U.S. EEOC v. W & O, Inc. , 213 F.3d 600 ( 2000 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 30 2000
_______________
THOMAS K. KAHN
CLERK
No. 98-5515 & 98-5646
_______________
D. C. Docket No. 95-6138-CV-JAG
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
versus
W & O INC., d.b.a. Rustic Inn,
Defendant-Appellant.
______________________________
Appeals from the United States District Court
for the Southern District of Florida
______________________________
(May 30, 2000)
Before BIRCH and MARCUS, Circuit Judges, and ALAIMO*, Senior District Judge.
BIRCH, Circuit Judge:
*
Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of
Georgia, sitting by designation.
Before this court are two consolidated appeals arising from the Pregnancy
Discrimination Act case brought by Plaintiff-Appellee United States Equal
Employment Opportunity Commission (“EEOC”) on behalf of a class of employees
of Defendant-Appellant W&O, Inc., doing business as Rustic Inn (“W&O”). In the
first appeal, No. 98-5515, W&O appeals the jury award of punitive damages to the
employees and the district court's award of front pay to Barbara Nuesse (“Nuesse”),
one of the employees. In the second appeal, No. 98-5646, W&O appeals the district
court's order awarding costs to the EEOC. 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 process server fees, and REMAND for re-evaluation of the
process server fees request
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
2
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”), 42 U.S.C. § 2000e(k). The EEOC represented a class
of three aggrieved employees: Nuesse, Suzette McDevitt (“McDevitt”), and Debbie
Grossman (“Grossman”), each of whom was removed from the schedule, had her
hours reduced, or left after being told that the policy would be applied to her.
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
3
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
4
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) could
get help carrying trays weighing more than 25 pounds. The restaurant was split into
four different stations, with the outside canal area being the most desirable due to the
large number of people who liked to sit there. The inner areas closer to the kitchen
earned less money in tips. The area closest to the kitchen was the area where Rustic
Inn “normally put pregnant waitresses.” R8-174-330.
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
5
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 no
1
Even when not pregnant, Nuesse always ran and moved quickly.
6
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
took the rest of the day off and visited the doctor, who told her that it was only a
broken blood vessel and had nothing to do with the baby. He suggested that she take
it easy for a few days; the head waitress told her to take the rest of the week off.
Grossman called the head waitress later in the week to learn about the schedule and
7
was told that management did not want her on the schedule. Grossman got upset and
started to cry; the head waitress told her that she needed to talk to Diascro. Diascro
told her that she couldn't work and that she was “not thinking right” because she was
pregnant. R7-173-201. Grossman convinced Diascro to give her some shifts, but he
gave her fewer shifts than she had previously worked and intentionally gave her
slower nights when she would have fewer customers. He also limited her to working
in the dining room. To try to make up for the lost income caused by getting fewer and
less desirable shifts, Grossman began working part-time at another restaurant, Chuck's
Steakhouse. Grossman ultimately went full-time at Chuck's but made less money
there; she worked there into her ninth month of pregnancy. It is undisputed that
Grossman was a good waitress and that she was able to fulfill her duties while
pregnant.
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
8
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 28 U.S.C. § 1920 and Fed.
R. Civ. P. 54(d). The EEOC requested witness fees for Nuesse, McDevitt, and
9
Grossman, including two days' court appearance fees and mileage and parking costs
for each, totaling $323.68. The EEOC also requested costs incidental to the taking of
the depositions of W. Oreal, Donlin, McDonald, Lisa Melrone (“Melrone”), H. Oreal,
Dorothy O'Shea (“O'Shea”), Barrington Smith (“Smith”), Kim Tatarka (“Tatarka”),
Lori Zobel/Vallancourt (“Zobel”), Dr. Albert Pesticelli (“Pescitelli”), Regina McBride
(“McBride”), Dorothy Raguse (“Raguse”), Micki DiClemente (“DiClemente”),
Brenner, Nuesse, Grossman, McDevitt, and W&O as corporation, for a total amount
of $4,648.44. The EEOC also requested reimbursement of the costs of using a private
process server, of trial exhibits, and of costs of copying discovery documents provided
by W&O, for a total amount of $1,703.25.
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 §
1920 and as unnecessary to the litigation.
10
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
2
The EEOC also requested as miscellaneous costs the expense of travel and lodging for
EEOC attorneys and the costs of court-ordered mediation. These miscellaneous costs were
denied by the district court and are not at issue in this appeal. The EEOC also has not appealed
the district court's decision to reduce its requested witness fees and exemplification costs.
11
II. Appeal No. 98-5515
W&O's challenge to the sufficiency of evidence as to punitive damages is
governed by Fed. R. Civ. Proc. 50. We review de novo the denial of W&O's renewed
motion for judgment as a matter of law on the issue of punitive damages. See Combs
v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997). Applying the same
standards as the district court, we “consider 'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.'” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986)). We must
“'consider all the evidence, and the inferences drawn therefrom, in the light most
favorable to the nonmoving party.'” Id. (quoting Carter v. City of Miami, 870 F.2d
578, 581 (11th Cir. 1989)).
W&O's challenges to the amount of punitive damages and the award of front
pay is governed by Fed. R. Civ. Proc. 59(e). We “will not overturn a denial of a Rule
59 motion absent an abuse of discretion.” Mays v. United States Postal Serv., 122
F.3d 43, 46 (11th Cir. 1997). “[W]e review the award of damages in a Title VII case
for an abuse of discretion.” Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1363 (11th
Cir. 1994). We review de novo all underlying questions of law. See Bechtel Constr.
Co. v. Secretary of Labor, 50 F.3d 926, 931 (11th Cir. 1995).
12
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 42 U.S.C. §
1981a.3 We address the sufficiency of the evidence and statutory cap issues first.
1. Malice or Reckless Indifference
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. 42 U.S.C. § 1981a(a)(1). Congress included
a standard as to when punitive damages would be permissible:
3
W&O initially also challenged the district court's jury instruction on punitive damages
but conceded at oral argument that the instruction was correct in light of the Supreme Court's
decision in Kolstad v. American Dental Ass'n, 527 U.S. 526, 119 S. Ct. 2118, 144 L. Ed. 2d 494(1999), which was issued after briefing closed in this case but before we held oral argument.
13
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.
42 U.S.C. § 1981a(b)(1). The Supreme Court interprets § 1981a(b)(1) to mean
precisely what its plain language says, namely, that punitive damages are appropriate
if, and only if, the employer acts with “malice” or “reckless indifference,” such that
the “employer must at least discriminate in the face of a perceived risk that its actions
will violate federal law to be liable in punitive damages.” Kolstad, 527 U.S. at —,
119 S. Ct. at 2125. In Kolstad, the Supreme Court expressly rejected the idea “that
eligibility for punitive damages can only be described in terms of an employer's
'egregious' misconduct.” Id. at —, 119 S. Ct. at 2124. In short, “[w]hile egregious
misconduct is evidence of the requisite mental state, § 1981a does not limit plaintiffs
to this form of evidence, and the section does not require a showing of egregious or
outrageous discrimination independent of the employer's state of mind.” Id. (citations
omitted). Thus, to the extent that W&O's argument depends solely on the fact that its
management acted out of the desire to benefit the pregnant women in its employ, it is
clear that its managers' and owners' alleged lack of ill will is not sufficient, in and of
itself, to bar punitive damages.
14
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 and Labor, and, while he could have used the FMLA
regulations as the model for W&O's pregnancy policy, instead chose to draft this
policy. Comments from various managers, including H. Oreal's statement that “no
one is going to run around here pregnant and big like that [and n]o pregnant women
are going to tell me how long they'll stay,” R8-174-323, could be interpreted as
15
showing an unwillingness to accede to the law. The jury would be entitled to find that
W&O maintained the policy in the face of challenges until it was affirmatively found
that it was illegal. Finally, while Diascro claimed that the five month benchmark in
the policy was only a guideline, Donlin's testimony, as well as the experience of the
three women in this case, belied that claim. If the jury chose to believe Nuesse,
McDevitt, and Grossman, then the jury would be entitled to find that their
employment was ended solely because of pregnancy and that each of the three women
was capable of fulfilling her job duties. This evidence is sufficient, when considered
with the evidence tending to show that Donlin and Diascro knew that pregnancy
discrimination violated federal law, to justify a finding of reckless indifference. See
Kim v. Nash Finch Co., 123 F.3d 1046, 1066 (8th Cir. 1997) (affirming grant of
punitive damages where “[t]here was evidence that [the defendant] knew what
constituted unlawful employment practices” and where the disparate treatment was
engaged in by supervisors or management).4
2. Statutory Cap
4
This case is distinguishable from Deneen v. Northwest Airlines, Inc., where the Eighth
Circuit held that punitive damages were inappropriate in a pregnancy discrimination case where
the defendant “believed the contract required it to consider [the plaintiff's] pregnancy-related
condition and ensure her fitness for duty before allowing her to return from layoff status” and
where the defendant “was concerned about the health of [the plaintiff] and her baby.” 132 F.3d
431, 439 (8th Cir. 1998). No contract requires W&O to consider its servers' pregnancy in
permitting them to work.
16
W&O argues that the district court erred in applying the statutory cap found in
42 U.S.C. § 1981a(b)(3). The statutory cap is a sliding scale of limitations on
compensatory and punitive damages based upon the size of the employer, with the
smallest covered employers being liable for up to $50,000 and the largest covered
employers for up to $300,000 for each complaining party. See §§ 1981a(b)(3)(A)-
(D). The statutory cap for W&O is found in § 1981a(b)(3)(B), which states:
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 § 1981a(b)(3)(B) is the appropriate
limitation to be applied to W&O based on its employment patterns. W&O argues,
however, that the district court erred in finding that Nuesse, McDevitt, and Grossman
were each entitled to receive a full $100,000 in punitive damages. In making this
argument, W&O focuses on the term “complaining party,” which, as used in § 1981a,
is defined as “the Equal Employment Opportunity Commission, the Attorney General,
or a person who may bring an action or proceeding under title VII of the Civil Rights
Act of 1964 (42 U.S.C. § 2000e et seq.).” 42 U.S.C. § 1981a(d)(1)(A). W&O argues
17
that the EEOC is the only complaining party and that the three employees, who are not
plaintiffs, are limited to splitting $100,000. The EEOC, however, argues that each of
the employees, like members of a class certified under Fed. R. Civ. P. 23, is eligible
for $100,000 apiece. This question of statutory interpretation is an issue of first
impression in the courts of appeals.
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.” § 1981a(d)(1)(A) (emphasis added). Aggrieved employees “may” bring an
action or proceeding under Title VII. Thus, while the term “complaining party”
includes the EEOC, the statutory language supports the conclusion that an aggrieved
party whose interests are represented by the EEOC may receive up to the full amount
of the statutory cap.
18
Our conclusion is bolstered by the EEOC's interpretation of § 1981a:
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 § 1981a likewise supports the EEOC's interpretation.
See 137 Cong. Rec. S15445-02, S15471 (October 30, 1991) (statement of Sen.
Kennedy) (discussing addition of words “for each complaining party” to the statutory
cap provisions and stating: “The amount of damages that a victim can recover should
not depend on whether that victim files her own lawsuit or joins with other similarly
19
situated victims in a single case. Rather, the amount of damages should depend on the
injury the victim has suffered, subject to the caps. This amendment ensures that the
remedy provided . . . is available to each individual who has been subjected to
abuse.”); see also Burlington N. R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454,
461, 107 S. Ct. 1855, 1860, 95 L. Ed. 2d 404 (1987) (“Legislative history can be a
legitimate guide to a statutory purpose obscured by ambiguity.”). Thus, as the
Seventh Circuit noted, “[t]he language in question well serves the end of permitting
each class member to receive compensatory damages up to the single-party limit.”
Smith v. Chicago Sch. Reform Bd. of Trustees, 165 F.3d 1142, 1150 (7th Cir. 1999).
However, the class certification requirements of “Rule 23 [are] not applicable to an
enforcement action brought by the EEOC in its own name and pursuant to its authority
under § 706 [42 U.S.C. § 2000e-5(f)(1)] to prevent unlawful employment practices.”
General Tel. Co. of the Northwest v. EEOC, 446 U.S. 318, 323, 100 S. Ct. 1698,
1703, 64 L. Ed. 2d 319 (1980). Thus, reading § 1981a to permit recovery up to the
statutory cap for each aggrieved party represented by the EEOC achieves the goal of
full compensation for aggrieved employees without adding procedural requirements.
See EEOC Compl. Man. at ¶ N:6076 n. 8 (stating that alternative interpretation of §
1981a would be “unwieldy, if not unworkable”); see also EEOC v. Moser Foods, Inc.,
No. Civ. 94-2516 PHX EHC (D. Ariz. Nov. 7, 1997) (finding that EEOC
20
interpretation of § 1981a is reasonable and that “[i]t makes little sense to authorize the
EEOC to bring a single suit on the claims of multiple employees against their
employer if doing so reduces the damages that can be obtained.”).
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, the
Supreme Court analyzed three “guideposts” in deciding whether a punitive damages
award was unconstitutionally excessive. 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 BMW
21
addressed 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 the
22
employees' 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 because the comments to which the three employees
testified did not constitute verbal abuse. Physical and verbal abuse may contribute to
the reprehensibility of a defendant's discriminatory conduct. See, e.g., Iannone v.
Frederic R. Harris, Inc., 941 F. Supp. 403, 414-15 (S.D.N.Y. 1996) (finding that lack
of physical abuse tended to show that plaintiff should not receive a large punitive
damages award in a sexual harassment case). However, we agree with the Seventh
Circuit that where a plaintiff suffers an adverse employment action that “was not an
isolated instance of discrimination by a single supervisor, but the predictable outcome
of not-so-secret company practice,” such that the defendant “maintained a policy of
intentional disregard for the statutory rights of its female employees, we cannot say
the maximum punitive damage award was inappropriate.” Emmel v. Coca-Cola
Bottling Co. of Chicago, 95 F.3d 627, 637-38 (7th Cir. 1996).
b. Ratio to Actual Damages
23
“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 damages
24
may 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 § 1981a includes no language
limiting the right to punitive damages to cases where the plaintiff receives
compensatory damages, see Hennessy, 69 F.3d at 1352 (analyzing §1981a(b)(1)), we
agree with the First and Seventh Circuits that “in redressing an injury suffered by the
plaintiff, back pay awards serve a similar purpose as compensatory damages awards,”
Provencher, 145 F.3d at 12 (citing Hennessy). We, therefore, may consider an award
of back pay in deciding whether a punitive damages award is disproportionate to a
plaintiff's actual damages award.
The parties also dispute whether the back pay and punitive damage awards
should be considered for each employee or in the aggregate. If considered
individually, the ratio of punitive damages to back pay is 3.8 to 1 for Nuesse
($100,000 to $26,231.43), 26.3 to 1 for McDevitt ($100,000 to $3,800.24), and 16.1
5
We need not address the issue of whether punitive damages can be appropriate under §
1981a where a plaintiff receives neither compensatory damages nor back pay. See Timm v.
Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998) (finding that punitive
damages are appropriate under § 1981a in the absence of compensatory damages and back pay).
25
to 1 for Grossman ($100,000 to $6225.46). If considered in the aggregate, the ratio
of punitive damages to back pay is 8.3 to 1 ($300,000 to $36,257.13).6 Because the
award of punitive damages was reasonable regardless of whether considered
individually or in the aggregate, we need not resolve this issue.
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, in
6
A question not addressed by prior precedent is whether Nuesse's front pay award
should be factored into the analysis. Nuesse was awarded front pay of 12 payments of $924.27,
for a total of $11,091.24. If Nuesse's front pay is considered, it would change the ratio of her
individual awards to 2.7 to 1 ($100,000 to $32322.67) and the ratio of the aggregate awards to
6.3 to 1 ($100,000 to $47,348.37). Because we find that the punitive damages award was
reasonable without considering the front pay award, we need not address this question.
26
BMW, 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.
7
The parties do not discuss the fact that BMW permitted courts to consider both “actual
and potential damages” in weighing the reasonableness of punitive damages. 517 U.S. at 582,
116 S. Ct. at 1602. Testimony showed that W&O had applied the policy to other women and
would likely have continued to apply it in the future without this lawsuit. “[I]n imposing
punitive damages it is proper to consider not only the harm that actually resulted from the
defendant's misdeeds but also the harm that might have resulted. This includes 'the possible
27
Additionally, W&O does not argue that the award is disproportionate in comparison
to the net worth of the company. Cf. id. at 1273 (considering the “wealth and size of
the defendant” in determining whether the punitive damages award was reasonable);
Morse v. Southern Union Co., 174 F.3d 917, 925 (8th Cir. 1999) (same). We
conclude that the punitive award of $300,000, whether considered individually or
collectively, was reasonable in terms of the interest in deterring illegal discrimination.
See Cooper, 97 F.3d at 920 (affirming award of punitive damages that was 12 times
the award of compensatory damages because “[a]n award of punitive damages
proportioned to the low compensatory damages that were awarded would have a very
meager deterrent effect . . . and would not be commensurate with the moral gravity of
the defendants' actions”).
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,
harm to other victims that might have resulted if similar future behavior were not deterred.'”
Dean v. Olibas, 129 F.3d 1001, 1007 (8th Cir. 1997) (quoting TXO Prod., 509 U.S. at 460, 113
S. Ct. at 2721)).
8
W&O's argument also seems to assume that the jury, and the court, would be
constrained to take the most charitable view of W&O's behavior, i.e., that the pregnancy policy
28
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 § 1981a “establishes a regime whereby the jury will set the
damages, without reference to the statutory cap,” it would be inappropriate and would
“invade the province of the jury” for the judge to treat the statutory cap as “the limit
of a damages spectrum, within which the judge might recalibrate the award given by
the jury.” Deters, 202 F.3d at 1273. We find that the reasoning of Luciano and
Deters, based on the plain language of § 1981a, is persuasive and, thus, hold that it is
only appropriate for a judge to reduce a punitive damages award to below the
maximum allowed under the § 1981a statutory cap if the award is unreasonable or
“arose out of the Employer's concern for the pregnant waitresses, their unborn children, and their
customers.” Appellant's Initial Brief at 25. While a jury would be entitled to take that
perspective, some of the testimony (e.g., H. Oreal's comments to Nuesse and his statement on his
EEOC affidavit) would afford the jury a basis for finding that W&O's motivations were not as
benevolent as W&O wanted the jury to believe.
29
otherwise “'shock[s] the judicial conscience and constitute[s] a denial of justice,'”
Luciano, 110 F.3d at 221 (quoting Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir.
1992)) (alteration in original).9 Because the punitive damages award was reasonable
and because § 1981a put W&O on notice that it could be liable for punitive damages
up to the statutory cap, we find that the district court did not err in refusing to reduce
the punitive damages below the statutory maximum.
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”). Federal Rule of Civil Procedure 16(e)
states that the PTO, once entered by the court, “shall control the subsequent course of
the action unless modified by a subsequent order. The order following a final pretrial
conference shall be modified only to prevent manifest injustice.” Cf. Morro v. City
of Birmingham, 117 F.3d 508, 513 (11th Cir. 1997) (“[W]e will reverse the trial
court's decision to follow the pre-trial order only where 'the trial court has so clearly
abused its discretion that its action could be deemed arbitrary.'”) (quoting Hodges v.
United States, 597 F.2d 1014, 1018 (5th Cir. 1979)).
9
We also note that the Seventh Circuit, applying its Hennessy analysis, affirmed a
punitive damages award constituting the maximum under the statutory cap where the defendant
had a policy of refusing to promote women. See Emmel, 95 F.3d at 638.
30
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., 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 1541,
1545 (11th Cir. 1988) (quoting Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1563
(11th Cir. 1988)) (first alteration added). Thus, Ramsey stands for the proposition that
31
front 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 § 1981a. See Gotthardt v. National
R. R. Passenger Corp., 191 F.3d 1148, 1154 (9th Cir. 1999) (finding that §
1981a(b)(3) cap does not apply to front pay because it is an equitable remedy); McCue
v. State of Kansas, Dept. of Human Resources, 165 F.3d 784, 791-92 (10th Cir. 1999)
(holding that “front pay is a form of equitable relief available under 42 U.S.C. §
2000e-5(g), to be awarded by the judge not the jury”); Martini v. Federal Nat'l
Mortgage Assoc., 178 F.3d 1336, 1348-49 (D.C. Cir. 1999) (“Like the majority of
circuits, we have regarded frontpay as an equitable remedy available under section
706(g) [of Title VII] both before and after the Civil Rights Act of 1991 made
compensatory damages available under Title VII.”), cert. dismissed, — U.S. —, 120
S. Ct. 1155 (2000); Allison v. CITGO Petroleum Corp., 151 F.3d 402, 423 n.19 (5th
Cir. 1998) (“[T]he right to a jury trial provided by section 1981a(c) does not include
the power to determine the availability of back pay or front pay. These are equitable
remedies to which no right to jury trial attaches.”) (citations omitted); Williams v.
Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998) (“As the equivalent of
32
reinstatement, front pay falls squarely within the statutory language authorizing 'any
other equitable relief.'”) (quoting 42 U.S.C. § 2000e-5(g)(1)). But see Hudson v.
Reno, 130 F.3d 1193, 1203-04 (6th Cir. 1997) (treating front pay as compensatory
damages for “future pecuniary losses” under § 1981a(b)(3) in part because the Sixth
Circuit had historically “treated front pay, in most contexts, as a legal, rather than an
equitable remedy”), cert. denied, 525 U.S. 822, 119 S. Ct. 64, 142 L. Ed. 2d 50(1998). We hold that front pay retains its equitable nature under Title VII after
passage of the Civil Rights Act of 1991 and, thus, that the district court did not err in
deciding front pay without submission to the jury.10
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 VII
10
One consequence of this ruling is that front pay is not included under the §
1981a(b)(3) statutory caps. See Gotthardt, 191 F.3d at 1154; Martini, 178 F.3d at 1349.
11
Because of this conclusion, we need not resolve W&O's claims that the statements of
law made in the PTO are insufficient to preserve a remedy raised in the complaint.
33
plaintiffs 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 to
34
offer 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 Fed. R. Civ. P.
54(d), see Gilchrist v. Bolger, 733 F.2d 1551, 1556-57 (11th Cir. 1984), and the
United States may receive costs like other prevailing parties, see Pine River Logging
& Improvement Co. v. United States, 186 U.S. 279, 296, 22 S. Ct. 920, 927, 46 L. Ed.
2d 1164 (1902). However, a court may only tax costs as authorized by statute. See
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S. Ct. 2494, 2499,
96 L. Ed. 2d 385 (1987) (rejecting claim that “a federal court is empowered to exceed
the limitations explicitly set out in [28 U.S.C.] §§ 1920 and 1821 without plain
12
While it may be implicit in the district court's award of front pay that the court
credited the EEOC's claims of antagonism toward Nuesse and discounted W&O's claims that
reinstatement was a viable option, we must require the district court to make explicit findings on
this issue.
35
evidence of congressional intent to supersede those sections”), superseded on other
grounds, 42 U.S.C. § 1988(c) (1991).
The district court awarded costs to the EEOC pursuant to 28 U.S.C. § 1920.
W&O does not dispute the EEOC's entitlement to costs as a prevailing party.
However, W&O challenges each of the costs awarded to the EEOC. We vacate the
award of costs solely as to the EEOC's exhibit costs and affirm the award of costs as
to witness fees, deposition costs, photocopying costs, and costs of service.
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,
13
The EEOC has not appealed the district court's reduction of the requested witness fees.
36
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 § 1920(2). See United States
v. Kolesar, 313 F.2d 835, 837-38 (5th Cir. 1963) (“Though 1920(2) does not
specifically mention a deposition, . . . depositions are included by implication in the
phrase 'stenographic transcript.'”). “[W]here the deposition costs were merely
incurred for convenience, to aid in thorough preparation, or for purposes of
37
investigation only, the costs are not recoverable.” Goodwall Const. Co. v. Beers
Const. Co., 824 F. Supp. 1044, 1066 (N.D. Ga. 1992), aff'd, 991 F.2d 751 (Fed. Cir.
1993). The question of whether the costs for a deposition is taxable depends on the
factual question of whether the deposition was wholly or partially “'necessarily
obtained for use in the case.'” Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337
(5th Cir. Unit B 1981) (quoting § 1920(2)). We will not reverse the district court's
taxation of deposition costs absent an abuse of discretion. Id.
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. at 717 (N.D. Ill. 1982), and that “the
information those people had on the subject matter of this suit was not so irrelevant
38
or 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 the
39
use 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.
1. Pescitelli, Tatarka, and Zobel
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
14
W&O does argue that several of these witnesses (particularly the women who were
servers at the Rustic Inn) offered cumulative testimony and that the EEOC should not have
needed to formally depose the witnesses because the EEOC had already interviewed them.
Given that W&O listed these witnesses on its witness list as part of the PTO and that the district
court exercised its discretion in taxing costs for the allegedly cumulative witnesses, we reject
that argument. Also, we have found no caselaw to show that the fact that the EEOC has
interviewed a prospective witness bars the taxation of deposition costs for that witness. Cf.
Cengr v. Fusibond Piping Sys., 135 F.3d 445, 455 (7th Cir. 1998) (rejecting claim that
depositions of defendant's employees were not taxable because defendant should have “rel[ied]
on the oral statements or affidavits of their employees rather than depositions which were
already taken”).
40
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 bar
41
taxation 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 § 1920(4), which permits taxation of “[f]ees for
exemplification and copies of papers necessarily obtained for use in the case.” See,
e.g., Maxwell v. Hapag-Lloyd Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988)
(holding that § 1920(4) covers exhibits and other illustrative materials); In re Air
Crash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 687 F.2d 626, 631
(2d Cir. 1982) (same). However, we have held that “[t]here is no statutory provision
for the taxation of charts and exhibits as costs.” Johns-Manville Corp. v. Cement
Asbestos Products Co., 428 F.2d 1381, 1385 (5th Cir. 1970). Notwithstanding this
holding, Johns-Manville permitted taxation of exhibit costs if the prevailing party
42
received pretrial authorization to produce the exhibits. See id. We must determine
what effect the Supreme Court opinion in Crawford Fitting has on Johns-Manville.
Crawford Fitting, which was issued after Johns-Manville, held that courts can tax
costs only with statutory authorization. 482 U.S. at 445, 107 S. Ct. at 2499.
Considering Johns-Manville in light of Crawford Fitting, we hold that exhibit costs
are not taxable because there is no statutory authorization.15
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 § 1920(4).
W&O argues that the copies were not necessary because they were neither used as
court exhibits nor furnished to the court or opposing counsel.16 “Use of information
15
The fact that other circuits disagree with this analysis is irrelevant. Under Bonner v.
City of Prichard, Johns-Manville is binding precedent on this circuit. 661 F.2d 1206, 1207 (11th
Cir. 1981). “Under the prior panel precedent rule, we are bound by earlier panel holdings . . .
unless and until they are overruled en banc or by the Supreme Court.” United States v. Smith,
122 F.3d 1355, 1359 (11th Cir. 1997). While the ruling in Crawford Fitting undermines the
holding in Johns-Manville that costs may be taxed without statutory authorization for exhibits if
the party received pretrial authorization to produce the exhibits, the holding in Johns-Manville
that there is no statutory authorization for such taxation has not been undermined by any
Supreme Court or en banc decision. But see Louisiana Power & Light Co. v. Kellstrom, 50 F.3d
319, 335 (5th Cir. 1995) (requiring pretrial authorization for trial exhibits before permitting
taxation of costs but not addressing effect of Crawford Fitting on taxation of exhibit costs under
Johns-Manville).
16
W&O also argues that the copies were not “necessarily obtained” because they were
allegedly sent to the EEOC District Manager in Washington, D.C. The EEOC states that the
Washington, D.C. address found on the copying bill was merely the billing address. This
dispute, however, is irrelevant to the question of whether the copies were necessarily obtained.
43
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 § 1920(4). Desisto College, Inc. v. Town of Howey-in-the Hills, 718 F. Supp.
906, 913 (M.D. Fla. 1989). Accordingly, we find that the district court did not abuse
its discretion in taxing the EEOC's photocopying costs.
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 § 1920 only permits taxation of fees of the U.S. Marshal for
process service. Pursuant to § 1920(1), “[f]ees of the clerk and marshal” may be taxed
as costs. However, “[s]ince the enactment of section 1920(1), the method of serving
civil summonses and subpoenas has changed. The U.S. Marshal no longer has that
responsibility in most cases, but rather a private party must be employed as process
44
server.” Alflex v. Underwriters Lab., Inc., 914 F.2d 175, 178 (9th Cir. 1990) (citing
Fed. R. Civ. P. 4(c) & 45(c)). We have yet to address the question of whether a party
who utilizes a private process server may be reimbursed for fees under § 1920(1).17
The Eighth Circuit has rejected taxation of fees for private process servers on the
ground that § 1920 “contains no provision for such expenses.” Crues v. KFC Corp.,
768 F.2d 230, 234 (8th Cir. 1985); see also Breitenbach v. Neiman Marcus Group, 181
F.R.D. 544, 548 (N.D. Ga. 1998) (same); Desisto College, 718 F. Supp. at 913 (same);
Zdunek v. Washington Metro. Area Transit Auth., 100 F.R.D. 689, 692 (D.D.C. 1983)
(same). The Ninth Circuit permits taxation of fees for private process fees solely on
the basis of a historic shift to the use of private process servers, Alflex, 914 F.2d at
178. The Second Circuit and Seventh Circuit have disapproved of that approach and
instead found that reading § 1920(1) in conjunction with 28 U.S.C. § 1921, which lists
fees of the marshal, justifies taxation of “service costs that do not exceed the marshal's
fees, no matter who actually effected service.” Collins v. Gorman, 96 F.3d 1057,
1060 (7th Cir. 1996); Evergreen Pipeline, 95 F.3d at 172 (holding that it is within the
district court's discretion to award private process server fees).
17
In Loughan v. Firestone Tire & Rubber Co., we summarily affirmed an award of costs
that included “costs of service of subpoenas, witnesses, and mileage fees.” 749 F.2d 1519, 1526
n.2 (11th Cir. 1985). Loughan, which was decided before Crawford Fitting, does not address the
possible distinction between service fees for marshals and private process servers or whether §
1920 provides support for payment of private process servers.
45
We hold that private process server fees may be taxed pursuant to §§ 1920(1)
and 1921. We reject the reasoning of Alflex, which is contrary to the holding of
Crawford Fitting, but find persuasive the reasoning that § 1920(1) “refers to the fees
'of' the marshal but does not require payment 'to' the marshal” and, accordingly, that
the “fees of the marshal” refers to fees authorized by § 1921, rather than fees collected
by the marshal. Collins, 96 F.3d at 1060. Thus, a district court does not abuse its
discretion in taxing private process server fees that do not exceed the statutory fees
authorized in § 1921. In light of this conclusion, we vacate the award of procees
server fees and remand to the district court for determination as to whether the fees
requested by the EEOC are commensurate with the limits found in § 1921.
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.
46