FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT

JANUARY 02, 2002 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 00-10554

D. C. Docket No. 98-01063-CV-D-S

BRADLEY MILLER, Plaintiff-Appellee,

versus KENWORTH OF DOTHAN INC., a Corporation, Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Alabama

(January 2, 2002)

Before TJOFLAT and BIRCH, Circuit Judges, and VINING*, District Judge.

______________________________________________ * Honorable Robert L. Vining, U.S. District Judge for the Northern District of Georgia, sitting by designation.2 TJOFLAT, Circuit Judge: The appeal in this Title VII case pr esents two issues: (1) whether the plaintiff made out a hostile work environment claim sufficient for the jury, and (2) whether the evidence showed that th e employer acted with actual malice or reckless indifference to the plaintiff’s fede rally protected rights. We resolve the first issue in favor of the plaintiff, and the second in favor of the employer.
I.
A. The employer is Kenworth of Dothan, Inc. (“Kenworth”). Its owner and president is Robert Mitchell, who also owns and manages Kenworth of Birmingham, Inc. Both companies are tractor-trailer dealerships. They are supervised by the following officers, stationed in Birmingham: Andy Thurmond, Director of Operations; Jeff Weaver, Di rector of Parts and Services; and Laura Box, Sales Manager. Weaver and B ox alternately travel from Birmingham to Dothan to supervise the deal ership there. The only mana gers located in Dothan on a permanent basis are Tommy Davenport, manager of the Parts Department, and David Brooks, manager of the Service Department. Both of these managers report directly to Weaver. Bradley Miller, a Mexican-American, was employed in Dothan’s Parts3 Department as the back counter parts salesman from September to December 22, 1997, when Mitchell fired him. During that time his job duties consisted of distributing parts to the service technician s in the Service Department. The Service Department consisted of eight technici ans and one shop foreman, Randy Galpin, who was hired in November 1997. Shortly after Miller came to work in September, his coworkers in the two departments gave him several nicknames, principally “Ju lio,” “Chico,” and “Taco.” Miller did not complain about his coworkers’ use of these nicknames until Galpin came to work, and started calling him “W etback,” “Spic,” and “Mexican Mother F-----.” He told Brooks, Galpin’s direct supe rvisor, “to tell [Galpin] . . . to watch what he says to me.” Brooks knew what Galpin was doing; his office was located in the shop, where much of the name- calling occurred, and on some occasions he was actually present. Although he had the authority and responsibility to intervene, Brooks did nothing; he neitherdisciplined Galpin nor reported the
matter to Weaver. When, during a visit to the Dothan location, Box overheard another employee refer to Miller as “Julio” or “Taco,” she immediately reported the incident to Weaver, who, in turn, reporte d the problem to Mitchell. In response, Mitchell instructed Thurmond to revi ew the company’s anti-discrimination1 Kenworth had two written discrimination policies: a “Sexual Harassment Policy” and a “Work Place Conduct Policy.” The latter policy states: All employees of this Company are to conduct themselves in a professional, mature manner and be polite and cordial to all customers, vendors, and other employees. The following is a list of behaviors that will not be tolerated. The list includes but is not limited to the use of profanity, vulgar language, fighting, discriminatory remarks or name calling. The policy contained no reference to discrimination or harassment based on national origin. 4 policies 1 with the employees in Do than at the November safety meeting, to be held the following week. Brooks, Galpin, and Miller were among those present at that meeting. Focusing on the use of ethnic slurs, Thurmond warned the employees that anyone using such slurs would be terminated immediately, and instructed them to report any such incidents. After the meeting, Miller’s coworkers stopped using the derogatory nicknames, except for Galp in. Thurmond’s warning notwithstanding, he persisted in calling Miller “ Wetback,” “Spic,” or “Mexican Mother F-----” until Miller was fired, on December 22, 1997.
B. After filing a complaint with the Equal Employment Opportunity Commission and obtaining a right to sue letter, Miller brought this suit against Kenworth, under 42 U.S.C. § 2000(e)(1)-(17), and 42 U.S.C. § 1981. Claiming that Kenworth had subjected him to an ethnically hostile work environment and2 Because the sole question before us is whether the district court erred in denying Kenworth’s motion for judgment as a matter of law made at the close of all the evidence, the interrogatories the court submitted to the jury are irrelevant for purposes of this appeal.

3 The district court treated the jury’s finding on the retaliatory termination claim as dispositive of Miller’s claim for equitable relief. Miller does not cross-appeal the denial of 5 had retaliated against him for complaining about it, Miller sought legal relief in the form of compensatory and punitive dama ges and equitable relief. Answering Miller’s complaint, Kenworth denied (1) that Miller had been subjected to ethnic discrimination sufficient to create a hos tile work environment; (2) that, even assuming a hostile work environment, it had notice thereof; and (3) that it terminated Miller’s employment for discriminatory reasons. It terminated his employment, Kenworth asserted, because of his poor work performance and his “vengeful attitude towards management.” The case proceeded to trial on Miller’s cl aims. At the close of the plaintiff’s evidence, Kenworth made an oral motion for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civ il Procedure. The court did not rule on the motion, and, at the close of all of th e evidence, Kenworth moved once again for judgment as a matter of law pursuant to Ru le 50(a). The court reserved ruling on the motion and submitted the case to the jury under special interrogatories. 2 The jury found against Miller on his retaliatory discharge claim, but found for him on his hostile environment claim, awarding him $25,000 in compensatory damages. 3equitable relief.

4 The district court’s judgment was entered pursuant to the jury’s verdict on December 29, 1999. On January 12, 2000, Kenworth served a Rule 50(b) motion for judgment as a matter of law and an alternative motion for a new trial. The motion was not filed, however, until the next day, January 13. The Rule 50(b) motion was unnecessary because the district court had reserved ruling on Kenworth’s Rule 50(a) motion until after the jury returned its verdict. The alternative motion for new trial, though, was untimely. Rule 59(b) requires that “[a]ny motion for a new trial shall be filed no later than 10 days after entry of the judgment.” (Emphasis added). Since the judgment was entered on Wednesday, December 29, 1999, the 10-day period expired on Wednesday, January 12, 2000 (taking into account the Saturdays, Sundays, and legal holidays that were not counted pursuant to Fed. R. Civ. P. 6(a)). On January 18, 2000, the court denied Kenworth’s alternative post-trial motions and denied Kenworth’s Rule 50(a) motion made at the close of all the evidence.

5 We have taken the evidence in the light most favorable to Miller in setting out the facts in part I.A. 6 The jury also found that Kenworth had act ed with malice and reckless indifference in creating the ethnically hostile work e nvironment and therefore awarded Miller $50,000 in punitive damages. The district court thereafter addressed Kenworth’s Rule 50(a) motion for judgment as a matter of law and denied it. 4 Kenworth now appeals.
II. We review a district court’s denial of a motion for judgment as a matter of law de novo . See Mendoza v. Borden, Inc. , 195 F.3d 1238, 1244 (11th Cir. 1999). We therefore “review all of the evidence in the light most favorable to, and with all reasonable inferences drawn in favor of, the non-moving party.” Walker v. NationsBank of Florida, N.A. , 53 F.3d 1548, 1555 (11th Cir. 1995). 5 We will7 uphold the district court’s denial if we determine that “reasonable and fair-minded persons in the exercise of impartial j udgment might reach different conclusions.” Id. We will reverse that denial only if we conclude that “the facts and inferences point overwhelmingly in favor of [the m oving party], such that reasonable people could not arrive at a contrary verd ict.” Combs v. Plantation Patterns , 106 F.3d 1519, 1526 (11th Cir. 1997) (citation omitted). Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “against any individual w ith respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A hostile work environment claim under Title VII is established upon proof that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditi ons of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21, 114 S. Ct. 367, 370, 1126 L. Ed. 2d 295 (1993). This court has repeatedly instructed that a plaintiff wishing to establish a hostile work environment claim show: (1) that he belongs to a protectedgroup; (2) that he has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic of the employee, such as national origin; (4) that the8 harassment was sufficiently severe or perv asive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability. See, e.g. , Mendoza , 195 F.3d at 1245 (applying these factors in the context of a hostile environment sexual harassment claim).Kenworth does not dispute that Miller belongs to a protected group (MexicanAmericans), or that the offensive comme nts were based on Miller’s national origin and were unwelcome. Rather, Kenworth asserts that Miller failed to present substantial evidence to support findings in his favor on the fourth and fifth elements. We consider these elements in turn.
A. Kenworth contends that Miller failed to present substantial evidence that the harassing conduct of Galpin was sufficiently severe or pervasive to alter the terms or conditions of his employment. This requirement, as defined by the Supreme Court, contains both an objective and a subjective component. See Harris , 510 U.S. at 21-22, 114 S. Ct. 367, 370-71. Thus, to be actionable, this behavior must result in both an environment “that a reasonable person would find hostile or abusive” and an environment that the vic tim “subjectively perceive[s] . . . to be abusive.” Id. Kenworth argues that Miller fa iled to carry his burden with respect9 to both criteria, and, as such, the districtcourt erred in refusing to grant its motion for judgment as a matter of law. In evaluating the objective severity of the harassment, we consider, among other factors: (1) the frequency of the c onduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unr easonably interferes with the employee’s job performance. Allen v. Tyson Foods , 121 F.3d 642, 647 (11th Cir. 1997) (citing Harris , 510 U.S. at 23, 114 S. Ct. at 371). Kenworth argues that in failing to show how Galpin’s conduct unreasonably interfere d with his work performance, Miller necessarily failed to satisfy th e objectiveness prong of the Allentest. In focusing on this single factor of the Allen analysis, Kenworth loses sight of the totality of the circumstances approach which we have adopted. See, e.g. , Mendoza , 195 F.3d at 1246. Employing this approach, and cons idering all of the evidence in the light most favorable to Miller, we conclude that fair-minded jurors could have reasonably concluded that Miller suffe red severe and pervasive harassment sufficient to alter the terms or conditions of his employment. First, there was sufficient evidence pr esented at trial to establish that Galpin’s conduct was frequent. Miller and others testified that Galpin’s namecalling permeated the Dothan facility–he hur led the ethnic slurs at Miller three to6 In Johnson , we concluded that “roughly fifteen separate instances of harassment over the course of four months” was sufficientlyfrequent, and distinguishable from Mendoza“where there were fewer instances of less objectionable conduct over longer periods of time.” Johnson , 234 F.3d at 509. 10 four times a day. Miller’s duties required him to go into the service area and interact with Galpin on a daily basis, which means he was unavoidably exposed to the harassing comments throughout the approximately one month period the two men were both employed at Kenworth. As the Seventh Circuit has held, it is “repeated incidents of verbal harassmen t that continue despite the employee’s objections [that] are indicative of a hostile work environment” and not simply some “magic number” of racial or ethnic insults. See Shanoff v. Illinois Dep’t of
Human Servs. , 258 F.3d 696, 704 (7th Cir. 2001). Certainly, the conduct at issue here was as frequent as conduct we have previously held to be sufficient to constitute an objectively hostile work environment. See Johnson v. Booker T. Washington Broad. Serv., Inc. , 234 F.3d 501, 509 (11th Cir. 2000). 6 Second, a reasonable jury could have considered Galpin’s conduct to be severe. The Supreme Court has instructed that Title VII is only implicated in the case of a workplace that is “permeated with discriminatory intimida tion, ridicule and insult,” not where there is the “mere uttera nce of an . . . epithet.” Harris , 510 U.S. at 21, 114 S. Ct. at 370 (citation omitted). Miller did not suffer from overhearing occasional off-color comments. Rather, as one of his coworkers testified, Galpin11 and other technicians in the Service Department used the derogatory names in an intimidating manner, shouting them at Mille r during the course of berating him for his job performance, or when they were “arguing with him,” were “mad with him,” or were “taunting him.” This conduc t rose above the level of off-handed comments in the course of casual conversa tion that the Supreme Court has refused to find actionable. See Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S. Ct. 2275, 2284, 141 L. Ed. 2d 662 (1998). Third, the testimony makes it clear that these incidents were humiliating and degradi ng to Miller. The very nature of the coworkers’ utterances, coupledwith the fact that they were directed at Miller and were sometimes used in the course of reprimanding him in front of others, establishes this factor. Finally, ther e was evidence that Galpin’s behavior prevented Miller from performing his job, on at least one occasion. Kenworth emphasizes testimony that Miller engaged in horse play at work, used his time to make personal phone calls, and was often s een loafing with other employees, and suggests these as alternative reasons fo r Miller’s poor job performance. Even if true, this would not prevent the jury from reasonably finding that Galpin’s conduct also interfered with Miller’s job perform ance. The Supreme Court has cautioned that harassment need not be shown to be so extreme that it produces tangible effects on job performance in order to be actionable. See Harris , 510 U.S. at 22,12 114 S. Ct. at 371. Thus, having established the frequency, severity, and humiliating nature of the conduct, Miller’s failure to establish convincingly how Galpin’s conduct interfered w ith his duties is not fatal to his hostile environment claim, given the totality of the circumst ances. We therefore cannot conclude that the jury unreasonably found Galpin’s c onduct to be sufficiently severe and pervasive such that the terms or conditions of Miller’s employment were altered. Kenworth also argues that Miller failed to establish his subjective belief that Galpin’s conduct was abusive. Miller testif ied that he told Galpin “no, don’t say it any more,” or “I am tired of hearing that.” It bothered him enough that, prior to his termination, he informed coworkers thathe had consulted a lawyer regarding Galpin’s harassment. Kenworth points us instead to Miller’s failure to address any complaints about Galpin’s conduct to Da venport, his immediate supervisor, and to provide Brooks with sufficient details of Galpin’s behavior at the time he asked Brooks “to tell [Galpin] he needs to wa tch what he says to me.” Kenworth suggests that these failures, coupled with Miller’s having heard Thurmond’s statement at the November safety meeti ng that employees making ethnic slurs were to be reported to management, and having witnessed Box reprimand a coworker who addressed Miller as “Taco” and “Ju lio,” demonstrate that Miller did not subjectively believe that Galpin’s conduc t was abusive or discriminatory. We13 cannot agree that these facts, while rele vant, would prevent a reasonable jury from finding that Miller subjectively perceived Ga lpin’s conduct as abusive. Miller did ask Galpin’s own supervisor, Brooks, to te ll Galpin to “watch what he [said] to [him].” Moreover, Miller knew that Brooks was present when Galpin used the epithets, yet did nothing, and he knew that Galpin had been undeterred by the warnings given by Thurmond at the November safety meeting. In the face of these experiences, we cannot conclude that Mille r’s failure to report Galpin’s subsequent conduct is dispositive.
B. Kenworth contends that Miller failed to establish the fifth element of a hostile work environment claim – that, as the employer, it is responsible for the hostile work environment under either a theo ry of vicarious or direct liability. An employer “is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Faragher v. City of Boca Raton , 524 U.S. 775, 807, 118 S. Ct. 2275, 2292-93, 141 L. Ed. 2d 662 (1998). The employer will be strictly liable for the hostile environment if the supervisor takes tangible employment action against the victim. See id. at 807, 118 S. Ct. 2293. However, when an employee has es tablished a claim for vicarious liability but where no tangible employment action was taken, a defending employer may14 raise as an affirmative defense to liab ility or damages: “(a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff empl oyee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. at 807, 118 S. Ct. at 2292-93. Where the perpetrator of the harassment is merely a co-employee of the victim, the employer will be held directly liable if it knew or should have known of the harassing conduct but failed to take prompt remedial action. See Breda v. Wolf Camera & Video , 222 F.3d 886, 889 (11th Cir. 2000). Thus, a victim of coworker harassment must show either actual knowledge on the part of th e employer or conduct sufficiently severe and pervasive as to constitute constructive knowledge to the employer. See id. If Miller made out a case for the jury on either of these theories, the district court ruled correctly when it denied Kenworth’s Rule 50(b) motion for judgment as a matter of law. Since we conclude thatMiller presented evidence sufficient to establish that Kenworth had constructiv e knowledge of coworker harassment, and that Kenworth failed to take remedial ac tion, we need not consider whether Miller established a case of vicarious liability. Actual notice is established by proof that management knew of the harassment, whereas constructive notice will be found where the harassment was so severe and pervasive that manage ment should have known of it. Miller contends that his comment to Brooks “to tell [Galpin] he needs to watch what he15 says to me” was sufficient to give Kenw orth actual notice of the harassment. We have held that merely showing a supe rvising manager a sexually suggestive note, received by an employee from a coworker, di d not adequately apprize the manager of “the dimensions of the problem or even that there was a problem that required his attention,” and therefore did not rise to the level of “actual notice” to the employer necessary to impose liability under Title VII. See Coates v. Sundor Brands, Inc. , 164 F.3d 1361, 1365 (11th Cir. 1999). Miller’s generalized comment to Brooks would similarly not constitute actual notice for which we would impose direct liability. Unfortunately for Kenworth, this was not the only notice Brooks received. There is ample evidence in the record establishing that Brooks had constructive knowledge of Galpin’s abusive comments. We have held the following factors to be germane to the issue of constructive notice of harassment: “(1) the remoteness of the location of the harassment as comp ared to the location of management; (2) whether the harassment occurs intermittently over a long period of time; (3) whether the victims were employed on a part-time or full-time basis; and (4) whether there were only a few, discrete in stances of harassment.” Allen v. Tyson Foods, Inc. , 121 F.3d 642, 647 (11th Cir. 1997). Brooks’ office was located in the Service Department shop, where much of Miller’s abuse occurred. Viewed in the16 light most favorable to Miller, the evid ence presented at trial established that Brooks was actually present at times whenGalpin shouted the ethnic insults at Miller. The abuse occurred on a daily basi s for the month that Galpin and Miller were both full-time employees of Kenworth. Finally, Galpin’s harassment of Miller occurred up to three to four times a day, and was often directed at Miller in the presence of others. Considering the re levant factors, we find that the evidence set forth in the record, viewed in the lightmost favorable to Miller, was sufficient to support a jury finding of constructive notice on the part of Kenworth. Even if we find Brooks had construc tive knowledge of the abuse of Miller, Kenworth argues that this cannot constitu te notice to Kenworth, since Brooks is not a part of Kenworth’s “higher mana gement,” which it claims includes only Mitchell, “arguably” Thurmond and Weaver , and “possibly” Box. The district court disagreed, and concluded that as one of only two managerial employees permanently assigned to Kenworth, Brooks constituted part of that company’s “higher management.” In Dudley v. Wal-Mart Stores, Inc. , we held that actual notice of racial discrimination to two Wal-Mart store managers could not serve as notice to the corporation because they we re not sufficiently high up the corporate ladder. Dudley v. Wal-Mart Stores, Inc. , 166 F.3d 1317, 1323 (11th Cir. 1999). Kenworth is not similarly situated to the defendant in Dudley to justify the17 application of that holding to the present f acts. Rather than a corporate giant where employees are separated from higher management by many intermediate-level managers, Brooks was separated from Mitchell, presiden t and owner of Kenworth, by only one person -- Weaver. This organi zational structure, in conjunction with the fact that Brooks was one of only two managers on-site at Dothan, would allow a reasonable jury to conclude that Brooks was of a sufficiently high level in the company such that notice to him of th e hostile work environment would serve as notice to Kenworth. Kenworth further argues that its “va lid, effective and disseminated policy prohibiting harassment” precludes it from be ing charged with constructive notice. We have held that “[w]here there is no po licy, or where there is an ineffective or incomplete policy, the employer remains liable for conduct that is so severe and pervasive as to confer constructive knowledge,” but when an employer has “promulgated an effective and compre hensive” anti-harassment policy that is “aggressively and thoroughly disseminated” to its employees, an employee’s failure to utilize the policy’s grieva nce process will prevent constructive knowledge of such harassment from adhering to the employer. See Farley v. Am. Cast Iron Pipe Co. , 115 F.3d 1548, 1554 (11th Cir. 1997). We cannot find Kenworth’s Work Place Conduct Policy to be either comprehensive or effective. It7 Kenworth’s practice was to present newly hired employees with copies of the two discrimination policies and then sign written acknowledgments of receipt, which were placed in the employees’ personnel files. 18 was certainly not aggressively or thor oughly disseminated. Despite Kenworth’s claims of its policy’s effectiveness, no member of the management hierarchy was familiar with it, it was not posted in the workplace, and it was inexplicably missing from Miller’s personnel file. 7 Furthermore, a policy must be found ineffective when company practice indicates a toleran ce towards harassment or discrimination. Despite the presentation given to the Dothan employees by Thurmond at the November safety meeting, Galpin’s abus ive treatment of Miller continued without any intervention by Brooks, indicating acceptance and tolerance of the behavior. We cannot therefore conclude that the me re existence of Kenworth’s general antidiscrimination policy would prevent a reasonable jury from charging Kenworth with constructive notice of Galpin’s harassment of Miller. In light of the constructive notice Kenworth had of the hostile work environment suffered by Miller, the jurycould reasonably have found it directly liable to Miller if it concluded that Ke nworth failed to take immediate and appropriate corrective action. There is absolutely no evidence in the record to indicate that Kenworth took any action wh atsoever against Galpin, let alone that which would rise to the level of appropriate and immediate. See Fleming v.19 Boeing Co. , 120 F.3d 242, 247 (11th Cir. 1997). It was thus reasonable for the jury to conclude that Kenworth wa s directly liable for the hostile work environment it should reasonably have known of, yet failed to remedy.
C. Finally, Kenworth asks this court to hold erroneous the district court’s submission of the punitive damages issue to the jury. The Supreme Court has directed that, for the issue of punitive da mages to reach the jury in a section 1981 case, the plaintiff must come forward w ith substantial evidence that the employer acted with actual malice or reckless indiffe rence to his federally protected rights.
See Kolstad v. Am. Dental Ass’n. , 527 U.S. 526, 536-37, 119 S. Ct. 2118, 2125- 26, 144 L. Ed. 2d 494 (1999). Malice or reckless indifference is established by a showing that the employer discriminated in the face of the knowledge that its actions would violate federal law. See id. at 536, 119 S. Ct. at 2125. We have held that “punitive damages will ordinarily not be assessed against employers with only constructive knowledge” of harassment; rather, punitive damages may only be considered in cases where the “dis criminating employee was high[] up the corporate hierarchy” or where “highe r management countenanced or approved [his] behavior.” Dudley v. Wal-Mart Stores, Inc. , 166 F.3d 1317, 1323 (11th Cir. 1999) (internal citations omitted). Finally, the Supreme Court has held that20 employers may assert a good faith defense to vicarious liability for punitive damages where the “employment decisions of managerial agents . . . are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’” Kolstad , 527 U.S. at 545, 119 S. Ct. at 2129. As discussed in part B, supra, Kenw orth did not have actual notice. Even viewing the evidence in the light most favor able to Miller, we do not find sufficient evidence on the record to support the n ecessary finding of malice or reckless indifference by Kenworth for the federal rights of Miller to justify the award of punitive damages.
III. Kenworth has not demonstrated that a reasonable jury could not find it directly liable for the hostile work envi ronment suffered by Miller. The appeal from the district court’s denial of Kenworth’s motion for a judgment as a matter of law is therefore DENIED. However, th e assessment against Kenworth of punitive damages is contrary to the law as articul ated by the Supreme Court and this circuit, and the district court’s denial of Kenworth’s motion for judgment as a matter of law on this issue is therefore REVERS ED and the award of punitive damages to Miller is VACATED.
SO ORDERED.21