UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. W & O INC., d.b.a. Rustic Inn
No. 98-5515 & 98-5646
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
May 30, 2000
D. C. Docket No. 95-6138-CV-JAG
PUBLISH
(May 30, 2000)
Before BIRCH and MARCUS, Circuit Judges, and ALAIMO*, Senior District Judge.
BIRCH, Circuit Judge:
Before this court are two consolidated appeals arising from the
I. Factual Background
When this case was filed, W&O had a written policy of barring pregnant waitresses from waiting tables at the Rustic Inn past their fifth month of pregnancy and requiring them, instead, either to suspend working at the Rustic Inn or to work in the positions of cashier or hostess. Because they do not receive gratuities from customers, the cashier and hostess positions pay less than does the waitress position. In its complaint, the EEOC challenged the policy as violating the Pregnancy Discrimination Act (“PDA“),
At summary judgment, the district court found that W&O‘s policy violated the PDA; W&O does not appeal that determination. The district court scheduled a jury trial on the issue of damages. In the pretrial stipulation, adopted by the district court as the final pretrial order, the parties included calculations of damages for the three employees; the calculations included back pay, interest on the back pay, and punitive damages but did not address front pay. The pretrial stipulation mentions front pay and reinstatement only in the undisputed statements of law. At trial, in addition to offering evidence regarding the aggrieved employees’ back pay claims and W&O‘s financial situation, the parties offered testimony about the origin and application of the pregnancy policy, the job of waitress at the Rustic Inn, and the specific treatment of each of the aggrieved employees.
The pregnancy policy: Michael Diascro (“Diascro“), the Rustic Inn‘s general manager, drafted the policy at the approximate time that the Family and Medical Leave Act (“FMLA“) was enacted. He viewed the policy, which stated, among other things, that a server should not work past five months of pregnancy, as a guideline. In drafting the policy, Diascro did some research, including calling “Wage and Labor” and looking at reference books and other restaurants’ handbooks. James Donlin (“Donlin“), night manager for the Rustic Inn, testified that he called the Labor Board in 1992 and was advised that pregnant women should be able to keep their jobs for as long as they were able to fulfill their duties. Donlin admitted that a pregnant woman who did not take a cashier or hostess position would have to leave the Rustic Inn after her fifth month of pregnancy. He suggested that the policy came about because “some of the managers and owners are older, were from the old school.” R7-173-168. Donlin stated that the owner Henry Oreal (“H. Oreal“) and his sons Wayne (“W. Oreal“) and Gary (“G. Oreal“) all made comments indicating that they were from the “old school” and believed that a pregnant woman who was showing should not wait tables. In an EEOC affidavit, H. Oreal stated that “no one is going to run around here pregnant and big like that. No pregnant women are going to tell me how long they‘ll stay.” R8-174-323. W. Oreal stated that “[t]here‘s a very bad aura going around the place because of this particular case here. . . .” R7-173-192-93. The policy was removed once found to be illegal. The new policy is “almost identical” to the FMLA regulations. Diascro admitted that he could have originally modeled the policy on the FMLA regulations but did not.
The job: A waitress at the Rustic Inn had to handle multiple tables at one time. She had to carry trays loaded with food, though anyone (pregnant or otherwise)
Nuesse: Nuesse testified that she gave W&O a note from her doctor stating that she could work, but that, around the time of her sixth month, H. Oreal told her that she was “too fat to be working in here” and that he didn‘t want her serving his customers being as “fat” as she was. R7-173-39. A few days later, H. Oreal called Nuesse into a meeting with the other owner, Wayne McDonald (“McDonald“) and W&O‘s bookkeeper. At this meeting, H. Oreal told her that he wanted her to stop waiting tables because she was “too big” and that she could work as a cashier or hostess. R7-173-40. H. Oreal testified that he did not think that the doctor‘s note should affect the decision because the doctor would not know how hard the work was. Nuesse was removed from the schedule during her seventh month. After Nuesse gave birth, she was not contacted to be put back on the schedule. Nuesse testified that she was told by Allen Brenner (“Brenner“), a manager of the Rustic Inn, that it was not “a good idea I show my face around there.” R7-173-46. Nuesse could not find a job waiting tables and now works for United Postal Service.
H. Oreal alleged that customers complained to him about the fact that Nuesse was working while obviously pregnant, that he was worried that she would drop a tray while running and hurt the fetus or someone else, and that Nuesse was not doing her work properly. R8-174-310-11, 314.1 H. Oreal wanted her to switch to being a cashier but Nuesse “wanted to work when she wanted to work, and do what she wanted to do, and disregarded my problem. . . .” R8-174-313. Nuesse admitted that H. Oreal told her she could “always have [her] job back.” R7-173-55. H. Oreal testified that he liked Nuesse “as a person, as an employee. . . [u]ntil this thing happened.” R8-174-310. H. Oreal testified that Nuesse could return to the Rustic Inn even though “it cost [him] a ton of money.” R8-174-314.
McDevitt: McDevitt explained that it was common knowledge at the Rustic Inn that pregnant women could work through their fifth month. At some point, McDevitt was given a handbook with the pregnancy policy in it. When McDevitt was four or five months pregnant with her first child, the head waitress told her that she would no1 longer be scheduled after that week; McDevitt went to Diascro and Donlin and told them that she needed to keep working. Diascro said that she could keep working as long as she wrote on the schedule that she would start pregnancy leave by a specified day, approximately two weeks later. McDevitt wanted to keep working but was required to stop working during her fifth month of pregnancy. After the birth of her first child, McDevitt returned to the Rustic Inn. During McDevitt‘s second pregnancy, she objected during a meeting when Diascro asserted that no one had been forced to stop working due to pregnancy. McDevitt testifies that she was retaliated against after that meeting. McDevitt left during her fifth month of the second pregnancy of her own choice because of child care issues. McDevitt states that there were no complaints about her work while pregnant, while Diascro asserts that McDevitt refused to work in a particular area during her second pregnancy.
Grossman: Grossman was working full-time when she became pregnant. Her husband was terminated from his job the day after she found out that she was pregnant. A couple of months into the pregnancy, Grossman had some spotting. She
W&O moved for judgment as a matter of law on the issue of punitive damages after the EEOC rested its case and after the close of evidence; the district court denied the motions. The jury found W&O liable for $26,231.43 in back pay and $350,000.00 in punitive damages as to Nuesse, for $3,800.24 in back pay and $200,000.00 in punitive damages as to McDevitt, and for $6,225.46 in back pay and $200,000.00 in punitive damages as to Grossman. After the trial, the EEOC moved for judgment as a matter of law on the damage claims, for entry of judgment on the issues of back pay and punitive damages, subject to the statutory cap of $100,000 per employee, and for injunctive relief, including front pay for Nuesse in the amount of $924.27 every three months for three years. W&O objected, arguing (among other things) that front pay was inappropriate because the pretrial stipulation included no front pay calculations and because reinstatement of Nuesse was viable and that punitive damages were inappropriate due to lack of evidence of malice, excessiveness, and the statutory cap. The district court entered final judgment as requested by the EEOC. Specifically, the court ordered that W&O pay the full amount of back pay stated in the jury verdict and $100,000.00 in punitive damages to each employee and that W&O pay Nuesse the requested front pay. W&O filed a renewed motion for judgment as a matter of law or, alternatively, a new trial and a motion to set aside the damage award or for remittur. The motions challenged the award of punitive damages on the grounds that there was insufficient evidence to justify punitive damages, that the awards were excessive, and that the statutory cap should limit the total punitive damages to $100,000. W&O also filed a motion to alter or amend the judgment; this motion challenged the punitive damages and the award of front pay. The district court denied the post-judgment motions. W&O appealed the awards of punitive damages and of front pay to Nuesse.
The EEOC filed a motion to tax costs pursuant to
W&O challenged the requested costs. As to the witness fees, W&O argued that the EEOC should receive only $160.00 (two days’ appearance fees for Grossman and one day‘s appearance fees for Nuesse and for McDevitt with no mileage or parking fees). In challenging the witness fees, W&O never argued that witness fees were inappropriate on the ground that the employees were parties to the action. W&O also contended that each of the depositions covered by the EEOC‘s costs request was unnecessary. Finally, W&O challenged the request for reimbursement for use of the process server, exemplification of trial exhibits, and photocopying as contrary to
In its order on costs, the district court noted that parties are generally not awarded witness fees and that, in its view, the three aggrieved employees “stand in the same position as parties to the suit.” R6-187-2. Because W&O had not challenged the witness fees for the employees on the ground that they were parties to the case, the district court awarded witness fees to the EEOC but reduced the requested witness fees to $160.00, as W&O had argued. Except for reducing the EEOC‘s requested costs for exemplification to reflect the fact that the EEOC had only used at trial three of the seven exhibits at issue in the costs request, the district court rejected all of W&O‘s arguments as to process server fees, exemplification, and photocopying. W&O timely appealed the award of costs.2
II. Appeal No. 98-5515
W&O‘s challenge to the sufficiency of evidence as to punitive damages is governed by
W&O‘s challenges to the amount of punitive damages and the award of front pay is governed by
A. Punitive Damages
W&O challenges the award of punitive damages on the grounds that there is insufficient evidence to justify punitive damages, that the punitive damages award is excessive, and that the district court misapplied the statutory cap in
W&O argues that the EEOC presented insufficient evidence to justify punitive damages. Specifically, it argues that its motive, i.e., to protect pregnant women and their unborn children, was benevolent and premised in the belief that it was not right for an overtly pregnant woman to wait tables and carry heavy trays.
Until Congress passed the Civil Rights Act of 1991, punitive damages were unavailable under Title VII. See Kolstad v. American Dental Ass‘n, 527 U.S. 526, —, 119 S. Ct. 2118, 2123-24, 144 L. Ed. 2d 494 (1999). As part of the 1991 enactments, Congress added a provision permitting Title VII plaintiffs to recover compensatory and punitive damages where the defendant “engaged in unlawful intentional discrimination” prohibited by Title VII.
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) 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.
Rather, the award of punitive damages is valid if W&O acted with malice or reckless indifference to the civil rights of its pregnant employees. “‘Malice means ‘an intent to harm’ and recklessness means ‘serious disregard for the consequences of [one‘s] actions.‘” Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999) (quoting Splunge v. Shoney‘s, Inc., 97 F.3d 488, 491 (11th Cir. 1996)) (alteration in original). A jury may find reckless indifference where the employer does not admit that it knew that its actions were wrong. See Merriweather v. Family Dollar Stores of Indiana, Inc., 103 F.3d 576, 582 (7th Cir. 1996). However, mere negligence as to the civil rights of employees is not enough to justify punitive damages. See EEOC v. Wal-Mart Stores Inc., 156 F.3d 989, 992 (9th Cir. 1998).
We conclude that there was sufficient evidence for the jury to find that W&O acted with reckless indifference to the civil rights of its pregnant employees. Donlin was told by the Labor Board that W&O must permit pregnant women to keep their jobs as long as they could fulfill their duties. Diascro researched the proposed policy, including calling Wage
2. Statutory Cap
W&O argues that the district court erred in applying the statutory cap found in
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party –
. . .
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000. . . .
It is undisputed that the $100,000 cap found in
We find that each aggrieved employee represented by the EEOC in a Title VII action may receive up to the full amount permitted by the applicable statutory cap. We begin, as we must, “with the language of the statute itself.” United States v. Ron Pairs Enters., 489 U.S. 235, 241, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989). “[T]he plain meaning of the statute controls unless the language is ambiguous or leads to absurd results.” United States v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995). Here, the language does not clearly support W&O‘s reading, for “complaining party” is not limited to a person who has brought a Title VII action or proceeding but instead is defined as an agency or “a person who may bring an action or proceeding under title VII.”
Our conclusion is bolstered by the EEOC‘s interpretation of
When the Commission, or an individual, is pursuing a claim on behalf of more than one person, the damage caps are to be applied to each aggrieved individual. For example, where the Commission files suit on behalf of ten complaining parties, against an employer who has 1000 employees, each complaining party may receive (to the extent appropriate) up to $300,000. The respondent‘s total liability for all ten complaining parties may be up to $3,000,000.
“Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991,” EEOC Compl. Man. (BNA) ¶ N:6071, 6075-76 (July 1992). “[I]t is axiomatic that the EEOC‘s interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC‘s interpretation of ambiguous language need only be reasonable to be entitled to deference.” EEOC v. Commercial Office Products Co., 486 U.S. 107, 115, 108 S. Ct. 1666, 1671, 100 L. Ed. 2d 96 (1988). We conclude that the EEOC‘s interpretation of the statutory cap is reasonable. The statute‘s language is consistent with the EEOC‘s interpretation.
The legislative history of
interpretation of
We find that each aggrieved employee represented by the EEOC in a Title VII action may receive up to the statutory cap without filing a separate suit or intervening in the EEOC‘s suit. Accordingly, the district court did not err in finding that the employees could each receive up to $100,000 in punitive damages.
3. Excessiveness
Finally, W&O argues that the punitive damages awarded, even after reduction pursuant to the statutory cap, is excessive. In BMW of N. Amer., Inc. v. Gore, 517 U.S. 559, 574, 116 S. Ct. 1589, 1598, 134 L. Ed. 2d 809 (1996). The BMW guideposts include: (1) the “degree of reprehensibility” of the wrongdoing; (2) “the disparity between the harm or potential harm suffered by [the plaintiff] and [her] punitive damages award“; and (3) “the difference between this remedy and the civil penalties authorized or imposed in comparable cases.” Id. at 575, 116 S. Ct. at 1598-99. In applying the BMW guideposts, courts should also consider whether the amount of punitive damages serves the interests of deterrence. Id. at 584, 116 S. Ct. at 1603. While BMWaddressed the constitutionality of punitive damage awards, it is “instructive” to courts considering the amount of punitive damages awarded in employment discrimination cases. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 943 (5th Cir. 1996); see also Deters v. Equifax Credit Info Servs., 202 F.3d 1262, 1271-73 (10th Cir. 2000) (applying BMW to employment discrimination case); United States v. Big D Enters., 184 F.3d 924, 933-34 (8th Cir. 1999) (same). We will likewise use the BMW factors to decide whether this punitive damages award is excessive.
a. Degree of Reprehensibility
“Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant‘s conduct.” BMW, 517 U.S. at 575, 116 S. Ct. at 1599. In assessing the reprehensibility of the defendant‘s conduct in BMW, the Supreme Court noted a number of “aggravating factors,” including (1) whether the harm was not “purely economic in nature“; (2) whether the defendant‘s conduct “evinced . . . indifference to or reckless disregard for the health and safety of others“; and (3) whether, if there was economic injury inflicted, the injury was “done intentionally through affirmative acts of misconduct or when the target [was] financially vulnerable.” Id. at 576, 116 S. Ct. at 1599 (citation omitted). Here, while the employees received economic remedies, the harm was not necessarily purely economic. Rather, the harm included the violation of theemployees’ civil rights and, as the three employees testified, the infliction of worry and emotional upset. Additionally, the economic injury was intentional, done through affirmative acts at a time when the employees were financially vulnerable, due in part to the pregnancies that led W&O to remove them from the schedules.
W&O argues that its behavior should not be viewed as reprehensible because there was no physical abuse and
b. Ratio to Actual Damages
“The principle that exemplary damages must bear a ‘reasonable relationship’ to compensatory damages has a long pedigree.” BMW, 517 U.S. at 580, 116 S. Ct. at 1601. In comparing punitive and compensatory damages, courts should consider “‘the harm likely to result from the defendant‘s conduct as well as the harm that actually has occurred.‘” Id. at 581, 116 S. Ct. at 1602 (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 460, 113 S. Ct. 2711, 2721, 125 L. Ed. 2d 366 (1993)). The Supreme Court has not delineated “a simple mathematical formula, even one that compares actual and potential damages to the punitive award,” partly because “low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” Id. at 582, 116 S. Ct. at 1602. Also, where “the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine,” the ratio of punitive damages to compensatory damages may permissibly be higher. Id.
Before comparing the punitive damages to the actual damages, we must first determine what the “actual damages” were. In its brief on the merits, W&O alludes to its claim, made before the district court, that punitive damages are inappropriate where the plaintiff received back pay but no compensatory damages. See Appellant‘s Initial Brief at 22-23. We disagree with this argument and find that punitive damagesmay be appropriate where a plaintiff has received back pay but no compensatory damages.5 See Provencher v. CVS Pharmacy, 145 F.3d 5, 12 (1st Cir. 1998) (affirming grant of punitive damages where plaintiff received back pay and rejecting claim that punitive damages are only appropriate where plaintiff received compensatory damages); Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1352 (7th Cir. 1995) (same). In addition to the fact that
We start from the principle that punitive damages “are awarded solely to punish defendants and deter future wrongdoing.” Walters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir. 1986). As we noted when applying the BMW guidelines to a punitive damages award in an environmental pollution case, the combination of a small damages award and a strong state interest in deterrence of a particular wrongful act may justify “ratios higher than might otherwise be acceptable.” Johansen v. Combustion Eng‘g, Inc., 170 F.3d 1320, 1338 (11th Cir. 1999). Indeed, the Seventh Circuit has noted that “[t]he smaller the compensatory damages, the higher the ratio of punitive to compensatory damages has to be in order to fulfill the objectives of awarding punitive damages.” Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996); see also Johansen, 170 F.3d at 1338 (quoting Cooper with approval). This is not to say that a compensatory and punitive damages are inversely proportional — indeed, inBMW, the Supreme Court struck down a punitive damages award that was 500 times the size of the plaintiff‘s compensatory damages. 517 U.S. at 582, 116 S. Ct. at 1602. Instead, this analysis requires a court to ask whether a relatively higher ratio of punitive to compensatory damages is permissible in order to effect the deterrent purposes behind punitive damages. Thus, in Johansen, we affirmed a punitive to actual damages ratio of 100 to 1 because it was “justified by the need to deter this and other large organizations from a ‘pollute and pay’ environmental policy.” 170 F.3d at 1339. Affirming a punitive to actual damages ratio of 59 to 1 in a sexual harassment case, the Tenth Circuit found that “in cases, such as [the plaintiff‘s], where the injury is primarily personal, a greater ratio may be appropriate” and that the large punitive damages award was reasonable in terms of deterring the defendant‘s reckless indifference to its employee‘s rights. Deters, 202 F.3d at 1273; see also id. at 1266 (stating that the plaintiff was awarded $5,000 in compensatory damages and $295,000 in punitive damages after the statutory cap was applied). Here, W&O deliberately discriminated against Nuesse, McDevitt, and Grossman, as well as other pregnant women,7 and only ceased applying its illegal policy because of this lawsuit.
Additionally, W&O does not argue that the
c. Comparable Cases
W&O argues that its conduct was not comparable to the most egregious behavior possible under Title VII and, thus, that the district court erred in finding that a punitive damages award equal to maximum permissible under the statutory caps was appropriate.8 This argument focuses on the Seventh Circuit‘s decision in Hennessy,
which held that it was inappropriate for the sexual harassment plaintiff to receive punitive damages equal to 100% of the possible damages under the statutory cap “given the much more egregious nature of some sex discrimination cases.” 69 F.3d at 1356. The only other circuit courts to have addressed this question have rejected the Seventh Circuit‘s conclusion for two reasons. The first reason is that “[n]othing in the language of the statute suggests that the cap on damages is intended to diminish the jury‘s role in assessing punitive damages or to alter the standard for judicial review of such awards.” Luciano v. Olsten Corp., 110 F.3d 210, 221 (2d Cir. 1997). Additionally, because
B. Front Pay
1. Waiver
W&O argues that the EEOC waived its claim to front pay for Nuesse by failing to raise it in the final pretrial order (“PTO“).
Here, the PTO, adopted by the district court, includes two agreed statements of law addressing reinstatement and/or front pay. Statement 7 notes that “[i]f unlawful discrimination is found, the victims of that discrimination are entitled to reinstatement and full back pay.” R2-69-10. Statement 11 states:
Claimants are presumptively entitled to reinstatement (or instatement) under the “make whole” policy of the Act. As an alternative to reinstatement, front pay can be ordered. Front pay is appropriate when a claimant is entitled to reinstatement, but a hostile or otherwise unsuitable work environment counsels against reinstatement.
R2-69-12 (citations omitted). W&O argues that these statements were insufficient and notes that the EEOC failed to introduce evidence or make arguments at trial about front pay. Thus, W&O argues that the issue of front pay was not part of the trial and that the district court‘s award of front pay usurped the role of the jury.
W&O‘s arguments stem from its belief that “[t]he issue of front pay traditionally goes to the jury, and testimony regarding it is introduced into evidence during the course of the trial.” Appellant‘s Initial Brief at 32. This claim is incorrect. Ramsey v. Chrysler First, Inc., 861 F.2d 1541 (11th Cir. 1988), cited by W&O, observed that “[t]he award of front pay is a form of equitable relief; as such, ‘[t]he decision whether to grant [it] and, if granted, what form it should take, lies in the discretion of the district court.‘” 861 F.2d at 1545 (quoting Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1563 (11th Cir. 1988)) (first alteration added). Thus, Ramsey stands for the proposition thatfront pay is an issue for the trial judge, and not the jury, to decide. While we have not decided the question of whether front pay remains an equitable remedy under Title VII after passage of the Civil Rights Act of 1991, the majority of Circuits that have addressed this question have found that front pay, being an alternate remedy to reinstatement, retains its equitable nature under
Having reaffirmed the principle that front pay is an equitable remedy awarded at the discretion of the district court, we reject W&O‘s claim that the EEOC waived the claim of front pay due to the alleged paucity of references to front pay in the PTO and its failure to submit evidence of or to argue front pay during the jury trial.11
2. Reinstatement
We turn to W&O‘s claim that the district court erred in awarding front pay to Nuesse rather than reinstatement. “In addition to back pay, prevailing Title VIIplaintiffs are presumptively entitled to either reinstatement or front pay.” Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1528 (11th Cir. 1991). We review the “decision to award front pay in lieu of reinstatement for an abuse of discretion.” Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999).
While we presume that reinstatement is the appropriate remedy in a wrongful discharge case, id. at 1338, “when extenuating circumstances warrant, a trial court may award a plaintiff front pay in lieu of reinstatement,” id. at 1339. In deciding whether to award front pay, rather than reinstatement, courts look to whether “discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy,” Lewis v. Federal Prison Indus., 953 F.2d 1277, 1280 (11th Cir. 1992) (quoting Goldstein v. Manhattan Indus., 758 F.2d 1435, 1449 (11th Cir. 1985)), the “‘defendant‘s management [had] intimidated or threatened‘” the plaintiff, id. (quoting Eivins v. Adventist Health Sys., 660 F. Supp. 1255, 1263 (D. Kan. 1987)), or the termination had harmed the plaintiff‘s emotional well-being, id. Evidence in the record supports both the claim that W&O has stated its willingness to re-hire Nuesse and the claim that there is discord and antagonism between the parties, including the alleged statement made to Nuesse that she should not show her face at the Rustic Inn, H. Oreal‘s statement that he liked Nuesse until this case, and W. Oreal‘s statement that the case had poisoned the atmosphere at the Rustic Inn. The district court‘s failure tooffer any explanation for its decision to award front pay is problematic, for “we do require that a trial court ‘carefully articulate’ its reasons for awarding front pay in lieu of reinstatement.‘” Farley, 197 F.3d at 1339; see also R5-167 at 2 (awarding front pay to Nuesse without making factual findings). Accordingly, we vacate the award of front pay and remand for the district court to make factual findings as to whether reinstatement is viable.12
III. Appeal No. 98-5646
“This court will not disturb a costs award in the absence of a clear abuse of discretion.” Technical Resource Servs. v. Dornier Med. Sys., 134 F.3d 1458, 1468 (11th Cir. 1998). Prevailing parties are entitled to receive costs under
The district court awarded costs to the EEOC pursuant to
A. Witness Fees for Nuesse, McDevitt, and Grossman
W&O challenges the award of witness fees for Nuesse, McDevitt, and Grossman. Noting that witnesses who are parties in interest to a case are generally not awarded fees but that W&O had failed to raise that objection, the district court awarded the EEOC $160.00 in witness fees for the three women after reducing the amount pursuant to the objections that W&O actually did make.13 See also Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 1977) (noting the rule that courts will generally not award witness fees for party-witnesses); Barber v. Ruth, 7 F.3d 636, 646 (7th Cir. 1993) (applying rule to witnesses who were not nominal parties but were “parties in interest“). We have never addressed the issue of how a district court should determine whether a witness who was not a nominal party is a “party in interest” and, thus,
ineligible for witness fees, and we have found no case in any court addressing whether claimants in an EEOC case are ineligible for witness fees as “parties in interest.” However, this case is not appropriate for resolution of these questions because of W&O‘s failure to raise them at the district court. “Failure to raise an issue, objection or theory of relief in the first instance to the trial court generally is fatal.” Denis v. Liberty Mut. Ins. Co., 791 F.2d 846, 848-49 (11th Cir. 1986); see also Miller Indus. v. Caterpillar Tractor Co., 733 F.2d 813, 820 n.12 (11th Cir. 1984) (“Because the defendant‘s objection does not question this court‘s subject matter jurisdiction, we find that the defendant‘s failure to raise the objection at the trial level resulted in its waiver.“). We have previously applied this rule to a party‘s failure to object to witness fees. See Kansas City So. Ry. Co. v. Caruso, 387 F.2d 602, 602 (5th Cir. 1968). Accordingly, we find that W&O waived its objection to the witness fees assessed for Nuesse, McDevitt, and Grossman.
B. Deposition Costs
Taxation of deposition costs are authorized by
In this case, W&O challenges every deposition for which the EEOC sought costs. Almost all of the deponents were on W&O‘s witness list in the PTO; these include W. Oreal, Donlin, McDonald, Merlone, H. Oreal, O‘Shea, Smith, Tatarka, Zobel, Pescitelli, DiClemente, Nuesse, McDevitt, Grossman, and Diascro. We have upheld the taxation of a deposition where the losing party listed the deponent on its witness list. See Murphy v. City of Flagler Beach, 761 F.2d 622, 631 (11th Cir. 1985). Taxation of deposition costs of witnesses on the losing party‘s witness list is reasonable because the listing of those witnesses indicated both that the plaintiff might need the deposition transcripts to cross-examine the witnesses, see Independence Tube Corp. v. Copperweld Corp., 543 F. Supp. 706, 717 (N.D. Ill. 1982), and that “the information those people had on the subject matter of this suit was not so irrelevantor so unimportant that their depositions were outside the bound of discovery,” id. at 718.
Several of the depositions were used by the EEOC at summary judgment or at trial. Portions of the depositions of W. Oreal, McDonald, McBride, Brenner, and Diascro were read into evidence at trial, while the EEOC used the depositions of DiClemente and Diascro to conduct cross-examination at trial. It is not necessary to use a deposition at trial for it to be taxable, but admission into evidence or use during cross-examination tends to show that it was necessarily obtained. See, e.g., Kolesar, 313 F.2d at 840 (“[T]he utility (and necessity) for a deposition is not alone measured by whether all or any part of it is formally offered in evidence as such. A deposition used effectively in cross examination may have its telling effect without so much as a line of it being formally proffered.“). The following deponents testified at trial: Nuesse, McDevitt, Donlin, Grossman, and H. Oreal. Depositions for these witnesses may be taxable, in the discretion of the district court. See id. (noting ways that depositions may be necessary for trial preparation). Similarly, the depositions of Donlin, O‘Shea, and Raguse were relied upon by the EEOC in its motion for summary judgment. A district court may tax costs “associated with the depositions submitted by the parties in support of their summary judgment motions.” Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th Cir. 1997). While W&O argues that theuse of these depositions was minimal or that they were not critical to the EEOC‘s ultimate success, W&O has not demonstrated that any portion of the depositions was not “related to an issue which was present in the case at the time the deposition was taken.” Independence Tube Corp., 543 F. Supp. at 718.
Accordingly, we find that the district court did not abuse its discretion in taxing the costs for those depositions for which there is no other challenge and, therefore, affirm the district court as to the deposition costs for the depositions of W. Oreal, Donlin, McDonald, Merlone, H. Oreal, O‘Shea, Smith, McBride, Raguse, DiClemente, Brenner, and Diascro.14 We turn now to the remaining six depositions.
The depositions of Pescitelli, Tatarka, and Zobel were not used by the EEOC at summary judgment or at trial, and the EEOC successfully moved in limine to have the testimony of all three of these witnesses excluded from trial. We have found no case law stating that a prevailing party who successfully moved to exclude the
testimony of witnesses was barred from recovering the costs of deposing the witnesses. Pescitelli was Nuesse‘s obstetrician and Tatarka and Zobel were servers at the Rustic Inn; there is no evidence showing that their depositions were not related to an issue in the case when the depositions were taken. Accordingly, we affirm the district court as to the deposition costs for Pescitelli, Tatarka, and Zobel.
2. Nuesse, McDevitt, & Grossman
There is no consensus as to whether the costs for depositions of parties (or parties in interest) may be taxed. Compare Heverly v. Lewis, 99 F.R.D. 135, 136 (D. Nev. 1983) (refusing to grant prevailing party travel costs for attendance at her own deposition because “a prevailing party may not recover, as a cost of suit, the expenses incident to the taking of his or her own deposition“); Morrison v. Alleluia Cushion Co., 73 F.R.D. 70, 72 (N.D. Miss. 1976) (refusing to tax deposition costs for witness who was “an active party in the litigation“) with Scallet v. Rosenblum, 176 F.R.D. 522, 527 (W.D. Va. 1997) (permitting taxation of “copies of deposition transcripts of party deponents” where the copies were reasonably necessary); Hancock v. Albee, 11 F.R.D. 139, 141 (D. Conn. 1951) (taxing cost of copy of deposition of prevailing plaintiff because it was “reasonably necessary that plaintiffs’ counsel should have a copy in order to protect the plaintiffs’ rights by holding the impeachment within proper limits“). We find more persuasive the view of the courts that do not bartaxation of costs for depositions of parties but, instead, look to whether the depositions were reasonably necessary. After reviewing the record and, particularly, noting that McDevitt‘s deposition was used to impeach her during the trial, see, e.g., R7-173-95, we find that the district court did not abuse its discretion in taxing the costs of the depositions of Nuesse, McDevitt, and Grossman.
3. Conclusion
We affirm the taxation of costs as to all of the depositions.
C. Other Costs
1. Exemplification Costs
W&O argues that exhibit costs are not taxable. The only statutory provision arguably covering exhibit costs is
2. Copy Costs
W&O challenges the copying costs awarded to the EEOC on the ground that the copies were not “necessarily obtained for use in the case” pursuant to
contained in a file is not a prerequisite to finding that it was necessary to copy the file.” Cengr, 135 F.3d at 455; see also United States for the Use and Benefit of Evergreen Pipeline Const. Co. v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir. 1996) (“Photocopying costs may be recovered even though the underlying document was not admitted at trial.“). Rather, like with depositions, in evaluating copying costs, the court should consider whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue. Here, the copies at issue were of documents produced by W&O pursuant to the EEOC‘s motion to produce. “Copies attributable to discovery” are a category of copies recoverable under
3. Service of Process Costs
W&O challenges the award of costs for the EEOC‘s use of private process server on the ground that
We hold that private process server fees may be taxed pursuant to
IV. Conclusion
As to W&O‘s appeal of the damage awards, we AFFIRM the award of punitive damages and VACATE the award of front pay and REMAND for the district court to make factual findings as to whether reinstatement is feasible. As to the appeal of the award of costs, we AFFIRM the award of witness fees, deposition costs and photocopying costs, VACATE the award of exhibit costs and of process server fees, and REMAND for re-evaluation of the process server fees request.