*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**The Honorable Lee R. West, District Judge for the Western District of Oklahoma, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 2 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ VICKI POWELL, Plaintiff-Appellant and Cross-Appellee,

v. COBE LABORATORIES, INC., a corporation, Defendant-Appellee and Cross-Appellant. Nos. 98-1350 & 98-1363 (D. Colo.) (D.Ct. No. 96-Z-2691)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , McWILLIAMS , Circuit Judges, and WEST , District Judge. **

Plaintiff-Appellant Vicki Powell brought a gender-d iscrimination suit against her employer, COBE Laboratories, Inc., purs uant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17. Ms. Powell also brought related state and federal claims. After the distri ct court dismissed her related1 As a preliminary matter, Ms. Powell filed a motion to waive oral argument,

which we granted in part. Pursuant to this Court’s order, counsel for COBE was allowed to proceed with oral argument despite Ms. Powell’s requested absence. The appearance or absence of a particular party at oral argument has no impact on the disposition of a case.

-2- claims, a jury found in favor of Ms. Powell and awa rded her $571,144 in back pay and compensatory and punitive damages. The distric t court struck all punitive damages, reduced the compensatory damages to a leve l deemed reasonable, and entered an amended judgment awarding Ms. Powell $12 1,144 in back pay and compensable damages, plus costs and attorney fees. Ms. Powell now appeals numerous rulings of the district court, including t he reduced damages award. COBE cross-appeals the district court’s denial of i ts post-trial motion for new trial pursuant to Fed. R. Civ. P. 59(a) and 60(b)(3 ). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm in part, vacat e in part, and remand to the district court for further proceedings. 1

BACKGROUND Ms. Powell began working for COBE in 1975. Over th e next twenty years, Ms. Powell worked in several positions in the company, including thirteen years as an administrative clerk in a warehouse. On July 24, 1995, COBE promoted Ms. Powell from her warehouse position to a positio n as a planner. A committee-3-

of several individuals, including her new superviso r, Jim Koehler, selected Ms. Powell for the planner position.

In her new planner position, Ms. Powell worked as amember of the purchasing management team supervised by Mr. Koehle r, which included four women in addition to Ms. Powell. Ms. Powell earned$2,328 per month in the planner position, which amounts to $27,936 per year . Within several months of her appointment as planner, the other women in Ms. Powell’s team began to complain to Mr. Koehler about her job performance. The women felt Ms. Powell lacked motivation, initiative and ability to do the planner job. Ms. Powell, on the other hand, felt the problem could be traced to the lack of procedures or quality training provided by COBE. Ms. Powell frequently i nquired about formal procedures for the planner position but was told no ne existed. The problems culminated in a meeting with Mr. Koehler on Decembe r 19, 1995, at which time he asked Ms. Powell to prepare a document the two o f them might use to evaluate her progress in her job and her training needs. Af ter several subsequent requests, Ms. Powell submitted the document, albeit in an adm ittedly deficient state, during a follow-up meeting on January 12, 1996. After gla ncing at the document, Mr. Koehler passed it back to Ms. Powell and informed h er of his decision to remove her from the planner position.-4-

Mr. Koehler reassigned Ms. Powell, and gave her fiv e weeks on the payroll to look for alternative employment within the compa ny. In the event Ms. Powell did not find a job with COBE during this time, she was offered an entry-level production job to allow her to continue to search f or what she determined to be suitable employment within the company. Ms. Powell eventually decided the open jobs at COBE either constituted demotions, or were positions for which she did not qualify, and she chose not to accept furthe r employment at COBE. Ms. Powell claims it was during this time period, mid-F ebruary, when she complained to COBE personnel about possible gender discriminat ion.

During this five-week period, COBE also gave Ms. Po well the option of taking a severance package. Signing the severance agreement entitled Ms. Powell to twenty-three weeks of severance pay and a design ation of her separation from the company as a voluntary termination/resignation. At one point, after she told a company official she did not wish to take the lower -level positions offered her, that official told Ms. Powell if she did not take t he offered severance package or available positions, her separation would be design ated a termination for cause/poor performance and she would receive just two weeks of pay in lieu of notice. Ms. Powell informed COBE officials she wis hed to take the severance package. However, when the day arrived for her to sign the package, Ms. Powell2The entire text of the statement is as follows: I have prepared a statement and would like to read it. 1. I decline to sign this separation agreement and release. 2. I wish to return to work tomorrow at my old job or at a comparable job. 3. I wish the company to do a job search and place me elsewhere. 4. I will consider any job opening at COBE commensurate with my experience, training and salary level. 5. I believe that I am being discriminated against because of my sex. 6. I also believe that COBE has illegally tried to coerce me into waiving my rights under the Civil Rights Act of 1964 by telling me that I would be fired if I did not sign the Separation Agreement and RELEASE.

-5- refused to sign, and instead read a prepared statem ent claiming COBE discriminated against her based on gender, and the company coerced her to sign the severance package in an attempt to force her to relinquish her civil rights. 2 COBE then withdrew the severance package, gave Ms. Powell the lesser package of two weeks’ pay, and escorted her out of the buil ding.

COBE replaced Ms. Powell with a male – Wayne John S check. Mr. Scheck, a temporary employee at COBE, had no experi ence related to the planner position. Mr. Scheck’s experience with the women i n the purchasing management team starkly contrasted Ms. Powell’s. Mr. Scheck d escribed his team as “wonderful.... very helpful, very knowledgeable, ve ry professional, reliable.” While one of the reasons Mr. Koehler listed for rem oving Ms. Powell from the planner position centered on her lack of willingnes s to begin work every day-6-

between the hours of 6:00 and 7:00 a.m., Mr. Scheckbegan his day after 7:30 a.m. In addition, Mr. Scheck’s starting salary was $32,000 per year, just over $4,000 more per year than Ms. Powell’s salary.

Ms. Powell’s suit originally stated several causes of action: a gender discrimination claim in violation of Title VII of t he Civil Rights Act, a retaliation claim under Title VII, retaliation claims as violat ive of the public policy of the State of Colorado and the United States, and a brea ch of contract/promissory estoppel claim. The district judge dismissed all t he claims save the genderdiscrimination claim. The jury found COBE discrimi nated against Ms. Powell based on gender, and awarded her $71,144 in back pay and benefits, $300,000 in compensatory damages, and $200,000 in punitive dama ges. In response to numerous post-judgment motions, the district court reduced the compensatory damages to $50,000, struck all punitive damages by granting COBE’s motion for judgment as a matter of law pursuant to Federal Rul e of Civil Procedure 50(b), and awarded Ms. Powell $19,125 of the requested $12 6,891 in attorney fees. The court also denied COBE’s motion for new trial basedon attorney misconduct.-7- DISCUSSION Ms. Powell appeals a plethora of issues, including the district court’s: (1) various evidentiary and discovery rulings; (2) dism issal of her retaliation, contract, and public policy claims; and (3) reducti on of compensatory and punitive damages, and attorney fees. COBE cross-ap peals the trial court’s denial of its motion for new trial. We examine each claim ed error in turn.

Outstanding Motions We must dispose of two outstanding motions before g etting to the substance of this case. First, we deny Ms. Powell’ s Motion to File Supplemental Appendix as the additional material offered was eit her provided by COBE, or would not aid in the determination of this case. W e also deny COBE’s Motion for Sanctions, and instead express our concern with cou nsel for their conduct in this lawsuit. Unfortunately, this suit often seemed dri ven by a conflict between the attorneys as opposed to the facts of this particula r case. We do not have the time or resources to catalogue every objection we have to the attorneys’ conduct other than to echo the lament voiced by Senior District J udge Stuart, sitting by designation with the Eighth Circuit:

The most troublesome aspect of this lawsuit is the lack of professionalism and civility displayed by the lawye rs.... This case serves as an example of the unfortunate lack of civ ility in the practice of law which is receiving considerable att ention at this-8-

time.... The adversary process in the judicial are na does not require attorneys to be clothed in a suit of armor and figh t to the bitter end. The parties, the profession, and the public all los e when the attorneys fail to treat each other with common courtesy. Miller v. Bittner , 985 F.2d 935, 941 (8th Cir. 1993). The motions a re denied.

Case No. 98-1350: Ms. Powell’s Appeal I. Evidentiary and Discovery Matters Ms. Powell argues the district court erred by: (1) restricting her attorney’s ability to contact non-managerial employees at COBE ; (2) denying a motion for a preservation deposition of an unavailable witness; and (3) excluding hearsay evidence that certain members of Ms. Powell’s hirin g team wanted a man for the position for which she was hired. We review eviden tiary and discovery rulings for an abuse of discretion. McCue v. Kansas , 165 F.3d 784, 788 (10th Cir. 1999) (citing Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995) (evidentiary rulings); Davoll v. Webb , 194 F.3d 1116, 1139 (10th Cir. 1999) (discovery rulings). Both types of rulings are subject to har mless error analysis. Cf. Davoll , 194 F.3d at 1139; Webb v. ABF Freight Sys., Inc. , 155 F.3d 1230, 1246 (10th Cir. 1998), cert. denied, 119 S. Ct. 1253 (1999). Having prevailed on her gender discrimination claim, we conclude Ms. Powell cannotshow prejudice from the district court’s rulings, and therefore we need notreach the issue of whether the3 We note all the rulings cited as error on appeal related to proposed evidence of

liability, not damages.

-9- court abused its discretion. 3

Ms. Powell first claims the trial court improperly prevented her counsel from contacting certain COBE employees. This chara cterization of the record is a stretch. The record shows the district court exhorting the attorneys on both sides of this dispute to work together: I think there [are] problems with your talking to d efendant’s employees out of the presence of defense counsel an d not in a deposition, so I think you folks better talk about that. You know the ethical rule about not talking to someone represent ed by opposing counsel; and if someone works for defendant, that’s really an issue of whether that person is represented by opposing coun sel through their employer. Why don’t you talk about it and see if you can workout some solution.

... Why don’t you try to work something out with [COBE’ s attorneys] – I’m sure [they] will be cooperative .. . – so that you can find out the information you need to find out from [COBE’s] employees. In her opening brief to this Court, Ms. Powell argu es Colorado Formal Ethics Opinion 69 states counsel may contact any non-manag erial employee of an adverse party, in his or her capacity as a bystande r witness, without violating the-10-

Colorado Rules of Professional Conduct. This argum ent may have merit, but it is precisely the type of formal argument and briefing Ms. Powell should have made to the district court. Ms. Powell’s attorney chose a different path and arguably abandoned the issue, when in response to the distri ct court’s comments, counsel stated:Based upon the [c]ourt’s comments, we won’t be tryi ng to contact any of them, because I fear the [c]ourt will find w e shouldn’t have. And we feel the ethical rule is very clear that if they are not managerial employees and not in a position to bind the company, we may call them. But we’re not going to take that ch ance in this case. So all of this has gone for naught, and we won’t ta ke a chance on talking with them. Before an issue can be raised on appeal, it must be “presented to, considered, and decided by the trial court.” Tele-Communications, Inc. v. Commissioner , 104 F.3d 1229, 1233 (10th Cir. 1997) (quotation marks and citations omitted). Because Ms. Powell abandoned the argument, it is no t clear the district court issued a final ruling on her interview request. Ho wever, even if Ms. Powell properly presented and preserved this issue at the district court level, and assuming the court’s preliminary ruling amounted to an abuse of discretion, given her success at trial, Ms. Powell cannot show prejud ice from the court’s ruling.

For the same reason, Ms. Powell cannot show prejudi ce on the remaining evidentiary and discovery issues. In addition, Ms. Powell’s briefing on these-11-

issues is totally void of citations to legal author ity. In such a case, we have the discretion to decline to consider the issues presented, including whether the district court erred by excluding hearsay testimonyof Ms. Powell’s hiring team’s state of mind, or by denying her motion for a prese rvation deposition. See Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992); Fed. R. Ap p. P. 28(a)(9)(A) (“the argument ... must contain appella nt’s contentions and the reasons for them, with citations to the authorities ... on which the appellant relies ....”). Thus, given Ms. Powell’s briefing shortcom ings, together with the lack of any showing of prejudice, we need not reach the evi dentiary and discovery matters raised on appeal.

II. Dismissals A. Public Policy Claims Pursuant to Fed. R. Civ. P. 12(b)(6), the district court granted COBE’s motion to dismiss Ms. Powell’s claims for relief al leging COBE’s actions violated the public policies of the State of Colorado and th e United States. We review a Rule 12(b)(6) dismissal de novo

. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). [A]ll well-pleaded factual allegations in the amend ed complaint are accepted as true and viewed in the light most favor able to the nonmoving party. A 12(b)(6) motion should not be g ranted unless it appears beyond doubt that the plaintiff can prove n o set of facts in-12-

support of his claim which would entitle him to rel ief. The court’s function ... is not to weigh potential evidence that the parties might present at trial, but to assess whether the plainti ff’s complaint alone is legally sufficient to state a claim for which re lief may be granted. Id . (quotation marks and citations omitted). Finding no set of facts entitling Ms. Powell to relief on her public policy claims, we af firm the district court’s grant of the motion to dismiss.

We begin by reviewing Colorado’s law concerning pub lic policy claims. Specifically, Colorado adheres to the employment at-will doctrine , which provides that an employee who is hired for an indefinite per iod of time “is an ‘at-will employee,’ whose employment may be terminated by either party without cause and without notice, and whose t ermination does not give rise to a cause of action." Crawford Rehabilitation Serv., Inc. v. Weissman , 938 P.2d 540, 546 (Colo. 1997) (quoting Continental Air Lines, Inc. v. Keenan , 731 P.2d 708, 711 (Colo. 1987). However, Colorado recognizes “an exception to this general rule in situations where the employer terminated the employment contra ct in violation of public policy.” Rocky Mountain Hosp. & Med. Serv. v. Mariani , 916 P.2d 519, 523 (Colo. 1996) (en banc) (citing Martin Marietta Corp. v. Lorenz , 823 P.2d 100, 108-09 (Colo. 1992) (en banc)). In order for Ms. P owell to establish a prima facie case for wrongful discharge under the public polic y exception, the Colorado Supreme Court requires evidence of four elements: (1) COBE directed Ms.4The only Colorado case Ms. Powell cites in support of her position is Lorenz, but

she does so only to highlight the underlying rationale behind the exception. The actual facts of Lorenz

are inapposite here. In Lorenz, the employee was fired after refusing a superior’s order to cover-up quality control deficiencies in several NASA projects. The employee was forced to choose between losing his job and violating provisions of 18 -13- Powell to forego the exercise of an important job-r elated right or privilege; (2) COBE’s direction violated a specific statute relati ng to the public health, safety, or welfare, or undermined a clearly expressed publi c policy relating to Ms. Powell’s right or privilege as a worker; (3) COBE t erminated Ms. Powell because she refused to perform the act directed by COBE; an d (4) COBE was aware, or reasonably should have been aware, that Ms. Powell’ s refusal to comply with the directive centered on her reasonable belief the ac tion ordered violated her legal right or privilege as a worker. Lorenz , 823 P.2d at 109. As we understand Ms. Powell’s complaint, it alleges COBE fired her becau se she refused to sign the severance package which included a waiver of her ri ght to file any future discrimination suit against the company.

In examining Ms. Powell’s argument, we focus on the second articulated element Ms. Powell is required to show. Specifical ly, Ms. Powell fails to point to a single statute or case demonstrating the actions alleged in the complaint “undermined a clearly expressed public policy” relating to her right or privilege as a worker. 4 Instead, Ms. Powell’s counsel merely argued to th e district courtU.S.C. § 1001. See Lorenz, 823 P.2d at 111. The choice allegedly offered Ms. Powell

was quite different.

-14- that neither federal nor state anti-discrimination statutes provided any remedy to Ms. Powell for refusing to waive her civil rights. By failing to point to a violation of a specific statute, constitutional pro vision, case law, or some other valid expression of public policy, Ms. Powell canno t establish a prima facie case for wrongful discharge under the public policy exce ption. Instead, Ms. Powell’s argument seems to suggest COBE’s behavior so obviou sly violated some unidentified Colorado public policy that the distri ct court could allow her claim to go forward without meeting the strict dictates set out by the state legislature or courts. We hold the district court correctly rejec ted this invitation to impinge on Colorado’s desire to keep the public policy excepti on a narrowly-tailored one. See Sanchez v. Philip Morris Inc. , 992 F.2d 244, 249 (10th Cir. 1993).

B. Contract Claim The district court granted COBE’s motion for summary judgment pursuant to Fed. R. Civ. P. 56(c), dismissing Ms. Powell’s c laim, asserting contract and estoppel causes of action. We detailed our standar d of review in such cases in Simms v. Oklahoma , 165 F.3d 1321 (10th Cir.), cert. denied, 120 S. Ct. 53 (1999):

We review the district court's grant of summary jud gment de5Apparently because the district court struck it as prolix, the record on appeal

does not contain Ms. Powell’s responsive brief to COBE’s motion for summary judgment. See10th Cir. R. 10.3(D)(2). This makes it difficult for us to perform our appellate function. Normally we could try to discern what a party presented to the district court by looking to the court’s order. Unfortunately, the entire extent of the district court’s rationale for granting the motion is contained in the following statement at the hearing: “We do have a breach of contract/estoppel claim by the plaintiff; and ... the law is pretty clear, at least to me, that just because someone posts some policies does not create an enforceable contract.... [T]he motion for summary judgment must be granted.” However, despite the absence of Ms. Powell’s brief and the district court’s short analysis, we are nonetheless able to make a determination on the contract claim given Ms. Powell’s inability to provide evidence supporting her claim an employment contract existed.

-15- novo, applying the same legal standard used by the district court. Summary judgment is appropriate if the pleadings, d epositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitled to a judgment as a matter of law. When applying this standard, we vie w the evidence and draw reasonable inferences therefrom in the lig ht most favorable to the nonmoving party. Although the movant must show the absence of a genu ine issue of material fact, he or she need not negate the non movant's claim. Once the movant carries this burden, the nonmovant cannot rest upon his or her pleadings, but must bring forward specif ic facts showing a genuine issue for trial as to those dispositive matters for which [he or she] carries the burden of proof. Id. at 1326 (quotation marks and citations omitted). After reviewing the extremely sparse record on appeal concerning this i ssue, we affirm the district court’s grant of summary judgment dismissing the co ntract and estoppel claims. 5

We begin by noting the Colorado courts recognize co mpanies can-16-

effectively alter the at-will status of employees t hrough published employee handbooks and policies. The policies can lead to t he creation of a contract between employer and employee, or can induce justif iable reliance by the employee, creating causes of action based on breach of contract and promissory estoppel. See Keenan , 731 P.2d at 711-12. In order for a company polic y to qualify as an offer in the contract context, it mus t “contain terms ‘sufficiently definite to enable the court to determine whether t he contract has been performed.’” Vasey v. Martin Marietta Corp. , 29 F.3d 1460, 1464 (10th Cir. 1994) (quoting Stice v. Peterson , 355 P.2d 948, 952 (Colo. 1960)). “[W]hile the existence of an implied contract is normally a fact ual inquiry for the jury, the issue may be decided as a matter of law if the alle ged promises are nothing more than vague assurances.” Id . (quotation marks and citations omitted).

COBE’s employee handbooks or manuals are not at iss ue here. Ms. Powell admitted she had no knowledge of any COBE personnel policy dealing with discrimination. Ms. Powell’s contract claim is bas ed solely on her observation of an 8 1⁄2 by 11 sheet of paper posted on a bulletin bo ard near the human resource area at COBE announcing job openings. While Ms. Po well could not remember exactly what the paper said, she did agree with the characterization of the paper as a document explaining the illegality of discrimi nation. In its brief-17-

accompanying the motion for summary judgment, COBE stated the document contained only the mandatory notice all employers m ust post pursuant to Title
VII. See 42 U.S.C. § 2000e-10(a). However, the document it self is not in the record on appeal, and we have no other way of knowi ng the context or actual language of the document.

COBE, as the movant for summary judgment, had the i nitial burden of showing the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. See Adler v. Wal-Mart Stores, Inc ., 144 F.3d 664, 670-71 (10th Cir. 1998). Once COBE met that burden , which it did by drawing the district court’s attention to the lack of evide nce presented by Ms. Powell on the contract and estoppel claims ( id . at 3427-29), the burden shifted to Ms. Powell to come forward with specific facts, admissible in evidence at trial, which could allow a rational jury to find in her favor. Id . at 671. “To accomplish this, the facts must be identified by reference to affidavits , deposition transcripts, or specific exhibits incorporated therein.” Id . We do not know what Ms. Powell argued to the district court on this matter, but in her brief to this Court, Ms. Powell fails to make any argument or point to any e vidence in the record supporting her assertion this document constituted an offer under contract law. In fact, her brief on this issue is limited to two sen tences stating the basic rule,-18-

which is not disputed here, that a posted policy of a corporation forbidding discrimination in the workplace can be the basis of a contract claim under pertinent case law. Ms. Powell failed to present a ny evidence tending to show the document at issue in this case constituted a policy of the corporation, or that the document’s specific language was sufficient to form the basis of a contract claim. Having studied the limited record on this issue, we determine the district court properly granted summary judgment and dismissed Ms. Powell’s contract claim.

C. Retaliation Claim At the close of Ms. Powell’s case, the district cou rt dismissed her Title VII retaliation claim in response to COBE’s motion for judgment as a matter of law under Fed. R. Civ. P. 50(a)(1). We review de novo a district court’s disposition of a motion for judgment as a matter of law, applying the same stan dard as the district court. Such a judgment is warranted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.... We mu st view the evidence and any inferences to be drawn therefrom m ost favorably to the non-moving party. Baty v. Willamette Indus. , Inc. , 172 F.3d 1232, 1241 (10th Cir. 1999) (quotation marks and citations omitted).

Keeping this standard of review in mind, we note Ti tle VII states an-19-

employer may not “discriminate against any of his e mployees ... because [s]he has opposed any practice made an unlawful employment pr actice by this subchapter, or because [s]he has made a charge, testified, assi sted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie ca se of retaliation, Ms. Powell must prove: “(1) protected opposition to discrimin ation or participation in a proceeding arising out of discrimination; (2) adver se action by the employer; and (3) a causal connection between the protected activ ity and the adverse action.” Sauers v. Salt Lake County , 1 F.3d 1122, 1128 (10th Cir. 1993).

Viewing the evidence most favorably to Ms. Powell, she participated in a protected activity in mid-February by complaining t o the Director of COBE’s Human Resources Department, Kathe Burke, about disc rimination based on her gender. However, the district court determined the only adverse action in this case occurred on January 12, when Mr. Koehler remov ed Ms. Powell from the planner position and gave her five weeks on the pay roll to find other employment within COBE or take a production job. Placing the adverse action one month prior to Ms. Powell’s protected activity clearly de feats any causal connection between the two events, and therefore the district court found no prima facie case for retaliation.-20-

On appeal, Ms. Powell argues a second adverse actio n arose when COBE personnel (1) told her on February 26 that the cons equences of not signing the severance agreement or taking a position would be t ermination for cause and only two weeks’ pay, as opposed to the large severance p ackage, and (2) subsequently discharged her on February 29 because she refused t o sign the severance agreement.

In determining whether Ms. Powell’s retaliation cla ims lack merit, we liberally define the term “adverse employment actio n” and must make our determination of whether a given employment action is “adverse” on a case-bycase basis. See Jeffries v. Kansas , 147 F.3d 1220, 1232 (10th Cir. 1998). Given the specific facts of this case, we agree no advers e action existed after January 12, and affirm the district court’s grant of the mo tion for judgment as a matter of law.

We reach this conclusion based on an exhaustive rev iew of the record, which reveals several relevant facts. First, COBE removed Ms. Powell from her planner position on January 12. (Apt. App. Vol. II I at 869.) On her removal from the planner position and reassignment to a temporary position within the company, COBE gave Ms. Powell five weeks, which mea nt until February 19, to-21-

either take another position within COBE or be seve red from COBE’s payroll. All parties involved, including Ms. Powell, underst ood this arrangement. Specifically, during a meeting on January 29 with K athe Burke, Ms. Powell stated, “I have ... until the nineteenth of February ... [a]nd then I’m not, I won’t be on salary any more.” The only open question at this point was whether Ms. Powell would choose to take the employment opportun ities available within COBE, take a severance package, or leave COBE witho ut taking the severance package. During a meeting with Mr. Koehler on the decision day of February 19, Ms. Powell stated she could not find a job within C OBE she wanted, and she flatly turned down the production job COBE promisedto provide in order to give her more time to search for employment within the c ompany. Ms. Powell made it clear she wanted to pursue the severance package op tion, and Mr. Koehler accommodated her by offering to keep her on the pay roll until such time as she could sit down with company representatives and fil l out the paperwork required for the severance package. During a meeting on Feb ruary 22, Ms. Powell again confirmed February 19 as the date her employment wi th COBE officially terminated. At this same meeting, Ms. Burke fully explained the provisions of the severance package and informed Ms. Powell she wouldremain on the payroll until February 29, the day she was to sign the seve rance package. Four days later, on February 26, Ms. Burke told Ms. Powell the conse quences of not signing the-22-

severance package: two weeks’ pay instead of twenty-three weeks’ and a termination for cause instead of a voluntary resign ation. On February 29, after Ms. Powell refused to sign the severance package, C OBE discharged her.

Under the circumstances, we cannot characterize the events of February 26 and 29 as adverse employment actions when Ms. Powel l’s discharge was predetermined on January 12. Cf. Connell v. Bank of Boston , 924 F.2d 1169, 1179-80 (10th Cir.), cert. denied, 501 U.S. 1218 (1991). On appeal, Ms. Powell takes exception to this statement, pointing to the company’s efforts to find her alternative employment as proof the parties did notknow for certain Ms. Powell would be leaving the company. While technically tr ue, this logic fails to recognize that as of January 12, Ms. Powell control led her employment or discharge destiny. On February 19, at the first do cumented meeting with Ms. Powell after she allegedly complained she would hav e been treated differently if she were a man, Mr. Koehler continued to offer her a production job within COBE. Ms. Powell flatly turned him down. After th is meeting, COBE continued to offer Ms. Powell the severance agreement, which she also refused to accept. Having personally eliminated the alternatives to di scharge, we fail to comprehend how Ms. Powell can claim the end result constituted an adverse employment action separate and distinct from the January 12 re moval. In sum, Ms. Powell-23-

fails to establish a prima facie case on her retali ation claim by failing to show a casual connection between the assumed protected act ivity of raising her discrimination complaints and any adverse action. Therefore, we affirm the district court’s grant of the motion for judgment a s a matter of law.

III. Reduction of Damages and Attorney Fees Ms. Powell also appeals the district court’s reduct ion of the jury’s award of emotional distress damages, the setting aside of al l punitive damages awarded by the jury, and the reduction of Ms. Powell’s request ed attorney fees. We review the district court’s reduction of compensatory dama ges for a manifest abuse of discretion. Baty , 172 F.3d at 1241. The district court’s decision to grant the motion for judgment as a matter of law and set asid e the punitive damage award is a question of law we review de novo. Id .; Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 995 (10th Cir. 1999). We review th e award of attorney fees for abuse of discretion. Case v. Unified Sch. Dist. No. 233 , 157 F.3d 1243, 1249 (10th Cir. 1998).

A. Emotional Distress Damages The jury awarded Ms. Powell $300,000 for pain, ment al anguish, and emotional distress. The district court found this award excessive and unsupported-24-

by substantial evidence, and reduced it to $50,000. Ms. Powell offered limited evidence in support of her emotional distress damag es. Ms. Powell testified she was “very sad, very depressed, very upset” after he r employment at COBE ended. She also testified the experience had a “major impa ct” on her entire family, she cried every day, sought help from a psychotherapist , and sought treatment from a physician for migraine headaches. Ms. Powell’s psy chotherapist also testified briefly, stating she observed symptoms of stress, anxiety, worry, depression, anger and a sense of powerlessness in Ms. Powell. In red ucing the jury award, the district court found the scant evidence presented i n this case analogous to the evidence presented in Wulf v. City of Wichita , 883 F.2d 842 (10th Cir. 1989). In Wulf , the plaintiff testified his job loss caused stres s, anger, depression, and frustration; his wife testified the job loss caused severe emotional strain and financial difficulties. Id. at 875. We found this evidence wanting, and reduc ed an award for emotional distress of $250,000 to $50, 000. Id. While the jury in the current case heard testimony from Ms. Powell’s treating psychotherapist which seemed to corroborate Ms. Powell’s testimony, the l imited depth and detail of the testimony here is comparable to Wulf . For instance, the extent of the evidence offered in support of emotional distress damages fi lled less than five of the nearly 550 trial transcript pages required for the present ation of Ms. Powell’s case. Neither the psychotherapist’s nor Ms. Powell’s test imony was developed to any6We note the district court failed to provide Ms. Powell a choice between

accepting the remittitur or a new trial on damages. See Hetzel v. Prince William County, 523 U.S. 208 (1998). However, Ms. Powell did not raise the issue with the district court, nor did she ever point to the oversight as error on appeal. She does mention Hetzel in her reply brief, but she does so only to argue Hetzel is inapposite because the court’s reduction of the damage award in this case was not a remittitur. Given the woefully inadequate understanding both parties have of Hetzel, and the resulting low quality of the briefing, we will enforce our general rule of not considering issues raised for the first time in the reply brief. See Headrick v. Rockwell Int’l Corp. , 24 F.3d 1272, 1277-78 (10th Cir. 1994) (holding one reason for general rule is our reliance on the adversarial process to develop issues on appeal and well-reasoned opinions).

7This statute allows a litigant, successful in bringing a civil rights action under § 2000(e), to recover compensatory and punitive damages under certain circumstances.

-25- significant degree. Given the facts of this case, the district court did not manifestly abuse its discretion by looking to compa rable cases and reducing the jury’s award to $50,000. 6

B. Punitive Damages Consistent with 42 U.S.C. § 1981a(b)(1), 7the jury received instructions that punitive damages were appropriate only if COBE disc riminated against Ms. Powell with “malice or reckless indifference” to he r rights to be free from such conduct. In its order striking the jury’s award of $200,000 in punitive damages, the district court relied on our language in Fitzgerald v. Mountain States Tel. & Tel. Co. , 68 F.3d 1257, 1263 (10th Cir. 1995), to find insu fficient evidence existed for the jury to find the discrimination in this case “malicious, willful, and-26-

in gross disregard of plaintiff’s rights.”

Subsequent to the district court’s order, the Unite d States Supreme Court clarified the test used when determining whether pu nitive damages are appropriate in a Title VII case. See Kolstad v. American Dental Ass’n , 527 U.S. 526, 119 S. Ct. 2118 (1999). The Court ruled “the terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge t hat it may be acting in violation of federal law, not its awareness that itis engaging in discrimination.” Kolstad, 527 U.S. at ___, 119 S. Ct. at 2124. The Court a lso held a plaintiff is not required to make a “showing of egregious or outrageous discrimination independent of the employer’s state of mind” in ord er to make a case for punitive damages under § 1981a. Id . However, the Court also recognized the tradition al limits on vicarious liability for punitive damages and held “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where the se decisions are contrary to the employer’s good-faith efforts to comply with Ti tle VII.” Id . at 2129 (quotation marks and citation omitted).

Given the Court’s pronouncements in Kolstad, many intentional discrimination cases may meet the “malice or reckle ss indifference” requirement-27-

of § 1981a. See id. at 2125 (listing limited circumstances where inten tional discrimination would not give rise to punitive dama ges under the standard developed). However, just as apparent is Chief Jus tice Rehnquist’s observation “that principles of agency law place a significant limitation, and in many foreseeable cases a complete bar, on employer liabi lity for punitive damages.” Id

. at 2130 (Rehnquist, C.J., concurring in part and di ssenting in part).

The parties in this case did not have the opportuni ty to brief the implications of Kolstad on appeal, nor are we convinced the record is suff iciently developed for us to review the district court’s gra nt of COBE’s Rule 50 motion using the Kolstad

standard. Therefore, we will vacate the district court’s grant of the motion for judgment as a matter of law as it re lates to punitive damages, and remand for further proceedings consistent with this opinion. As in Kolstad, we expect it may be necessary for the district court t o determine the extent, if any, of COBE’s good faith efforts to comply with Title VII.

C. Attorney Fees Finally, we turn to the issue of attorney fees. Ms . Powell requested attorney fees in the amount of $126,891. In support of this request, Ms. Powell’s counsel, John Olsen, submitted billing records clai ming he and his co-counsel-28-

worked over 613 hours on the case. Mr. Olsen also provided the district court with his own affidavit, and a supporting affidavit from one other attorney, claiming the appropriate fee in this case equaled $ 200 per hour for out-of-court work and $300 per hour for courtroom appearances. The district court found the affidavits “conclusory and insufficient,” and based on its own experience in employment discrimination cases, reduced the reason able rate recoverable for all time spent on the case to $125 per hour. The courtalso examined Mr. Olsen’s billing records and determined they were “suspect,” not prepared contemporaneously, or in a meticulous manner. Citi ng the inadequate nature of the records, “countless instances of inappropriate and unprofessional conduct by plaintiff’s counsel,” time wasted on unnecessary ac tivity, and the fact Ms. Powell prevailed on only one of her five original claims, the district court reduced the total time claimed for the lawsuit by seventy-five percent, to 153 hours, and limited the award of attorney fees to $19,125. Bas ed on the unique facts of this case, we hold the district court did not abuse its discretion in arriving at this award.

1. Hours The first step in calculating the “lodestar” figure used to award attorney fees is to determine the reasonable number of hours counsel spent on the case.-29-

Counsel for the party claiming the fees has the bur den of proving hours to the district court by submitting meticulou s, contemporaneous time records .... A district courtis justified in reducing the reasonable number of hours if the atto rney’s time records are sloppy and imprecise and fail to docume nt adequately how he or she utilized large blocks of time.
Case , 157 F.3d at 1250 (quotation marks and citation om itted). In support of its conclusion Ms. Powell’s counsel submitted inadequat e records, the district court pointed out the records failed to mention at least two court appearances. While we agree with Ms. Powell’s observation that an atto rney should not be punished for failing to bill a client for work, the omission here does tend to show the time records were not contemporaneous, especially consid ering Mr. Olsen was careful enough to include billing requests for his travel t ime to and from the courthouse for his other court appearances, including one entry for travel, parking, and walking which amounted to ninety minutes of billabl e time for a fifteen minute hearing with the magistrate judge. In addition, th e entries submitted are insufficiently detailed to allow the district courtto determine how much time Ms. Powell’s attorneys spent on her unsuccessful claims . The district court further found both parties to this litigation expended much of their time on frivolous issues. Having reviewed the correspondence betweenthe attorneys in the record, much of which contained sophomoric accusations of s ome type of misconduct by the other party, we must agree. As further evidenc e of wasted time in this case, the district court points to Ms. Powell’s filing of a ninety-six-page response to-30-

COBE’s motion for summary judgment, which it struckas prolix. The district court estimated the response should have been no lo nger than fifteen pages. Mindful of the district court’s unique expertise in determining the reasonable amount of time required for a particular case, see id. at 1256, and based on our review of the record before us, we hold the distric t court did not abuse its discretion by reducing the requested hours by seventy-five percent.

2. Hourly Rate While the district court must rely on its own exper ience in determining the reasonable number of hours spent on litigation, the court “should base its hourly rate award on what the evidence shows the market co mmands for ... analogous litigation.” Id . at 1255. However, the court may utilize its own knowledge and experience in establishing the reasonable rate when the evidence presented on the prevailing market rate is inadequate. Id . at 1257. We agree with the district court’s characterization of the affidavits submitte d in support of the requested hourly rates as “conclusory and insufficient.” Nei ther affidavit sufficiently addresses the prevailing market rate for civil righ ts litigation – a requirement we found important in Case

. Id . at 1255-56. Mr. Olsen’s affidavit attests his hourly legal fee rate is $200 per hour out-of-courtand $300 incourt.... The $200/$300 rate ... reflects the mark et rate in the Denver metropolitan area for attorneys of 20 years’ experi ence practicing in the area of litigation.... It is my experience that attorneys-31-

specializing in litigation in the Denver area charg e $200 or more per hour, and said rate is reasonable in this market ar ea. Counsel’s conclusory statements of his normal billi ng practice and market rate are insufficient to adequately show the prevailing mark et rate: To inform and assist the court in the exercise of i ts discretion, the burden is on the fee applicant to produce satisfact ory evidence – in addition to the attorney’s own affidavits – that th e requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson , 465 U.S. 886, 895 n.11 (1984) (quoted in Malloy v. Monahan , 73 F.3d 1012, 1018 (10th Cir. 1996); Beard v. Teska , 31 F.3d 942, 955 (10th Cir. 1994)). In addition, the affidavit speaks to reaso nable rates for “litigation,” but does not address rates for civil rights litigation specifically.

The supporting affidavit of attorney Mary Casey suf fers from a similar deficiency. Ms. Casey does not purport to be an expert on civil rights litigation, nor does her affidavit mention prevailing market rates for civil rights litigation. Instead, Ms. Casey asserts [a]ttorneys of 20-years’ experience routinely charg e $200 per hour for the provision of legal services out of court. The partners at Denver’s larger law firms with fifteen or more year s of experience routinely charge $300 to $450 per hour for the prov ision of legal services. Moreover, litigation specialists, which both Mr. Olsen and Ms. Brown are, routinely charge $300 per hour when they are actually in court. Ms. Casey concludes by stating the rates claimed by Mr. Olsen are “fair” in this-32-

case. These bald, conclusory assertions similarly provide insufficient guidance to the district court on the issue of the prevailing m arket rate for civil rights litigation in the Denver area. Under these circums tances, the district court did not abuse its discretion by rejecting these affidavits, and applying its own knowledge and experience to arrive at the $125 per hour rate.

Case No. 98-1363: COBE’s Cross-Appeal COBE cross-appeals the district court’s denial of i ts motion for new trial pursuant to Fed. R. Civ. P. 59(a) and Fed. R. Civ. P. 60(b)(3). We review the court’s decision to deny the motion for a new trial for an abuse of discretion. See Yapp v. Excel Corp. , 186 F.3d 1222, 1230-31 (10th Cir. 1999); Angelo v. Armstrong World Indus., Inc. , 11 F.3d 957, 962 (10th Cir. 1993). In support of its claim a new trial is warranted, COBE points to repeated acts of alleged attorney misconduct throughout the trial. Rule 60( b)(3) provides discretionary relief from a judgment for “fraud (whether heretofo re denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Relief under this section is “extraordinary and may only b e granted in exceptional circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co. , 909 F.2d 1437, 1440 (10th Cir. 1990). COBE must prove this misconduct by clear and convincing evidence. Yapp , 186 F.3d at 1231. A new trial based on attorney8COBE also claims Ms. Powell’s attorney’s misrepresentations caused the district

court to disallow evidence of a plaintiff’s witness’ bias, and contributed to the district court’s decision to deny a motion to endorse additional witnesses as untimely. We hold these arguments lack merit. The district court was concerned throughout trial with avoiding mini-trials on issues unrelated to the alleged discrimination at issue in this case. The district court’s rulings were designed to avoid such periphery issues and fall well within the court’s discretion. In addition, nothing in the record convinces us a new trial is warranted.

-33- misconduct is only appropriate when the moving party is prejudiced by the misconduct. Ryder v. City of Topeka , 814 F.2d 1412, 1424 (10th Cir. 1987). The district court did not abuse its discretion in find ing COBE was not sufficiently prejudiced in this case to warrant a new trial.

The vast majority of COBE’s complaints go to counse l’s misstatement of the evidence during opening and closing arguments, and counsel testifying during examination of witnesses. 8 However, the district court properly instructed t he jury that the statements of counsel were not eviden ce in the case. In addition, the district court sustained numerous objections to the improper questions, and instructed the jury to ignore this evidence. COBE fails to show counsel’s arguable misconduct overcame these corrective measu res and prejudiced the trial, or preparation for trial, in any way. We do not gi ve short shrift to COBE’s claim. After reviewing the record, we agree with the distr ict court’s characterization of Ms. Powell’s counsel’s conduct during the course of this case as “inappropriate-34-

and unprofessional,” and that he made numerous “inappropriate or inadmissible” statements. However, “[a] new trial is not to be g ranted simply as a punitive measure to punish the misconduct of counsel.” Id . at 1425. We have carefully reviewed all of COBE’s claimed acts of misconduct a nd simply do not find grounds for holding the district court abused its d iscretion in denying its motion for a new trial.

Accordingly, we AFFIRM in part, VACATE in part, and REMAND for the sole purpose of re-examining the punitive damag e issues consistent with this decision and Kolstad v. American Dental Ass’n , 527 U.S. 526, 119 S. Ct. 2118 (1999).

Entered by the Court: WADE BRORBY United States Circuit Judge