Lead Opinion
GIBBONS, J., announced the judgment and majority opinion of the en banc court on all issues. The entire en banc court joined Parts I (Background) and III (Attorney’s Fees) of the majority opinion. Part II (Adverse Employment Action) of the majority opinion was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, GILMAN, ROGERS, SUTTON, and COOK, JJ., and Part IV (Punitive Damages) was joined by MARTIN, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 808-17), filed a separate concurring opinion joining Parts I, III, and IV of the majority opinion and writing separately as to Parts II and V, in which he was joined by MARTIN, DAUGHTREY, MOORE, and COLE, JJ. SUTTON, J. (pp. 817-42), filed an opinion concurring in Parts I — III and dissenting from Parts IV and V, in which he was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, and ROGERS, JJ.
In this appeal, the en banc court addresses the meaning of “adverse employment action” for purposes of Title VIL We decide that a thirty-seven day suspension without pay constitutes an adverse employment action regardless of whether the suspension is followed by a reinstatement with back pay. We also address several other issues raised by this appeal.
Sheila White brought this action against her employer, Burlington Northern & Santa Fe Railway Company (Burlington Northern), alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a)(l), 2000e-3. The jury returned a verdict in favor of Burlington Northern on the sex discrimination claim and in favor of White on the retaliation claim. The jury awarded White compensatory damages but no punitive damages. After the trial, the district court denied Burlington Northern’s motion for judgment as a matter of law on the retaliation claim and granted White’s motion for attorney’s fees.
Burlington Northern appeals from the denial of its motion for judgment as a matter of law and from the award of attorney’s fees to White. White cross-appeals, challenging the district court’s jury instruction regarding punitive damages. For the reasons set forth below, we affirm the district court’s denial of Burlington Northern’s motion for judgment as a matter of law and the district court’s award of attorney’s fees to White. We conclude, however, that the district court erred in instructing the jury on the issue of punitive damages, and therefore we remand the case for further proceedings consistent with this opinion.
Before June 1997, Ralph Ellis operated the stationary forklift for Burlington Northern at its Tennessee Yard in Memphis. In June 1997, Ellis resigned from the forklift position in order to work on a mobile track gang, in which position Ellis earned more pay than he would have if he had continued working in the forklift position. Marvin Brown, roadmaster of the Tennessee Yard, interviewed White for a job with Burlington Northern and expressed interest in White’s experience operating a forklift. On June 23, 1997, Burlington Northern hired White to work in its Maintenance of Way department at its Tennessee Yard, and following White’s hire, Brown assigned her to operate the forklift at the Tennessee Yard.
White was the only female working in the Maintenance of Way department at the Tennessee Yard. White’s immediate supervisor was foreman Bill Joiner. Joiner had never supervised a woman before, and he admitted at trial that he treated White differently because of her gender. He also admitted that he did not believe that the Maintenance of Way department was an appropriate place for women to work. According to White, Joiner repeatedly expressed this belief to her while she was working under his supervision. According to Joiner, several other Burlington Northern employees also expressed the belief that women should not work on a railroad. Another Burlington Northern employee agreed at trial that there was “a general anti-woman feeling” among Burlington Northern employees at the Tennessee Yard.
Despite concerns about the propriety of a woman working on the railroad, the evidence was uncontradicted that White did not have difficulty performing her job. According to Brown, he never received a complaint regarding White’s performance operating the forklift. Joiner testified that White had no problems performing her job. Furthermore, another Burlington Northern foreman testified that no one expressed concern about White’s ability to get along well with others in the workplace or about anything specific to White other than her gender.
On September 16, 1997, White complained to Brown and other company officials about specific incidents of alleged sexual harassment committed by Joiner. The company investigated. Following the investigation, Burlington Northern suspended Joiner for ten days and ordered him to attend a training session regarding sexual harassment.
On September 26, 1997, Brown met with White to inform her that Joiner had been disciplined pursuant to her complaint. He also, however, told her that the company had learned during the investigation of several complaints about her working in the forklift position. According to Brown, the complaints did not relate to her performance but related to the fact that the forklift position was a less arduous and cleaner job than other track laborer positions. Brown testified that other employees, including Ellis, complained about a junior employee being allowed to work the forklift instead of “a more senior man.” Other witnesses testified that the forklift job was generally considered a physically easier and cleaner job than other track laborer positions, although it required more qualifications. Joiner testified that other track laborers complained about White being allowed to hold the position instead of a male employee.
During the September 26 meeting regarding the resolution of White’s internal sexual discrimination complaint, Brown informed White that he was removing her from the forklift position and assigning her to a standard track laborer position be
Brown’s trial testimony is inconsistent with Burlington Northern’s interrogatory response. In that response, the railroad stated that it removed White from the forklift position because a more senior employee claimed the job according to the collective bargaining agreement. Brown, however, testified at trial that the forklift job was not governed by the collective bargaining agreement and that he had the discretion to place anyone he chose in that position regardless of seniority. Moreover, neither the union, nor anyone else, initiated a grievance about White’s operation of the forklift. A union official testified that the union’s records did not reflect any complaints regarding WTiite’s assignment to the forklift position. Only White and Ellis were qualified to perform the forklift position. Ellis, who had voluntarily resigned from the forklift job for a higher-paying job, testified that he did not complain to Brown or anyone else about WTiite operating the forklift and that he did not request that he be returned to the position.
On October 10, 1997, White filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sex discrimination and retaliation. She filed a second charge with the EEOC on December 4, 1997, alleging retaliation. In her second EEOC charge she alleged that Brown had placed her under surveillance and was checking on her daily activities. Her second EEOC charge was mailed to Brown on December 8,1997.
On December 11, 1997, White was working in Blytheville, Arkansas, supporting a regional tie gang. She was working under the supervision of Burlington Northern foreman Percy Sharkey. At some point during the day, Sharkey instructed White to ride in a truck with another foreman, James Key. Sharkey instructed another track laborer, Greg Nelson, to ride with him in his vehicle. According to White, when she approached Key he told her that she had to ride with Sharkey because Key wanted Nelson to ride with him. Against Sharkey’s order, Nelson rode away with Key. White testified that Sharkey became very upset when she returned and told him that Nelson had ridden away with Key and that she would have to ride with him. Contrary to White’s testimony, Sharkey testified that White refused to ride with Key, claiming that she had seniority over Nelson and insisting upon riding with Sharkey.
According to Sharkey, he called Brown to discuss the situation and Brown told him that, based on Sharkey’s description of events, White had been insubordinate and should be removed from service immediately. On the afternoon of December 11, Sharkey informed White that she was suspended. Although Sharkey had the authority to suspend White himself, Sharkey testified that Brown made the decision to suspend White. Brown testified that Sharkey made the decision. White testified that Sharkey told her at the time that Brown had instructed him to suspend her. In a letter to the EEOC, Burlington Northern stated that Brown made the decision, but Brown testified that this letter was incorrect. Nelson received no discipline, although Sharkey acknowledged at trial that Nelson had disobeyed his direct order.
The decision to suspend White occurred seven days after White filed her second EEOC charge and three days after the charge was mailed to Brown. The suspension took effect immediately and was without pay. According to company policy, the suspension without pay would automatically become a termination if White did not file a grievance with her union appealing the decision within fifteen days. White timely filed such a grievance and also filed another EEOC charge on December 15, 1997, alleging retaliation.
While her grievance was pending, White was without a job and without income and she did not know if or when she would be allowed to return to work. During this period, White sought medical treatment for emotional distress and incurred medical expenses. The grievance remained pending through the end of December and the first half of January 1998. After an investigation and a hearing, the hearing officer, who was a Burlington Northern manager, found that White had not been insubordinate and that she should not have been suspended. After being suspended without pay for thirty-seven days, White was reinstated to her position with full back pay on January 16,1998.
After exhausting her avenues for relief before the EEOC, White filed this action against Burlington Northern in the district court, alleging sex discrimination and retaliation in violation of Title VIL A jury trial was conducted from August 29, 2000, to September 5, 2000. The jury returned a verdict in favor of Burlington Northern on White’s sex discrimination claim and a verdict in favor of White on her retaliation claim. The jury awarded White $43,500 in compensatory damages, including $3,250 in medical expenses, on her retaliation claim. The jury found against White on her claim for punitive damages. After the trial, pursuant to Federal Rule of Civil Procedure 50(b), Burlington Northern filed a renewed motion for judgment as a matter of law on the retaliation claim, which the district court denied. White filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. § 2000e-5(k), and the district court awarded White $54,285, which represented eighty percent of White’s total attorney’s fees.
II. MOTION FOR JUDGMENT AS A MATTER OF LAW
We first review the district court’s denial of Burlington Northern’s post-trial motion for judgment as a matter of law pursuant to Rule 50(b). Our standard of review is de novo. Gray v. Toshiba Am. Consumer Prods., Inc.,
We must affirm the jury verdict unless there was “no legally sufficient evidentiary basis for a reasonable jury to find for [the prevailing] party.” Fed.R.Civ.P. 50(a). We draw all reasonable inferences in favor of the prevailing party, and we do not make any credibility determinations or weigh the evidence. Reeves,
Burlington Northern contends that it is entitled to judgment as a matter of law on White’s retaliation claim because, according to Burlington Northern, neither White’s transfer from the forklift job to a standard track laborer job nor her suspension without pay for thirty-seven days constitutes an adverse employment action for purposes of Title VII. In the alternative, Burlington Northern contends that there was insufficient evidence for the jury to conclude rationally that Burlington Northern’s asserted legitimate, non-discriminatory reasons for transferring and suspending White were pretexts for retaliation.
In determining whether Burlington Northern is entitled to judgment as a matter of law, we first discuss the meaning of “adverse employment action” for purposes of Title VII. Then we discuss whether White’s transfer and suspension were adverse employment actions. Finally we address whether there was sufficient evidence for the jury to rationally find that Burlington Northern’s asserted legitimate reasons were pretexts for unlawful retaliation.
A. Defining Adverse Employment Action
Title VII’s anti-retaliation provision provides:
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this sub-chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.
42 U.S.C. § 2000e-3(a) (section 704(a) of Title VII) (emphasis added). Title VII does not define the phrase “discriminate against,” which is repeated in Title VII’s other anti-discrimination provisions, but courts have made clear that not just any discriminatory act by an employer constitutes discrimination under Title VII. See Burlington Indus., Inc. v. Ellerth,
To prevent lawsuits based upon trivial workplace dissatisfactions, we require that a plaintiff prove the existence of an “adverse employment action” to support a Title VII claim. Hollins v. Atlantic Co.,
The first time this court required a plaintiff to prove the existence of an “adverse employment action” as part of a Title VII claim was in Geisler v. Folsom,
We agree with the district judge that a general increase of tension in the workplace would be expected to follow revelation that a claim of discrimination in employment had been filed. However, evidence of such an increase should be considered, and any discrete act or course of conduct which could be construed as retaliation must be examined carefully. After such examination we conclude that the finding that no ‘adverse employment action’ resulted from the filing of the EEOC charge is not clearly erroneous, particularly in view of the contrary evidence....
A few months after deciding Geisler, this court stated that to support a claim for retaliation under Title VII a “plaintiff must establish: (1) that he engaged in activity protected by Title VII; (2) that he was the subject of adverse employment action; and (3) that there exists a casual [sic] link between his protected activity and the adverse action of his employer.” Jackson v. RKO Bottlers of Toledo, Inc.,
After Yates, it was almost ten years before we had another opportunity to develop the definition of adverse employment action. In Kocsis v. Multi-Care Management Inc., this court considered the definition of adverse employment action in the context of a discrimination claim under the Americans with Disabilities Act.
Furthermore, according to Kocsis, “reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims.” Id. at 885 (citing Yates,
In this circuit, Kocsis is the seminal case for defining adverse employment action.
A tangible employment action in most cases inflicts direct economic harm.... Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.
Id. at 762,
In this appeal, White and the EEOC, which has filed an amicus curiae brief on White’s behalf, urge us to revise our definition of adverse employment action for purposes of Title VII retaliation cases and adopt the interpretation included in the EEOC Guidelines. The EEOC has interpreted “adverse employment action” in the context of a Title VII retaliation claim to mean “any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity.” EEOC Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998). Although EEOC Guidelines are not binding on the courts, they “constitute, a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank v. Vinson,
The EEOC claims that this court’s development of the adverse-employment-action element has been unfaithful to the letter and purpose of Title VII’s anti-retaliation provision. According to 42 U.S.C. § 2000e 3(a), it is unlawful for an employer to “discriminate against” an employee for engaging in protected conduct. The EEOC contends that the most natural reading of this language is that it prohibits “any form of discrimination” against an individual for opposing discrimination or filing a charge. The Ninth and Seventh Circuits have also embraced a broad interpretation of Title VII’s anti-retaliation provision. See Ray v. Henderson, 211 F.3d 1234, 1243 (9th Cir.2000) (“This provision does not limit what type of discrimination is covered, nor does it prescribe a minimum level of severity for actionable discrimination.”); Knox v. State of Indiana,
We developed the adverse-employment-action element to prevent the kind of claims based upon trivial employment actions that a strictly literal reading of Title VII’s anti-retaliation provision would allow. Because the language of Title VII does not explicitly provide any limit on the types of discriminatory acts prohibited, the language of Title VII does not favor the EEOC’s proposed limitations over the limitations this court has developed during the last twenty years of defining the adverse-employment-action element of a Title VII claim.
The EEOC argues that the purpose of Title VII’s anti-retaliation provision supports its definition. “In enacting section 2000e-3, Congress unmistakably intended to ensure that no person would be deterred from exercising his rights under Title VII by the threat of discriminatory retaliation.” EEOC v. Ohio Edison Co.,
■In addition, this court’s definition has the benefit of applying equally to all Title VII discrimination claims, not only to retaliation claims. Having a different standard for different provisions of Title VII would be burdensome and unjustified by the text of the statute, which uses the same phrase “discriminate against” in each of its anti-discrimination provisions. See Morris v. Oldham County Fiscal Court,
B. Suspension Without Pay
We now apply our definition of adverse employment action to the actions at issue in the present case. We consider the suspension first. Burlington Northern argues that a suspension without pay, followed thirty-seven days later by a reinstatement with back pay, is not an adverse employment action. For this argument, Burlington Northern primarily relies upon Dobbs-Weinstein v. Vanderbilt University,
In May 1994, a Vanderbilt University dean denied tenure to Professor Dobbs-Weinstein and advised her that her teaching appointment at Vanderbilt would end on August 31, 1995. Id. at 543. Dobbs-Weinstein filed an internal grievance with Vanderbilt, alleging gender and national-origin discrimination among other things, and in May 1995, she filed an action under Title VII. Id. On August 31, 1995, her employment contract with Vanderbilt ended. Id. at 544. In November 1995, while her lawsuit was still pending, the Vanderbilt Board of Trustees reversed the decision of the dean and rehired her as a tenured professor. Id. The board also granted her back pay to account for the delayed promotion and the period of unemployment. Id. Dobbs-Weinstein persisted with her lawsuit, however, seeking interest on the back pay and compensation for emotional distress and injury to reputation. Id.
Despite the facts that she was initially denied tenure and her employment ended temporarily, this court held that Dobbs-Weinstein had not suffered an adverse employment action cognizable under Title VII. Id. at 545. We recognized that “ ‘tenure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally.’ ” Id. (quoting Zahorik v.
Since deciding Page, the Fourth Circuit has retreated from the “ultimate employment decision” standard. Von Gunten v. Maryland,
The Fifth Circuit, however, has questioned whether the “ultimate employment decision” standard survived the Supreme Court’s pronouncements in Burlington Industries regarding the definition of tangible employment action. Fierros v. Texas Dep’t of Health,
We now join the majority of other circuits in rejecting the “ultimate employment decision” standard.
Second, the employment action taken in the present case (suspension without pay for thirty-seven days) is not the type of employment action that this court developed the adverse-employment-action element to filter. The adverse-employment-action element is a warranted judicial interpretation of Title VII intended to deter discrimination lawsuits based on trivial employment actions, such as those that cause a “mere inconvenience” or a “bruised ego.” Kocsis,
Third, the “ultimate employment decision” standard contravenes “the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.” Albemarle Paper Co. v. Moody,
Lastly, the “ultimate employment decision” standard is in tension with Supreme Court cases holding that the statute of limitations on a Title VII claim is not tolled during the pendency of an internal grievance process. See, e.g., Int’l Union of Elec. Workers v. Robbins & Myers, Inc.,
The Equal Employment Advisory Council (the EEAC) argues in its amicus curiae brief on behalf of Burlington Northern that employers must maintain the prerogative to suspend summarily employees suspected of wrongdoing pending an investigation without facing the risk of Title VII liability. Otherwise, according to the EEAC, employers will be faced with the dilemma of either allowing potentially dangerous or disruptive individuals to remain in the workplace or suspending them pending an investigation, thereby risking Title VII liability.
In response to the EEAC’s concerns, we initially note that an employer taking an adverse employment action against an employee, including a suspension without pay, only risks Title VII liability if there exists sufficient evidence to prove that the employer took the action based upon illegal discrimination. To the extent the EEAC’s concerns for an employer’s risk of Title VII liability are valid, however, they are allayed by Jackson v. City of Columbus, which holds that a suspension ivith pay and full benefits pending a timely investigation into suspected wrongdoing is not an adverse employment action.
C. Job Transfer
Next we consider whether the job transfer at issue in the present case was an adverse employment action. Burlington Northern appeals the district court’s decision that transferring White from her forklift operator job to a standard track laborer job was an adverse employment action. We agree with the district court.
While the standard track laborer job paid the same as the forklift operator position, White’s new position was by all accounts more arduous and “dirtier.” Furthermore, the forklift operator position required more qualifications, which is an indication of prestige. See Kocsis,
D. Evidence of Pretext
Having rejected Burlington Northern’s arguments that there was no adverse employment action taken against White, we now address Burlington Northern’s alternative argument in support of reversing the district court’s denial of its motion for judgment as a matter of law. Burlington Northern appeals the district court’s decision that there was sufficient evidence from which the jury reasonably concluded that Burlington Northern’s asserted legitimate, non-discriminatory reasons for removing White from the forklift position and then suspending her were pretexts for unlawful retaliation. We agree with the district court.
White presented to the jury substantial evidence to contradict Burlington Northern’s asserted legitimate reasons, including contradictory statements from Burlington Northern’s own officers. Burlington Northern asserted one reason for transferring White in its interrogatory response, but then Brown, the official who made the decision to transfer White, asserted a different, contradictory reason at trial. Furthermore, Brown testified that he transferred White in part based upon complaints from Ellis, but at trial Ellis denied complaining about White. Regarding the suspension, the evidence was not even consistent regarding who made the decision, much less the motivation for the decision. Brown testified that Sharkey made the decision to suspend White, while Sharkey testified that Brown made the decision. Burlington Northern asserts that Brown suspended White for insubordination, but another Burlington Northern official who served as a hearing officer for White’s internal grievance concluded that White had not been insubordinate. White’s second EEOC charge accused Brown of violating Title VII, and White was suspended three days after this charge was mailed to Brown.
Based upon all the evidence, including the contradictory evidence from Burlington Northern’s own officers, the jury was entitled to find that Burlington Northern’s asserted legitimate reasons were false and were pretext for unlawful retaliation. See Reeves,
III. ATTORNEY’S FEES
Burlington Northern’s last issue on appeal is a challenge to the amount the district court awarded White in attorney’s fees. The district court awarded White eighty percent of her attorney’s fees based on her degree of success in the lawsuit. Burlington Northern argues that White was not as successful as the district court found and that her attorney’s fee award should be reduced.
We review a district court’s determination regarding the amount of an award of attorney’s fees under Title VII for an abuse of discretion. Scales v. J.C. Bradford and Co., 925 F.2d 901, 909 (6th Cir.1991). “This deference, ‘is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.’ ” Id. (quoting Hensley v. Eckerhart,
Although we may have awarded a different amount if we were considering the issue de novo, we do not find that the district court abused its discretion in awarding White eighty percent of her attorney’s fees. White brought two claims in this lawsuit (sex discrimination and retaliation) but only prevailed on one (retaliation). As the district court correctly stated in its written decision, however, both of these claims arose from a common set of facts, and it would be difficult to divorce work done on one claim from work done on the other. In light of this consideration and others addressed by the district court in its decision, we find that the district court did not abuse its discretion in awarding White eighty percent of her attorney’s fees.
IV. PUNITIVE DAMAGES
In her cross-appeal, White asserts that the district court erred in charging the jury on punitive damages. The district court instructed the jury that punitive damages may be considered if White showed by “clear and convincing” evidence that Burlington Northern acted “either intentionally, recklessly, maliciously, or fraudulently.” The jury did not award White punitive damages. White contends that the appropriate burden of proof on a claim for punitive damages under Title VII is a preponderance of the evidence, not clear and convincing evidence. White is correct.
According to Title VII, “[a] complaining party may recover punitive damages under this section against a respondent ... if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l); see also Kolstad v. Am. Dental Ass’n,
Other circuits have reached this same conclusion with respect to punitive damages claims generally, see Simpson v. Pittsburgh Coming Corp.,
The dissenting opinion states that punitive damages are an unconventional form of relief and therefore deserve a heightened standard of- proof. Unquestionably, punitive damages serve a different purpose than compensatory damages. The requirement that punitive damages be awarded only when a defendant acts maliciously or recklessly recognizes this difference in purpose and ensures that punitive damages will be awarded only in the most egregious cases. Punitive damages are not, however, unconventional in the sense that they are a new or nontraditional form of relief. In fact, punitive damages have a long history in American civil litigation, where the traditional standard of proof has been “preponderance of the evidence.” See generally Jury Determination of Punitive Damages, 110 Harv. L.Rev. 1513, 1531-32 (1997) (recognizing that preponderance of the evidence is the traditional civil standard of proof). Cf. Smith v. Wade,
The dissent, unable to point to any precedent imposing a higher standard of' proof for Title VII punitive damages claims than preponderance of the evidence, also relies on authority not directly germane to the issue at hand. For instance, the dissent notes that, in recent years, public policy concerns, primarily about excessive punitive damage awards, have prompted many states to adopt a “clear and convincing” standard of proof for punitive damages. Trends at the state level, however, do not inform our consideration of punitive damages claims under the federal Title VII statute. In fact, the dissent’s statistics indicate that, while many states applied a heightened standard of proof to state punitive damage claims at the time that Title VII was amended to permit such claims in 1991, a majority of states at that time chose not apply a heightened standard.
Moreover, to the extent that concerns about excessive punitive damage awards prompted the adoption of heightened standards of proof before or after 1991, those concerns do not exist under the Title VII statutory scheme. Under Title VII, damage awards — both compensatory and punitive — are capped, with $300,000 being the largest sum that can be awarded to a claimant against the largest employers, those with 500 or more employees.
Besides identifying trends at the state level, the dissent also cites cases that involve due process challenges to the application of a preponderance of the evidence standard of proof. Some of these cases concern situations wholly unrelated to punitive damages claims. See Addington v. Texas,
The only case relied on by the dissent that could be instructive is Woodby v. INS,
Accordingly, in determining the proper standard of proof for a punitive damage claim under Title VII, we receive no specific guidance from the statutory language of the Act. Supreme Court precedent offers some assistance, however. Deriving that guidance from Price Waterhouse and Desert Palace — both of which specifically discuss standards of proof in Title VII cases — is more appropriate than looking to the Supreme Court’s views on the standard of proof in dissimilar contexts or its stray comments about state or federal standards of proof in the course of deciding other issues. While there have been developments concerning the standard of proof for punitive damages claims at the state level, these trends do not support the conclusion that the “clear and convincing” standard applies to federal punitive damage claims under Title VII, which has its own limitations on punitive damage awards. Furthermore, as this case does not implicate a due process challenge to the size of a punitive damages award, or to the standard of proof used in civil commitment hearings, hearings terminating parental rights, or in the context of deportation, we do not find the dissent’s cited authority to be persuasive. Rather — in deciding the standard of proof to be applied to plaintiffs claim for punitive damages under Title VII — we choose to follow
Therefore, the district court erred when it instructed the jury' that White must prove her case for punitive damages by clear and convincing evidence. The district court, however, also erred when it instructed the jury that 'White only needed to prove that Burlington Northern acted “either intentionally, recklessly, maliciously, or fraudulently.” As noted above, a plaintiff seeking punitive damages under Title VII must prove that the defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” This .standard requires a plaintiff to prove more than merely intentional discrimination. Kolstad,
■ Finally, the dissent questions whether plaintiff has presented sufficient evidence to submit the punitive damages issue to a jury under either standard and would resolve the issue in defendant’s favor without remand. Wdiile defendant argues generally that plaintiffs evidence was insufficient to permit an award of punitive damages, the parties did not analyze the evidence with any specificity under either potentially applicable standard of proof in their briefing to this court. Nor have we focused on the sufficiency of the evidence to permit a punitive damage award, since this was not the reason we granted an en banc hearing. We cannot find that the evidence is insufficient on a damage issue simply because judicial officers may disagree on an issue relating to liability, as the dissent suggests. Rather, in order, to decide whether a trier of fact could award punitive damages in this case, a careful examination of the entire record is required. This exercise is most appropriately undertaken in the first instance by the district court. If the district court determines on remand that the evidence is sufficient to support a claim for punitive damages under the standard announced by the Supreme Court in Kolstad, then the district court should conduct a new trial on the issue of punitive damages only.
V. CONCLUSION
For all these reasons, we affirm the district court’s denial of Burlington Northern’s motion for judgment as a matter of law and the district court’s award of attorney’s fees to White. We conclude, however, that the district court erred in instructing the jury on the issue of punitive damages, and therefore we remand the casé for further proceedings consistent with this opinion.
Notes
. Although this court and most other courts use the term "adverse employment action,”
As the one alternative to showing the existence of an adverse employment action, a plaintiff may support a Title VII claim by showing that "plaintiff was subjected to severe or pervasive retaliatory [or other discrimination based] harassment by a supervisor.” Morris v. Oldham County Fiscal Court,
. The decisions cited by Jackson from the Tenth and Eleventh Circuits, Burrus and Jones, both cite Smalley v. City of Eatonville,
. For instance, in Hollins v. Atlantic Co., this court relied upon Kocsis to decide that an employee had not suffered an adverse employment action when she received lower ratings in a performance evaluation.
. We have recognized that the dictionary definition of ''discriminate” is "to distinguish; to make distinctions in treatment; show partiality or prejudice.” Mattei v. Mattei,
. Although both § 2000e-2(a)(l) and § 2000e-3(a) use the phrase “discriminate against,” the former specifies that the prohibited discrimination must be "with respect to his compensation, terms, conditions, or privileges of employment,” while the anti-retaliation provision contains no such language. The parties dispute whether this additional language is a limitation or an expansion of
. In fact, as will be mentioned again below, the Supreme Court has pointed out to this court before that internal grievance procedures and an action under Title VII are "legally independent” such that the statute of limitations on a Title VII claim is not tolled during the pendency of an internal grievance process. Int’l Union of Elec. Workers v. Robbins & Myers, Inc.,
. We recognize that our decision in Dobbs-Weinstein was based in part upon the unique nature of "tenure decisions in an academic setting.”
. The National Employment Lawyers Association in its amicus curiae brief on behalf of White concedes that a suspension with pay pending a timely, good-faith investigation does not constitute an adverse employment action and recommends this course to employers concerned about possible misconduct.
. The limits are lower for smaller employers, with the lowest limit being $50,000 for employers with 15-100 employees. 42 U.S.C. § 1981 a(b)(3)(A)-(D).
Concurrence Opinion
concurring.
I join Parts I, III, and IV of the majority opinion. I also agree with Part II insofar as it rejects the untenable “ultimate employment action” doctrine, concludes that Sheila White’s removal from her forklift position and her thirty-seven-day suspension constitute adverse employment actions within the meaning of Title VII, and affirms the district court’s denial of Burlington’s Rule 50 motion. Although the majority properly rejected the “ultimate employment action” doctrine this court embraced in Dobbs-Weinstein v. Vanderbilt Univ.,
A. Why the “Reasonably Likely to Deter” Rule is the Appropriate Standard for a Retaliation Case
1. Statutory and Case Law Support
The Supreme Court has repeatedly instructed courts, as a first step in interpreting a statute, “to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co.,
Section 704(a) states that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... under this subchapter.” 42 U.S.C. § 2000e-3(a). The word “discriminate,” in turn, is not defined in Title VII, but the scope is impliedly quite broad. A review of other Title VII provisions is revealing, inasmuch as § 703(a) prohibits employers from “failing] or refusing] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l) (emphasis added). Thus, both §§ 703(a) and 704(a) use the term “discriminate,” but only the general discrimination provision (§ 703(a)) places limitations on the word “discriminate.” Congress chose not to place any limitations on “discriminate” within the meaning of § 704(a). Thus, a straightforward reading of the § 704(a)’s plain text makes clear that there is no statutory support for the idea that a decision to undertake retaliatory action must materially affect the terms and conditions of employment in order to violate its proscriptions. Indeed, the most natural reading of this language is that it prohibits any form of discrimination against an individual for opposing discrimination or filing a charge, regardless of whether that discrimination takes the form of, for example, termination, suspension, lateral transfer, harassment, or discipline. At least some of the circuits have expressly agreed. Smith v. Sec’y of Navy,
Incorporating by reference the limitations placed on “discriminate”' in § 703(a) into “discriminate” in § 704(a) is altogether inappropriate. Such incorporation by reference is appropriate only when it is consistent with Congress’ expressed intent. Section 704(a)’s legislative history is scant, and therefore we are left to look to its plain legislative' text. Congress could quite easily have placed the same limitation on § 704(a) as it did on § 703(a), yet it chose not to do so. Congress’ legislative intent, by all indications, was to remove all obstacles from an employee’s ability to defend his or her Title VII rights by filing EEOC charges.
The Supreme Court, in Russello v. United States, confirmed its view against narrowly construing the meaning of a statute when the plain language unambiguously expressed its legislative purpose and intent.
Contrary to the majority opinion, this Court has already embraced this logic. In Lynch v. Johns-Manville Sales Corp., we held that when looking to stay proceedings in a Chapter 11 bankruptcy context, a solvent co-defendant may not use the automatic stay provision in 11 U.S.C. § 362(a), when the said provision facially stays proceedings “against the debtor,” and fails to suggest that these rights may be invoked by any one other than the defendant.
The Supreme Court case, Robinson v. Shell Oil Co.,
In line with the teachings of Robinson and the Supreme Court’s view that § 704(a) should not be limited in its construction, this Court, in EEOC v. Ohio Edison, also interpreted § 704(a) to be a broad anti-retaliation provision that should reach as far as its intended protections allow.
Additionally in Mattei v. Mattei, this Court once again chose to interpret the Title VII’s anti-retaliation provision broadly, as to prohibit any kind of adverse action.
Even more recently, the Supreme Court has cautioned courts against unwarranted limitations on otherwise unambiguous statutory text. In Desert Palace, Inc. v. Costa, the Supreme Court rejected the approach of many circuits to limit a Title VII plaintiffs ability to receive a mixed-motive jury instruction in cases where direct evidence of discrimination had not been submitted at trial, determining that a “direct evidence” requirement “is inconsistent with the text of [42 U.S.C. § 2000e-2(m)].”
2. Administrative Agency Support
In addition to support from the statutory text and Supreme Court case law, there is administrative agency support for the “reasonably likely to deter” view, inasmuch as the EEOC has interpreted 42 U.S.C. § 2000e-3 in this manner. While it is true that the EEOC Compliance Manual on Retaliation is not binding authority, the guidelines nevertheless “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank v. Vinson,
3. Policy Considerations
From a policy (and logical) perspective, many factors support an interpretation of adverse employment action that extends beyond the boundaries of an employment decision that materially affects the terms and conditions of employment.
As noted above, a “materially adverse” standard would undermine the driving
Indeed, the “materially adverse” rule would allow many types of retaliatory actions to go completely unaddressed and unpunished. For instance, the D.C. Circuit has held that negative job references to prospective employers and cancelling public events honoring an employee constitute retaliatory behavior, even though such retaliatory actions do not affect the terms and conditions of one’s employment. Passer v. Am. Chem. Soc’y,
Contrary to the majority’s position, the Ninth Circuit’s “reasonably like to deter” standard adequately addresses the many varied forms of retaliation while safeguarding against a slippery slope effect by disallowing employees from litigating trivial annoyances. The inquiry would not be whether any adverse action has been taken but whether, as a matter of law, the adverse action would deter a reasonable employee from engaging in protected activity. This ferrets out suits alleging frivolous harms, while maintaining suits for very deleterious actions such as supervisor harassment. Moreover, there are no indications that the broad rules still employed in the Ninth, Tenth, and Eleventh Circuits
B. Why the Majority Opinion Incorrectly Rejected the “Reasonably Likely to Deter” Rule
Notwithstanding legislative, Supreme Court, and administrative support for a broad rule, the majority rejects the “reasonably likely to deter” standard, citing reasons that are less than persuasive. The majority suggests that the “reasonably likely to deter” standard is too broad. Yet the rule is no broader than the statutory language requires; nor is it any broader than that which is utilized in tort cases, which often involves a “case-by-case” analysis when compelling courts to employ a “reasonable person” standard in determining what constitutes a duty of care. The reasonable person standard is readily understandable, is not burdensome and is commonly used in legal discourse.
Moreover, The Ninth, Tenth, and Eleventh Circuits all employ such,an .objective standard, .specifically in the Title VII context, and by so doing, none of the Circuits appear to have had any difficulty in determining what is adverse and what is frivolous. See, e.g., Doe v. Dekalb County School Dist.,
Furthermore, retaliation requires a broad rule because retaliation can- take many forms, perhaps more than Congress at the time of its drafting could think of or reasonably anticipate.. Nevertheless, it is not the function of this Court to graft its own policy values onto a statute; rather, it is this Court’s responsibility to discern Congress’ legislative intent in enacting the statute. In other words, we must determine whether Congress, not this Court, would envision a plaintiff like Sheila White receiving relief from the retaliatory actions allegedly perpetrated against her by Burlington Northern. Congress’ intent is manifest: to provide employees who have been victimized by discrimination with access to . appropriate statutory remedies under Title VII. Robinson,
The- majority’s approach would utilize the same standard for §§ 703 and 704 so that it would not be necessary to undertake individual reviews under the separate sections of the statute when cases arise. This approach similarly is unavailing since Title VII’s statutory language indicates that Congress intended for courts to treat general discrimination differently than retaliatory discrimination. Indeed, the recent Supreme Court case of Desert Palace emphasized the importance of statutory construction and the significance of statutory- language as.the starting point for a court’s analysis.
Contrary to the majority’s suggestion, the rule on adverse employment actions to which the majority opinion adheres is quite ambiguous. In an attempt to obviate the need for a court’s case-by-case determination of what actions by an employer would be “reasonably likely to deter” an employee from engaging in protected activity, the majority points to this Court’s case law regarding what constitutes a “material adverse employment action.” The majority relies on Kocsis v. Multi-Care Management, Inc., which requires courts to look to “indices unique to a particular situation,” when considering whether or not an employment action is materially adverse.
The majority suggests that the EEOC’s position, in advocating the “reasonably likely to deter” standard, is inconsistent with its concession that legally cognizable adverse action should not encompass trivial slights. Yet no inconsistency is apparent. It is logical that a person pursuing solutions prescribed by EEOC standards would reasonably expect some backlash, in the form of a limited number of negative consequences, some unhappy colleagues and perhaps even some ostracism. The EEOC’s recommendation, however, allows redress only for those plaintiffs who can show that such retaliatory actions would reasonably deter the charging party from engaging in protected activity. EEOC Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998). The majority essentially seeks to dismiss the EEOC’s approach because it supposedly lacks safeguards against trivial and petty allegations; however, by purporting to exclude trivial and unsubstantiated allegations in order to define the “adverse-employment-action element” narrowly so as not to frustrate the purpose of Title VII, the majority actually impedes Title VII’s effectiveness.
Moreover, the majority suggests that the “materially adverse” requirement, “properly interpreted ... accomplishes [§ 704(a)’s purposes] while appropriately counterbalancing the need to prevent lawsuits based upon trivialities” and that the “indices ... unique to a particular situation” standard accurately captures all other non-trivial actions taken against the employee. Yet Hollins v. Atlantic Co.,
What the majority evidently intends (but fails to state expressly) is that it is unwilling to consider actionable a wide variety of non-trivial, tangible adverse employment actions in order to limit the number of legitimate, legally cognizable claims that can be filed by aggrieved employees. There is no other apparent reason for its analysis.
Finally, the majority also attempts to rely in part on the Supreme Court decision, Burlington Indus., Inc. v. Ellerth,
C. Conclusion
In 1999, a panel of this Court held that an adverse employment action, for purposes of a Title VII retaliation claim, must materially affect the terms and conditions of the plaintiffs employment. Hollins,
. See Hashimoto v. Dalton,
. Cf. Morris v. Wal-Mart Stores, Inc.,
. The Ninth Circuit in Ray v. Henderson found defendant’s reliance on Burlington similarly misplaced when advocating that Title VII qualifies the type of employment actions that would constitute an "adverse” action.
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the majority’s treatment of “adverse employment actions” under Title VII, and accordingly join Parts I — III of its opinion in full. I respectfully dissent, however, from the majority’s resolution of the punitive damages issues, and accordingly write separately to explain my disagreement with Parts IV-V of the Court’s opinion.
At the trial in this case, the district court instructed the jury that it may award punitive damages under Title VII only if the plaintiff proved that she was entitled to them by “clear and convincing” proof. In arguing that the district court erred in this respect and in contending that a punitive damages claim may be proved by a “preponderance” of the evidence under Title VII, the plaintiff relies on two United States Supreme Court decisions and one court of appeals decision. Whether considered together or singly, however, these cases do not support the plaintiffs position.
The first case, Desert Palace, Inc. v. Costa,
Two months before the Court decided Desert Palace, it made clear that punitive damages are not a conventional remedy. In State Farm Mutual Automobile Insurance Co. v. Campbell,
The two other cases upon which the plaintiff relies are no more helpful in establishing that a preponderance standard applies to punitive damages claims. Price Waterhouse v. Hopkins,
Karnes v. SCI Colorado Funeral Services, Inc.,
It is one thing, I recognize, to say that the cited cases do not answer the question; it is another to determine the answer. In the plaintiffs defense, the statute does not give us a lot to work with in determining what Congress meant. As an initial matter, the statute itself fails to specify a burden of proof, stating only that a plaintiff may recover punitive damages if she “demonstrates” that the defendant intentionally engaged in discriminatory practices. 42 U.S.C. § 1981a(b)(l). In a later súbchapter, Congress defih'es “demonstrates” unhelpfully to mean “meets the burdens of production and persuasion,” id. § 2000e(m), a definition that chases the tail of the initial inquiry. Nor does the context in which the relevant words appear or the legislative history to the Civil Rights Act of 1991 offer any other insights into the appropriate burden of proof. Pub.L. No. 102-166, § 102, 105 Stat. 1072.
Under these circumstances, it is appropriate to consider other indicators of statutory meaning, analogous Supreme Court precedents and relevant state laws predating the legislation. See Steadman v. SEC,
By 1991, when Congress authorized punitive damages in Title VII claims, two Supreme Court cases had intimated that a clear and convincing standard ought to apply to punitive damages claims. In Pacific Mutual Life Insurance Co. v. Haslip,
In analogous settings before 1991, the Supreme Court also had adopted a clear and convincing evidence standard for civil cases involving unconventional relief — in the face of congressional silence about the appropriate burden of proof. In Woodby v. INS,
Supreme Court decisions analogizing punitive damages to criminal penalties also suggest that a higher burden of proof ought to apply here. See State Farm,
For like reasons, the factual predicate for a punitive damages award — that the defendant acted with “malice” or “reckless indifference,” see 42 U.S.C. § 1981a(b)(l) — has a stigmatizing effect
By 1991, the supreme courts or legislatures of 29 States had directly addressed the issue whether punitive damage claims required a heightened burden of proof. Of those States, 20 of them chose the clear and convincing standard for all punitive damages claims, one State (Colorado) applied the beyond a reasonable doubt standard to these claims and two States (Florida and Oklahoma) applied the clear and convincing standard when the punitive award was a specific multiple of the actual damages in the case. See App. A (identifying the burden of proof in each State with respect to punitive damages in 1991). See also Michael Rustad & Thomas Koenig, The Historical Continuity of Punitive Damages Awards: Reforming the Tort Reformers, 42 Am. U.L.Rev. 1269, 1278 n. 63 (1993) (identifying States with a clear and convincing standard in 1993).
When Congress addressed this issue in 1991, it also was doing so in the context of a modern trend in favor of the higher standard- — -a trend that was well underway before the 1991 amendments to Title VII. The American Bar Association recommended the higher standard in 1986. See Special Committee on Punitive Damages, Punitive Damages: A Constructive Examination, 1986 A.B.A. Sec. Litig. 33 (“Because one of the purposes of punitive damages is punishment ... [t]he committee concludes [ ] that the ‘clear and convincing’ burden of proof is appropriate for an award of punitive damages. This is the standard often used in fraud cases, to which there is some analogy.”). The American Law Institute did the same in 1991. See 2 American Law Institute, Reporters’ Study: Enterprise Responsibility for Personal Injury 264 (1991) (“An enterprise should be liable for punitive damages only when there is clear and convincing evidence of reckless disregard for the safety of others in the decisions made by management officials or other senior personnel.”). As of today, the supreme courts or legislatures from 34 States have addressed the burden of proof issue, with 31 now requiring a heightened burden of proof. See App. B (identifying the burden of proof for punitive damages in each State as of 2004).
The States within the Sixth Circuit, moreover, are nearly uniform in applying a clear and convincing standard. By 1991, Ohio and Kentucky had established the standard by statute, and Tennessee did so by court decision in 1992. See App. A. Although the Michigan courts have not directly addressed the issue, at least one state appeals court has approved, without discussion, a jury instruction requiring proof by a preponderance of the evidence for an award of exemplary damages. Green v. Evans, 156 MichApp. 145,
While there may not be a Rosetta Stone to guide us here, Supreme Court precedents concerning punitive damages and comparable forms of relief, as well as relevant state-law practices, suggest that a clear and convincing standard of proof ought to govern these claims. A claim for punitive damages, in a nutshell, is more akin to claims concerning fraud, deportation and expatriation, oral contracts and illegitimacy than it is to more conventional civil claims. Accordingly, the heightened burden of proof associated with these claims and traditionally associated with punitive damages claims in general ought to apply.
The additional citations identified by the majority in support of the plaintiffs position do not alter this analysis. Smith v. Wade,
In re Exxon Valdez,
Nor does the cap on punitive damages claims under Title VII advance plaintiffs argument. While a cap on punitive damages addresses one issue in this area (the outer limits of awards), it does not account for the other issues in this area — the appropriate quantum of proof required (1) before a jury may attach a “reprehensibility” label to another’s conduct, State Farm,
But that is not the most significant problem with invoking the damages cap in this instance. All agree that Congress did not give the courts particularly helpful guidance here, requiring us to answer what the burden of proof for a federal punitive damages claim should be in the face of congressional silence. An answer that says punitive damages claims receive a preponderance standard when the award is under $300,000 but receive a clear and convincing standard when the award is some higher amount to be named later does not seem very helpful. Neither do I understand how the damages cap could make a difference in the outcome of this case. If, in this instance, the Court had concluded that a clear and convincing standard generally applies to punitive damages claims in the face of congressional silence, the existence of a cap of this sort by itself could not alter the presumption. If instead the Court had concluded that a preponderance standard generally applies in this setting, the existence of a damages cap would make no difference at all. Either way, in other words, the outcome would be unaffected by the existence of the cap.
I have one other qualm with the majority’s decision on this point — which is reaching the burden of proof issue at all. I do not understand how White could prevail on remand in a punitive-damages-only trial, no matter what the burden of persuasion is. Because we required an en banc hearing to decide whether Wdiite suffered an adverse employment action and, notably, to determine whether this Circuit embraced the ultimate-employment-decision test, it would not seem possible for a jury to conclude that Burlington Northern acted with reckless disregard for Wdiite’s federally-protected rights in imposing the suspension. See 42 U.S.C. § 1981a(b)(l) (requiring proof that the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual”); Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535,
A punitive damages claim with respect to the transfer count is even harder to imagine. Until now, no Sixth Circuit case (to my knowledge) has found a cognizable Title VII claim arising from a lateral transfer, let alone a transfer ivithin an
For these reasons, I respectfully dissent from Parts IV and V of the Court’s opinion.
APPENDIX A
State Burdens of Proof for Punitive Damages in 1991
By 1991, the supreme courts or legislatures of the following States had adopted a higher burden of proof for awarding punitive damages:
Alabama Ala. Code § 6-ll-20(a) (1991) (clear and convincing evidence).
Alaska Alaska Stat. § 09.17.020 (1991) (clear and convincing evidence).
Arizona Linthicum v. Nationwide Life Ins. Co.,
California Cal. Civ. Code § 3294(a) (1991) (clear and convincing evidence).
Colorado Colo. Rev. Stat. § 13-25-127(2) (1991) (beyond a reasonable doubt).
Florida Fla. Stat. Ann. § 768.73(l)(b) (1991) (punitive damages exceeding three times actual damages must be proved by clear and convincing evidence).
Georgia Ga. Code Ann. § 51-12-5.1(b) (1991) (clear and convincing evidence).
Hawaii Masaki v. Gen. Motors Corp.,
Iowa Iowa Code § 668A.l(l)(a) (1991) (clear and convincing evidence).
Kansas Kan. Stat. Ann. § 60-3702(c) (1991) (clear and convincing evidence).
Kentucky Ky. Rev. Stat. Ann. § 411.184(2) (1991) (clear and convincing evidence).
Maine Tuttle v. Raymond,
Minnesota Minn. Stat. §549.20(l)(a) (1991) (clear and convincing evidence).
Montana Mont. Code Ann. § 27-1-221(5) (1991) (clear and convincing evidence).
Nevada Nev. Rev. Stat. 42.005(1) (1991) (clear and convincing evidence).
North Dakota N.D. Cent. Code § 32-03.2-11 (1991) (clear and convincing evidence).
Ohio Ohio Rev. Code Ann. § 2315.21(C)(3) (1991) (clear and convincing evidence).
Oklahoma Okla. Stat. tit. 23 § 9.1.A (1991) (punitive damages exceeding the amount of actual damages must be proved by clear and convincing evidence).
Oregon Or. Rev. Stat. § 41.315(1) (1991) (clear and convincing evidence).
Utah Utah Code Ann. § 78-I8-l(l)(a) (1991) (clear and convincing evidence).
Wisconsin Wangen v. Ford Motor Co.,
By 1991, the supreme courts or legislatures of the following States had rejected a higher burden of proof for awarding punitive damages:
Connecticut Freeman v. Alamo Mgmt. Co.,
Idaho Idaho Code § 6-1604(1) (1991) (preponderance of the evidence).
Mississippi Gaylord's of Meridian, Inc. v. Sicard,
New Mexico United Nuclear Corp. v. Allendale Mut. Ins. Co.,
South Dakota Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991) (“[S.D. Codified Laws § 21-1-4.1] does not establish a clear and convincing evidence standard but merely requires clear and convincing evidence to show a reasonable basis [to believe the defendants committed acts warranting punitive damages]. The clear and convincing language merely modifies the ‘reasonable basis’ language to make a prima facie showing that punitive damages may be in order.”).
By 1991, the supreme courts and legislatures of the following States had yet to address the question whether claims for punitive damages require a heightened burden of proof, though (as noted below) some lower courts had addressed the issue and some supreme courts had mentioned, without discussing, jury instructions requiring a preponderance of the evidence:
Delaware Cloroben Chem. Corp. v. Comegys,
Illinois Illinois Terminal R.R. Co. v. Thompson,
Maryland Gorman v. Sabo,
Michigan Green v. Evans,
Nebraska Distinctive Printing & Packaging Co. v. Cox,
New Hampshire New Hampshire has not addressed the burden of proof for punitive damages. See N.H. Rev. Stat. Ann. § 507:16 (2004) (“No punitive damages'shall be awarded in any action, unless otherwise provided by statute.”).
New York Greenbaum v. Handelsbanken, 979 F.Supp. 973, 982 (S.D.N.Y. 1997) (“[T]he Court determines that until . . . higher authorities elect[] to address the question, the preponderance of the evidence standard should apply to punitive damages deliberations.”).
North Carolina Caudle v. Benbow,
Rhode Island Rhode Island has not addressed the burden of proof for recovering punitive damages.
Tennessee Tennessee first addressed the burden of proof for punitive damages in 1992 in Hodges v. S.C. Toof & Co.,
Texas Lawson-Avila Const., Inc. v. Stoutamire;
Virginia Peacock Buick, Inc. v. Durkin,
Washington Sintra, Inc. v. City of Seattle,
West Virginia Goodwin v. Thomas,
Wyoming Campen v. Stone,
State Burdens of Proof for Punitive Damages in 2004
As of today, the supreme courts or legislatures from the following States have adopted the higher burden of proof for awarding punitive damages:
Alabama Ala. Code § 6-1 l-20(a) (2004) (clear and convincing evidence).
Alaska Alaska Stat. § 09.17.020(b) (2004) (clear and convincing evidence).
Arizona Linthicum v. Nationwide Life Ins. Co.,
California Cal. Civ. Code § 3294(a) (2004) (clear and convincing evidence).
Colorado Colo. Rev. Stat. § 13-25-127(2) (2004) (beyond a reasonable doubt).
Florida Fla. Stat. Ann. § 768.725 (2004) (clear and convincing evidence).
Hawaii Schefke v. Reliable Collection Agency, Ltd.,
Idaho Idaho Code §6-1604(1) (2004) (clear and 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. Ann. § 60-3 702(c) (2004) (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.,
Maryland Owens-Illinois, Inc. v. Zenobia,
Mississippi Miss. Code Ann. § ll-l-65(l)(a) (2004) (clear and convincing evidence).
Missouri Rodriguez v. Suzuki Motor Corp.,
Montana Mont. Code Ann. § 27-1-221(5) (2004) (clear and convincing evidence).
Nevada Nev. Rev. Stat. 42.005(1) (2004) (clear and convincing evidence).
New Jersey N.J. Stat. Ann. § 2A: 15-5.12(a) (2004) (clear and convincing evidence).
North Carolina N.C. Gen. Stat. § 1D-I5(b) (2004) (clear and convincing evidence).
North Dakota N.D. Cent. Code § 32-03.2-11(1) (2004) (clear and convincing evidence).
Ohio Ohio Rev. Code Ann. § 2315.21(C)(2) (2004) (clear and convincing evidence).
Oklahoma Okla. Stat. tit. 23, § 9.1.B-.D (2004) (clear and convincing evidence).
South Carolina S.C. Code Ann. § 15-33-135 (2004) (clear and convincing evidence).
Tennessee Hodges v. S.C. Toof & Co.,
Texas Tex. Civ. Prac. & Rem. Code Ann. § 41.003(b) (2004) (clear and convincing evidence).
Utah Utah Code Ann. § 78-18-1 (l)(a) (2004) (clear and convincing evidence).
Wisconsin Wangen v. Ford Motor Co.,
Connecticut Freeman v. Alamo Mgmt. Co.,
New United Nuclear Corp. v. Allendale Mut. Ins., 709 P.2d
Mexico 649, 654 (N.M. 1985) (“It is the general rule . . . that issues of fact in civil cases are to be determined according to the preponderance of the evidence .... We are not convinced that the degree of proof should be changed [to require clear and convincing evidence] in punitive damages areas.”).
South Flockhart v. Wyant, 461 N.W.2d 473, 475 (S.D. 1991)
Dakota (“[S.D. Codified Laws § 21-1-4.1] does not establish a clear and convincing evidence standard but merely requires clear and convincing evidence to show a reasonable basis [to believe the defendants committed acts warranting punitive damages]. The clear and convincing language merely modifies the ‘reasonable basis’ language to make a prima facie showing that punitive damages may be in order.”).
Arkansas Nat'l Bank of Commerce v. McNeill Trucking Co., Inc.,
Delaware Cloroben Chem. Corp . v. Comegys,
Illinois Illinois Terminal R.R. Co. v. Thompson,
Massachusetts Santos v. Chrysler Corp., No. 921039,
Nebraska Distinctive Printing & Packaging Co. v. Cox,
New Hampshire New Hampshire has not addressed the burden of proof for punitive damages. See N.H. Rev. Stat. Ann § 507:16 (2004) (“No punitive damages shall be awarded in any action, unless otherwise provided by statute.”).
Pennsylvania Martin v. Johns-Manville Corp.,
Rhode Island Rhode Island has not addressed the burden of proof for recovering punitive damages.
Virginia Peacock Buick, Inc. v. Durkin,
Washington Sintra, Inc. v. City of Seattle,
West Virginia Goodwin v. Thomas,
Wyoming Campen v. Stone,