IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30476

ELGIE ABNER, ET AL.

Plaintiffs-Appellees

v.

THE KANSAS CITY SOUTHERN RAILROAD CO.

Defendant-Appellant

Appeals from the United States District Court for the

Western District of Louisiana, Shreveport Division

Before HIGGINBOTHAM, WIENER, and GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge. 

I

Eight African American employees of Kansas City Southern Railway

Company (KCSR, or KCS) sued the company in district court for creating an

environment hostile to race. A jury found the company liable and awarded no

compensatory damages, but awarded each plaintiff $125,000 in punitive

damages. The district court entered judgment on the verdict, adding $1 in

nominal damages. KCSR timely appealed. 

II

United States Court of Appeals

Fifth Circuit

F I L E D

January 2, 2008

Charles R. Fulbruge III

Clerk
No. 06-30476

1 La. ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 303 (5th Cir. 2000) (affirming

that “our circuit has adhered to the general rule that a punitive award may stand in the

absence of actual damages where there has been a constitutional violation”). 

2

This is a discrimination case under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. Eight Plaintiffs, employees

of KCSR, alleged that KCSR subjected them to a hostile work environment.

Plaintiffs alleged thatthey encountered repeated instances of racially derogatory

acts in KCSR’s diesel shop in Shreveport, Louisiana, including, inter alia, a wire

hanging near the workshop that allegedly had been bent to form the shape of a

noose; racial graffiti on the workshop walls; racially derogatory comments and

threats, both spoken and written; and transfers to unwanted night and weekend

shifts when employees objected to these comments and to other racially

motivated activity. 

A first trial ended in a mistrial when the jury failed to reach a verdict. At

the second trial, a jury found that Defendant had created a hostile work

environment and failed to show by a preponderance of the evidence that it had

corrected the racially derogatory behavior. It awarded no compensatory

damages but awarded $125,000 in punitive damages to each Plaintiff. The

district court’s judgment incorporated the jury award and additionally awarded

each Plaintiff $1 in nominal damages. The court denied Defendant’s Motion for

Judgment as a Matter of Law and Alternative Motion for New Trial. 

III

We are urged to upset the judgment entered upon the jury verdict of

punitive damages awarded under Title VII and § 1981 because there was no

award of compensatory damages. We will turn to this contention, but there is a

potentially dispositive and hence antecedent question – whether there was a

constitutional violation – in which case a sole award of punitive damages is

permissible.1If there was no constitutional violation the question becomes more
No. 06-30476

2 Lincoln v. Case, 340 F.3d 283, 289-90 (5th Cir. 2003). 

3

Id. at 290. 

4 Fullilove v. Klutznick, 448 U.S. 448, 500 (1980).

3

difficult. If we conclude that the punitive damages need not be accompanied by

an award of compensatory damages, we must determine whether the amount

awarded denies KCSR the due process secured by the Fourteenth Amendment.

“We review the district court’s ruling on a motion for judgment as a

matter of law de novo”2 and a denial of a motion for new trial for an abuse of

discretion.3

IV

The jury was asked, “Do you find by a preponderance of evidence that

[Plaintiff] was subjected to a hostile working environment as defined in

instruction number 7?” The jury answered “yes” for each Plaintiff. The jury

answered “no” to the question, “Do you find by a preponderance of evidence that

KCS exercised reasonable care to prevent and promptly correct any racially

harassing behavior?” The court instructed the jury, in relevant part: 

It is unlawful for an employer to discriminate against an employee

because ofthe employee’s race. Racial discrimination includes harassment

based upon race. In order for KCS to be found liable, the conduct

complained of must have been sufficiently severe or pervasive to alter the

terms or conditions of that plaintiff’s employment and to have created a

hostile or abusive work environment. . . . A hostile work environment

claim may consist of a series of separate acts that collectively constitute

one unlawful employment practice.

The court did not instruct the jury to address whether a constitutional

violation occurred.

The Supreme Court has held that “Congress has been given the unique

constitutional power of legislating to enforce the provisions of the Thirteenth,

Fourteenth, and Fifteenth Amendments”4 and that “Congress’ enactment of 42
No. 06-30476

5

Id. (citations omitted). 

6

Id. at 500 n.2; see also Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431,

439 & n.11 (1973) (“The operative language of both § 1981 and § 1982 is traceable to the Act

of April 9, 1866, c. 31, § 1, 14 Stat. 27 [which ‘rested only on the Thirteenth Amendment’]. . .

. The present codification of § 1981 is derived from Revised Statutes § 1977 (1874), which

codified the Act of May 31, 1870, § 16, 16 Stat. 144.”).

7 Williams v. City of New Orleans, 729 F.2d 1554, 1577 (5th Cir. 1984). 

8 See, e.g., Grigsby v. North Mississippi Med. Ctr., Inc., 586 F.2d 457, 459 (5th Cir. 1978)

(plaintiff brought claims under §§ 1981, 1983, Title VII, and the Thirteenth Amendment).

9 Walker v. Anderson Elec. Connectors, 944 F.2d 841, 845 (11th Cir. 1991). 

10 Johnson v. Transp. Agency, 480 U.S. 616, 664 (1987); but see id. at 664-65 (finding

that“Title VI embodies constitutional restraints on discrimination” and that“[t]here is no good

reason to think that Title VII, in this regard, is any different from Title VI”).

4

U.S.C. § 1981 pursuant to its powers under the Thirteenth Amendment . . .

provides to all persons a federal remedy for racial discrimination in private

employment.”5 This power arises because “Section 2 of the Thirteenth

Amendment, which abolished slavery, provides that ‘Congress shall have power

to enforce this article by appropriate legislation.’”6 Furthermore, we have found

that Title VII legislation is “supportable . . . under the enabling clause of the

thirteenth amendment to the same extent that, as the first Justice Harlan said,

the Civil Rights Act of 1866 is supported by the thirteenth amendment.”7

A constitutional grant of power to Congress in enacting a statute does not

require that a statute directly incorporate a constitutional principle. We have

distinguished between constitutional and statutory claims in cases where

plaintiffs bring their claims under § 1981 and the Thirteenth Amendment.8

Similarly, the Eleventh Circuit has specifically defined some Title VII claims as

involving “a violation of purely statutory rights,”9 and the Supreme Court has

found that a plaintiff bringing a Title VII claim without an accompanying claim

under the Constitution “does not advance a constitutional claim.”10 Although §

1981 and Title VII more generally arise from the powers granted to Congress by
No. 06-30476

11 211 F.3d at 303.

12 Id. at 304. 

13 In LeBlanc we briefly discussed punitive damages under § 1981a but did not discuss

the cap. Id. at 303. 

14 Indeed, in LeBlanc we recognized that Congress had removed the $1,000 cap on

punitive damages under the FHA because Congress had found that the limitation “‘served as

a major impediment to imposing an effective deterrent on violators and a disincentive for

private persons to bring suits under existing law.’” Id. at 301 (quoting H.R. Rep. No. 711

(1988)).

15 894 F.2d 142 (5th Cir. 1990).

5

theThirteenth Amendment and embody its principles,the jury finding pursuant

to these statutes and its instructions do not sum to a finding of a constitutional

wrong. So we must decide whether the punitive damages award coupled with

the district judge’s grant of $1 in nominal damages can stand alone. 

LeBlanc observed that “[a]lthough the goal of a federal common law of

damages is to produce uniform results, so far the federal judiciary has not

succeeded in this endeavor.”11 We further recognized our own mixed case law on

the issue but attempted to add clarity by concluding that generally, we only

allow independent awards of punitive damages upon a finding of a constitutional

violation by a defendant.12 Here, however, we recognize another class of cases

notfully addressed in LeBlanc13 – those involving statutes with caps on punitive

damages.14

We have upheld jury awards of punitive damages without a finding of a

constitutional violation or accompanying compensatory damages, while skirting

the underlying constitutional question of whether such awards are permissible.

In Lewis v. Parish of Terrebonne,

15 we affirmed a jury verdict for “punitive

damages of $6,279 (funeral costs)” without compensatory damages but remanded

the case for the district court to make a finding regarding compensatory
No. 06-30476

16 Id. at 148-49. We found that “[w]e need not determine whether any legal impediment

exists for an award of punitive damages where no award was made for compensatory damage

because, as we shall discuss in the following paragraphs, on remand a compensatory damage

award will be considered.” Id. at 149. 

17 54 F.3d 248 (5th Cir. 1995).

18 Id. at 251 (“Denk further challenges the award of punitive damages [without

compensatory damages]. We find ample support in the record for such an award. We do not

reach the procedural and legal objections because of our decision to order a partial new trial.”)

(reversed on rehearing on other grounds, Dunn v. Denk, 79 F.3d 401 (1996)).

19 480 F.3d 724 (5th Cir. 2007) (hereafter “E.I. Du Pont”).

20 Id. at 733-34.

21 Id. at 734. 

22 Jimenez v. Paw-Paw’s Camper City, Inc., 2002 U.S. Dist. LEXIS 3248 at 40 (E.D. La.

2002) (quoting LeBlanc, 211 F.3d at 301). 

23 435 U.S. 247 (1978). 

6

damages.16 Similarly, in Dunn v. Denk,17 an excessive force case, we permitted

a jury award of punitive damages accompanied by a district court’s award of $1

in nominal damages but also granted a partial new trial, wherein compensatory

damages would potentially be awarded.18 In E.E.O.C. v. E.I. Du Pont de

Nemours & Co.,

19 we addressed the “first impression” issue of whether punitive

damages awarded without compensatory damages under 42 U.S.C. § 1981a were

permissible and concluded that they were.20 In that case, however, we affirmed

a jury award of backpay damages in addition to punitive damages.21 For Title

VII cases not involving backpay, frontpay, or compensatory damages, our district

courts have upheld lone punitive damages awards, accompanied by courtassigned nominal damages of $1. These courts have relied on our LeBlanc case’s

finding that“‘there is no established federal common law rule that precludes the

award of punitive damages in the absence of an award of compensatory damages

. . . ’”

22 and on the holding in Carey v. Piphus23 that under § 1983, even absent
No. 06-30476

24 Id. at 267. 

25 See, e.g., E.I. Du Pont, 480 F.3d at 733 n.6 (“Although we need not and do not decide

or endorse their position, two courts of appeals have even upheld punitive damage awards in

the absence of either compensatory damages or backpay.” (citing Cush-Crawford v. Adchem

Corp., 271 F.3d 352, 359 (2d Cir. 2001))); Timm v. Progressive Steel Treating, Inc., 137 F.3d

1008, 1010 (7th Cir. 1998).

26 Cush-Crawford, 271 F.3d at 359. 

27 Timm, 137 F.3d at 1010 (quotations and citations omitted). 

28 Carey, 435 U.S. at 266 n.24 (citing Thompson v. Burke, 556 F.2d 231, 240 (3d Cir.

1977); United States ex rel. Tyrrell v. Speaker, 535 F.2d 823, 829-30 (3d Cir. 1976); Magnett

v. Pelletier, 488 F.2d 33, 35 (1st Cir. 1973); Basista v. Weir, 340 F.2d 74 (3d Cir. 1965)). 

29 211 F.3d at 301.

7

a showing of actual injury a plaintiff may receive nominal damages, awarded by

the judge, “not to exceed one dollar.”24

Other circuits have explicitly upheld punitive damages awards without an

accompanying award of compensatory damages or backpay in Title VII cases.25

In so doing, these circuits have found that “[i]n Title VII cases . . . the statutory

maxima capping punitive damage awards strongly undermine the concerns that

underlie the reluctance to award punitive damages without proof of actual

harm.”26 Additionally, our sister circuits have relied on a textual reading of Title

VII, finding that “nothing in the plain language of § 1981a conditions an award

of punitive damages on an underlying award of compensatory damages. . . .

Extra-statutory requirements for recovery should not be invented.”27

Furthermore, the First and Third Circuits, similar to the Supreme Court’s

decision in Carey, have “approved the award of nominal damages under § 1983

where deprivations of constitutional rights are not shown to have caused actual

injury.”28 Although in LeBlanc we have, unlike other circuits, expressly

disallowed an award of punitive damages without accompanying compensatory

damages,29 we have since emphasized that our determination in LeBlanc was
No. 06-30476

30 See, e.g., E.I. Du Pont, 480 F.3d at 734 (“Although LeBlanc surveyed the landscape

concerning punitive damages under various statutes and around the circuits, the case

ultimately ruled on their availability (a) under the Fair Housing Act and (b) in a case where

no compensatory damages of any sort were awarded.”).

31 Id. 

32 See Kerr-Selgas v. American Airlines, 69 F.3d 1205, 1215 (1st Cir. 1995) (holding that

a finding of liability in a § 1981 case does not indicate that the plaintiff is “‘automatically

entitled’”to a nominal damages award in addition to punitive damages and vacating a punitive

damages award in the absence of compensatory damages or a “timely request for nominal

damages”).

33 LeBlanc, 211 F.3d at 303. 

8

limited to the context of damages awarded under the Fair Housing Act;30 we

have also emphasized that our holding in LeBlanc does not cover “all civil rights

cases in this circuit.”31 At least one other circuit, however, has denied jury

awards of punitive damages without accompanying compensatory or nominal

damages under Title VII and § 1981.32

We agree with the conclusion of several of our sister circuits that a

punitive damages award under Title VII and § 1981 need not be accompanied by

compensatory damages. We base our holding on the language of the statute, its

provision of a cap, and the purpose of punitive damages under Title VII. 

Unlike the Fair Housing Act, which as a matter ofthe federal common law

we have read to require that actual damages accompany an award of punitive

damages,33 Title VII specifically provides for punitive damages and for a cap on

these damages. 42 U.S.C. § 1981a(a) states, “In an action brought by a

complaining party under section 706 or 717 of the Civil Rights Act of 1964 . . .

against a respondent who engaged in unlawful intentional discrimination . . .

prohibited under section 703, 704, or 717 of the Act . . . the complaining party

may recover compensatory and punitive damages as allowed in subsection (b),

in addition to any relief authorized by section 706(g) of the Civil Rights Act of

1964 . . . from the respondent,” while § 1981a(b) provides
No. 06-30476

34 42 U.S.C. § 1981a(b)(1). 

35 E.I. Du Pont, 480 F.3d at 733. 

9

A complaining party may recover punitive damages under this section

against a respondent (other than a government, government agency or

political subdivision) if the complaining party demonstrates that the

respondent engaged in a discriminatory practice or discriminatory

practices with malice or with reckless indifference to the federally

protected rights of an aggrieved individual . . . The sum of the amount of

compensatory damages awarded under this section for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss of

enjoyment of life, and other nonpecuniary losses, and the amount of

punitive damages awarded under this section, shall not exceed, for each

complaining party [$50,000 - $300,000, depending on the number of

employees that work for respondent].

That Congress anticipated the award of punitive damages under Title VII, as it

clearly did, does not alone answer the question of how much of the federal

common law of punitive damages came into the statutory analysis – specifically,

whether Congress anticipated whether an award must be accompanied by actual

damages. 

Title VII’s plain language points to Congressional acceptance of

independent awards of punitive damages in Title VII actions. It contains a

clause (“Determination of punitive damages”) providing, “A complaining party

may recover punitive damages under this section against a respondent” if that

party proves certain conditions – namely discrimination with “malice or with

reckless indifference” to federal rights.34 “[N]othing in the text of the statute

limits an award of punitive damages to cases in which the plaintiff also receives

compensatory damages.”35 42 U.S.C. § 1981a(c) states, “If a complaining party

seeks compensatory or punitive damages under this section–(1) any party may
No. 06-30476

36 Emphasis added; but see 42 USCS § 1981a (b)(3) (stating that“the sum ofthe amount

of compensatory damages . . . and the amount of punitive damages” shall not exceed a given

amount (emphasis added)). It does not follow, however, that Congress determined that

compensatory damages could not be zero. 

37 102d Congress, 1st Session (1991).

38 Id. 

39 136 CONG. REC. S 9809, S 9810 (July 17, 1990). 

10

demand a trial by jury; and (2) the court shall not inform the jury of the

limitations described in subsection (b)(3).”36

Legislative history provides additional guidance but does not clarify

congressional purpose regarding the necessity of compensatory damages

attending punitive damages. It shows that Congress intended to increase the

remedies available to complainants in Title VII cases in its effort to prevent

discrimination in the workplace. Senate bill 1745,37enacted as the Civil Rights

Act of 1991, was enacted, inter alia, to “amend the Civil Rights Act of 1964 to

strengthen and improve Federal civil rights laws [and] to provide for damages

in cases of intentional employment discrimination . . . .” Congress found that

“additional remedies under Federal law are needed to deter unlawful

harassment and intentional discrimination in the workplace” and that a recent

Supreme Court decision had weakened the strength of the 1964 Act, thus

requiring legislation “to provide additional protections against unlawful

discrimination in employment.”38 In Senate floor debate over the bill, Senator

Kennedy argued, 

The act provides meaningful remedies, granting victims of intentional

sex and religious discrimination the right to recover compensatory

damages, and, in particularly [sic], flagrant cases, punitive damages as

well. This is the same remedy already available under section 1981 of

the Civil Rights Act of 1866 to victims of intentional racial

discrimination.39
No. 06-30476

40 Other legislative history offers little further guidance. See 137 CONG.REC. E3939-01,

E-3939 (Nov. 7, 1991) (statement of Rep. Doolittle) (“Employers who are found guilty can

expect to pay for pain and suffering and punitive as well as pecuniary damages of up to

$300,000, depending upon the number of workers employed.”); 137 CONG. REC. S 15472, S

15473 (Oct. 30, 1991) (statement of Sen. Dole) (“It sets an important precedent in tort reform

by setting caps on those damages, including pecuniary losses that have not yet occurred as of

the time the charge is filed . . . . Punitive damages are also capped, and are to be awarded only

in extraordinarily egregious cases.”); 137 CONG. REC. S 15348, S 15383 (Oct. 29, 1991)

(statement of Sen. Jeffords) (“As recent days have shown, no issue has become more politicized

than the inclusion of compensatory and punitive damages in the civil rights bill. When first

proposed in the 1990 bill, the creation oftort-like damages under title VII was viewed as a long

shot at best, and at worst as trade bait. Title VII has always provided only make-whole relief

such as lost wages and benefits or reinstatement to the job. The prospect of expanding beyond

that level of damages to include such things as pain, suffering, or humiliation was not viewed

by many as being a realistic possibility. However . . . such damages are now a central part of

every civil rights proposal . . . . In one form or another, this is an idea whose time has come.

In fact, the only remaining questions appear to be whether such damages will be unlimited as

to amount or capped and, to a lesser extent, whether they will be awarded by judges or

juries.”).

11

Perhaps by the “as well” language Senator Kennedy anticipated that punitive

damages were only to be awarded in addition to compensatory damages.

Perhaps he contemplated that punitive damages are available as an alternative

to compensatory damages in the most egregious of cases. But “perhaps” offers

little assistance when we must choose one.40

In sum, the text of Title VII, as amended in 1991, and its history

demonstrate that Congress did not require actual damages to accompany

punitive damages in Title VII actions. But the text does not show whether

Congress anticipated that punitive damages would be awarded independently.

Unable to glean further guidance on this issue from the statutory language, we

look to the common law. 

As we have explained, disallowing independent awards of punitive

damages responds to concern thatjury consideration of punitive damages ought

not to be unbounded nor lack of measured proportion to the injury. Unbounded
No. 06-30476

41 See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003)

(quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42 (O’Connor, J., dissenting)) (“Punitive

damages are a powerful weapon. Imposed wisely and with restraint, they have the potential

to advance legitimate state interests. Imposed indiscriminately, however, they have a

devastating potential for harm.”).

42 See, e.g., Missouri Pac. R. Co. v. Humes, 115 U.S. 512, 521 (1885) (“The discretion of

the jury in such cases [involving additional damages] is not controlled by any very definite

rules; yet the wisdom of allowing such additional damages to be given is attested by the long

continuance of the practice.”); LeBlanc, 211 F.3d at 301 (quoting People Helpers Found., Inc.

v. Richmond, 12 F.3d 1321, 1326 (4th Cir. 1993)) (“‘there is no established federal common law

rule that precludes the award of punitive damages in the absence of an award of compensatory

damages’”); but see id. at 301, 303 (finding that “we must apply the federal common law” to

determine whether compensatory damages must accompany a punitive damages award under

the Fair Housing Act, and concluding that they must). 

43 Haslip, 499 U.S. at 18. 

44 Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1095 (5th Cir. 1991). 

12

awards ill serve the statute’s deterrent purpose.41 Yet, a measure of discretion

is essential to this tailoring. Indeed, the federal common law recognizes the

importance of jury discretion to award punitive damages.42 The tension is that

“jury discretion – or unlimited judicial discretion for that matter – in the fixing

of punitive damages may invite extreme results that jar one’s constitutional

sensibilities.”43 With similar concern, when looking to state tort law we have

found, for example,

Texas courts will overturn an award of damages that is so excessive as

to be manifestly unjust. To prevent an excessive award of punitive

damages, Texas courts require punitive damages to be reasonably

proportioned to actual damages. This proportionality requirement is

simply a toolto help Texas courts determine when an exemplary damage

award is the product of the jury’s passion rather than its reason.44

Here the statute offers assistance. Congress has set a cap on the sum of

compensatory and punitive damages. That cap cabins discretion in the amount

of the award in the most direct manner possible – it caps the award. The claims

under Title VII and § 1981 here are virtually the same. While the verdict forms

did not disclose which statute formed the basis of the jury’s finding of liability,
No. 06-30476

45 42 U.S.C.S. § 1981a(b). 

46 Kolstad v. ADA, 527 U.S. 526, 541-42 (1999) (quoting Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742 (1998)) (“‘in express terms, Congress has directed federal courts to Title

VII based on agency principles’ . . . . Observing the limits on liability that these principles

impose is especially important when interpreting the 1991 Act”). 

47 An Act to Amend the Civil Rights Act of 1964, S. 1745, 102d Cong. (1991). 

13

the district court instructed the jury regarding punitive damages pursuant to the

language of Title VII. The instruction allowed the jury to “award punitive

damages, if that plaintiff has proved that KCS acted with malice or willfulness

or with callous and reckless indifference to the rights of the plaintiffs to be free

from discrimination based upon race.” This closely tracks § 1981a’s requirement

that the complaining party “demonstrate[] that the respondent engaged in a

discriminatory practice or discriminatory practices with malice or with reckless

indifference to the federally protected rights of an aggrieved individual.”45 The

court also properly instructed the jury regarding “agency principles” required for

a finding of vicarious punitive damages under Title VII,46 stating, “KSC is only

liable for punitive damages in this case ifthe acts of harassment were committed

by a supervisory employee with immediate, or successively higher authority over

the plaintiff, and that conduct was contrary to KCS’s good faith effort to comply

with the law.”

The grounding of punitive damages between the high threshold of

culpability for an award and a cap of the amount in any event upholds

Congress’s purpose in enacting the 1991 amendments to Title VII – to provide

“additional remedies,” in the form of damages, to prevent discrimination in the

workplace while mitigating the risk of disproportionate awards.47Injury that

results from discrimination under Title VII is often difficult to quantify in

physical terms; preventing juries from awarding punitive damages when an

employer engaged in reprehensible discrimination without inflicting easily

quantifiable physical and monetary harm would quell the deterrence that
No. 06-30476

48 Cush-Crawford, 271 F.3d at 359.

49 517 U.S. 559 (1996). 

50 See Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424, 436 (2001) (“courts of

appeals should apply a de novo standard of review when passing on district courts’

determinations of the constitutionality of punitive damages awards”); see also id. at 435

(finding that “courts of appeals must review the proportionality determination ‘de novo’ . . . .

‘The factual findings made by the district courts in conducting the excessiveness inquiry, of

course, must be accepted unless clearly erroneous . . . . But the question whether a fine is

constitutionally excessive calls for the application of a constitutional standard to the facts of

a particular case, and in this context de novo review of that question is appropriate’” (quoting

United States v. Bajakajian, 524 U.S. 321, 336-37 n.10 (1998))).

14

Congress intended in the most egregious discrimination cases under Title VII.

Indeed, 

there is some unseemliness for a defendant who engages in malicious or

reckless violations of legal duty to escape either the punitive or deterrent

goal of punitive damages merely because either good fortune or a

plaintiff's unusual strength or resilience protected the plaintiff from

suffering harm.48

KCSR argues that the jury’s award of punitive damages violates due

process and fails to withstand the Supreme Court’s test in BMW of North

America v. Gore49for determining the constitutionality of punitive damages

awards. KCSR, in its Renewed Motion for Judgment as a Matter of Law and

Alternative Motion for a New Trial, similarly argued that “the punitive damage

award is unreasonable, unconstitutional, and grossly excessive . . . .” Because

the district court denied this motion, we presume that in so doing, it implicitly

found the award to be constitutional, thus requiring us to review de novo the

court’s decision.50

As we see it, the combination of the statutory cap and high threshold of

culpability for any award confines the amount of the award to a level tolerated

by due process. Given that Congress has effectively set the tolerable proportion,

the three-factor Gore analysis is relevant only if the statutory cap itself offends

due process. It does not and, as we have found in punitive damages cases with
No. 06-30476

51 Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003) (finding that “any

punitive damages-to-compensatory damages “ratio analysis” cannot be applied effectively in

cases where only nominal damages have been awarded”).

52 All of the testimony in this section was elicited with questions that limited Plaintiffs

to events that occurred from 1995 and onward. Although Plaintiffs did not indicate the exact

dates of some of these events, the testimony relates to events that occurred within the

permitted ten-year window. Attorney Morgan told Abner, for example, “Now I want to talk

for a moment about the existence of racial slurs and derogatory slurs in the yard there. And

the time frame that we’re under instruction to follow is ‘95 and after that. So we don’t go

before that. From ‘95 up to his time, let’s take it up to 2003, describe to the Court and the

Jury, what type of racial slurs or epithets did you see written on the walls in that place?”

53 This occurred “through ‘96 and forward.”

15

accompanying nominal damages, a ratio-based inquiry becomes irrelevant.51

Accepting this analysis makes the sufficiency of evidence to support the

statutory threshold a determinant of constitutional validity. We turn to that

task. 

Here, Plaintiffs, supervisors, and other witnesses testified to incidents of

racially discriminatory behavior that occurred within the ten-year time frame

of evidence permitted by the court.52 Elgie Abner testified about picking up a

toolbox on which someone had written, “You lazy ni _ _ _ _ s” and that, when he

presented the box to a supervisor, the supervisor laughed. He also testified that

a cement pillar in the workshop contained a large marking of “KKK” for a

number of years, as did the fueltanks and roofs of many locomotives in the shop,

and that in May of 2005, “Abner is a lazy racist” was written on the walls in the

bathroom of the workshop.” “Ni _ _ _r go home” and “Lazy ni_ _ _ _s” were also

written on the walls. Harry Brooks testified that foreman Gary Moore would,

on the night shift, wait until a large thunderstorm came and then, laughing,

send the workers out in the storm.53 He also testified that an electrical wire in

the form of a noose was hanging outside of the workshop, that there was graffiti

in the workshop bathrooms that said, “Ni _ _ _ _ s stink” and “Ni _ _ _ _ s go

home,” and that supervisors “knew” of the graffiti and the noose. Napoleon
No. 06-30476

54 He testified as to these incidents after Attorney Moore stated, “So Mr. Player, we are

going to move forward to ‘95 . . . .”

55 Lincoln v. Case, 340 F.3d 283, 294 (5th Cir. 2003). 

56 E.I. Du Pont, 480 F.3d at 728, 734.

16

Player testified that a supervisor called him “boy” in 1995 and that Gary Moore

referred to him as a “rice-eating Ethiopian” and said that he was going to run

two “black a _ _ es off.”54 In 1995, Moore also allegedly referred to Napoleon

Player’s shift as the “c_ _n shift.” Napoleon Player also testified that he did not

recall receiving any racial harassment training prior to retiring in June of 2003.

Mr. Odom similarly testified that “the first [racial harassment policy] I got was

. . . if I’m not mistaken, August 2003.” Donald Harville testified that a company

surgeon told him, when he arrived late for work in November of 2001, “That’s it

for you and your ni_ _ _ _ buddies.” This and other evidence supports the jury’s

conclusion that KCSR supervisors caused and/or failed to properly respond to

numerous instances of racially derogatory behavior in the workplace.

Looking to our awards of punitive damages in similar cases involving

discrimination is also instructive in this case. Where punitive damages of

$100,000 were awarded in a racial discrimination case under the Fair Housing

Act, we reduced the damages to the “statutory maximum penalty” allowed under

the Fair Housing Act for a first time offense – $55,00055 – looking to a quantity

most closely analogous to a “cap” under the FHA. In an American with

Disabilities Act case, where a jury awarded equitable wage loss but no

compensatory damages and awarded $1 million in punitive damages, which the

district judge reduced to $300,000 pursuant to the Title VII cap, we upheld the

$300,000 award.56 We similarly refuse to strike down the jury award here, as it

fell well below the cap, and there is no indication that it resulted from jury bias

or insufficient evidence of malice. 
No. 06-30476

57 Fyfe v. Curlee, 902 F.2d 401, 406 (5th Cir. 1990).

58 Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205, 1215 (1st Cir. 1995).

59 536 U.S. 101 (2002). 

60 266 F.3d 343, 353 (5th Cir. 2001).

17

With respectto the district court’s award of nominal damages of $1 to each

Plaintiff, we find such formalities to be unnecessary. We have required a district

court to grant a plaintiff $1 in nominal damages when her constitutional rights

were violated.57 Other circuits, however, have found that a jury verdict of

liability under Title VII did not require a court to award a nominal damages

award in the absence of a request that the jury determine nominal damages or

a request for additur by the judge.58 Because the award of actual or punitive

damages is capped under Title VII, we do not require a ceremonial anchor of

nominal damages to tie to a punitive damages award. 

We therefore UPHOLD the district court’s judgment granting $125,000 in

punitive damages to each Plaintiff.

V

Defendant asserts that the district court erred in adopting a “ten-year

rule,” which permitted the Plaintiffs to testify about incidents contributing to a

hostile workplace as far back as ten years. Defendant argues that Plaintiffs

failed to establish evidence of a continuing violation, and that the court’s

allowance of evidence that reached beyond the statutory period violated the rules

in National Railroad Passenger Corp. v. Morgan59 and Celestine v. Petroleos de

Venezuella SA.

60 KCSR further asserts that the district court allowed Plaintiffs

to testify outside of the permitted ten-year window. Neither the court’s

imposition of the ten-year period, nor the court’s admission of Plaintiffs’

testimony outside of the ten-year period, caused prejudicial error. 
No. 06-30476

61 Morgan, 536 U.S. at 115. 

62 Id. at 117 (emphasis added). 

63 Id. at 115.

64 Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). 

65 Id. at 113.

66 Zipes v. TWA, 455 U.S. 385, 393 (1982). 

18

A hostile work environment claim necessarily involves “the cumulative

[e]ffect of individual acts,”61 and evidence presented in support of these claims

may fall outside of the statutory period. For example, the Supreme Court has

found, for hostile work environment claims under 42 U.S.C. § 2000e in the

context of timely filing,

It does not matter, for purposes of the statute [Title VII], that some of

the component acts of the hostile work environment fall outside the

statutory time period. Provided that an act contributing to the claim

occurs within the filing period, the entire time period of the hostile

environment may be considered by a court for the purposes of

determining liability.62

Moreover, the Supreme Court has emphasized that hostile work

environment claims “are different in kind from discrete acts. Their very nature

involves repeated conduct.”63 “The ‘unlawful employment practice’ therefore

cannot be said to occur on any particular day. It occurs over a series of days or

perhaps years . . . .”64 Although in Morgan the Court recognized that its findings

did not allow admission of discrete time-barred evidence,65 the Court has also

recognized that courts may waive or equitably toll a statute of limitations, as

well as other requirements under Title VII.66

The district court allowed Plaintiffs to testify within an approximate tenyear window of conduct, finding that Plaintiffs could reach beyond the

limitations period to 1995 for “[t]hose acts contributing to the alleged hostile
No. 06-30476

67 This finding did not violate Celestine or Morgan, nor did it fail to apply the principles

of Celestine and Morgan to determine whether the continuing violation doctrine should apply.

Under Celestine, “[T]he burden is upon each of the appellants to offer evidence that they

suffered race-base[d] harassment both prior [to] and during the filing period,thatthe incidents

of harassment were related, and that the harassment was pursuant to an organized scheme.”

266 F.3d at 352-53 (citing Webb v. Cardiothoracic Surgery Assocs., 139 F.3d 532, 537 (5th Cir.

1998)). In the memorandum supporting their motion in limine for admission of evidence

beyond the statute of limitations period, Plaintiffs alleged “evidence of several incidents within

the limitations period since April 29, 1999 including an oil house noose in 2002, a running

repair noose in 2003, and the promotion of a convicted klansman to Assistant Superintendent

of Locomotives who had used derogatory language according to deposed witnesses.” At trial,

each Plaintiff individually testified to having seen what looked like a noose in the workplace.

Plaintiffs further alleged in the memorandum that “many acts involve the same supervisor,

the same location in the mechanical department, and flow from defendant’s failure to have in

place written anti-discrimination policies and lack of training for workers and supervisors.”

In granting Plaintiffs’ motion in limine, the court also relied on Morgan’s holding that,

“[p]rovided that an act contributing to the claim occurs within the filing period, the entire time

period of the hostile work environment may be considered by a court for the purposes of

determining liability.” 536 U.S. at 117. 

68 Defendant’s Brief at 43. 

69 The court stated, for example, in response to an objection by Defendant, “I’m going

to sustain the objection. It’s way, way out of date. Way beyond the limitations given to us in

Title VII and in 1981 cases . . . .”

19

work environment.”67 Defendant argues that Plaintiffs failed to follow this

limitation because they “did not identify with any specificity the time period in

which they allegedly witnessed . . . graffiti” and “testified similarly with regard

to having heard racially derogatory language in their workplace and having seen

what they believed to be nooses in and around the Diesel Shop . . . Plaintiffs sat

back and relied on their general testimony.”68

The court sustained Defendant’s objections when Plaintiffs attempted to

present testimony outside of the designated time frame.69 Furthermore, the

court’s allowance of testimony regarding events that occurred at an unspecified

time within the ten-year period, and some events that occurred during a specific

year within that period, by no means placed the events outside of that time

frame. Nor was any lack of individualized assessment as to each event’s relation

to the hostile work environment clearly erroneous. Much of the evidence
No. 06-30476

70 Defendant’s Brief at 8-12 (“Abner testified that there was a coaxial piece of wire that

he believed was in the shape of a noose . . . between the years of 1995 and 2002.”; “Brooks saw

and was aware of what he believed to be a noose hanging from the oil house . . . since at least

1995.”; “Martin testified that, in 2000, he saw what he believed to be a noose hanging from the

oil house . . . .”; “Odom testified that he saw what he believed to be a noose made of wire

hanging down from the oil house near the Diesel Shop in 2002.”; “Walker testified that he was

given an assignment sheet from one of his supervisors in 1996 that had what he believed to

be a noose drawn on it” (emphasis added)); see also id. at 46-48 (conceding that Plaintiffs

testified about noose incidents occurring at specific times within the ten-year window). The

testimony on nooses that does not specify a time period within the allowed ten-year frame, or

suggests that the event testified to may have occurred outside of the ten-year frame, appears

to have been that of L. Player (“L. Player testified that he saw what he believed to be a noose

hanging from the oil house . . . in the middle 1980’s.”) and N. Player (“N. Player testified that

he saw what he believed to be noose at the oil house for years.”). Id. at 13-14. 

71 Id. at 8-9 (“Abner testified that, in 1996, he discovered an impact wrench box in the

tool room that read “you lazy n-----s.”; “Abner testified that, sometime between 1995 and 2003,

he saw the words ‘----- go home,’ ‘lazy n-----s,’ and ‘Abner is a lazy racist’ on a wall in the Diesel

Shop.”; “Abner testified that supervisor Dan Agler said: ‘well, they tell me if you-all have the

same tools, they’ll end up in the pawn shop.’”; “Abner testified that, in May 2005, the phrase

‘Abner is a lazy racist’ was written on a wall in the Diesel Shop bathroom.”; “Abner testified

that, in November 2005, mechanical supervisor Charles Dotson said that foreman Dennis

Blankenshipstated thatthe reason he ‘didn’tlike blacks’ was because ‘the blackswere jumping

on policemen, shooting policemen’ in 1970 or 1971.”; “Between 1993 and 2003, N. Player

testified that he heard of the N-word being used one time at KCSR.”; N. Player testified that,

in 1995, then-Superintendent Fred Haywood called him ‘boy.’”; N. Player testified that, in

2001, Moore said he was going to run two people off . . . ‘them two lack a—s right there.’” )

(emphasis added)); see also id. at 46-48 (conceding that Plaintiffs testified about some graffiti

and derogatory language incidents that occurred at specific times within the ten-yearwindow).

Other Plaintiffs similarly testified to seeing graffiti and hearing derogatory remarks and,

although they did not specify the time period, they did not suggest that the incidents occurred

outside of the ten-year window. 

20

presented from within the ten-year period related directly to the hostile work

environment. 

Defendant conceded in its brief that Plaintiffs testified as to seeing wires

that appeared to be in the shape of nooses during specific years and time periods

falling within the ten-year window,70 as well as graffiti and racially derogatory

language that occurred within the window.71 Even excluding Plaintiffs’

testimony that does not relate to specific time periods or that referred to events

prior to 1995, Plaintiffs and their witnesses presented sufficient evidence of a

hostile work environment that occurred specifically within the time frame
No. 06-30476

72 See supra notes 70-71. 

73 Cozzo v. Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 292 (5th Cir.

2002). 

74 N. Player testified that Moore made monkey sounds and gestures, “as if he was

indicating I was some kind of gorilla or some type of monkey,” and on cross indicated that the

monkey sounds occurred “in the 2000s.” L.J. Player testified that Mr. Blankenship, a foreman

told him and other employees “John Foster going to run some of y’all off, if you have a accident

or a derail.” Elgie Abner testified that a superintendent, Dan Alger stated to him, “Well, they

tell me if I let you-all have the same tools, they’ll end up in the pawn shop.” Harry Brooks,

when asked, “[I]s there any possibility that these supervisors were not aware of these nooses

and graffiti in the work place?” responded, “They knew.” N. Player testified that the graffiti

remained on the walls for “[m]onths, some of them years.” 

21

designated by the district court, and much of this fell within the limitations

period.72

VI

Defendant argues that the district court improperly admitted hearsay

testimony and missapplied Rule 801(D)(2)(D). We review a district court’s

evidentiary rulings for an abuse of discretion, and if we find that the court

admitted hearsay evidence in error, we ask whether the error was harmless.73

Even presuming that the district court’s admission of hearsay statements was

in error, this error was harmless. Defendant asserts that Plaintiffs presented

a “substantial amount of hearsay testimony regarding statements allegedly

made by non-management employees, simply because those statements

concerned the employment relationship or were made in the workplace.”

However, the record is also replete with testimony about behavior and

statements directed atthe testifying Plaintiffs by supervising KCSR employees,

as well as these employees’ failure to redress the racially derogatory behavior of

which they were aware.74

VII

Defendant alleges several other evidentiary errors, arguing thatthe court

improperly allowed in evidence of Moore’s KKK-related conviction from 1992 and
No. 06-30476

75 The court determined this despite its recognition that, as Defendant indicates, it

based its finding that the conviction was “extremely probative” in the first trial on a finding

that Moore had harassed employees and that no evidence from the prior trial showed

harassment. 

22

that the court abused its discretion in failing to correct or cure improper

statements by Plaintiffs’ counsel in opening and closing statements. The court

determined, after carefully considering both parties’ arguments on the issue and

the evidence in the case, that the probative value of the conviction evidence

outweighed its prejudicial value.75 The court also made it clear that it would not

tolerate “exaggerated discussion, questions and answers, over and over and over

about the conviction of Mr. Moore.” For the opening and closing arguments,

Defendant points to Plaintiffs’ mis-representation of Supervisor Talley’s

testimony in closing argument (painting it as testimony from the “transcript,”

while it was in fact testimony from the first trial) and their reference to the Bill

of Information from Moore’s felony conviction in opening argument, which the

court had specifically disallowed. Under abuse of discretion review, we find that

none of these actions, if they were in error, resulted in prejudice to Defendant.

The jury heard both Talley and Moore testify during the second trial. The jury

learned from Moore’s testimony that he had paid off all fines related to his

conviction and that he was pardoned for his conviction in 1995, although he was

not required to “do anything” to receive that pardon. The jury also heard the

testimony of many other witnesses who discussed Talley’s and Moore’s actions

and could have reasonably determined, absent the challenged remarks in

opening and closing statements, that KCSR was liable for creating and failing

to adequately redress a racially hostile work environment. 

AFFIRMED.