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28 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, 

Plaintiff, 

v.

LES SCHWAB TIRE CENTERS OF

WASHINGTON, INC., et al., 

Defendants. 

CASE NO. C06-0045RSM

ORDER ON MOTION FOR PARTIAL

SUMMARY JUDGMENT ON

PUNITIVE DAMAGES CLAIM

This matter comes before the Court for consideration of defendants’ motion for partial summary

judgment on plaintiff Equal Employment Opportunity Commission’s (“EEOC’s”) claim for punitive

damages. Dkt. # 154. Plaintiffs have opposed the motion. The Court deems oral argument on this

motion unnecessary and, for the reasons set forth below shall deny the motion. 

DISCUSSION

This is one of five contemporaneous motions for partial summary judgment filed by defendants,

three of which are addressed to the EEOC’s claims. Dkt. ## 139, 154, 156. The filing of multiple

summary judgment motions to circumvent the page limits set in the Local Rules is discouraged, and

successive motions may be stricken. Local Rule CR 7(e)(3). The Court has previously ruled on one of

the motions (Dkt. # 139), and the remaining motion comprises the allowed twenty-four pages on its
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28 ORDER - 2

own. Dkt. # 156. This motion could be stricken on this basis, but the Court will address it on the

merits.

Defendants contend summary judgment is appropriate because plaintiff EEOC has no evidence

to support an award of punitive damages, which is available in a Title VII case only where the defendant

engages in intentional discrimination “with malice or with reckless indifference to the federally

protected rights of an aggrieved individual.” Motion for Partial Summary Judgment, Dkt. # 154, p. 3

(quoting Kolstad v. American Dental Association, 527 U.S. 526 (1999). Defendants assert that under

Kolstad, punitive damages are inappropriate where the employer has adopted anti-discrimination

policies, has made a good faith effort to educate its employees about those policies, and made a good

faith effort to enforce the anti-discrimination policy. Id., p. 4, citing E.E.O.C. v. University of Phoenix,

Inc., 505 F. Supp. 1045, 1059 (D.N.M. 2007). 

Under Kolstad, defendants “may now establish an affirmative defense to punitive damages

liability when they have a bona fide policy against discrimination, regardless of whether or not the

prohibited activity engaged in by their managerial employees involved a tangible employment action.” 

Passantino v. Johnson & Johnson Consumer Products, 212 F. 3d 493, 516 (9th Cir. 2000). However,

defendants failed to plead this as an affirmative defense. Answer to EEOC’s First Amended Complaint,

Dkt. # 37. As a general rule, the omission of an affirmative defense from the responsive pleading

constitutes a waiver of that affirmative defense. Metcalf v. Golden ( In re Adbox, Inc.), 488 F.3d 836,

841 (9th Cir.2007). However, the Ninth Circuit has adopted a more liberalized reading of this rule and

holds that “[i]n the absence of a showing of prejudice, an affirmative defense may be raised for the first

time at summary judgment.” Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir.1993) (citing Rivera v.

Anaya, 726 F.2d 564, 566 (9th Cir.1984)). Neither side has addressed the issue of prejudice from

defendants’ delay in raising the Kolstad affirmative defense. Nevertheless, for the purposes of this

analysis, the Court will deem the Kolstad defense properly raised. 

In this circuit, 

[I]t is well established that it is insufficient for an employer simply to have in place

anti-harassment policies; it must also implement them.” See, Passantino v. Johnson

 & Johnson Consumer Products., Inc., 212 F.3d 493, 517 (9th Cir. 2000); and Lowery v. 
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1

Defendants have moved to strike three of these deposition excerpts, from Chuck Swafford,

Doug Cox, and Steve Vondereau, as presented in violation of a discovery agreement between the

parties. That agreement addressed discovery when these proceedings were bifurcated into two stages,

liability and damages. Subsequently, defendants moved for separate trials on the claims of the

individuals and the claims of the EEOC. Dkt. # 204. The Court granted defendants’ motion. Dkt. #

313. Separating the proceedings into two trials based on plaintiffs necessarily did away with the

bifurcation of liability and damages proceedings, and the EEOC trial was scheduled to allow time for

discovery on damages. Dkt. # 323. As there is no longer a “Stage I” proceeding, the earlier agreement

between the parties on discovery no longer serves any purpose. In the interest of addressing the issues

put before it in this motion on the merits, the Court will DENY the motion to strike. 

 ORDER - 3

Circuit City Stores, 206 F.3d 431, 446 (4th Cir.2000) (“While an employer's institution 

of a written policy against race discrimination may go a long way toward dispelling any 

claim about the employer's reckless or malicious state of mind with respect to racial 

minorities, such a policy is not automatically a bar to the imposition of punitive 

damages.”) (citation omitted).

Swinton v. Potomac Corp., 270 F. 3d 794, 810-11 (9th Cir. 2001). Thus, not only must the employer

show it has an anti-discrimination policy in place, it must also demonstrate that it has implemented the

policy in good faith. Passantino, 212 F.3d at 517. The purpose of Title VII would be “undermined if

those policies were not implemented and were allowed instead to serve only as a device to allow

employers to escape punitive damages for the discriminatory activities of managerial employees.” Id. 

Under the Kolstad affirmative defense, defendants have the burden of proving that they had “an

adequate anti-[discrimination] policy that was implemented in good faith.” Winarto v. Toshiba America

Electronics Components, Inc., 274 F. 3d 1276, 1291 (9th Cir. 2001); citing Passantino, 212 F. 3d at

516-17. In opposing the motion, plaintiffs have produced excerpts from the depositions of seven of

defendants managers or former managers, all which arguably call into question defendants’ good faith in

implementing an anti-discrimination policy.1

 Declaration of Lisa Cox, Dkt. # 203, Exhibits A through

F. These managers’ testimony indicates a lack of concern over what was essentially a workplace

segregated by sex, with an all-male Sales and Service position and an all-female Sales and

Administration position. Plaintiffs’ Opposition, Dkt. # 186, pp. 4-8. According to these managers,

there was no effort made to recruit women into the Sales and Service position, a position from which

they could be promoted to a managerial position. Id. It also appears there was no procedure in place

for reviewing hiring and recruiting practices to ensure compliance with the anti-discrimination policy. 

Id. 
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28 ORDER - 4

In reply, defendants have provided different excerpts from the same depositions of six of the 

same managers, together with two other depositions from higher-level managers, regarding defendants’

policies and procedures. Declaration of William Stafford, Dkt. # 207, Exhibits C through H. These

excerpts only serve to create an issue of material fact as to defendants’ good faith implementation of the

anti-discrimination policy. This is a question of fact that remains to be determined by the jury.

Summary judgment should be rendered only “if the pleadings, discovery and disclosure material

on file, and any affidavits show there is no genuine issue as to any material fact and that the movant is

entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if “a reasonable

jury could return a verdict for the nonmoving party” and a fact is material if it “might affect the outcome

of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

evidence is viewed in the light most favorable to the non-moving party. Id. 

Here, the deposition excerpts offered by the parties create an issue of fact as to defendants’ good

faith, an issue which requires resolution by the jury. Defendants’ motion for partial summary judgment

on the EEOC’s claim for punitive damages is accordingly DENIED. 

Dated this 11 day of January, 2010.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE