EEOC & Maines v. Federal Express Corp. (11th Cir.)
Reply brief as cross-appellant
Jan. 18, 2006
                                                                 
                    Nos. 05-13448 & 05-14108
        ________________________________________________
                                
             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
       __________________________________________________
                                               
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
     
               Plaintiff-Appellee-Cross-Appellant,
and

THEODORE MAINES,

               Plaintiff-Intervenor-Appellee,
v.

FEDERAL EXPRESS CORPORATION,
     
               Defendant-Appellant-Cross-Appellee.                                          
                                                                                    
       _________________________________________________

        On Appeal from the United States District Court
for the Middle District of Florida, 6:02-cv-1112                                                         
                                                          
       __________________________________________________

        REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY 
        COMMISSION AS PLAINTIFF-APPELLEE-CROSS-APPELLANT
        ________________________________________________
                                                                                                
JAMES L. LEE               
                         
Deputy General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel

LORRAINE C. DAVIS
Assistant General Counsel
     
                         

ANNE NOEL OCCHIALINO
    Attorney
EQUAL EMPLOYMENT    
OPPORTUNITY COMMISSION
1801 L Street N.W., Room 7030
Washington, D.C.  20507
(202) 663-4724

       EEOC v. Federal Express, Nos. 05-13448 & 05-14108

        CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
                      DISCLOSURE STATEMENT

     Pursuant to 11th Cir. R. 26.1.1-1, I hereby certify that the following person
has an interest in the outcome of this case, but did not have such an interest at the
time of filing of the EEOC's opening brief, and therefore was not listed as an
interested person in the Certificate of Interested Persons and Corporate Disclosure
Statement filed with the EEOC's opening brief:
     
James M. Tucker, Attorney, EEOC

                       TABLE OF CONTENTS
                                
                EEOC's Cross-Appeal No. 05-14108
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE 
DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . .   A

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . .  ii

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     1
                    
     I.   The district court abused its discretion in denying front pay. 2
     
     II.  The district court abused its discretion in denying broader                  
          injunctive relief. . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  14

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . .  17

                     TABLE OF AUTHORITIES 

Cases

 * Bruso v. United Airlines, Inc., 239 F.3d 848 (11th Cir. 2001) .  11, 13

Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004) . . . . . . . . . 10

EEOC v. Delight Wholesale Co., 765 F. Supp. 583 (W.D. Mo. 1991) . . . 5, 9

EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263(11th Cir. 2000) . . . . . 10

 * EEOC v. Massey Yardley Chrysler Plymouth, 
       117 F.3d 1244 (11th Cir. 1997) . . . . . . . . . . . .9, 11, 13, 14

Nord v. U.S. Steel, 758 F.2d 1462 (11th Cir. 1985) . . . . . . . . . . . 2

Padilla v. Metro-North Commuter R.R., 92 F.3d 117 (2d Cir. 1996) . . . . 7

Reynolds v. Octel Commc'ns Corp., 924 F. Supp. 743 (N.D. Tex. 1995) . . .4

Thurman v. Yellow Freight Sys., Inc., 97 F.3d 834 (6th Cir. 1996). . . . 4

 * Weaver v. Casa Gallardo, 922 F.2d 1515 (11th Cir. 1991) . . . . .  2, 3 
   

Wilcox v. Stratton Lumber, Inc., 921 F. Supp. 837 (D. Me. 1996) . . . .  4

Statutes

42 U.S.C.  1981(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C.  2000e-5(g) . . . . . . . . . . . . . . . . . . . . . . . .  10

42 U.S.C.  2000e-3(a) . . . . . . . . . . . . . . . . . . . . . . . .  11

                            ARGUMENT

               EEOC's Cross-Appeal, No. 05-14108
     In its opening brief, the Commission argued that the district court abused its
discretion in denying the EEOC's request for front pay and in denying nearly all of
the EEOC's requested injunctive relief.  EEOC Br. at 52-65.  As to front pay, the
EEOC argued that the district court failed to acknowledge that FedEx  not the
EEOC  had the burden of showing that Maines failed to mitigate his damages. 
The EEOC also argued that FedEx failed to meet this burden because it did not
introduce evidence, by way of a vocational expert or job postings, establishing that
Maines had failed to apply for available comparable jobs for which he was
qualified.  As to injunctive relief, the EEOC asserted that it was presumptively
entitled to such relief because it had shown that FedEx retaliated against Maines
and because FedEx had failed to show that future violations were unlikely.  In its
response brief, FedEx largely ignores the arguments the Commission made in its
opening brief, instead repeating arguments it made to the district court.  For the
reasons set forth in the Commission's opening brief and below, this Court should
hold that the district court abused its discretion in denying front pay and broader
injunctive relief.

  I. The district court abused its discretion in denying front pay.
  
     FedEx initially asserts a strawman argument:  that the Commission contends
that front pay is automatic upon a showing of a Title VII violation.  The
Commission actually asserted that either reinstatement or front pay is presumptive
 not automatic  upon the showing of a Title VII violation as part of the statute's
"make whole" remedial policy.  See EEOC Br. at 52 (citing Weaver v. Casa
Gallardo, 922 F.2d 1515, 1528 (11th Cir. 1991); Nord v. U.S. Steel, 758 F.2d
1462, 1473 (11th Cir. 1985)).  The Commission then argued that the district court
committed legal error in holding that this presumption does not apply here because
Maines already received a back pay award and because he should have "worked
his way back up" to a comparable position by the time of trial.
     Next, FedEx asserts that Maines's back pay and compensatory damage
award were sufficient to satisfy Title VII's "make whole" policy.  FedEx Br. at 2. 
In support, FedEx cites several cases in which courts denied front pay awards to
plaintiffs who had received back pay and other awards that totaled less than
Maines's back pay and compensatory damage award.  Id.  FedEx suggests that
these cases support the conclusion that as a matter of law Maines's back pay and
compensatory damage award satisfy Title VII's "make whole" policy, rendering a
front pay award inappropriate.  Id.  The reasoning of these cases, however, does
not support this conclusion.
       The only Eleventh Circuit case FedEx cites to support its argument is 
Weaver v. Casa Gallardo.  That case, however, actually supports the
Commission's argument that the district court abused its discretion in denying
front pay.  In Weaver, this Court stated that front pay is "appropriate [ ] when the
other damages awarded will not fully compensate the plaintiff for his injury."  922
F.2d at 1529 (emphasis added).  Although this Court denied front pay in Weaver,
the Commission pointed out in its opening brief that Weaver is distinguishable
from this case.  EEOC Br. at 58.  In Weaver this Court reasoned that a front pay
award was unwarranted because the district court had found that the plaintiff
failed to mitigate his back pay damages.  EEOC Br. at 58 (citing Weaver, 922 F.2d
at 1529).  Here, in contrast, the district court awarded Maines the full amount of
his back pay.  Moreover, as discussed in the Commission's opening brief, neither
Maines's back pay nor compensatory damage award will fully compensate him for
his future lost salary since, despite his best efforts, he has been unable to obtain a
comparable position and has no prospects of doing so.  See EEOC Br. at 54-59. 
Accordingly, a front pay award is required to satisfy Title VII's remedial policy. 
See Weaver, 922 F.2d at 1528 (stating that the court must fashion a remedy that,
"as a whole, achieves the remedial purposes of the Act").
     The other cases cited by FedEx also fail to support the proposition that
Maines's back pay and compensatory damage award satisfy Title VII's "make
whole" policy as a matter of law.  In Thurman v. Yellow Freight Systems Inc., 97
F.3d 833, 834 (6th Cir. 1996), the Sixth Circuit merely stated in dicta that the
district court acted within its discretion in determining that the plaintiff's five-year
back pay award and award of attorney fees and costs made him whole; the opinion
in no way suggests that a back pay and compensatory damage award equivalent to
Maines's award necessarily satisfies Title VII's remedial policy.  Similarly, the
out-of-circuit district court cases cited by FedEx cannot be read as supporting
FedEx's argument that Maines's award automatically satisfies Title VII's "make
whole" policy, rendering a front pay award inappropriate.  Instead, the courts in
those cases either denied front pay based on the individual facts involved  which
are distinguishable from this case  or simply concluded without discussion that
front pay in the case at bar was inappropriate.  See Wilcox v. Stratton Lumber,
Inc., 921 F. Supp. 837, 845 (D. Me. 1996) (finding only speculative evidence
about plaintiff's employment opportunities and stating that "the circumstances of
this case weigh against an award of front pay" where "Plaintiff, at 37, is not too
old to seek and begin new employment" and the defendant was a "small employer
with limited income" that might not exist in ten years) (emphasis added);
Reynolds v. Octel Commc'ns Corp., 924 F. Supp. 743, 748 (N.D. Tex. 1995)
(acknowledging that the Fifth Circuit "has found that a substantial award of
liquidated damages or punitive damages may signal that an additional award of
front pay may be excessive" and concluding without discussion that the plaintiff's
compensatory and punitive damage award rendered a front pay award
inappropriate) (emphasis added); EEOC v. Delight Wholesale Co., 765 F. Supp.
583, 591 (W.D. Mo. 1991) (denying front pay award after considering the EEOC's
delay in pursuing case, plaintiff's "unstable employment history, and the
likelihood that she would have remained a long-term employee").
     Significantly, FedEx concedes that it  not the EEOC  had the burden of
showing that Maines failed to make reasonable efforts to obtain comparable work
and therefore did not mitigate his front pay damages.  FedEx Br. at 3 ("Although
the burden may be on FedEx to prove Maines' failure to mitigate . . . ."). 
Nevertheless, FedEx faults the EEOC for having failed to produce a vocational
expert to testify as to Maines's inability to find a comparable job.  FedEx misses
the point.  Because FedEx  not the EEOC  bore the burden of establishing a
failure to mitigate, the EEOC did not have to hire a vocational expert to testify as
to Maines's inability to find comparable work.  Instead, it was FedEx who should
have offered, but did not offer, evidence establishing that Maines failed to apply
for available comparable positions for which he was qualified.  See EEOC Br. at
52-53.  As pointed out in the Commission's opening brief, this evidence could
have included the testimony of a vocational expert as to available jobs, actual job
postings, or classified newspaper ads.  EEOC Br. at 54.  FedEx does not deny that
it failed to produce this evidence.  Instead, FedEx recycles the argument it made
below that its submission of yellow page and on-line listings for package delivery
businesses and call centers sufficed to show a lack of mitigation.  FedEx Br. at 4. 
As pointed out in the Commission's opening brief, however, this evidence falls far
short of establishing a lack of mitigation because it does not show that there were
any comparable available positions for which Maines, who lacks even a college
degree, was qualified and failed to apply.  See EEOC Br. at 54-55.  Similarly,
FedEx argues that there is "ample evidence in the record" to show that Maines's
"arsenal of transferable skills [ ] could have and should have secured" a
comparable position.  FedEx Br. at 3.  Once again, however, FedEx fails to point
to record evidence showing the existence of even a single available comparable
position for which Maines failed to apply.  
     FedEx also contends that the district court acted within its discretion to
consider Maines's rejection of a management job with the Orlando Sentinel,
"presumably with benefits."  FedEx Br. at 3-4.  FedEx fails to cite any record
evidence to support the assertion that the Orlando Sentinel position had any
benefits.  Id. There is none.  Doc. 179, pg. 46-47.  In fact, Maines testified that the
position paid only $50,000  $10,000 less than Maines's current salary as an
independent contractor for a real estate developer and approximately $85,000 less
than the total annual compensation Maines earned at FedEx.  Id.; Doc. 145, pg. 4. 
Nor is there any evidence that the district court relied on Maines's rejection of this
position when it concluded that Maines failed to mitigate his front pay damages. 
Doc. 145, pg. 3-6.
     Next, FedEx mischaracterizes the Commission's reliance on Padilla v.
Metro-North Commuter R.R., 92 F.3d 117 (2d Cir. 1996).  According to FedEx,
the Commission cited it "to suggest that Maines had no marketable job skills." 
FedEx Br. at 4.  The Commission never asserted, however, that Maines had "no"
marketable job skills.  Instead, the Commission relied on Padilla to argue that the
court abused its discretion in finding that Maines's "many marketable skills"
meant he should have worked his way back up to a comparable position.  EEOC
Br. at 57.  Specifically, the Commission relied on Padilla to argue that the court's
finding was erroneous because Maines's FedEx specific job skills and failure to
graduate from college could reasonably be expected to hinder his ability to find a
comparable position.  EEOC Br. at 56 & 57 (citing Padilla as "concluding that
plaintiff's failure to try and find comparable position did not constitute a failure to
mitigate where plaintiff had only a high school education and had worked solely
for the railroads since the age of 22' and had unique and narrow work
qualifications'").  FedEx does not deny that, as the Commission asserted, the
record shows that Maines lacks a college education and that FedEx witness Lex
Lannom himself testified that Maines dealt with "billing issues very specific to
Federal Express."  See EEOC Br. at 57 (citing Doc. 179, pg. 40, 73-74).
     Finally, FedEx asserts that Maines's knowledge of package delivery
systems would be an asset for "any enterprise."  FedEx Br. at 4.  FedEx, however,
fails to point to any record evidence of any enterprise with available comparable
positions for which Maines is qualified that would be willing to hire him.  Id. 
Again, Lannom  FedEx's own witness  even testified that Maines "can't fill a
position if it's not open" and that FedEx  an enterprise engaged in package
delivery  does not have any openings for comparable positions.  Doc. 179, pg. 73. 
Lannom's testimony underscores the point that the mere existence of a business
does not mean that it has an available comparable position for which Maines is
qualified.  Nor does FedEx dispute that, as pointed out in the Commission's brief,
Maines testified that he sent out at least 40 resumes to businesses, including
FedEx's largest competitors.  EEOC Br. at 56.  Accordingly, this Court should
find that the district court abused its discretion in concluding that FedEx met its
burden of establishing a lack of mitigation as to Maines's front pay damages.

  II.  The district court abused its discretion in denying broader injunctive
       relief.
  
   FedEx makes two fundamental legal errors which completely undermine its
argument that the district court properly denied broader injunctive relief.  First,
FedEx argues as if it did not violate Title VII.  See FedEx Br. at 7 (asserting that
"no proof exists that FedEx has engaged in intentional discrimination" and that
Mattman "was accused of retaliating"); at 8 (referring to "Mattman's alleged
desire to unlawfully retaliate against Maines"); at 9 (asserting that Maines
"voluntarily resigned").  This argument is properly the subject of FedEx's appeal
of the jury's verdict finding liability.  Because this Court will only decide the
Commission's cross-appeal if this Court rejects FedEx's argument as to liability,
however, FedEx must assume for purposes of the Commission's cross-appeal that
it violated the statute.  See Delight Wholesale, 765 F. Supp. at 586 (in order
discussing damages and reinstatement, stating that the defendant's denial of
liability "was addressed during trial" and "is not now before the Court").  
   Second, FedEx overlooks the argument and cases cited in the Commission's
brief  instead relying on circuit and district court cases outside the Eleventh
Circuit  to contend that the EEOC had the burden of establishing "the existence
of some cognizable danger of recurrent violation'" in order to obtain injunctive
relief.  FedEx Br. at 5.  As the Commission asserted in its opening brief, however,
this Court indicated in EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d
1244 (11th Cir. 1997), that once the EEOC has proven discrimination, the
employer bears the burden of showing that future violations are unlikely to recur. 
See EEOC Br. at 59-60.  Here, the jury found that FedEx had retaliated against
Maines.  Therefore FedEx  not the EEOC  had the burden of showing that future
violations were unlikely.
   Although FedEx's entire argument is infected by this fundamental analytical
error and should be rejected for this reason alone, FedEx makes additional errors
which reveal its unrelenting misunderstanding of both Title VII and the legal
significance of its own conduct in this case.  For example, FedEx acknowledges
that Section 706(g) of Title VII authorizes injunctive relief "if the court finds that
the respondent has intentionally engaged in or is intentionally engaging in an
unlawful employment practice . . . ."  42 U.S.C.  2000e-5(g).  Yet FedEx
remarkably asserts that "injunctive relief is not appropriate because no proof exists
that FedEx has engaged in intentional discrimination," FedEx Br. at 7, as it did not
engage in a pattern and practice of discrimination.  FedEx Br. at 6-7.  
   FedEx's argument that it has not engaged in intentional discrimination when it
purposefully retaliated against Maines for engaging in statutorily protected
activity and that it can only be deemed to have committed an act of intentional
discrimination if it engages in a pattern and practice of systemic discrimination in
incredible.  This Court clearly recognizes that disparate treatment claims  where
an employer intentionally treats an employee differently because of a protected
characteristic  involve intentional discrimination.  See, e.g., EEOC v. Joe's Stone
Crab, Inc., 220 F.3d 1263, 1283-84 (11th Cir. 2000); Cooper v. Southern Co., 390
F.3d 695, 723 (11th Cir. 2004) (stating that disparate treatment claims require
proof of discriminatory intent).  Clearly, a plaintiff need not establish a pattern and
practice of discrimination in order to show intentional discrimination warranting
injunctive relief.  See Bruso v. United Airlines, Inc., 239 F.3d 848, 864 (11th Cir.
2001) ("[A] successful discrimination plaintiff need not demonstrate that his
employer engages in a pattern or practice of discrimination in order to receive
injunctive relief."); see also Massey Yardley, 117 F.3d at 1253 (in individual case
of age discrimination, recognizing that the EEOC is usually entitled to injunctive
relief when it "proves discrimination against one employee and the employer fails
to prove that the violation is unlikely to recur" and remanding to district court to
grant injunctive relief or to state reasons for denying it) (emphasis added) (internal
quotations and citation omitted).  Here, the EEOC brought a disparate treatment
case alleging that FedEx engaged in intentional discrimination.  Doc. 1,  9
(complaint); 42 U.S.C.  2000e-3(a) (making it unlawful to "discriminate against
any . . . employee[]" because "he has opposed any practice made an unlawful
employment practice").  The jury agreed, clearly finding a Title VII violation
constituting intentional discrimination.
   FedEx also argues that injunctive relief is inappropriate because the jury refused
to award punitive damages.  FedEx Br. at 8.  This argument is meritless.  Punitive
damages and injunctive relief serve complementary but different remedial
objectives of the statute and, accordingly, involve different standards.  As
discussed in the Commission's opening brief, a court may award injunctive relief
where warranted to deter future discrimination and to provide make-whole relief
for victims of discrimination.  EEOC Br. at 59.  The standard for awarding
punitive damages, however, requires a showing that the employer "engaged in a
discriminatory practice or discriminatory practices with malice or with reckless
indifference to the federally protected rights of an aggrieved individual." 42
U.S.C.  1981a(a)(1) & (b)(1).  Thus, during the punitive damages stage of the
trial the jury was asked whether a higher management official acted with malice or
reckless indifference to Maines's federally protected rights and whether FedEx
had acted in a good faith attempt to comply with the law by adopting policies and
procedures designed to prohibit discrimination.  Doc. 131 (jury instructions); Doc.
121 (verdict).  This inquiry is different from that required to determine whether the
EEOC was entitled to broader injunctive relief.<1>
   FedEx also seems to suggest that under Massey Yardley it can never be subject
to injunctive relief because it has anti-discrimination and anti-retaliation policies
and training in place and because the company has been recognized for its
commitment to diversity.  FedEx Br. at 10.  This argument is unavailing.  In
Massey Yardley this Court stated that, among other factors, the lack of an anti-
harassment policy suggested that the employer had failed to prove that future
violations were unlikely.  117 F.3d at 1254.  Nothing in the opinion, however, can
be read as limiting injunctive relief to only those employers who do not have anti-
discrimination or anti-retaliation provisions.  Nor would applicable legal standards
countenance a rule which would immunize an employer from injunctive relief
simply because it has anti-discrimination policies in place.  Certainly, an
employer, like FedEx, that has anti-discrimination and anti-retaliation policies but
fails to enforce them, could be just as likely to commit future violations of the
statute as an employer with no such policies.  See Bruso, 239 F.3d at 864 (noting
that the employer ignored anti-harassment policies and holding that the district
court abused its discretion in refusing to award any injunctive relief).
   In arguing that no danger of recurrent violations of Title VII exists, FedEx also
contends that the Commission "incorrectly states that Mattman was still employed
in her same position as VP of Worldwide revenue."  FedEx Br. at 10.  FedEx fails
to explain, however, Mattman's testimony at trial  which the Commission cited in
its opening brief  that she still held this position.  See EEOC Br. at 18 (citing
Doc. 175, pg. 492-93).  The Commission's argument on this point was that
although Mattman is "retired," the court erred in finding that she is no longer
employed by FedEx and, moreover, that she has the potential to influence FedEx's
conduct and that FedEx never disciplined her.  EEOC Br. at 62 (relying on Massey
Yardley, 117 F.3d at 1254).  
   FedEx further argues that the actions of its personnel department did not warrant
the imposition of broader injunctive relief because there was no evidence that
anyone in personnel "was aware of the ill-will Maines felt towards Mattman at the
time it assigned her to hear his GFT complaint."  FedEx Br. at 10-11.  To the
contrary, the Commission cited in its opening brief to Maines's trial testimony that
before he filed his GFT complaint he contacted Tierney Robinson in the personnel
department to complain about retaliation and that he specifically named Mattman. 
EEOC Br. at 16 (citing Doc. 173, pg. 256-57).  Accordingly, the unrebutted
evidence showed that the personnel department knew that Maines was
complaining about retaliation by Mattman when it assigned her to hear Maines's
retaliation complaint.  Therefore, this Court should find that the district court
abused its discretion in denying broader injunctive relief.

                           CONCLUSION

     For the foregoing reasons, this Court should reverse the district court's
denial of a front pay award and broader injunctive relief.  

                              Respectfully submitted,
     
                              JAMES L. LEE 
                              Deputy General Counsel 
     
                              VINCENT J. BLACKWOOD
                              Acting Associate General Counsel
     
                              LORRAINE C. DAVIS
                              Assistant General Counsel

                              ___________________________
                              Anne Noel Occhialino
                              Attorney
     
                              EQUAL EMPLOYMENT OPPORTUNITY
                              COMMISSION
                              1801 L Street N.W., Room 7030
                              Washington, D.C. 20507
                              (202) 663-4724

                   CERTIFICATE OF COMPLIANCE

     I hereby certify that this brief complies with the type-volume limitations of
Fed. R. App. P. 28.1(e)(2)(C). The brief contains 3302 words.

                                   ______________________________
                                   Anne Noel Occhialino

                     CERTIFICATE OF SERVICE

     I hereby certify that one copy of the foregoing brief was sent via FedEx Next
Day Air Delivery, on this 18th day of January, 2006, to the following counsel of
record:
                              
Counsel for Defendant-Appellant-Cross-Appellee Federal Express Corporation

Jay Grytdahl
Federal Express Corp.
3620 Hacks Cross Rd., Bldg. B
Memphis, TN  38125

Counsel for Plaintiff-Intervenor-Appellee Ted Maines
Marcia K. Lippincott
Marcia K. Lippincott, P.A.
864 Bright Meadow Dr.
Lake Mary, FL  32746

                              
                              
                              ______________________
                              James M. Tucker
                              Attorney
                              EQUAL EMPLOYMENT OPPORTUNITY
                              COMMISSION
                              1801 L Street N.W., Room 7024
                              Washington, D.C. 20507
                              (202) 663-4870

************************************************************************
<<FOOTNOTES>>

<1> To be sure, however, a finding that punitive damages is warranted, while not
 required, would provide strong support for awarding injunctive relief.  And, moreover, 
the Commission continues to believe the standard for punitive damages was met in this 
case but elected not to pursue that issue on appeal given Title VIIs cap on damages.