on judgment entitled to as a matter law 2000e-3(a) (section 704(a) 42 U.S.C. because, claim accord- White’s retaliation VII) added). (emphasis Title Title VII Northern, ing Burlington neither phrase does not define the “discriminate job from the forklift to a White’s transfer against,” repeated which is in Title VII’s job suspen- standard track laborer nor her days provisions, con- other anti-discrimination but pay thirty-seven sion without employment an action for stitutes adverse just any courts have made clear that not alternative, purposes of Title In the VII. discriminatory employer act an consti- Burlington Northern contends that there tutes discrimination under Title VII. See was insufficient evidence for the Indus., Ellerth, Burlington Inc. rationally Burlington conclude North- 742, 761, U.S. 118 S.Ct. 141 L.Ed.2d legitimate, ern’s asserted non-discriminato- (1998) (citing requiring “tangi- cases transferring suspending ry reasons for employment support ble action” to a Title for retaliation. pretexts White were claim). Employment actions that are VII Burlington In determining whether de not minimis are actionable under Title a mat- judgment Northern is entitled to as Univ., VII. Bowman Shawnee State law, meaning ter of we first discuss the (6th Cir.2000). every “If F.3d low employment purposes “adverse action” for employer evaluation or other action of Title VII. Then we discuss whether employee unhappy that makes an or re- suspension transfer and were ad- White’s action, an sentful were considered adverse employment Finally verse actions. we ad- triggered by supervisor Title would be VII dress whether there was sufficient evi- facial indicat- expressions criticism or even rationally dence for the find that Reno, ing displeasure.” Primes v. 190 Burlington legitimate Northern’s asserted (6th Cir.1999). 765, 767 F.3d pretexts reasons were retalia- unlawful prevent upon To lawsuits based trivial tion. dissatisfactions, workplace require we that Defining Employment A. Ac- Adverse an plaintiff prove a the existence of “ad-

tion employment support action” to a Ti- verse claim. v. 188 tle VII Hollins Atlantic provision

Title VII’s anti-retaliation (6th Cir.1999) (defining F.3d 662 “ad- provides: “materially employment verse action” as (a) making charges, Discrimination for in and condi- change adverse the terms in testifying, assisting, participating or [plaintiffs] employment”).1 enforcement tions of This proceedings action,” Although employment 1. this court and most other courts use the term "adverse employment action’ resulted from clarify further the verse us requires case filing charge of the EEOC is not action” employment “adverse meaning of erroneous, clearly particularly view of Title purposes VII. contrary evidence.... required a time this court The first (quoting F.2d at 996 the district prove the existence of “ad- plaintiff to phrase employ- “adverse court’s use of part action” as of a employment verse action”). ment Folsom, Title VII claim was Geisler Geisler, deciding A few months after Cir.1984). (6th Geisler, 735 F.2d 991 a claim support this court stated that employer that vio- plaintiff alleged her “plaintiff under Title for retaliation VII provision anti-retaliation lated Title VII’s (1) engaged must establish: that he discriminating against filing her for (2) VII; that he activity protected by Title with the EEOC. charge sex discrimination subject employment was the of adverse trial, the district court found After bench (3) action; exists a casual there any “[p]laintiff failed to show adverse protected activity link his between [sic] response action in to her employment employer.” and the adverse action of his ac- charge any protected other EEOC Toledo, Inc., Bottlers Jackson RKO additional arose after tivity. Cir.1984). While tension (6th 743 F.2d [plaintiffj’s charge, became aware of others court did not cite Geisler as a Jackson ‘predictable type including employment such tension’ is not ‘the basis for “adverse a Title among action” the elements of VII prohibited ” action employment of adverse claim; upon instead it relied retaliation 735 F.2d by Title VII’s retaliation clause.’ Fifth, Tenth, cases from the and Eleventh court). the district This (quoting at 994 (citing Id. Burrus v. United Tel. Circuits. affirmed, stating: court Kansas, Inc., 683 F.2d Co. of judge that a agree We with district (10th Cir.1982); Lumberjack Jones v. increase of tension in the work- general (11th Meats, Inc., F.2d Cir. expected to follow revela- place would be 1982); Whatley Rapid v. Metro. Atlanta tion that a claim of discrimination (5th Auth., Transit 632 F.2d However, employment had been filed. Cir.1980)). Jackson, The cases cited evidence of such an increase should be itself, each involved a termi like Jackson considered, any discrete act or employment, nation of and so none con- course of conduct which could be the issue of what these cases addressed strued as retaliation must be examined types employment actions short of ter we carefully. After such examination employment mination constitute adverse that no ‘ad- actions.2 finding conclude Court, Court, courts, County including Supreme sor.” Morris v. Oldham Fiscal some 784, (6th Cir.2000). “tangible employment use the action” or F.3d 792 What con term 201 concept. pervasive some other variation for the same severe or harassment is not stitutes See, Indus., 761, e.g., Burlington 524 U.S. at appeal. at issue in this (“tangible employment ac- 118 S.Ct. 2257 by 2. The decisions cited Jackson from the Bowman, tion”); 220 F.3d at 461 n. 5 Circuits, Burrus and Tenth and Eleventh ("Courts employment 'tangible use the terms Eatonville, Jones, Smalley City cite v. both 'materially employ- adverse detriment’ and 765, (5th Cir.1981), which in 640 F.2d 769 interchangeably.”). ment action' including Whatley cites as the basis for turn showing the exis- As the one alternative to among employment action” the ele- action, "adverse employment a tence of an adverse Whatley VII claim. cites a ments of a Title may by support a Title VII claim published 632 F.2d at 1328 treatise in 1976. showing "plaintiff subjected to was se- Grossman, Employment (citing & P. retaliatory B. Schlei pervasive other dis- [or vere or Law, (1976)). ap- It by supervi- Ch. 15 harassment a Discrimination based] crimination

797 Jackson, the ad crimination show that Geisler and must she suffered “a Ever since materially in change element has re adverse the terms of verse-employment-action her employment.” (citing a Title claim in this Id. at 885 part mained a VII Dist., Geisler, Spring Sheboygan v. Area Sch. After the first time that 865 circuit. (7th Cir.1989), F.2d 883 which on the involved an this court decided case based claim). age discrimination A “mere incon element was in adverse-employment-action (6th job or an 630, responsi venience alteration of Corp., v. Avco 819 F.2d 638 Yates or a Cir.1987). Yates, ego” enough bilities” “bruised is not this court reversed a an employment constitute adverse action. finding court’s factual of retalia district at (citing Crady Liberty Id. v. Nat’l tion, holding that it was clear error for the Co., 132, Bank and Trust 993 F.2d temporary job that a district court to find (7th Cir.1993), Flaherty Re Gas reassignment pay that resulted no or Inst., (7th search 31 F.3d Cir. an employ benefits reduction was adverse 1994)). cognizable action under Title VII’s ment provision. anti-retaliation For this hold Furthermore, Kocsis, according to solely upon court ing, the Yates relied “reassignments salary without or work court decision from Delaware. Id. district changes hour not ordinarily do constitute endorsing Ferguson v. E.I. du (citing and employment employ adverse decisions in Co., F.Supp. Pont deNemours ment discrimination claims.” Id. at 885 (D.Del.1983), 1172, 1201 which held that a Yates, (citing ap 819 F.2d at which job reassignment is not an adverse em plied “temporary” reassignments). A only temporary if it ployment action reassignment salary without or work hour benefits). pay in no reduction in results however, changes, may be adverse em ployment action if it constitutes demotion Yates, years it was almost ten After title, distinguished evidenced “a less opportunity we had another to de before benefits, significantly material loss of di velop employment the definition of adverse responsibilities, minished material or other Manage action. In Kocsis v. Multi-Care that might unique particu indices be to a Inc., court the defini ment this considered (citing Crady, lar situation.” Id. action in employment tion of adverse 136). 993 F.2d at context of a discrimination claim under the Americans with Disabilities Act. 97 F.3d circuit, In this Kocsis is the seminal Relying part upon 885-87. defining employment adverse act case definition, this court held Supreme Burlington Seventh Circuit’s ion.3 The Court in employment that a plaintiff claiming upon dis- Industries v. Ellerth relied Kocsis instance, pears employ- that the inclusion of "adverse 3. For Hollins Atlantic this upon ment action” as an element of a Title VII court relied Kocsis to decide that an originated employee claim with the treatise cited had not suffered an em adverse Boorstin, Whatley. ployment See Williams v. 663 F.2d action when she received rat lower (J. Bazelon, (D.C.Cir.1980) ings performance concur- in a evaluation. 188 F.3d (6th 1999). ring) (stating employment that "adverse ac- Cir. Hollins court The among ratings enough tion” is the elements of a Title VII held that lower were not retaliation claim under "the standard found the absence of "evidence to show that the Grossman, Employment performance ratings actually in B. Schlei & P. lowered had an (1976)”). wages may Law 436 her such that a court Discrimination first effect on materially reported "ad- that there was a adverse case in the nation to include conclude employment employment an a action.” Id. In Bowman v. verse action” as element of year University, Title VII decided the Shawnee State this court relied claim was after publication upon and to hold that the of the treatise. EEOC v. Locals Kocsis Hollins university Operating Eng''rs, temporary a instructor 14 and 15 Int’l Union 438 removal of of 876, (S.D.N.Y.1977). Sports F.Supp. position of 881 from his as Coordinator 798 or others charging party a likely circuits to deter from other decisions

and several activity.” in engaging protected from employ tangible that “[a] it stated when 8,§ Manual “Retalia- Compliance EEOC significant a constitutes action ment ¶ (1998). tion,” Although EEOC 8008 status, as hir such change employment courts, binding are not on Guidelines reassign promote, to firing, failing ing, “constitute, body experience of and they responsi significantly different ment with courts and judgment to which informed significant bilities, causing aor decision guid- resort for litigants may properly 761, 118 742, in benefits.” 524 U.S. change Vinson, Bank v. Meritor Sav. 477 ance.” (1998). The 2257, 141 L.Ed.2d S.Ct. 57, 65, L.Ed.2d 49 106 S.Ct. U.S. that: also observed Supreme Court & (1986) Skidmore v. (quoting Swift action most tangible employment A 134, 140, 161, 89 L.Ed. 65 S.Ct. 323 U.S. harm.... inflicts direct economic cases (1944)). are the employment actions Tangible court’s de- claims this EEOC brings supervisor which the means adverse-employment-ac- velopment of the enterprise power official unfaithful to the tion element has been tangible A em- on subordinates. bear anti-retal- purpose of Title VII’s letter act requires an official ployment decision According to U.S.C. provision. iation act. The enterprise, company 3(a), employer it is unlawful for an 2000e in most cases is documented decision against” employee an to “discriminate records, may be company official protected conduct. The engaging subject by higher super- to review level most natural EEOC contends visors. prohibits it reading language of this is that Ray But v. see Id. 118 S.Ct. 2257. against an “any form of discrimination” (9th Henderson, 1234, 1242 n. 5 217 F.3d opposing discrimination or individual for Cir.2000) (rejecting contention that filing charge. The Ninth Seventh Industries set forth a standard Burlington have also embraced a broad inter- Circuits in the re- employment actions for adverse pro- pretation of Title VII’s anti-retaliation context). taliation Henderson, 211 F.3d Ray vision. See EEOC, and the appeal, In this White (9th Cir.2000) (“This provision has filed an amicus curiae brief on which type does not limit what discrimination behalf, our defi- urge us to revise White’s covered, it a mini- prescribe is nor does employment action for nition of adverse severity actionable dis- mum level of retaliation cases and purposes Title VII Indiana, crimination.”); Knox State of in the interpretation included adopt the (7th Cir.1996) (“There 1327, 1334 93 F.3d inter- The EEOC has EEOC Guidelines. nothing in the law of retaliation action” in the employment “adverse preted retaliatory act that type restricts the claim to of a Title VII retaliation upon employee context who might be visited a com- “any rights by filing adverse treatment that is based her mean seeks invoke reasonably plaint.”).4 retaliatory on a motive and is dictionary recognized defi- 4. We have that the did not rise to the level of an adverse Studies distinguish; is "to nition of ''discriminate” employment action. 220 F.3d 461-62 treatment; partiali- show distinctions in make (6th Cir.2000). court focused The Bowman Mattei, F.3d ty prejudice.” Mattei v. only ten on the facts that the removal was for (6th Cir.1997) (quoting Webster's employee position days, the maintained his as Dictionary); also Oxford En- New World see instructor, university and he never a full-time (2d ed.1989) ("to Dictionary discrimi- glish any lost income. Id. against: adverse distinction nate to make an that the EEOC’s contention retaliation.” EEOC v. Ohio Despite Edison (6th Cir.1993). F.3d While the of discrimination” falls within “any form proposed EEOC’s definition overtly more statute, reading natural the most incorporates the purpose of Title VII’s in that acknowledges the EEOC its brief provision, anti-retaliation this court’s defi- employment of adverse action its definition nition, properly interpreted, also accom- slights annoy- “petty excludes trivial plishes goal the appropriately while coun- reasonably that not anything ances” and is terbalancing prevent the need to lawsuits in likely employees engaging to deter from upon based trivialities. Instead of requir- protected activity. The EEOC does not ing district courts to determine on a case- explain justifies excluding how it such dis- by-case by employer basis what actions criminatory strictly under its literal acts are reasonably likely to deter an employee statute, prohibits the dis- reading of which from engaging protected activity, we any textual explicit crimination without have twenty years given over the last some regarding type limitation of discrimina- shape to the definition describing the severity required. tion or level of There- kinds of material employment adverse ac- fore, strictly admits that a liter- EEOC tions that rise above the level of trivial. al not reading against” of “discriminate is Kocsis, however, As we recognized it is it interpretation a fair of Title VII since impossible every possible to list employ- unlikely Congress that intended to author- ment action that falls into the definition of ize Title claims over trivial matters. VII employment adverse action and a court must consider “indices that might be developed adverse-employment- We Kocsis, unique particular to a situation.” of prevent action element to the kind F.3d 886. ac- upon employment claims based trivial n addition, strictly reading tions that a literal of Title this court’s definition has applying equally the benefit of to all Title provision VII’s anti-retaliation would allow. claims, VII discrimination not to re- of not language Because the Title VII does Having taliation claims. a different stan- explicitly provide any types limit on the of provisions dard for different of Title VII discriminatory prohibited, acts the lan- unjustified by would be burdensome and guage of Title VII does not favor the statute, of the text which uses the limi- proposed EEOC’s limitations over the phrase against” same “discriminate each developed during tations this court has provisions. its anti-discrimination See twenty years defining last the adverse- Court, Morris v. County Oldham Fiscal employment-action element of a Title VII (6th Cir.2000) (apply- F.3d 791-92 claim. ing statutory rules of construction to hold argues The purpose EEOC against” that “discriminate means Title provision sup- VII’s anti-retaliation thing appears same each time it in Title ports enacting its definition. “In section VII); Mattei, Mattei v. 126 F.3d 2000e-3, Congress unmistakably intended (6th Cir.1997) (presuming Congress person ensure no would be de- phrase against” intended the “discriminate exercising rights terred from his under meaning to have the same basic each time statute).5 discriminatory it Title VII the threat of is used to; regard distinguish unfavorably respect with ited discrimination must be "with others”). terms, conditions, compensation, privi- from his leges employment,” while the anti-retalia- 2000e-2(a)(l) language. Although provision § tion contains no such 5. both 2000e-3(a) parties dispute phrase use the whether this additional “discriminate against,” specifies prohib- language expansion the former that the is a limitation or an end at Vanderbilt would ing appointment and the reject White’s therefore We 31, 1995. Id. at 543. August on Dobbs- adopt that we a new defi- request EEOC’s with grievance filed an internal action for Weinstein employment nition of adverse Vanderbilt, national- cases, alleging gender and and retaliation of Title VII purposes among things, other origin have discrimination that we the definition we reaffirm 1995, an action under May she filed as Kocsis and its and in cases such developed 31, 1995, her adverse-employment August Id. On Title VII. Since progeny. is end- developed by employment this Circuit contract with Vanderbilt element action 1995, broad, strictly literal at 544. In November while exception to a ed. Id. an pending, anti-discrimination the Vander- reading of Title VII’s her lawsuit was still to define the we will continue of Trustees reversed deci- provisions, bilt Board narrowly so as not to frustrate exception of the dean and rehired her as sion deterring Title while purpose of VII professor. Id. The board also tenured matters. lawsuits over trivial to account for the granted pay her back period and the of unem- delayed promotion Pay Suspension B. Without persisted ployment. Id. Dobbs-Weinstein lawsuit, however, seeking interest of ad with her apply now our definition We compensation pay to the actions at on the back employment action verse injury reputa- emotional distress and case. We consider the present in the issue Northern ar tion. Id. Burlington first. suspension pay, without fol gues suspension that a initially facts that she was Despite the thirty-seven days later a rein lowed employment her ended denied tenure and pay, is not an adverse statement with back this court held that Dobbs- temporarily, argument, For this employment action. not an adverse em- Weinstein had suffered primarily upon Northern relies Burlington cognizable action under Title ployment “ v. Vanderbilt Universi Dobbs-Weinstein ‘ten- recognized Id. at 545. We VII. Cir.1999). (6th ty, 185 F.3d 542 setting in an academic in- ure decisions a combination of factors which tend University volve May Vanderbilt deci- apart employment to set them from to Professor Dobbs- dean denied tenure ” Zahorik v. generally.’ (quoting sions Id. and advised her that her teach- Weinstein employer prohibited vision means that an prohibited. We have never be the conduct distinguished types materially ways, of con retaliating between the fore from adverse prohibited provisions, duct in the different retaliatory regardless of whether the acts af- We untena and we do not do so here. find it employment. v. American Chem. fect Passer language an interpret additional as ble to Soc., (D.C.Cir.1991) 330-31 935 F.2d expansion prohibited conduct because employer’s (holding cancellation of a commonly respect phrase used "with to” is a major public symposium employ- in former But Mattern v. Eastman Kodak to limit. cf. act under ee's honor could be an of retaliation (5th Cir.1997) ("The 104 F.3d parallels Title VII's anti-retalia- a statute speaks only provision of 'dis anti-retaliation crimination'; provision); EEOC v. Outback Steakhouse tion there is no mention of Florida, Inc., F.Supp.2d 758-60 vague contemplated 2000e- harms (N.D.Ohio 1999) (holding that Title VII's anti- Therefore, 2(a)(2). only provision can be this provision is not limited to discrimi- retaliation harms, vague to exclude such read affecting employment). unneces- It is nation employment deci include ultimate sary question addressed us to resolve the sions.”). and the United The D.C. Circuit Steakhouse because the in Passer and Outback Court for the Northern District States District (job present case trans- in the actions issue opinions Ohio have written well-reasoned clearly employ- suspension) affect fer of the addi that conclude that the absence pro- ment. language anti-retaliation tional from the (2d Univ., any viability 729 F.2d 92-93 Cir. has are the Fifth Cornell and the Co., 1984)). Eighth. Mattern v. Eastman fact that Kodak upon relied the Van We (5th Cir.1997) 702, 104 F.3d 707 (applying derbilt reversed the decision its dean employment the “ultimate decision” stan pay back as granted and Dobbs Weinstein dard); Ledergerber Stangler, v. 122 F.3d grievance proce of its internal the result (8th Cir.1997) 1142, 1144 (same). reversal, reasoned, Id. This we was dure. employment the “ultimate decision.” Id. Circuit, however, Fifth ques has We held that “intermediate” tenure deci employment tioned whether the “ultimate through Supreme a decision” standard survived the appealable sions are tenure pronouncements Burlington Court’s In process review cannot form the basis of a regarding dustries the definition of tangi not, however, Title VII claim. Id. We did employment ble action. Fierros v. Texas any requires cite section of Title VII that Health, 187, Dep’t 274 F.3d 192-93 & n. grievance proce exhaustion internal (5th Cir.2001) 2 (pretermitting question); Instead, dures before one files a lawsuit.6 but see Hernandez v. Bldg. Ma Crawford upon we relied a decision from the Fourth (5th Cir.2003) Co., 528, terial 321 F.3d 531 Circuit, 227, Page Bolger, 645 F.2d 233 (applying employment “ultimate decision” (4th Cir.1981), interpreted we as which discussing Burlington standard without only to “ulti holding applies Title VII Fierros). or Industries And while the employment hiring, mate decisions such as Eighth ostensibly adopted Circuit has the leave, granting discharging, promoting, standard, employment “ultimate decision” compensating.” Id. Neither the consistently it has applied broader stan Fourth nor the Circuit Dobbs-Weinstein See, e.g., dard. Manning v. Metro. Life court, however, statutory provision cited a (8th Cir.1997) 686, Ins. 127 F.3d 692 application that limits Title VII’s to ulti (ultimate employment decision includes employment mate decisions. “tangible change in or working duties con deciding Page, Fourth Since the Circuit ditions that employ constituted material employ- has retreated from the “ultimate disadvantage”); ment Kim v. Nash Finch ment decision” standard. Von Gunten v. Co., (8th Cir.1997) 123 1060 F.3d (4th 858, 865, Maryland, n. 243 F.3d 866 3 (ultimate employment decision includes re Cir.2001) (limiting Page holding duties, disadvantage duction of actions that “ employment employee’s ability ‘ultimate decision’ is not the or interfere with the circuit”). Furthermore, job, “papering” employ do his or her of an this negative reports repri ee’s file with majority the of other circuits have either though employee mands even was “not implicitly explicitly rejected or a standard demoted, discharged, suspended”). limiting Title VII’s to ultimate em- reach ployment n. decisions. See id. 866 join majority now the of other cir- We cases). Indeed, (citing other in rejecting employ- cuits the “ultimate arguably circuits where this standard even ment decision” standard.7 First and fore- fact, below, (1976) again (reversing 6. as will be mentioned S.Ct. 50 L.Ed.2d 427 decision). Supreme Sixth Circuit pointed Court has out to this grievance proce- court before that internal recognize 7. We that our decision in Dobbs- dures and an under Title VII "le- action are part upon unique Weinstein was based in gally independent” such that statute of of "tenure decisions in an academic nature limitations on a Title VII claim is not tolled setting.” 185 F.3d at 545. Other circuits during grievance pendency of an internal acknowledged unique also have nature of process. Int’l Union Elec. Workersv. Rob- of 429 tenure decisions. See Tanik v. S. Methodist Inc., 229, 236, Myers, bins & U.S. Univ., (5th Cir.1997); 116 F.3d unlawful em- on account of ries suffered plain language most, contrary to it is Albemarle Pa- VII, employer that an provides ployment discrimination.” Title which 405, 418, an em against” Moody, not “discriminate U.S. per must Co. (1975). upon prohibited classifica based ployee While 45 L.Ed.2d S.Ct. found, the words this court has tion. As wrongfully that a ensures the standard “any literally mean against” “discriminate eventually receives employee suspended Mattei, action.” 126 F.3d of adverse kind unilateral- employer it allows an pay, back provided have Congress could at 805. for employee’s cut off the claims ly to against shall not “discriminate employers explicitly have been damages, other which making ultimate em employee when an Title since the Civil authorized VII decisions,” it chose to but instead ployment 1991, interest on the Act of such as Rights against” with the words “discriminate use fees, attorney’s emotional suffer- pay, back qualifier. no such damages. U.S.C. ing, Second, taken in employment action the (k). 1981a(b); Although 2000e-5(g), §§ pay (suspension case without present the that it made Burlington argues Northern type the of thirty-seven days) is not for granted pay, it her back whole when White court devel- action that this employment making part declared that of Congress has ele- adverse-employment-action the oped compensating a Title VII whole adverse-employment- to filter. The ment attorney’s pay, on the her for interest back judicial in- element is a warranted action fees, suffering. In this and emotional intended to deter terpretation of Title VII case, jury found that White had suf- the based on trivial discrimination lawsuits $43,500 other than back fered actions, such as those employment Northern’s retalia- pay Burlington due to a “mere inconvenience” cause tion. Kocsis, at 886. ego.” 97 F.3d “bruised Lastly, employment the “ultimate deci- strictly to the literal exception But as an Supreme in tension with sion” standard is statute, adverse-employ- the the reading of holding that the statute of Court cases element of Title VII lawsuit ment-action claim is not limitations on a Title VII broadly. Tak- interpreted too must not be during pendency the of an internal tolled paycheck for over ing away employee’s an See, e.g., Int’l grievance process. Union trivial, and if motivated a month is not of Inc., Myers, & Elec. Workers v. Robbins intent, discriminatory it violates Title VII. 441, Fuel, 229, 236, 50 L.Ed.2d Motor 429 U.S. S.Ct. Lovejoy-Wilson v. NOCO See Cir.2001) (2d (1976). Inc., According Supreme to the 263 F.3d 223-24 suspension pay Court, that a without the (holding a Title claim arises on date VII ac- employment occurs, an adverse one week was discriminatory decision alleged the later though employee was tion even challenged has though employee even an the em- wages for lost because reimbursed grievance pro- an internal the decision via loss of the use of her ployee “suffered the 441. at 97 S.Ct. The Su- cess. Id. time”). for a wages rejected argument has preme Court grievance internal pendency that the of an Third, employment the “ultimate deci- decision employment renders the process purpose “the sion” standard contravenes purposes inju- “tentative” or “non-final” make whole for persons Title VII to Ass'n, Cir.1984). presented we are not Augustana Because Coll. Brousard-Norcross tenure, (8th Cir.1991); we not decide do here with denial F.2d Kumar Mass., (1st holding in Dobbs-Wein- extent our of Trs., 774 F.2d to what Univ. Bd. Zahorik, (2d Cir.1985); in this case. survives our decision 729 F.2d at 92-93 stein Supreme The Court has also that there was no employment Title VII. Id. adverse danger rejected argument “the mayor effectively action when a suspended the concurrent possible conflict between pay police with chief for four days pend- pursuit collective-bargaining of both and ing investigation an police of the chiefs tolling Title VII remedies should result alleged improper conduct in office. See id. period limitations for the latter while at 744 (noting mayor that the referred to proceeds the former to conclusion.” Id. suspension with pay police chief alleged 441. The 97 S.Ct. discrimina- residence”).8 as a reassignment “to his tory present decision case was the suspension pay. election without White’s C. Job Transfer an challenge through this decision inter- Next we job consider whether the grievance process nal does not render the transfer at present issue case was decision not actionable under Title VII. employment adverse action. Burling Equal Employment Advisory Coun- appeals ton Northern the district court’s (the EEAC) argues cil in its amicus curiae decision that transferring White from her Burlington brief on behalf of Northern operator job forklift to a standard track employers preroga- that must maintain the job was an employment laborer adverse summarily to suspend employees tive sus- agree action. We with the district court. pected wrongdoing pending an investi- job While the track laborer gation facing without the risk of Title VII paid the same operator po as the forklift Otherwise, liability. according to the sition, position White’s new was all ac EEAC, employers will be faced with the counts more arduous and “dirtier.” Fur allowing potentially dilemma of either dan- thermore, operator the forklift position gerous disruptive or individuals to remain required qualifications, more which is an workplace suspending pend- them Kocsis, prestige. indication of See thereby an ing investigation, risking Title F.3d at that (finding 886-87 liability. VII had failed to an employ show adverse concerns, In response to the EEAC’s we because, among things, ment action other initially employer taking note that an an job reassignment any her did not entail employment against adverse action an em- in prestige). According Burlington loss ployee, a including suspension pay, without witnesses, Northern’s own the transfer liability risks Title if there VII exists occurred operator po because the forklift prove sufficient evidence to that the em- objectively sition was considered a better ployer upon illegal took the action based job employees and the male resented discrimination. To the extent the EEAC’s essence, In occupying White for it. as employer’s concerns for an risk of Title found, reassignment the district court valid, however, liability they VII are are a demotion ... was evidenced “indices Columbus, allayed by City Jackson v. unique particular situation.” Koc [the] which that a suspension pay holds ivith sis, 886; Burlington 97 F.3d at see also full pending timely benefits a investi- Indus., Inc., at U.S. 118 S.Ct. gation suspected wrongdoing into is not an (defining “tangible ac employment employment adverse action. 194 F.3d (6th Cir.1999). Jackson, purposes liability we held tion” for of Title as VII Lawyers Employment employment 8. The National does not Associa- constitute an adverse tion in its amicus curiae brief on behalf of action and recommends this course to em- suspension pay White concedes with ployers possible concerned about misconduct. pending timely, good-faith investigation internal hearing officer for White’s “reassignment signifi with as joba including Mattei, had not responsibilities”); grievance concluded White cantly different transferring (stating that at 808 second 126 F.3d insubordinate. White’s been salary to “some at the same employee Brown of violat- charge EEOC accused “clearly” action backwater” wretched VII, suspended was ing Title White claim). able in a retaliation charge this was mailed days three after to Brown. Pretext D. Evidence of evidence, including upon Based all the rejected Burlington North Having contradictory Burling- evidence from no that there was adverse arguments ern’s officers, jury Northern’s own was ton White, against action taken employment Northern’s Burlington to find that entitled Northern’s al Burlington we now address legitimate reasons were false asserted reversing argument support ternative pretext for unlawful retaliation. See were motion for court’s denial of its the district Reeves, 120 S.Ct. 2097 530 U.S. Burlington a matter of law. judgment as is entitled to treat a (holding that the district court’s deci appeals Northern fact as dishonesty about a material party’s there was evidence sion that sufficient culpability). evidence jury reasonably concluded from which Burlington legiti Northern’s asserted III. ATTORNEY’S FEES mate, non-discriminatory reasons for re ap- Northern’s last issue on Burlington position from the forklift moving White challenge a to the amount the dis- peal is pretexts for suspending then her were attorney’s in trict court awarded White agree with the unlawful retaliation. We court fees. The district awarded White court. district attorney’s fees eighty percent of her based jury to the substan- presented White in degree on her of success the lawsuit. Burlington to contradict tial evidence that Burlington argues Northern White reasons, legitimate Northern’s asserted court was not as successful as the district contradictory statements from including attorney’s fee award found and that her Northern’s own officers. Burlington should be reduced. Northern asserted one reason Burlington transferring interrogato- in its for White a court’s de We review district Brown, the official ry response, but then an regarding termination the amount of White, decision to transfer who made the attorney’s fees under Title award of VII different, contradictory a reason asserted of discretion. Scales v. J.C. for abuse Furthermore, Brown testified trial. (6th 901, 925 F.2d 909 Bradford part in based that he transferred White Cir.1991). deference, appropri “This ‘is Ellis, at trial upon complaints from but superior court’s ate in view of the district complaining Ellis denied about White. understanding litigation and the de the evidence Regarding suspension, sirability avoiding frequent appellate regarding not consistent who was even essentially are factual mat review of what decision, much the motiva- made the less ” Eckerhart, (quoting Hensley v. ters.’ Id. testified tion for the decision. Brown 1933, 76 103 S.Ct. 461 U.S. Sharkey that made the decision sus- (1983)). VII, Title a 40 Under L.Ed.2d White, Sharkey testified pend while has discretion to award district court Burlington Brown made the decision. attorney’s “a reasonable prevailing party suspended Northern asserts that Brown 2000e-5(k). § In deter 42 fee.” U.S.C. insubordination, but another White a reasonable at- mining what constitutes who served Burlington Northern official

805 1981a(b)(l); individual.” U.S.C. see fee, of success degree torney’s Ass’n, factor. Kolstad v. Am. Dental 527 U.S. is a crucial also in the lawsuit achieved (1999) 2118, 144 Scales, L.Ed.2d 494 at 910. S.Ct. 925 F.2d prove must (discussing what may have awarded Although we VII). punitive damages under Title recover considering if we were amount different concerning the evidentia- Title VII is silent novo, that the do not find de we the issue ry demonstrating standard for malice in its discretion court abused district purposes pu of a reckless indifference at percent of her awarding eighty White In nitive claim. the absence claims brought two torney’s fees. White guidance, specific more “Conventional (sex and re in lawsuit discrimination this litigation generally apply rules of civil (retali taliation) on one only prevailed but cases, and one of these rules is Title VII ation). correctly court stat As the district need parties litigation to civil however, decision, both in its ed written by preponderance their case prove from a common set claims arose these Hopkins, evidence.” Price Waterhouse facts, difficult to divorce and it would be 228, 253, 490 U.S. S.Ct. on claim from work done work done on one (1989) decision) (in (plurality L.Ed.2d 268 light of this consideration the other. omitted); citation see also Desert ternal court addressed the district and others Costa, Palace, Inc. v. U.S. decision, the district we find that its (2003) 2148, 2154, S.Ct. 156 L.Ed.2d discretion award court did not abuse its re (holding that Title VII’s silence with attorney’s of her ing eighty percent White evidentiary suggests to an spect fees. preponderance of the that a conventional applies). evidence standard DAMAGES IV. PUNITIVE reached this same Other circuits have cross-appeal, White asserts In her punitive dam charging respect conclusion with court erred the district generally, Simpson The district claims see damages. ages on 277, jury punitive Coming Corp., that 901 F.2d Pittsburgh court instructed the (2d Cir.1990) apply if a may (declining considered White damages be 282-83 convincing” preponder evidence proof “clear and of than higher showed standard in damages acted “either Burlington punitive that Northern for ance of the evidence recklessly, maliciously, or tentionally, liability case because products award not award fraudulently.” The did or change Congress is best left for “such a contends punitive damages. White authority”); White In re Exx higher judicial for (9th proof of on a appropriate Valdez, 1215, that the burden Cir. 270 F.3d on damages under Title VII punitive 2001) claim for preponderance standard (applying evidence, not of the preponderance is a in maritime damages punitive of award convincing evidence. White clear and a legislated has not Congress case because correct. standard), respect puni with higher and suits, Karnes damages in Title see tive VII VII, complaining to Title According “[a] Inc., Servs., Funeral Colorado SCI damages under may punitive recover party Cir.1998) (con (10th 1077, 1080-82 F.3d ... if the respondent a against this section of the evi preponderance cluding that that party demonstrates complaining for to claims applicable standard is dence discriminatory in a respondent engaged VII); Notter Title damages under punitive with discriminatory practices or practice 829, Prat, F.3d 1996 WL N. Hand to the reckless indifference malice or with 1996) (4th *10-11 Cir. June at aggrieved federally protected rights of instance, that the standard of issue at hand. For the dissent (rejecting argument damages that, Title VII proof punitive years, public policy always ages higher must be than that for n excessive awards. compensatory liability” rejecting actu requirement al malicious intent for puni Besides at identifying trends the state damage cases, §in tive award 1983 even level, the dissent also cites cases that in- underlying liability when standard of for process due challenges appli- volve to the recklessness). compensatory damages is preponderance cation of a of the evidence proof. standard of of Some these cases dissent, point any prec- The unable to to wholly pu- concern situations unrelated to imposing higher proof edent standard of' damages Addington nitive claims. See v. punitive damages for Title VII claims than Texas, 418, 431-33, 1804, evidence, 441 99 preponderance of the also U.S. S.Ct. relies (1979) authority directly on not to in germane (resolving, the 60 L.Ed.2d 323 the employers, ployers employees. 9. The limits are lower for smaller with 15-100 U.S.C. $50,000 a(b)(3)(A)-(D). being with the lowest limit for em judiciary ful in its reminder that the has the stan challenge, process a due face of traditionally question commit resolved the of the in a civil required proof dard of Kramer, 455 Santosky proof a federal hearing); proper standard of under ment 1388, 747-48, 745, 102 S.Ct. Congress U.S. when has not addressed statute (1982) the stan (determining 483, issue, 284, L.Ed.2d gives at 87 S.Ct. it id. in demands proof process that due dard of reasoning case. Its us no direction this termi rights parental context of a hardship of on the immediate based cases cited Other proceeding). nation Deportation, as an outcome deportation. process chal implicate a due the dissent judicial proceed- of an administrative and awards. damage lenge large punitive to similarity to an award of ing, bears little Auto. Ins. Co. Farm Mut. See State Ti- damages, an award under particularly 1513, 408, 538 U.S. S.Ct. Campbell, VII, Congress carefully has re- tle which (2003); 1519-20, 155 L.Ed.2d 585 Pacific limit harm to em- potential stricted to its 1, Haslip, 499 U.S. Ins. Co. v. Mut. Life ployers. (1991). 1032, L.Ed.2d 1 19, 111 S.Ct. Accordingly, determining proper exces has found Supreme Court While proof punitive damage for a standard of viola- damages awards be punitive sive VII, spe- receive no claim under Title we Farm, 123 S.Ct. process, of due State tive statutory language guidance cific from the rejected specifically has at the Court of- Supreme precedent Act. Court the Due Process Clause the notion that assistance, Deriving however. fers some proof standard of requires higher from Price guidance Waterhouse damages preponder claims than punitive specifically of Desert Palace —both which Mut. ance of the evidence. Pacific Life proof in Title standards of VII discuss Ins., n. 111 S.Ct. 1032. 499 U.S. at 23 looking than appropriate more cases—is any from assistance derived The sole bit of views on the stan- Supreme Court’s rejec direct is the Court’s of these cases or its in dissimilar contexts proof dard of of the notion tion in Mutual Pacific state or federal stray comments about of requires standard the Constitution of decid- proof of the course standards any higher preponderance than proof there have been ing other issues. While claims. punitive damages the evidence for concerning the standard of developments by the dissent relied on case damages claims at the punitive proof INS, Woodby v. instructive is that could be level, support these trends do not state 17 L.Ed.2d 362 87 S.Ct. 385 U.S. convincing” that the “clear conclusion (1966), consid- Supreme where the Court dam- punitive to federal applies deporta- proof for a ered the standard VII, has its under Title which age claims case, the hearing. As in the instant tion damage punitive limitations on own de- Woodby was confronted with Court Furthermore, this case does as awards. proof when termining the standard challenge to process a due implicate not to the not addressed itself “Congress has award, size of a proof is re- question degree of what in civil commit- used the standard ...” 87 S.Ct. 483. quired. Id. hearings terminating pa- hearings, ment deporta- that for Woodby, the Court held deporta- or in the rights, rental context proof the standard proceedings, tion tion, cited find the dissent’s we do not “clear, convincing ev- unequivocal, and was Rather —in authority persuasive. to be idence,” the at which id. 87 S.Ct. ap- proof to be deciding the standard prop- for the apparently dissent references dam- punitive claim for plied plaintiffs to stan- apply that we should the same osition follow choose to ages under Title VII —we Woodby help- is proof here. While dard of order, Rather, by the guidance provided Supreme suggests. to decide Court that rules of civil “[Conventional whether a trier of fact puni- could award apply in Title litigation generally VII case, damages tive this a careful exami- Waterhouse, Price cases.” U.S. required. nation of the entire record is 253, 109 1775. S.Ct. This exercise is most appropriately under- taken in the first instance the district

Therefore, the district court erred when court. If the district court determines on jury' it that instructed White must remand that the evidence is sufficient to prove punitive damages by her case for support punitive a claim for damages un- convincing clear and evidence. The dis court, however, trict it der the standard also erred when announced the Su- Kolstad, jury only instructed the that needed preme 'White Court then district prove Burlington to that Northern acted court should conduct a new trial on the intentionally, recklessly, “either malicious punitive damages only. issue of ly, fraudulently.” above, As noted

plaintiff seeking punitive damages under V. CONCLUSION prove Title VII must that the defendant reasons, For all these we affirm the acted “with malice or with reckless indif Burlington district court’s denial of North- federally protected ference to the rights of judgment ern’s motion for aas matter of an aggrieved This .standard individual.” law and the district court’s award of attor- requires plaintiff prove to than more conclude, ney’s fees to White. We howev- merely intentional discrimination. Kol er, the district court in in- erred stad, 536-37, 527 U.S. at 119 S.Ct. 2118 structing punitive on the issue of standard). addition, (explaining the Su damages, and therefore we remand the preme Court has stated that under proceedings casé for further consistent may employer certain conditions an be vi with opinion. this cariously punitive hable under (speci Title Id. at VII. S.Ct. 2118 CLAY, Judge, concurring. Circuit conditions). . fying n Finally, the I, III, join I majori- Parts IV questions dissent whether ty opinion. I agree also with Part II presented has sufficient evidence rejects insofar as it “ulti- untenable punitive damages to submit the issue to employment doctrine, mate action” con- jury under either standard and re- would cludes that Sheila White’s removal from solve the issue in defendant’s favor without her forklift position thirty-seven- and her argues remand. defendant general- Wdiile day suspension employ- constitute adverse ly plaintiffs evidence was insufficient ment actions within the meaning of Title permit an award of damages, VII, and affirms the district court’s denial parties analyze did not the evidence Burlington’s Although Rule 50 motion. any specificity with under either potential- majority properly rejected the “ulti- ly applicable standard of in their employment mate action” doctrine this briefing to this court. Nor have we fo- court embraced Dobbs-Weinstein v. sufficiency cused on the of the evidence to Univ., Vanderbilt 185 F.3d 545-46 permit punitive award, damage this since (6th Cir.1999), I if I would be remiss failed was not the reason granted we an en banc point express rejection an hearing. out such We cannot find that the evidence employment of the “ultimate action” doc- damage insufficient on a simply issue judicial may effectively because trine overrules disagree officers on Dobbs-Wein- however, relating liability, issue as the I separately, dissent stein. write be-

809 42 subchapter.” U.S.C. majority under this the rule the disagree with cause I 2000e-3(a). “discriminate,” in § con- The word to what respect with today embraces turn, VII, action in Title but the employment is not defined an adverse stitutes anti- Title A review meaning scope impliedly quite YII’s is broad. within U.S.C.2000e-3(a). 42 provision, provisions revealing, Title is retaliation of other VII appropriate 703(a) Instead, I that employers § believe prohibits inasmuch as in the articulated the one is or to “failing] refusing] or to hire from by the and advocated individual, Ninth Circuit any or otherwise to discharge ac- retaliatory EEOC; i.e., employer’s against any individual with discriminate 704(a) § for sufficiently adverse tion is terms, condi- respect compensation, to his “reasonably likely be if it would purposes tions, be- privileges employment, or pro- engaging from [employees] to deter race, color, reli- cause of such individual’s Henderson, 217 Ray v. activity.” tected sex, origin.” national 42 U.S.C. gion, or Cir.2000). (9th The 1242-43 F.3d added). 2000e-2(a)(l) Thus, (emphasis § is likely to deter” standard “reasonably 703(a) 704(a) term §§ use the both 704(a)’s statutory §with more consistent “discriminate,” general dis- but intent, as well congressional language (§ 703(a)) lim- places provision crimination case law. Supreme as Court Con- on the word “discriminate.” itations any limitations on gress place chose not to “Reasonably Likely Why to De- A. meaning of within the “discriminate” Appropriate Stan- Rule is the ter” 704(a). Thus, reading straightforward § a Retaliation Case dard for 704(a)’s plain § text makes clear Support Statutory Law and Case 1. for the statutory support that there is no retaliato- to undertake idea that decision in- repeatedly has Supreme The Court materially affect the terms ry action must courts, step interpret- as a first structed order employment and conditions of statute, whether “to determine ing a Indeed, the most proscriptions. violate its unambig- plain has a language issue that it reading language of this is natural particular to the meaning regard uous with any form of discrimination prohibits v. Shell in the case.” Robinson dispute opposing discrimi- against an individual 337, 340, 117 S.Ct. Oil U.S. regardless of filing charge, (1997). nation or is at inquiry L.Ed.2d takes the form that discrimination is unam- whether statutory language “if an end termination, of, suspension, example, co- statutory scheme is and ‘the biguous ” transfer, harassment, discipline. or (quoting Id. Unit- lateral herent and consistent.’ Enters., Inc., express- have Ron Pair of the circuits ed States v. At least some 235, 240, L.Ed.2d Sec’y Navy, S.Ct. ly agreed. U.S. Smith (1989)). (not- (D.C.Cir.1981) from a readily apparent It is 1119 n. 56 F.2d 704(a) placed Congress reading of of the anti-retaliation language that the ing anti- reach of the limitations on the no unconditionally” and is “speaks provision provision. retaliation causing particular to acts not “limit[ed] job particular the loss of a harms such as 704(a) shall be “[i]t states Section at 1243 Ray, 217 F.3d promotion”); for an employment practice an unlawful of the anti-retalia- language (noting against any of his to discriminate employer type of not limit what provision “does tion has employee] ... [the because employees covered, pre- it nor does discrimination an unlawful any practice made opposed ’ severity for level of a minimum scribe subchapter, practice by this employment discrimination”); Knox v. State ... actionable charge has made or because he 810 (7th Indiana, 1327; ‘any any 93 F.3d. Cir. reaches interest in ... en- 1996) (“There nothing in the law' of terprise is [the which has estab- defendant] type lished[,]

retaliation that restricts the of retal controlled, operated, conducted or iatory might upon acts that be visited in participated the conduct of in violation ” .”). employee... of section (quoting 1962.’ Id. 18 U.S.C. 1962). § The express Court went on to its

Incorporating by reference the limita- Congress belief that if had intended to 703(a) § placed tions on “discriminate”' in 1963(a)(1), § 704(a) presumably restrict it would § altogeth- into “discriminate” in is expressly have done so it in as did the inappropriate. incorporation by er Such immediately appropriate only following is it subsection. Id. reference when is Congress’ expressed consistent with in- Contrary majority to the opinion, this 704(a)’s legislative history tent. Section already Court has logic. embraced this In scant, and therefore are left we to look to Lynch v. Johns-Manville Corp., Sales we legislative' plain Congress its text. could stay held that looking proceedings when quite easily placed have the same limita- Chapter context, in a 11 bankruptcy 704(a) 703(a), § yet § tion on itas did on it may solvent co-defendant not use the auto- not to Congress’ legislative chose do so. stay 362(a), § matic in provision 11 U.S.C. intent, indications, by all all was remove provision when the said facially stays pro- from an employee’s ability obstacles to de- debtor,” ceedings “against the and fails to fend his or her rights filing Title VII suggest that these rights may be invoked charges. EEOC by any one other than the defendant. 710 Court, Supreme The in Russello v. Unit (6th Cir.1983). F.2d The Court States, against ed confirmed its view nar noted is a fundamental “[it] rule of statuto- rowly construing meaning the of a statute ry construction that part inclusion one plain when the language unambiguously congressional of a scheme of that which is expressed legislative its purpose and in excluded in part another reflects a con- 16, 23, tent. 464 U.S. S.Ct. 78 gressional intent the exclusion was (1983). L.Ed.2d 17 In determining the not inadvertent.” Id. at 1197. proper applicability of the word “interest” case, Supreme Court Robinson v. 1963(a)(1) § as used in 18 U.S.C. the 337, 340, Shell Oil U.S. 117 S.Ct. case, context of a Supreme RICO “ d 843,. (1997), 136 L.Ed.2d 808 views Congress Court hel in ‘[w]here 704(a)’s § legislative intent this manner. particular cludes language in one section óf Robinson, plaintiff sued his former a statute but omits it in another section of employer, alleging that it had retaliated Act, generally presumed same it is against by giving him him a negative em- that Congress intentionally acts pur ployment reference to a potential employ- posely disparate inclusion or exclu ” allegation er. Id. There was no that the Russello, sion.’ at U.S. 104 S.Ct. former employer itself had made an ulti- (quoting United v. Wong States Kim decision, mate employment or that it took Bo, (5th Cir.1972)). 472 F.2d Spe any materially adverse action that altered cifically, in discussing particular statu plaintiffs job (Indeed, responsibilities. tory provision issue, the Court noted so, it could not have given done that the argument “[t]he for a con narrow' 1963(a)(1) no longer working struction was for the is refuted time.) Nevertheless, employer at the language of the succeeding subsection (a)(2). plaintiffs The former unanimous allowed the speaks broadly ‘any Court ... acquired,’ interest proceed holding while the latter claim to after that former

811 Mattei, Additionally ac- in may retaliatory Mattei v. this challenge employees 346, Although again interpret once the at 843. Court chose to tions. Id. S.Ct. specifically provision with the issue Title VII’s anti-retaliation broad dealt Robinson “employee” ly, prohibit any is as to kind of adverse determining who an of Cir.1997). 794, (6th pro- action. 126 F.3d Title VII’s anti-retaliation purposes of (as There, meaning an were asked to give to constitutes we to opposed vision what action), reasoning concept its the of discrimination as it is used employment adverse Employee as in Income employee a former counts the Retirement Secu pertinent: (“ERISA”). meaning rity pro within Act Id. The ERISA employee an the § 2000e-3(a), § an em- at issue was made it because otherwise vision 510 which unlawful, circumstances, fired in and not under certain to ployee could be retaliation against” In so the holding, participant to sue. Court “discriminate be able beneficiary. Id. at statutory (quoting that an inter- 29 U.S.C. noted alternative 1140). majority guidance § have or vitiat- found in pretation would undermined pur- and the important interpretive of Title VII’s most Title VII’s ADEA’s ed one to poses maintaining phrase against,” “unfettered access use of the “discriminate — noting Id. that neither these Acts defined statutory remedial mechanisms.” phrase, respective but their this rather teachings the of Robinson In line with consistently interpreted “are provisions view that Supreme and the Court’s employer ... kind any to forbid to take 704(a) § not be in its con- should limited against action of adverse an individual be Court, struction, this in EEOC Ohio engaged protected cause he has in activ [ ] 704(a) Edison, § interpreted also to be original). Id. at 806 in ity....” (emphasis provision that should broad anti-retaliation concluded that because the ERISA We protections far as its reach as intended provision used the anti-retaliation at issue Cir.1993) (6th 541, allow. 7 F.3d 545-46 (“discriminate phrase against”) as same protections that Title (holding VII’s provisions, the Title VII ADEA retaliation to situations against extended them, proper after it to was enacted was employee where an was discriminated Congress for the assume that intended representative opposed against because his “to basic provision ERISA have the same employment practice). an unlawful meaning.” Id. 806. result, reaching “[i]n this stated that we 2000e-3, recently, Supreme more Court enacting Congress section unmis- Even the person against cautioned courts unwarranted takably intended ensure that no has unambiguous exercising deterred his limitations on otherwise stat would be from Palace, In Desert Inc. v. Cos utory under Title VII the threat of text. rights ta, rejected ap discriminatory Supreme Id. at Court retaliation.” 513. relied, many in on to limit a Title VII part, Supreme proach Court’s circuits We statutory ability receive a mixed-motive analysis interpretation plaintiffs Scrivener, direct evi NLRB v. which held that “the instruction cases where of a not be read of discrimination had not been sub language statute should dence trial, a “direct strictly, broadly1 determining but should ‘be more mitted at read requirement was “is inconsistent reading if such a also consistent with evidence” 2000e-2(m)].” objective’ § ‘purpose prohibi- [42 with the text U.S.C. 2153, illegal by made Id. at 539 U.S. 123 S.Ct. tion the statute.” (2003). reasoned, Scrivener, NLRB v. (quoting 405 U.S. L.Ed.2d 84 The Court 2000e-2(m) § “un part, pertinent 92 S.Ct. 31 L.Ed.2d (1972)). need ambiguously states that that an employer used 2000e-3 this manner. it is true ‘demonstrate]’ While respect consideration with Compliance forbidden EEOC Manual on ” Retaliation ‘any employment practice.’ binding authority, Id. On its is not

face, mention, guidelines body does not much nevertheless “constitute a “the statute experience height- judgment that a a and informed to require, less make litigants may which courts and through properly showing ened direct evidence.” guidance.” resort for Meritor Bank by a Sav. persuaded Id. The Court was further Vinson, 57, 65, 2399, “demonstrates,” 477 U.S. 106 S.Ct. review of the term which (1986) VII, (quoting 91 L.Ed.2d 49 Skidmore v. Title as amended in the 1991 Civil 134, 140, & 323 U.S. Act, S.Ct. Rights defined as “to the bur- ‘mee[t] Swift ” (1944)). persuasive 89 L.Ed. It is production persuasion.’ dens of Id. at authority. EEOC, According to the an 2000e(m)). § (citing The U.S.C. employment “adverse “any action” means added, “If Congress Court intended the adverse treatment that is based on a retal- require term ‘demonstrates’ to iatory motive reasonably likely and is to production persuasion’ ‘burdens of be charging deter the party or others from by met direct evidence or some other engaging protected activity.” in EEOC heightened showing, it could have made Compliance Manual Section “Retalia- including language intent clear ¶ (1998). tion,” 8008 approach, Under this 2000e(m). § that effect in Its failure to do a retaliatory number of actions which are significant, so is for Congress has been expressly not in encompassed “materially a unequivocal when imposing heightened adverse” standard would fall into the am- proof requirements circumstances, in other 704(a) violation, § bit of a long they so as including provisions other of Title 42.” reasonably likely are to deter employees instructive, at Id. 2154. Desert Palace is engaging from in protected activity. The inasmuch as it cautioned courts not to read however, EEOC’s test is not unlimited statutory limitations into language, partic- instance, “petty slights annoy- and trivial ularly Congress where expressly limited actionable, they ances are not as are not such terms in provisions other of the same likely to protected activity.” deter EEOC yet title presently declined do so Compliance Manual Section “Retalia- statutory provision. reviewed We are tion,” 8-14. As the Ninth Circuit ob- precisely faced with the same situation. served, the focus is not on the “ultimate 703(a) expressly scope Section limited the action,” employment effects of each but of “discriminate” to relating actions to the rather on the Ray, “deterrent effects.” employee’s terms, “compensation, condi- 217 F.3d at primary pur- 1243. Given the tions, or privileges employment.” Sec- poses of Title provi- VII’s anti-retaliation 704(a) just easily tion could as have limited sion, emphasis this is where the properly “discriminate,” scope its yet chose not to lies. do so. It abundantly is clear that lessons of Desert Palace dictate that we Policy 3. Considerations 704(a) not § read such limitations into (and policy From a logical) perspective, now.

many factors support interpretation Agency Support 2. Administrative employment adverse action that extends beyond employment the boundaries of an In addition to support from the statuto- materially decision that affects the terms ry law, text and Supreme Court case there of employment. conditions agency support administrative for the view, “reasonably likely above, “materially deter” inasmuch As noted adverse” as the interpreted EEOC has 42 U.S.C. driving would undermine the against slippery slope effect 704(a), guarding to maintain which is force behind disallowing employees litigating from trivi- statutory remedial access to “unfettered not annoyances. inquiry al would be Robinson, 519 U.S. mechanisms.” taken any adverse action has been whether similarly This has 843. Court 117 S.Ct. whether, law, the ad- but as matter enacting Title Congress, observed “ em- verse action would deter reasonable ‘unmis- provision, anti-retaliation VII’s protected activity. ployee engaging from person that no intended to ensure takably alleging frivolous This ferrets out suits exercising his from deterred would be harms, very maintaining while suits threat of by the under Title VII rights ” supervisor deleterious actions such as v. Ohio discriminatory EEOC retaliation.’ Moreover, no indi- harassment. there are Cir.1993). (6th Co., 7 F.3d Edison employed cations that the broad rules still rule Indeed, “materially adverse” the Ninth, Tenth, in the and Eleventh Cir- retaliatory ac- many types of allow would 1 unmanageable flood- opened cuits have unaddressed and completely go tions to plaintiffs. Title gates aggrieved VII instance, the D.C. Cir- For unpunished. job negative references cuit has held Why Majority Opinion Incor- B. cancelling employers prospective rectly Rejected “Reasonably employee an consti- honoring public events Likely Rule to Deter” behavior, though such retaliatory even tute Notwithstanding legislative, Supreme the terms retaliatory actions do not affect Court, a support and administrative Pas- employment. of one’s and conditions rule, rejects “rea- majority broad 322, Soc’y, 935 F.2d 331 v. Am. Chem. ser standard, likely citing sonably to deter” (D.C.Cir.1991). “materially adverse” The persuasive. that are less than reasons clear whether such rule does not make majority suggests that the “reason- part employer’s on an adverse behavior ably likely to deter” standard is too broad. 704(a). § It the ambit of would fall within is no broader than the statu- Yet the rule of retal- open to leave the issue also seems any nor is it tory language requires; Causey Balog, v. iatory harassment. See utilized in tort than that which is broader Cir.1998) (4th 795, (recogniz- 162 F.3d 803 cases, “case-by- often involves which 704(a) retaliatory validity §a ing the courts to analysis compelling when case” claim). harassment standard person” a “reasonable employ majority’s position, duty Contrary to the constitutes a determining what is “reasonably person like to deter” The reasonable standard Ninth care. Circuit’s understandable, not burdensome many readily is addresses the adequately standard discourse.2 commonly legal used and is of retaliation while safe- varied forms Dalton, (9th prosecution employee from a malicious 671 118 F.3d 1. See Hashimoto employer); 1997) brought by a Wide (holding negative job action former refer Cir. 1453, Stores, Inc., 704(a)); Ray, 141 F.3d under man v. Wal-Mart ences are actionable 1243; Kansas, Cir.1998) (11th (holding negative 147 F.3d F.3d at 1456 217 Jeffries that, evaluations, demotions, 1220, (10th Cir.1998) (holding suspensions, dis job 1231-32 recognition advantageous nature of toleration of of the remedial transfer ''[i]n VII, liberally de a retaliation may in this circuit be actionable as Title the law harassment claim). and "takes employment adverse action” fines determining case-by-case approach to Stores, Inc., 330 F.3d v. Wal-Mart employment ‘ad 2. Morris given action is whether Cf. Cir.2003) Chevrolet, (6th (holding, under Tennessee ”); Berry 854 v. Stevinson verse’ law, Cir.1996) person is (10th standard (construing that the reasonable 984-86 F.3d sufficient determine whether or not protect utilized to provision to Title VII’s anti-retaliation Court, fact, graft in Thaddeus-X v. not the function of this Court to its In this Blatter, statute; rather, such an ob- previously policy embraced own onto a it values majority now jective standard which responsibility is this Court’s to discern 175 F.3d claims to be unreasonable. Congress’ legislative enacting intent Cir.1999) (en banc). (6th In Thad- words, statute. In other we must deter- deus-X, §a action involving a case Court, Congress, not mine whether this pris- brought by'the against state inmates would envision a like Sheila White retaliation, we alleged on officials based on receiving retaliatory relief from the actions objective adopted an determin- allegedly perpetrated against her Bur- ing what an “adverse action.” constitutes Congress’ lington Northern. intent ac- determining Id. at “whether provide employees manifest: who have severity being tions of lesser merit deemed been victimized with ac- discrimination purposes ‘adverse’ for retaliation statutory cess to un- appropriate remedies . claim, adopt[ed] suggest- we the standard Robinson, der Title VII. U.S. by Judge Telford, Posner in Bart v. ed 117 S.Ct. 843. (7th Cir.1982), F.2d that an ad- majority’s approach The- would utilize verse action is one that ‘deter a would §§ the same standard for 703 and 704 so person ordinary from the ex- firmness’ necessary that it would not be to under- right ercise of the at stake.” Id. We rea- take individual separate reviews under the soned that of such a stan- “[t]he benefits sections of the statute when cases arise. objective inquiry, are that it an dard is approach similarly This is unavailing since being of tailored to the different capable statutory language Title VII’s indicates circumstances in which retaliation claims arise, Congress intended for to treat and of courts capable screening the [out] general trivial of from differently most actions constitutional discrimination than re- cognizance.” Id. at Indeed, 398. taliatory discrimination. the re- Supreme cent Court case of Desert Palace Moreover, Ninth, Tenth, The and Elev- emphasized such,an importance statutory the employ .objective enth Circuits all significance construction and the of statu- standard, .specifically in con- VII Title tory- language starting point as.the for a text, doing, so none of Circuits analysis. court’s 123 at S.Ct. 2153. More- to in appear any difficulty have had deter- over, mining purposes what frivo- different are involved here is adverse and what is See, e.g., County lous. Doe v. Dekalb logical and it is that the two sections would (11th Dist., School 145 F.3d 703(a) differently. be treated Section Cir.1998) (taking “objective approach” expected protect- Title VII never to shield standard). case-by-case to its groups every ed from little slight they encounter; purpose its was to assist in

Furthermore, requires retaliation getting discriminated-against plaintiffs into broad rule can- because retaliation take forms, keep the American workforce and to many than them perhaps Congress more concerned, As far retaliation drafting at the time of its could think of or there. as is Nevertheless, reasonably anticipate.. it congressional provide is intent was clear: to FiveCAP,Inc., context); contemplating evidence exists when a direct- v. National Labor Re Board, (6th negli- ipsa loquitur ed verdict motion in a res lations 294 F.3d Cir. case); Jones, (6th 2002) gence (employing objective U.S. v. 335 F.3d 527 "reasonable - Cir.2003) {employing person person" determining a reasonable standard when whether adjudicating presence standard when or not conditions are so work "unbearable” 8(a)(3) apparent authority § to determine whether en- as- to violate of the National Labor Act). try was consensual in a Fourth Amendment Relations statutory qualify not employment to remedial do as adverse ac- access “unfettered Robinson, mechanisms.” U.S. employee experi- tions when the does not 843. S.Ct. change ence a demotion or a material duties. majority’s suggestion, to the Contrary employment adverse actions rule on majority suggests The that the EEOC’s majority opinion quite adheres is

which the in position, advocating the “reasonably ambiguous. attempt In an obviate standard, likely to is deter” inconsistent case-by-case determina- need for a court’s its legally cognizable with concession that by an would employer tion of what actions encompass adverse action not should trivi- likely employ- to deter” an “reasonably be slights. inconsistency appar- al no Yet engaging protected activity, ee from ent. It is logical person pursuing that a to this Court’s case law majority points prescribed by solutions EEOC standards constitutes “material ad- regarding what backlash, reasonably expect would some majority action.” employment verse The negative the form of a limited number Manage- v. Multi-Care relies on Kocsis consequences, colleagues some unhappy ment, Inc., courts requires which to look perhaps even some ostracism. The situation,” unique particular to a “indices however, recommendation, EEOC’s allows considering when whether not an em- plaintiffs redress for those who can materially ployment action is adverse. 97 retaliatory show such actions would Cir.1996). (6th ap- F.3d This reasonably charging party deter the from ultimately requires case-by-case proach engaging protected activity. EEOC what is “unique” review to determine 8, “Retaliation,” Compliance Manual “particular what is not each situation.” ¶ (1998). majority essentially goal provide guid- if the is to Accordingly, approach to seeks dismiss the EEOC’s making ance individual review obso- while lete, more to it advantageous supposedly safeguards it would be because lacks inquiry utilize defined than that of a better against allegations; trivial petty and how- particular to a unique “indices situ- Kocsis ever, by trivial purporting to exclude particularly ation.” so when there This is in order to allegations unsubstantiated de- approach is an alternative available which fine the “adverse-employment-action ele- would Title goal also advance VII’s narrowly ment” not to frustrate the so as equal protections access to its under the VII, majority purpose actually of Title the case, majority law. present In the the Title impedes effectiveness. VII’s opinion that the concluded forklift transfer Moreover, majority suggests the employment constituted an adverse action “materially requirement, the adverse” by classifying Burlington Northern’s action accomplishes ... “properly interpreted as an of “indices to a example unique 704(a)’s appropriately while purposes] [§ particular may situation.” While that sat- prevent to counterbalancing the need law- case, present the isfactorily dispose of the based and that upon suits trivialities” the unclear majority opinion leaves what other ... particular “indices to a situa- unique types actions would fall within of adverse all accurately captures tion” oth- category, the ambit of this absent a better against non-trivial taken the er actions result, category. delineation of the aAs employee. Yet Hollins v. Atlantic employers Burlington like Northern could (6th Cir.1999), F.3d which mere continue to hide behind technicalities standard, “materially utilized the adverse” and claim that other deleterious harms not rejected employee’s argument her today’s ruling, encompassed such as em- harassment, ployer-sanctioned retaliatory negative job unwarranted evaluation con- employment employer, defining tangible action to the em- an adverse able stituted simply accompanied ployment it was not actions as “the because means which monetary anything falling else into supervisor brings power loss the official actions listed in penumbra of adverse to on enterprise bear subordinates.” Kocsis, words, In 97 F.3d at 886. other tangible Id. at 118 S.Ct. 2257. A in- “materially adverse” standard was action an official employment “requires act Hollins, job negative effective in because a act,” enterprise, company of the trivial; tangible. It is evaluation is not it is discharge, would include such “as de- acts a black mark on one’s record that can motion, reassignment.” or undesirable Id. consequences future for an have severe at 2257. in the S.Ct. Elsewhere employee, employer inasmuch as an can opinion tangi- the Court observed that “[a] job negative use the unwarranted evalua- employment signif- action constitutes a ble deny employee pro- tion future to status, change employment icant such as Similarly, motions. it leaves unaddressed hiring, firing, failing promote, reassign- such other deleterious harms such as em- significantly responsi- ment with different retaliatory ployer-sanctioned harassment. bilities, causing significant or a decision attempt The Hollins court made no change in Burlington, benefits.” 524 U.S. in or- “unique category utilize the indices” However, Burling- 118 S.Ct. 2257. relief. F.3d der to afford the 703(a), § ton addressed Title VII’s not at 662. 704(a) and, earlier, § as discussed the re- 703(a) 704(a) (but spective scopes of nec- majority evidently What the intends essarily differ.3 expressly) fails to state is that it is unwill- variety ing to consider actionable a wide C. Conclusion non-trivial, tangible employment adverse actions order to limit the number of 1999, panel of this Court held that legitimate, legally cognizable claims that action, employment pur- adverse by aggrieved employees. can be filed claim, of a Title poses VII retaliation must no apparent There is other reason for its materially affect the terms and conditions analysis. Hollins, plaintiffs employment. of the grant petition F.3d at 662. Our

Finally, majority attempts also rehearing provided en banc this Court rely part in on Supreme the Court deci- an to opportunity with reconsider the va- Indus., Ellerth, sion, Burlington Inc. v. lidity of Hollins’ importation unreasoned U.S. 118 S.Ct. L.Ed.2d 703(a)’s §of definition of an “adverse em- (1998). However, such reliance is also 704(a) § ployment action” into and to clari- In misplaced. Burlington, Supreme the fy what actions are sufficiently adverse Court, devising agency principle in an to respect with to retaliation claims. A tradi- govern employer liability supervisor’s for a statutory analysis tional recognition an employee, harassment of observed that legislative Title VII’s intent does not dic- employer always an is liable for a discrimi- majority’s continuing tate the to natory “tangible employment action.” The adherence standard, “materially the distinguished tangible employment Court adverse” and the obviously majority actions from not rule set forth the fails to pro- actions attribut- Ray 3. The Ninth Circuit v. Henderson n. 5. stated in found F.3d The Court that Burlington similarly defendant’s reliance on Burlington did not set forth a standard for misplaced advocating when that Title VII employment actions in the adverse anti-retali- qualifies type employment the actions that ation context. Id. would constitute an "adverse” action. 217 That in a Title mixed-motive case. in this VII needed clarity desperately vide the however, today’s not answer holding, The lack of does litigation. area of pervasive may evidence question could since circumstantial majority’s approach clarity in the require in that against prove true used to facts cases in court decisions be more result 704(a) the of the evidence and cases preponderance retaliation because victims of conveniently retaliatory beyond a require proof actions that reasonable employer’s “mate- doubt, of the including to the confines criminal cases. See id. at manage elude (“[W]e of fol- definition. Instead the suf- rially questioned adverse” have never I would hold majority approach, lowing ficiency sup- of circumstantial evidence in Burlington retaliatory conviction, actions though that even port of a criminal constituted against took White Northern beyond a reasonable doubt is re- proof actions such employment because adverse reaching In its circumstantial- quired.”). reasonably likely to deter are conclusion, true, actions it Pal- evidence is Desert ac- protected in employee engaging from Congress’s noted that “failure” ace tivity. only that “direct” evidence could be specify “signifi- was prove used to discrimination SUTTON, concurring in Judge, Circuit cant, Congress unequivocal has been dissenting part. in part and heightened proof require- imposing when majority’s treatment agree circumstances, I with the including in ments other Title actions” under employment “adverse But that provisions of Title 42.” Id. other its VII, join Parts I—III of accordingly only analysis inquiry on our mode of bears dissent, how- respectfully I in full. opinion a form of punitive damages represent if ever, majority’s resolution from the way that conventional relief the same issues, accordingly damages punitive a form represents evidence circumstantial my disagree- separately explain write view, that proof. my In of conventional opin- of the Court’s with Parts IV-V ment accordingly Desert Palace not the case and ion. point. punitive If does not advance remedy, not a conventional damages are case, the district trial in this

At the speak ques- to the Congress’s “failure” may it award that court instructed suggest burden tion would if damages under Title VII punitive traditionally to unconvention- applied entitled was plaintiff proved she damages general punitive al remedies convincing” proof. by “clear and to them should be used. particular erred in that the district court arguing contending puni- that a respect and in this before the Court decided Two months may proved by damages tive claim be Palace, it made clear Desert Ti- under “preponderance” of the evidence remedy. are not a conventional VII, relies on two United tle Mutual Automobile Insur- In State Farm one decisions and Supreme Court States 408, 123 Campbell, v. 538 U.S. ance Co. con- appeals of decision. Whether court 1513, 1519-20, 155 L.Ed.2d 585 S.Ct. however, these together singly, or sidered (2003), explained punitive that the Court plaintiffs posi- support cases do not the damages compensatory damages and tion. punitive that purposes,” “serve different at deterrence and damages “are aimed Palace, case, Inc.

The first Desert purposes the same and “serve 2148, retribution” Costa, 90, 156 123 539 U.S. S.Ct. special that and penalties,” as criminal (2003), holds that “circumstan- L.Ed.2d 84 apply to such rules of review constitutional evidence, to evi- tial” in addition “direct” to be drawn If there is lesson dence, awards. prove to discrimination may be used 818 Farm, tionally discriminatory it in engaged prac- Palace and State

from Desert 1981a(b)(l). § that a In would seem to be tices. 42 a later U.S.C. represents claim an unconventional form of súbchapter, Congress defih'es “demon- relief, heightened which deserves a rather unhelpfully strates” to mean “meets the proof. than a run-of-the-mill of standard production persuasion,” of id. burdens 2000e(m), § a definition that the chases upon The two other cases which the inquiry. tail of the initial Nor does the helpful are no more in es- relies appear context which the relevant words tablishing preponderance that a standard legislative history the to the Civil applies punitive damages to claims. Price Act Rights any insights of 1991 offer other 228, Hopkins, 490 U.S. 109 Waterhouse appropriate proof. into the burden of (1989) 1775, 104 (plurali- S.Ct. L.Ed.2d 268 102-166, 102, Pub.L. No. 105 Stat. 1072. ty opinion), also concerned an issue of (namely, quantum conventional relief the circumstances, it appro Under these cases), proof of in Title mixed-motive VII priate to consider other indicators of statu punitive damages. not an issue related to tory meaning, analogous Supreme Court 253, (“Only rarely Id. at 109 S.Ct. 1775 precedents predat and relevant state laws required convincing have we- clear and SEC, ing legislation. See Steadman v. proof against where the action defended 91, 95, 450 U.S. 101 S.Ct. 67 L.Ed.2d relief.”). In saying seeks conventional (1981) (“Where Congress 69 not pre has that rules of litigation “[conventional civil degree proof scribed the which must be id., cases,” generally apply in Title VII ... liberty adduced this Court has felt at plurality of course did not establish that standard, prescribe to is the ‘[i]t apply requests these conventional rules of question traditionally kind which has relief, anything for unconventional and if ”) judiciary been left to the to resolve.’ just suggested opposite. INS, 276, 284, (quoting Woodby v. 385 U.S. (1966)); Karnes v. SCI Colorado Funeral Ser- S.Ct. L.Ed.2d 362 see vices, Inc., (10th Cir.1998), Thomas, 162 F.3d 1077 also North Star Steel Co. v. case,' helpful. 29, 34, is even less In that the U.S. 115 S.Ct. 132 L.Ed.2d 27 argued higher (1995) (“[I]t defendant that the burden only appropriate is not but proof for punitive damages claims under also realistic to presume Congress apply Colorado law should to Title VII thoroughly was familiar prece with [our] disagreed, concluding claims. The court ... and that it expect[s] dents its enact- that state law does not control the answer interpreted conformity to be mentfs] (and question, summarily to the then mis- them.”) (citations quotations with takenly) say relied on Price Waterhouse omitted); Dulles, Nishikawa v. 356 U.S. preponderance applies. standard (1958) 129, 135, 2 L.Ed.2d S.Ct. Id: at 1080-81. (requiring convincing a clear and voluntary expatriation thing, say

It I recognize, is one congressional guidance absence the cited do not question; cases answer the light analogous Supreme Court it is another to determine the answer. Kramer, precedents); Santosky v. defense, plaintiffs the statute does not cf. 745, 769, U.S. 102 S.Ct. 71 L.Ed.2d give in determining us lot to work with (1982) (“A'majority of the States have Congress what meant. As an initial mat- convincing that ter, concluded a ‘clear and evi specify the statute itself fails to a proof dence’ standard of strikes a fair bal proof, only burden of stating plain- that a parental-rights tiff ance termination may punitive damages [in cases]. recover if she that adequately “demonstrates” the defendant inten- We hold that such a standard

819 has traditional- question “the kind of which the level of sub- to the factfinder conveys judiciary ly his factual conclu- been left to the to resolve.” certainty about jective satisfy process.”); 284, due necessary Reasoning to at that sions Id. 87 S.Ct. 483. 418, 431-32, Texas, 441 v. U.S. Addington fall deportation proceedings somewhere (‘We (1979) 1804, 60 L.Ed.2d 323 99 S.Ct. ordinary litigation civil and crimi- between statute, states, by em- that 20 most note “clear, litigation, nal the Court held that convincing’ ‘clear and standard of ploy the convincing and evidence” unequivocal, ‘clear, evidence; cogent, and 3 states use order —the support deportation must evidence; 2 require and states convincing’ in- analogous same burden used cases ‘clear, convincing’ and evi- unequivocal fraud, volving expatriation, adultery, civil omitted). dence.”) (footnotes emphasis illegitimacy, lost wills and oral contracts. 18, 1991, Congress pu Compare authorized at & n. 87 483. By when Id. 285 S.Ct. claims, Nishikawa, 135, in Title VII two damages nitive at 78 S.Ct. 612 356 U.S. that a had intimated that, Court cases Supreme congressional face of (holding the to convincing ought standard clear and question, proof silence on the act of In Pa damages claims. apply punitive to expatriation must be clear and convinc- Haslip, Insurance Co. v. Mutual Terrazas, evidence), ing with 444 Vance Life cific 1032, 1, 1 111 113 L.Ed.2d 499 U.S. S.Ct. 540, 252, 265, 100 62 L.Ed.2d U.S. S.Ct. (1991), amended Congress before decided (1980) preponderance (upholding 461 “[tjhere VII, that is the Court noted Title specified by Con- the evidence standard of a re much to be said favor State’s Nishikawa). gress after do, a of ‘clear many as standard quiring, analogizing pu Supreme Court decisions or, even, ‘beyond convincing evidence’ damages penalties to criminal also nitive ” damages. punitive doubt’ a reasonable higher proof that a burden of suggest (citations 11, n. 111 1032 Id. at 23 S.Ct. Farm, here. State ought apply See omitted). earlier, Bren years Two Justice (“[P]unitive damages ... at 1519-20 S.Ct. pre the exceptions exist to nan noted retribution,” are aimed at deterrence and ponderance of the evidence criminal purposes the same as and “serve un seeks to take government “when the (“It at 1521 should be penalties.”); id. more dramat usual coercive action'—-action has made presumed that a been money dam entering ic than an award of injuries by compensatory for his whole conventional Price ages or other relief.” damages, punitive damages so should Waterhouse, 253, 109 S.Ct. U.S. culpability awarded if the defendant’s be added). opinion) (emphasis (plurality reprehensible ... is so as warrant analogous settings In before achieve of further sanctions to imposition adopted had a clear Supreme Court also deterrence.”); City New punishment standard for civil convincing evidence Concerts, Inc., v. Fact 453 U.S. port relief—in involving cases unconventional (1981) 69 L.Ed.2d S.Ct. congressional silence about the the face of (“Punitive are not damages definition proof. Woodby appropriate burden injured party, compensate intended INS, 483, 17 87 S.Ct. U.S. tortfeasor.”). punish rather to but (1966), Supreme L.Ed.2d 362 Court reasons, predicate the factual For like not ad- “Congress ha[d] observed award —that Immigration and Na- [in dressed itself “malice” or “reckless defendant acted with tionality question to the of what de- Act] indifference,” see U.S.C. deportation gree required 1981a(b)(l) stigmatizing effect this is proceedings,” then observed —has 820 in evidentiary certainty higher more a modern trend favor of the

that deserves provides. underway that was well preponderance than the standard standard-—-a trend (“[P]uni- Farm, 123 at 1521 to Title See State S.Ct. before the 1991 amendments VII. damages only be awarded if the tive should The American Bar Association recom- culpability reprehensi- is in higher [] defendant’s mended the standard 1986. See ble.”) added); 441 (emphasis Addington, Punitive Special Damages, Committee on (“One 424, typical at 99 1804 use U.S. S.Ct. Damages: Punitive A Constructive Ex- in convincing] amination, standard is [clear Litig. 1986 A.B.A. Sec. 33 of fraud or involving allegations (“Because civil cases of purposes punitive one of the quasi-criminal wrongdoing by some other damages ... punishment [t]he is commit- ... the defendant reduce the risk to [to] that the ‘clear and con- [ ] tee concludes having reputation his tar- defendant vincing’ proof appropriate burden of for erroneously.”); Haslip, see also 499 nished punitive damages. an award of This is the 54, (O’Connor, J., 1032 U.S. S.Ct. cases, in standard often used fraud (“[P]unitive dissenting) damages quasi- are analogy.”). which there is some punishment. compensato- criminal Unlike American Law Institute did the in same damages damages ... ry punitive spe- are Institute, 1991. See 2 American Law Re- cifically punishment to exact in designed Study: porters’ Enterprise Responsibility harm to make clear that excess actual (1991) (“An Injury Personal enter- for especially misconduct was defendant’s prise punitive should damages be liable Hence, reprehensible. stigma there is a convincing when there is clear and punitive damages attached to an award of disregard evidence reckless for the safe- purely compen- accompany does not ty of by others the decisions made man- award.”). satory agement person- officials or other senior nel.”). today, supreme As of 1991, courts

By supreme legisla courts or legislatures from 34 have States addressed directly tures of 29 States had addressed issue, proof the burden of with 31 now punitive damage the issue whether claims requiring a heightened proof. burden of required a heightened proof. burden Of App. (identifying B See the burden of States, those 20 of them chose the clear proof punitive damages in each State convincing standard for all 2004). (Colorado) as of claims, damages ap one State plied beyond a reasonable doubt stan Circuit, The States within the Sixth (Flori dard to these claims and two States moreover, nearly applying are uniform in Oklahoma) applied da and the clear and 1991, convincing By clear and standard. convincing standard when the punitive Kentucky Ohio and had established the specific multiple award was a of the actual statute, and Tennessee did so (identi App. the case. A See App. court decision 1992. A. See fying the burden of in each State Although Michigan courts have not 1991). respect punitive damages with issue, directly addressed the at least one See also Michael Rustad & Thomas Koe appeals approved, state court has without nig, The Continuity Historical Punitive discussion, requiring instruction Damages Reforming Awards: the Tort proof by preponderance of the evidence Reformers, 42 Am. n. U.L.Rev. damages. exemplary for an award of (1993) (identifying with a clear States Evans, MichApp. Green 1993). convincing standard in (1985). 250, 252 But see Kewin v. N.W.2d 409 Mich. Congress When this in Mass. Mut. Ins. addressed issue Life (1980) it doing (noting also was so in the context of 295 N.W.2d that ex- preponderance in a standard to a compen- applying only to damages serve emplary “humiliation, claim. Id. at punitive damages sense of 1232-33. for plaintiffs sate may not in indignity” Again, primary the debate the case was outrage, and —and defendant). the punishment required to the Due Process Clause serve as whether Moreover, if like the higher a standard. a Rosetta Stone may there not be While applied Ninth Circuit we an abuse of dis- here, prece- Supreme Court guide to us (which not), to this issue we do it cretion and damages concerning punitive dents very ques- a different no doubt would be relief, as rele- of as well comparable forms in tion whether the district court this case that a practices, suggest vant state-law imposing high- in abused its discretion proof convincing standard clear and proof. er standard of The Fourth Circuit’s A claim for these claims. ought govern in Notter v. North Hand Protec- decision nutshell, is more damages, in a punitive (4th tion, 829, 89 F.3d 1996 WL 342008 fraud, deporta- concerning akin to claims 21, 1996), being unpub- Cir. besides June contracts and expatriation, oral tion and lished, rejects only argument by one conventional than it is to more illegitimacy higher in employer that case—that heightened Accordingly, civil claims. punitive damages for burden with these proof associated burden of should control the claims under state law pu- with traditionally and associated claims And the inquiry. Title VII Id. at *10. general ought in damages claims nitive piece supports Harvard Law Review apply. In employer’s position this case. addi- identified The additional citations guide approving tion to “measures posi plaintiffs of the majority support juries appropriate [] and direct toward analysis. this Smith tion do not alter determinations,” it notes that “the wide- Wade, 103 S.Ct. 461 U.S. of the clear and con- spread acceptance (1983), deals with whether L.Ed.2d 632 standard demonstrates vincing evidence punitive to obtain required actual malice is acknowledgment of the retri- states’ [the] pre not with the damages under damages.” punitive function of butive convincing debate ponderance/elear Damages, Determination Punitive Jury Pittsburgh Corn Simpson raised here. 1532-33, 110 Harv. L.Rev. (2d Cir.1990), in F.2d 277 ing Corp., 901 (1997). under products liability a claim volved law, damages York in which the defendant cap punitive New on Nor does argued that the Due Process Clause plaintiffs Title advance claims under VII requires a clear States Constitution punitive United on dam- argument. cap While (the rejecting In convincing standard. in this area addresses one issue ages “acknowledg[ed] the argument, the court awards), it does not account outer limits of punitive argument force of the since ap- in this area —the for the other issues primarily punish damages (1) are awarded proof required propriate quantum deter past conduct and to a defendant jury may “reprehensibili- attach a before in the it others from similar conduct Farm, conduct, ty” to another’s State label future, proof appropriate a standard of (2) may before a 123 S.Ct. at be re ‘quasi-criminal wrongdoing’ should signif- damages that have punitive award quired.” Id. at 282. compensatory underlying icant ratio to the ascertaining the constitutional (9th award. Valdez, 270 F.3d 1215

In re Exxon it the ratio of punitive damages, limits of Cir.2001), admiralty-law decision is an awards, not the size of the the two that the concluded which the Ninth Circuit award, Supreme that the Court did not “abuse its discretion” district court measuring compli cap the award’s of this sort itself could not alter considers why ance with Due Process' —which is the If presumption. instead the Court had $300,000may awards still violate the preponderance under concluded that a standard why they Constitution and still deserve the generally applies setting, in this the exis- prevailing proof punitive burden of damages tence of a cap would make no country, namely claims in this way, difference at all. Either in other convincing clear at evidence. See id. words, the outcome would be unaffected (ratios involving “[s]ingle-digit 1524 multi cap. the existence of the pliers likely comport more with due are to majori- I qualm have one other with the process, still achieving while the State’s ty’s point decision on this is reach- —which retribution, than goals of deterrence and ing the I proof burden issue at all. do 1, or, range ratios in of 500 to awards with prevail not understand how could White on 1”) (citation omitted); case, in this of 145 to trial, in punitive-damages-only remand City see also Ross v. Kansas Power & no matter persuasion what burden of (8th 1041, Light 293 F.3d 1049 Cir. required is. Because we an en banc hear- 2002) (reducing punitive damages award ing to decide whether Wdiite suffered an $120,000 $60,000 from to correct consti and, employment notably, adverse action Foods, deficiency); Tyson tutional Inc. v. to determine whether this Circuit em- Stevens, (Ala.2000) (“In 804, 783 So.2d 810 ultimate-employment-decision braced the case, punitive-damages this award of test, possible it would not seem for a $75,000 compensatory-dam is 30 times the Burlington to conclude that Northern act- $2,500. ages Considering award of ed with disregard reckless for Wdiite’sfed- us, facts before we find the ratio of 30:1 to erally-protected in rights imposing the unreasonable.”); Employees’ be Benefit 1981a(b)(l) suspension. 42 See U.S.C. (Ala. Grissett, 968, Ass’n v. 979 So.2d (requiring proof that employer “en- 1998) (“The $150,000 punitive award of in gaged discriminatory practice or dis- compensatory 170 times the award of $880. criminatory practices with malice or with That unacceptable.”). 170:1ratio is federally pro- reckless indifference to the But that is significant prob- not the most individual”); rights aggrieved tected of an lem invoking damages cap with in this Ass’n, Kolstad v. Am. Dental 527 U.S. All agree Congress instance. did not (1999) S.Ct. L.Ed.2d 494 give particularly helpful the courts guid- (“The terms ‘malice’ or ‘reckless indiffer- here, ance requiring us to answer what the pertain employer’s ence’ to the knowledge punitive burden of for a federal dam- may acting that it in be violation offederal ages claim should be in face of con- law, engaging not its awareness that it is gressional An says silence. answer that discrimination.”) added); in (emphasis id. punitive damages prepon- claims receive a (recognizing S.Ct. 2118 derance standard when the award is under imposing punitive damages inap- would be $300,000 convincing but receive a clear and propriate theory underlying when “[t]he standard when the award is some higher poor- discrimination novel or otherwise [is] amount to be named later does not seem ly recognized”). very helpful. I Neither do understand punitive damages respect A claim with damages cap how the could make a differ- to the count is even harder If, ence outcome of this case. transfer now, imagine. instance, Until no Sixth Circuit case this the Court had concluded that (to my cognizable found a knowledge) a clear and has convincing generally applies arising Title claim from a lateral damages claims in the VII silence, transfer, of congressional face the existence let alone a transfer ivithin an under Ti- cognizable this transfer count is and without loss classification employee Mgmt., VII, v. Multi-Care doing See Kocsis so could not pay. tle its reasons Cir.1996) (6th Inc., F.3d finding Burlington North- support salary or work without (“[R]eassignments acted with “malice” or “reckless indif- ern ordinarily not constitute changes do hour rights. ference” to White’s employ employment decisions adverse reasons, I respectfully For these dissent claims.”) (citing Yates discrimination ment opin- from and of the Court’s (6th Parts IV V F.2d Cir. Corp., v. Avco 1987)). ion. opinion concludes While the A

APPENDIX Damages in 1991 for Punitive of Proof Burdens State following legislatures of the supreme By courts 1991,the awarding higher burden adopted a had States damages: punitive convincing and (1991) (clear 6-ll-20(a) Code Ala.

Alabama § evidence). convincing (1991) (clear and 09.17.020 Alaska Stat. Alaska § evidence). P.2d Ins. v. Nationwide Linthicum

Arizona Life collect may (“[Wjhile plaintiff 1986) 680-81 (Ariz. by a preponderance damages upon proof compensatory another, due to tort injuries of his the evidence damages should recovery punitive we conclude convincing and evidence clear only upon be awardable mind.”). evil of the defendant’s convincing and 3294(a) (1991) (clear Civ. Code California Cal. § evidence). (beyond (1991) 13-25-127(2) Rev. Stat. Colo. §

Colorado doubt). reasonable damages (1991) (punitive 768.73(l)(b) Stat. Ann. Florida Fla. § be damages proved must actual three times exceeding convincing evidence). and by clear (clear and (1991) 51-12-5.1(b) Ann. Georgia Ga. Code § evidence). convincing 566, 575 (Haw. 780 P.2d Corp., v. Gen.Motors Hawaii Masaki adopt we damage claims 1989) (“[F]or all convincing proof.”). clear and (1991) (clear convincing Ind. Code 34-4-34-2 Indiana § evidence). (clear convincing 668A.l(l)(a) (1991) Code Iowa Iowa § evidence). (1991) (clear and 60-3702(c) Stat. Ann. Kansas Kan. § convincing evidence). Ky. (clear Stat. Ann. Kentucky 411.184(2) (1991) Rev. convincing evidence). (Me. 1985) Raymond,

Maine Tuttle v. A.2d (“[W]e may hold that recover exemplary he upon based tortious conduct if can by clear and evidence that the prove convincing malice.”). acted with defendant §549.20(l)(a) (1991) (clear Minnesota Minn. Stat. and convincing evidence).

Montana Mont. Code 27-1-221(5) (1991) (clear Ann. and § convincing evidence). Nevada Stat. 42.005(1) (1991) (clear Nev. Rev. and convincing evidence). North (1991) (clear N.D. Cent. Code 32-03.2-11 and § Dakota convincing evidence). Ohio Ohio Rev. 2315.21(C)(3) (1991) Code Ann. (clear § evidence). convincing and Oklahoma Okla. Stat. tit. 23 (1991) damages 9.1.A (punitive § exceeding the amount of actual damages must be by clear and

proved convincing evidence).

Oregon Or. Rev. Stat. 41.315(1) (1991) (clear and convincing § evidence). (1991) (clear and 15-33-135 Code Ann. S.C. § South evidence). convincing Carolina (1991) (clear 78-I8-l(l)(a) Ann. Utah Code Utah evidence). convincing N.W.2d 437, 458 Co., (Wis. v.Ford Motor Wangen Wisconsin satisfactory [clear, 1980) (“We hold shall proof apply burden of convincing evidencej hereafter.”). claims punitive legislatures following supreme By 1991,the courts awarding higher proof rejected burden had States damages: Connecticut 607 A.2d Mgmt. Freeman Alamo with the... conclusion (Conn. 1992) (“We disagree... convincing proof is an appropriate . . . that clear and claims of tortious conduct whenever proof damages] have serious involvingpunitive those as [such far-reaching or harsh or effects on consequences willful, wrongful require individuals or acts.”). unlawful of the 6-1604(1) (1991) (preponderance Idaho Code Idaho evidence). Meridian, Sicard, 2d 384 So. Gaylord's Inc. v. Mississippi are (“Although way (Miss. 1980) they whom are against defendant penalizing by a of the evidence sought, the proof preponderance is doubt.”) overruled on a reasonable beyond rather than Smith, Trucking C & C Co. So. grounds other (Miss. 1992); Andrew Jackson 2d 1105-06 Life Williams, (Miss. 2d Ins. Co. v. So. finding of ‘bad 1990) (“[T]he faith- requires law plus upon preponderance ’—based may be punitive damages awarded.”). evidence—before 71, 75 Menaugh Inc., Missouri v. Resler Optometry, 799 S.W.2d (Mo. 1990) (“The argues defendant that punitive damage submissions should ‘clear and require convincing’ contrary evidence. This is requirement our normal requirements civil submission of hold, cases. We are disposed not so toor follow cases from jurisdictions other so holding.”). New Corp. United Nuclear v. Allendale Mut. Ins. Mexico P.2d (N.M. 1985) (“It . . . general rule that issues of fact civil cases are to be determined according to preponderance of the evidence .... e W are not convinced that the be degree should changed clear and require convincing [to evidence] damage areas.”). punitive South Flockhart v. Wyant,467 1991) N.W.2d 475 (S.D. Dakota (“[S.D. Codified Laws does not establish § 21-1-4.1] clear and convincing merely evidence standard but clear requires and convincing evidence to show reasonable basis believe the defendants committed [to acts warranting punitive damages]. The clear convincing merely language modifies the ‘reasonable basis’ language make a prima facie showing damages may be in order.”). By supreme legislatures 1991, the courts and following yet question States had to address the whether punitive damages heightened claims for require a burden of proof, (as though below) noted some lower had courts supreme addressed the issue and some had mentioned, courts discussing, jury without requiring instructions preponderance of the evidence: Trucking v. McNeill Commerce Nat'l Bank

Arkansas J„ 584, 591 (Ark. 1992) (Dudley, Inc., 828 S.W.2d that the hope possible (“I would concurring) adoption the opinion in this discussed changes [Le. convincing punitive of a clear before this court in brought be might damages] we It is a matter which manner .... adversarial addressed.”). never have Comegys,464 A.2d Chem. Corp. Delaware Cloroben 1983) now turn to Cloroben’s (“We (Del. 891-92 awarded jury improperly contention were not damages they in that supported punitive .... Our evidence by a preponderance indicates that there of the record review . finding . . support evidence to sufficient [and] that there was reject argument we must an award of support evidence insufficient Pen-Mod, Inc., damages.”); Guthridge v. 1967) Ct. (Del. Super. A.2d damages may “[p]unitive (instructing jury finds jury by awarded if be the evidence that defendants’ preponderance of malice.”). motivated some form of actions were 11 N.E. Thompson, Illinois Terminal R.R. Co. Illinois (Ill. 1904) a jury instruction (approving it to the discretion of the to impose that “left choose, they might even to whatever damages” allowing punitive extent of evidence). preponderance Galjour v. Louisiana Gen. Am. Tank Car 764 F. Corp., Supp. 1093,1100-01 fact, (E.D. 1991) La. are (“In there no Louisiana cases which specifically discuss burden appropriate proof exemplary for damages .... that a argument defendants’ heightened burden of proof should apply merit, damages is not without exemplary as shown by recent legislative enactments in other

jurisdictions, it is not the but law in Louisiana. legislature Until the Louisiana takes action to raise burden, the law is that the burden of exemplary damages byis preponderance evidence.”) (footnote omitted); see also Int’l Seale, v. Harvester Credit So. Corp. 2d law, (La. 1988) (“Under Louisiana or other ‘penalty’ damages are not allowable unless expressly statute.”). authorized Sabo, Maryland Gorman 122 A.2d (Md. 1956) (“There no doubt that punitive damages may be recovered in case .... The applicable law [this] was correctly put jury by to the the trial court in his charge. He told them the Sabos prove must their case a fair ‘by preponderance evidence.’”) Contee, (citation omitted); Thorne 565 A.2d (Md. (“In Ct. Spec. App. 1989) order punitive damages go issue of jury, to the Thome produced must have sufficient evidence of Contee’s wanton reckless conduct meet preponderance of evidence test.”), denied, cert. 569 A.2d 643 (Md. 1990); A.2d (Md. 1990). 921039, 1996 WL No. Chrysler Corp., Santos v. Massachusetts 18, 1996) Ct. Sept. (Mass. Super. at *3 it because the court erred contends that (“Chrysler must find they jury failed instruct was Chrysler evidence convincing clear and award they punitive could negligent before grossly meritless. Under contention is damages. burden of in civil proof law the Massachusetts a fair ‘by is satisfied of this kind proceedings evidence.’”) (citation preponderance on other omitted), remanded part aff’d (Mass. 1999). 715 N.E.2d47 grounds, Evans, (Mich. 401 N.W.2d Ct. Green v. Michigan discussing without 1985) (approving, App. stating: instruction “Such of proof, burden only are recoverable if the damages exemplary by a preponderance has proven Plaintiff evidence, malice, willfbl and wanton misconduct as to reckless great so indicate negligence or another.”). But see Kewin rights ofthe disregard N.W.2d Mut. Ins. v. Mass. Life (Mich. 1980) (noting exemplary damages “humiliation, compensate plaintiffs serve to outrage, indignity” exemplary sense of — to the may serve as punishment not defendant). Cox, & Co. Printing Packaging Distinctive

Nebraska 1989) (“[Pjunitive, (Neb. N.W.2d vindictive, contravene Neb. exemplary damages Const, VII, 5, in this and thus are not allowed art. jurisdiction.”). the burden of has not addressed New Hampshire New N.H. Rev. Stat. See damages. for punitive Hampshire (“No damages'shall (2004) 507:16 Ann. § action, unless otherwise any be awarded in by statute.”). provided Jersey A.2d 466, Fischer v. Johns-Manville Corp., New (N.J. 1986) (refusing address the burden of punitive damages cases because “the issue, have not briefed or

parties argued the nor have the below it”); courts addressed see also v. Jackson Consol. Rail A.2d Corp., 538 (N.J. 1321 n.5 Super. App. 1988) Ct. Div. (“Defendant also attacks the punitive damage verdict because the court in its. did not charge place the burden on prove same ‘clear and However, convincing’ evidence. not the present Jersey.”). applicable New Handelsbanken, New York Greenbaum 979 F.Supp. (S.D.N.Y. 1997)(“[T]he Court determines that . higher until . . authorities to address the elect[] question, the preponderance of the evidence standard should apply deliberations.”). Benbow,

North 361, 362 Carolina Caudle 45 S.E.2d (N.C. 1947) without (approving, discussing, a jury instruction requiring the jury to “first find preponderance of the evidence presence malice”). actual Corp., A.2d v. Johns-Manville Martin Pennsylvania J., delivering 1985) (Hutchinson, (Pa. n.14 joined court and an opinion of the judgment remaining justices) five of one have many jurisdictions adopted (recognizing concluding: and convincing standard a clear limiting punitive damage- the goal “We believe products liability litigation context of in the awards on the nature of the by focusing best served is increasing instead conduct defendant’s Rizzo persuasion.”); burden plaintiff^ Michener, 973, 979 1990) Ct. (Pa. A.2d Super. the first must determine in judge trial (“The has presented whether instance punitive damage support evidence sufficient which the claim, evidence on requires which conduct outrageous conclude reasonably might by a preponderance been established has denied, (Pa. A.2d 159 evidence.”), appeal 1991). of proof not addressed the burden Island has Rhode

Rhode Island damages. recovering punitive the burden of first addressed proof Tennessee Tennessee in 1992 in v.S.C. Hodges damages Toof & (Tenn. 1992), and 900-01 833 S.W.2d convincing applies the clear and held that punitive damages. claims for to all Const., Stoutamire; Inc. v. Lawson-Avila Texas (Tex. 1990) (“We Ct. . . . App. S.W.2d the Texas established precedent to follow continue that the burden of this State hold the Courts involving... exemplary in cases not of the evidence by preponderance [and (internal convincing evidence].”) clear quotations (Dec. denied omitted), writ error 1990). Vermont Vermont has not addressed the burden of

recovering damages. punitive Peacock Buick, Durkin, S.E.2d 225, 227 v. Virginia Inc. (Va. 1981) (approving, n.3 without discussing you burden of proof, jury stating: instruction “[I]f from a preponderance believe of the evidence that acted wantonly, the defendant or with oppressively, such recklessness as evinced a disregard conscious others, rights of the or with such malice as mischief, implied spirit or criminal obligations, you indifference civil may award such additional sum as punitive damages.”). Sintra, Seattle, Washington City Inc. P.2d 1997) (Wash. (holding, addressing without burden of proof, that the trial court properly instructed the it could award on the 42 damages U.S.C. 1983 claim ‘only if [by a

you find preponderance evidence] the conduct of an individual defendant was malicious or taken in disregard reckless plaintiffs’ rights?’) (alteration in original). But see Dailey v. North Coast Ins. 919 P.2d decisions, Life (Wash. (“Since 1996) its earliest this consistently court has disapproved of punitive contrary as to public policy.”). West Virginia Thomas, Goodwin v. 403 S.E.2d (W. Va. 1991) (reinstating an award of punitive damages, without discussing burden of proof, based on following jury instruction: you find from “[I]f of all the preponderance case, evidence in this

that the actions of the in evicting Defendants Plaintiff disregard were total of the Plaintiffs rights as lessee in the leased premises and that such actions were willful and wanton you then may award the Plaintiff punitive damages.”).

Wyoming Stone, Campen 635 P.2d 1127 (Wyo. 1981) (approving, without discussing burden of proof, ajury instruction stating: “Punitive damages can be . properly if, awarded . . one of the following has been proven by a [acts]

preponderance of the evidence.”) (internal quotations omitted).

APPENDIX B Damages State Burdens Proof for Punitive in 2004 today, supreme As of legislatures courts or from the following higher adopted States have proof burden of awarding punitive damages: convincing (clear and l-20(a) (2004) 6-1 Ala. Code §

Alabama evidence). and (clear 09.17.020(b) (2004) Stat. Alaska convincing evidence). § Alaska Co., 723 P.2d Ins. v. Nationwide Linthicum Arizona Life may collect a (Ariz. 1986) (“[W]hile plaintiff 680-82 by upon compensatory injuries due the evidence of his preponderance the another, recovery we conclude tort only upon awardable damages should be punitive evil defendant’s convincing and evidence clear Army, Salvation ex rel. mind.”); Sinaloa Saucedo 2001) (“In (Ariz. App. Ct. 24 P.3d Arizona, damages, to recover punitive convincing evidence and clear must prove evil guided was wrongful conduct ‘defendant’s interests disregard or wanton motives wilful (Oct. denied omitted), review ’”) (citation others. 2001). (clear 3294(a) (2004) Civ. Code

California Cal. convincing evidence). § (beyond 13-25-127(2) (2004) Rev. Stat. Colo. Colorado § doubt). reasonable (2004) (clear Stat. Fla. Ann. 768.725 Florida § convincing evidence).

Georgia 51-12-5.1(b) Ga. Code Ann. (2004) (clear and convincing evidence). Hawaii Ltd., Agency, Reliable Collection 32 P.3d Schefke 52, (Haw. 2001) (“Clear and convincing evidence

of‘some wilful misconduct or... entire want of care which would raise presumption of a conscious indifference to consequences’ supports an award of (internal damages.”) quotations omitted). Idaho Idaho Code §6-1604(1) (2004) (clear convincing evidence). Indiana Ind. Code 34-51-3-2 (2004) (clear and convincing § evidence).

Iowa Iowa Code 668A.l(l)-(2) (2004) (clear and § convincing evidence). Kansas Kan. Stat. 702(c) (2004) Ann. 60-3 (clear § and convincing evidence). Kentucky Ky. Rev. Stat. Ann. 411.184(2) (2004) (clear and § convincing evidence).

Maine St. Francis De Sales Fed. Credit Union v. Sun Ins. Co. of N.Y., 818 A.2d (Me. 2002) (‘“[I]n

order to recover punitive damages, a plaintiff must prove by clear and convincing evidence that the defendant acted with malice.’”) (quoting Tuttle v. Raymond, 494 A.2d 1354 (Me. 1985)). Owens-Illinois, Maryland Zenobia, Inc. v. 601 A.2d (Md. 1992) (“[I]n any tort case a plaintiff must establish clear and convincing evidence the basis for an award punitive damages.”); Carter v. Servs.,

Aramark Sports Inc., and 't Entm 835 A.2d 262,287 (Md. Spec. Ct. App. 2003) (“The ‘clear and convincing’ standard of proof applies make aout claim for punitive damages.”). 549.20(l)(a) (2004) (clear Stat. Minn. § Minnesota evidence). convincing (clear and ll-l-65(l)(a) (2004) Code Ann. Miss. Mississippi evidence). convincing S.W.2d Corp., Motor v. Suzuki Rodriguez Missouri damage common (“For law 1996) 111 (Mo. must meet clear claims, evidence v. Bus. proof.”); Hoskins convincing Assurance, Ct. S.W.3d (Mo. Men's (“Punitive are 2003) properly App. case negligence liability] strict submitted in [or that ‘at convincing evidence if is clear there act, knew negligent time of the defendants] high that there was degree had to know reason injury.’”) the action would result in probability omitted). (citation and 27-1-221(5) (2004) (clear Ann. Mont. Code § Montana evidence). convincing and 42.005(1) (clear Stat. (2004) Nev. Rev. Nevada evidence). convincing and (clear 2A: 15-5.12(a) (2004) N.J. Stat. Ann. Jersey New § evidence). convincing (clear and 1D-I5(b) (2004) Stat. N.C. Gen. North § evidence). convincing Carolina and 32-03.2-11(1) (2004) (clear North Dakota N.D. Cent. Code § evidence). convincing (2004) (clear 2315.21(C)(2) Rev. Ann. Ohio Ohio Code § evidence). convincing and (clear and (2004) tit. 9.1.B-.D Oklahoma Okla. Stat. § convincing evidence). 18.537(1) (2004) (clear Rev. Stat. Or. convincing evidence). Oregon § (2004) (clear and Code Ann. 15-33-135 South S.C. § evidence). convincing Carolina Co., Tennessee v. S.C. 833 S.W.2d 90l Hodges Toof & 1992) must (Tenn. (“[A] plaintiff prove fraudulent, intentional, malicious, or defendant’s convincing conduct clear and evidence.”); reckless Lane, 924, 928 (Tenn. Ct. App. Barnett v. S.W.3d damages] 2000)-(“[A]n award [of necessary conduct has been appropriate when ‘by convincing clear and evidence.’”). shown Texas Tex. Civ. Prac. & Code Ann. 41.003(b) Rem. § (2004) (clear evidence). and convincing (2004) Utah Code Ann. (l)(a) (clear Utah 78-18-1 convincing evidence). Co.,

Wisconsin Ford Motor Wangen N.W.2d (Wis. 1980) (“We [clear, hold that the satisfactory burden of convincing proof shall apply evidence] hereafter.”); claims punitive damages City West v. Wis.Elec. Allis Power N.W.2d (Wis. 2001) (“The Ct. evidence App. [supporting must also be ‘clear award] denied, convincing.’”), pet. review 643 N.W.2d 2002). (Wis. today, supreme legislatures from courts or As of higher proof rejected following burden of have States damages: awarding punitive 370, 375 A.2d Mgmt. Freeman Alamo

Connecticut . the . disagree . . with . (Conn. 1992) (“We . is an convincing proof . . . that clear and conclusion claims of whenever proof appropriate as involving punitive tortious conduct those [such far- or harsh or damages] consequences have serious individuals reaching require proof effects on willful, acts.”). unlawful wrongful Ins., P.2d v. Allendale Mut. Corp. United Nuclear New . (N.M. rule . . that 1985) (“It is the general Mexico determined of fact in civil cases are be issues according the evidence .... preponderance should We are not that the degree convinced changed convincing be clear and require evidence] [to damages areas.”). in punitive N.W.2d 473, 475 (S.D. 1991) South Wyant, Flockhart v. not (“[S.D. Dakota Laws does establish Codified § 21-1-4.1] convincing a clear and merely evidence standard but convincing to show a clear evidence requires reasonable believe the basis defendants committed [to warranting acts The clear and punitive damages]. merely modifies the ‘reasonable language convincing showing language basis’ to make facie prima may order.”). be punitive damages today, supreme legislatures As of courts and from following yet question States have address the whether punitive damages require heightened claims a burden of though (as below) proof, noted some lower courts have supreme addressed the issue and some courts mentioned, had discussing, jury requiring without instructions preponderance of the evidence:

Arkansas Bank Nat'l Commerce v. McNeill Trucking Inc., (Ark. 828 S.W.2d J., 1992) (Dudley, concurring) (“I would hope that the possible changes discussed in this opinion the adoption of a clear [i.e. and convincing standard for punitive damages] might be brought before this court in an adversarial manner -It is a matter which we have addressed.”). never Delaware Cloroben Chem. Corp . Comegys, 464 A.2d (Del. 1983) 891—92 (“We now turn to Cloroben’s contention that the jury improperly awarded punitive they were not supported by

preponderance of the evidence .... Our review of the record indicates that there is sufficient evidence finding support . . . we must reject the [and] argument that there was insufficient evidence to support an award of punitive damages.”); Guthridge Pen-Mod, Inc., 709, 715 239 A.2d (Del. Super. Ct. 1967) (instructing the jury that “[p]unitive damages may be awarded if jury finds by a preponderance the evidence that the defendants’ actions were motivated some form of malice.”). Illinois Illinois Terminal R.R. Co. v. Thompson, 71 N.E. 333 (Ill. 1904) (approving jury instruction that “left it to the discretion of the impose whatever damages they choose, might even to the extent of allowing punitive damages” aby preponderance the evidence). Hill 81, App. Ct. Sampson, (La. 2d So.

Louisiana appeal, 1993) argument has theoretical (“While this means by these judicial we not inclined are as the convincing and evidence’ establish ‘clear under damages exemplary standard of proof view, had In our DUI law]. [Louisiana’s than legislature proof higher intended evidence, would it of the that of a preponderance Gas v. United indicated.”); Rivera have so clearly Pipeline Ct. (La. App. 2d So. 1997) earlier (holding interpretation handling statute substance Louisiana’s hazardous convincing’ “says nothing creating ‘clear not prepared burden of and this Court is proof, Ergo, legislature create .... until the Louisiana one action, exemplary takes direct the burden proof evidence.”), is preponderance denied, cert. 1997). (La. 704 So. 2d Massachusetts Corp., Chrysler Santos WL No. 1996) at *3 (Mass. Super. Sept. Ct. because it that the court erred (“Chrysler contends fin'd they failed must clear to instruct grossly was Chrysler convincing evidence damages. negligent they before could award punitive law is Under Massachusetts contention meritless. kind of this burden of in civil proceedings a fair ‘by satisfied preponderance on other remanded part evidence.’”), affirmed grounds, (Mass. 1999). 715 N.E.2d 47 Evans,

Michigan Green v. 401 N.W.2d 252 (Mich. Ct. App. 1985) (approving, without discussing the burden proof, jury instruction stating: “Such exemplary damages only are recoverable if the Plaintiff has proven by a preponderance of the evidence, malice, willful and wanton misconduct or negligence so great as to indicate reckless disregard of the rights another”). But see Kewin v. Mass. Mut. Ins. 295 N.W.2d 55 (Mich. 1980) Life (noting that exemplary damages oiüy serve to compensate plaintiffs “humiliation, sense of outrage, and indignity” exemplary damages may — not serve as punishment to the defendant). Nebraska Distinctive Printing & Packaging Cox, Co. v. N.W.2d 574 (Neb. 1989) (“[P]unitive, vindictive, or exemplary damages contravene Neb. Const, VII, 5, art. and thus are not § allowed in this jurisdiction.”). New New Hampshire not has addressed the burden of

Hampshire proof for punitive Ann damages. See N.H. Rev. Stat. 507:16 (2004) (“No punitive damages shall be awarded any action, unless otherwise provided by statute.”). Handelsbanken, Supp. F. Svenska York Greenbaum v. New Court (“[T]he 1997) (S.D.N.Y. 978-82 . authorities higher that . determines until. elect[] of the the preponderance the question, address damages to punitive should apply evidence standard Puretz, Munoz deliberations.”). Compare 463, 466 (“In order 2003) Div. (N.Y. App. N.Y.S.2d show must damages, plaintiff punitive to recover ‘clear, unequivocal by conduct] [certain convincing re with In (citation omitted), evidence.’”) N.Y.S.2d Litig., Asbestos Seventh Judicial Dist. (“The trial court 685, 686-87 1993) Div. (N.Y. App. evidentiary jury instructed properly proving punitive entitlement standard for evidence, not clear preponderance convincing evidence.”). 494 A.2d Corp., Martin v. Johns-Manville Pennsylvania delivering (Hutchinson, J. (Pa. 1985) n.14 joined of the court and an judgment opinion remaining (recognizing justices) one five have clear jurisdictions adopted many “We believe concluding: standard and convincing damage awards goal limiting punitive served is best liability litigation context of products conduct tjie on of the defendant’s by focusing nature burden increasing plaintiffs instead of 973, 979 Michener, A.2d Rizzo persuasion.”); must (“The judge trial Ct. (Pa. 1990) Super. whether the determine the first instance to support evidence has sufficient presented on claim, which evidence damage requires punitive conclude reasonably might which the been established outrageous conduct has denied, 596 evidence.”), preponderance appeal ofthe 1991). (Pa. A.2d 159 of burden addressed the Rhode Island Rhode Island has not recovering damages. not Vermont has addressed the of Vermont burden recovering damages. Buick, Durkin, Peacock v. Inc.

Virginia 277 S.E.2d (Va. n.3 1981) (approving, discussing without a proof, burden of jury stating: you instruction “[I]f a believe from of preponderance that the evidence defendant acted wantonly, oppressively, or with such as evinced a recklessness conscious disregard others, of rights or with such malice as a implied mischief, spirit of or criminal indifference to civil obligations, you may award the such additional sum as punitive damages.”); RF & P Corp. Little, 908, 914 40 S.E.2d (Va. 1994) (holdingthat a preponderance of the evidence standard applies to a knowing and willful (cid:127)violation bf a resulting statute fíne, in a civil clear and convincing evidence only standard applies “to certain cases that are equitable nature, as such suits involving fraud and influence, misrepresentation, undue estoppel.”). [or] Sintra, Seattle, Washington Inc. v. City 935 P.2d of (Wash. 1997) without (stating, addressing the burden of proof, that the trial court properly instructed the that it

jury could award punitive damages on 42 U.S.C. “only 1983 claim you if [by find of preponderance that the conduct an evidence] individual defendant was malicious or taken in disregard reckless plaintiffs’ rights.”) (quotation omitted and alteration in original). But see Dailey v. North Coast Ins. P.2d (Wash. Life (“Since 1996) decisions, its earliest this court has consistently disapproved of punitive as contrary to public policy.”). West Thomas, (W. Goodwin v. 403 S.E.2d Va. Virginia 1991) (finding sufficient evidence to support award of punitive damages, discussing without burden of proof, based on the following you instruction: preponderance find from all “[I]f case, the evidence in this that the actions of the Defendants in evicting the Plaintiff were in total disregard of the rights Plaintiffs as a lessee in the premises leased and that were such actions willful and wanton.”). Stone, 1121, 1127 Wyoming (Wyo. P.2d Campen 1981) (approving, discussing proof, without the burden of a proposed jury stating: instruction “Punitive if, damages can one properly be awarded ... following has been proven [acts] evidence.”). preponderance notes in recent convincing concerns, case is clear and evidence be-- primarily puni- about excessive brought cases cause discrimination awards, “[i]n damage prompted many tive have law, punitive damages under federal need adopt convincing” states to a “clear only by a proven preponderance be of proof punitive damages. standard evidence”). level, however, Trends the state do not punitive inform our consideration of dam- dissenting opinion puni The states that ages claims under the federal Title VII damages are an unconventional form tive fact, statute. In the dissent’s statistics height and therefore deserve a relief that, proof. Unquestionably, many applied ened standard of- indicate states while punitive damages purpose serve a different heightened proof puni- standard of to state compensatory damages. than The re damage tive claims at the time that Title quirement punitive damages that be permit VII was amended to such claims in only awarded when a defendant acts mali 1991, majority of states at that time ciously recklessly recognizes this differ apply heightened chose not standard. purpose punitive ence in and ensures that Moreover, to the extent concerns damages will be awarded in the most punitive damage about excessive awards egregious cases. Punitive are prompted adoption heightened stan- however, not, unconventional in the sense dards of after before or those they are a new or nontraditional form concerns do not exist under the Title VII fact, punitive damages of relief. have a statutory VII, scheme. Under Title dam- long history in litigation, American civil age compensatory puni- awards —both the traditional of proof where has $300,000 capped, being tive—are with “preponderance of the been evidence.” largest sum that can be awarded to a generally Jury See Determination Pu against claimant largest employers, Damages, nitive 110 Harv. L.Rev. those with 500 employees.9 or more (1997) (recognizing prepon 1531-32 1981a(b)(3)(D). $300,000 § U.S.C. derance the evidence is the traditional imposed limit is on the compen- sum the proof). civil standard of Smith v. Cf. awards; satory punitive damage there Wade, 30, 53-56, 461 U.S. 103 S.Ct. separate type is no limit for each of dam- (1983) (noting 75 L.Ed.2d 632 that “[t]here 1981a(b)(3). Thus, ages. Ti- U.S.C. any general has never been common-law quite tle VII’s own- substantial restrictions rule that the threshold for dam punitive damage guard against on awards

Case Details

Case Name: Sheila White, Plaintiff-Appellee/cross-Appellant v. Burlington Northern & Santa Fe Railway Co., Defendant-Appellant/cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 14, 2004

Citation: 364 F.3d 789

Docket Number: 00-6780, 01-5024

Court Abbreviation: 6th Cir.