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

### JAN 5 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OLIVER MEDLOCK, JR., Plaintiff - Appellee, v. ORTHO BIOTECH, INC., Defendant - Appellant, and
JOHNSON & JOHNSON COMPANIES, ORTHO PHARMACEUTICAL CORP., WILLIAM C. PEARSON, III, W. THOMAS AMICK, JAMES A. MORELAND, RICHARD W. ZAHN, C. DANIEL SMITH, CRAIG MANJEAN and CAROL WEBB, Defendants.

EQUAL EMPLOYMENT ADVISORY COUNCIL, Amicus Curiae. No. 97-3037

Appeal from the United States District Court

for the District of Kansas (D.C. No. 94-CV-2317)- 2 -

David J. Waxse (Barbara A. Harmon with him on the b riefs) of Shook, Hardy & Bacon, L.L.P., Overland Park, Kansas, for the Defen dant - Appellant. Alan V. Johnson of Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., Topeka, Kansas, for the Plaintiff - Appellee. Robert E. Williams, Ann Elizabeth Reesman, and Jenn ifer Nicole Long of McGuiness & Williams, Washington, D.C., filed an am icus curiae brief for the Equal Employment Advisory Council.

Before BRISCOE , McWILLIAMS and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

After a seven-day trial, a jury found that Ortho Bi otech, Inc. (“OBI”) had terminated Oliver Medlock, Jr. in retaliation for h is filing and pursuing a claim of discrimination based on race in violation of Title VII. The questions we must resolve on appeal are: (1) did Medlock present suff icient evidence to support the jury’s finding of retaliatory discharge as well as its award of punitive damages; (2) did the district court err in administering a m ixed motives instruction to the jury; (3) did the verdict form allow the jury to er roneously disregard afteracquired evidence on which OBI could have legitimat ely relied to terminate plaintiff; (4) did the district court abuse its dis cretion in refusing to instruct the jury that its determination of damages could consid er plaintiff’s conduct after his termination; (5) did the district court err in refu sing to reduce the award for future- 3 -

loss of compensation under 42 U.S.C. § 1981a(b)(3); and, finally, (6) did the district court err in awarding plaintiff attorney f ees? We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
I Plaintiff began working for OBI in June 1989. In 1 991, shortly after a meeting at which plaintiff learned that a scheduled salary increase was going to be postponed for six months, plaintiff called his d ivision manager, C. Daniel Smith, and irately expressed his dissatisfaction wi th various aspects of his job, including his level of pay. Smith submitted a memo concerning the conversation to his superior, William Pearson, III, describing p laintiff as “very angry and hostile about the way that he has and is being mana ged with Ortho Biotech.” II Appellant’s App. at 334-35. In February 1992, plaintiff confronted Pearson afte r a sales meeting. During that discussion, Medlock accused Pearson of building a file of inaccurate information about him and threatened to harm him physically if he continued to do so. Later that month, Pearson met with his supe riors to discuss his confrontation with plaintiff. Although Pearson rec ommended that plaintiff be terminated for violating company rules, OBI managem ent decided to investigate the matter further and no action was taken at that time.- 4 -

The next month, plaintiff contacted Smith again. A ccording to Smith, plaintiff barraged him with obscenities. Smith used his dictation equipment to record the conversation. He later played the tape for Pearson, and then sent Pearson a memorandum stating that Medlock “is becom ing more difficult to manage because of his BAD attitude and his dislike for Ortho Biotech and our policies. I feel that Oliver should be put on form al warning or terminated as soon as possible.” II Appellant’s App. at 403. That same day, Pearson submitted a memorandum to up per management describing the continuing difficulty he was having with plaintiff and recommending they take “immediate action to resolve this situation.” Id. at 402. Shortly thereafter, plaintiff met with representati ves of OBI’s upper management. They discussed plaintiff’s job performance and his altercation with Pearson in February of that year. Although Medlock’s version of that story did not vary greatly from Pearson’s, management decided to give him another chance. Plaintiff continued to express his dissatisfaction with his compensation, and ultimately filed administrative charges with the Eq ual Employment Opportunity Commission in December 1993. Among other claims, p laintiff alleged that his compensation was the product of racial discriminati on. In August 1994, plaintiff filed suit in district court claiming racial discri mination along with numerous other causes of action. One month after his deposi tion in that suit was taken,- 5 -

plaintiff was suspended by OBI and, a month after that, he was terminated. He subsequently added to his complaint a claim for ret aliatory discharge in violation of Title VII. Defendant prevailed on all claims except one—the ju ry found that OBI terminated plaintiff in retaliation for his filing and pursuing his race discrimination claim under Title VII. Though OBI c ontends that it had legitimate nondiscriminatory reasons for terminating plaintiff in the light of new information it learned during plaintiff’s deposition, the jury nevertheless found by a preponderance that plaintiff was terminated for rea sons of retaliation.
II After trial, defendant moved for judgment as a matt er of law (“JMOL”) on the ground that plaintiff had not adduced sufficient evidence to support a finding of retaliatory discharge in violation of Title VII. We review the district court’s denial of that motion de novo. See Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1450 (10th Cir. 1997). In determining whethe r the district court’s refusal to grant JMOL constitutes error, “[w]e do not weighthe evidence, pass on the credibility of the witnesses, or substitute our conclusions for that of the jury.” Id. (internal quotation omitted). Rather, we may only reverse “if the evidence points1 Defendant also asserts that it was error for the district court to deny its

motion for summary judgment prior to trial. This argument is without merit. Even if we agreed with defendant that summary judgm ent was erroneously denied, “‘the proper redress would not be through appeal of that denial but through subsequent motions for judgment as a matter of law . . . and appellate review of those motions if they were denied.’” Roberts v. Roadway Express, Inc. , Nos. 96- 1554 & 97-1093, 1998 WL 352629, at *1 (10th Cir. Ju ly 2, 1998) (quoting Whalen v. Unit Rig, Inc. , 974 F.2d 1248, 1251 (10th Cir. 1992)). - 6 - but one way and is susceptible to no reasonable inf erences supporting the party opposing the motion.” Id. 1
A Under 42 U.S.C. § 2000e-3(a), it is unlawful for anemployer to discriminate against an employee “because he has op posed any practice made an unlawful employment practice” by Title VII. To pre vail on a retaliatory discharge claim, a plaintiff must establish that the decision to terminate her resulted from retaliatory animus. A plaintiff may meet that burd en in two ways. Typically, a plaintiff will rely on the familiar framework enunciated in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05 (1973), under which the plai ntiff bears the initial burden of establishing a prima facie case o f discrimination. If the defendant is able to articulate a legitimate nondis criminatory reason for the adverse action, the plaintiff must then show that the articulated reasons are a pretext for retaliation. However, the plaintiff may also establish discrimination- 7 -

directly, in which case the McDonnell Douglas framework is inapplicable. See Greene v. Safeway Stores, Inc. , 98 F.3d 554, 557-58, 560 (10th Cir. 1996). To prevail via this direct method, a plaintiff mustintroduce direct or circumstantial evidence that the alleged retaliatory motive “actually relate[s] to the question of discrimination in the particular employment decision, not to the mere existence of other, potentially unrelated, for ms of discrimination in the workplace.” Thomas v. National Football League Players Ass’n , 131 F.3d 198, 204 (D.C. Cir. 1997) (“ NFLPA ”); see also Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1512 (10th Cir. 1997) (holding that plaintiff may prove discriminatory motive by “presenting ‘evidence of conduct or state ments by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged [retaliatory] attitude’” (quoting Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1471 n.5 (10th Cir. 1992)) (emphasis added)); Greene , 98 F.3d at 560 (holding that plaintiff may establish age discrimination “directl y, by presenting direct or circumstantial evidence that age was a determining factor in his discharge”). Defendant argues that “[n]o evidence was presented at trial that plaintiff’s filing and pursuit of his discrimination charge was a ‘mot ivating factor’ in the decision to terminate him.” Appellant’s Br. at 22. We disa gree. One month after plaintiff’s deposition, during whic h he testified about his race discrimination claim, defendant sent a letter to plaintiff, stating: “As a result- 8 -

of issues raised in your deposition, effective imme diately, you are suspended from all duties on behalf of the Company.” Appellant’s Add. App. at 3011. In a letter explaining the reasons for plaintiff’s termination shortly thereafter, defendant states: “During the entire term of your employment, you have communicated your deep dissatisfaction with your compensation to Orth o Biotech management and Ortho Biotech human resources personnel.” Id. at 3012. On its face, defendant’s suspension letter admits that defendant considered the subject matter of plaintiff’s deposition in its decision to terminate him, a depo sition which included testimony about his Title VII race discrimination claim. The termination letter explicitly references plaintiff’s communication of his dissati sfaction with his compensation. Taken in the light most favorable to plaintiff, we must conclude the letters, coupled with the close temporal proximity between p laintiff’s deposition and firing, directly support the jury’s finding that de fendant terminated plaintiff in retaliation for his pursuit of his Title VII race d iscrimination claim. Defendant argues that, notwithstanding the language in its letters to Medlock, it is entitled to JMOL because no reasonab le jury could reject the nondiscriminatory reasons on which it purportedly r elied to terminate plaintiff. According to defendant, it only decided to discharg e plaintiff after learning during his deposition and the discovery process that: (1) he had secretly taped numerous private telephone conversations with co-wo rkers; (2) he had thoughts2Though defendant challenges the meaning of this p rovision of the special

verdict, we conclude that the jury’s verdict is pro perly understood as a finding that defendant would not have terminated plaintiff in the absence of retaliatory motive. See infra part III.B.

3 Because the statutory overruling of Price Waterhouse does not alter the respective burdens of plaintiff and defendant in a mixed motive case, but only changes the remedies available when both parties meet their burden, see infra part III & n.5, our analysis of those burdens is unchang ed by the 1991 amendments. - 9 - about doing serious bodily harm to his supervisors; (3) he frequently used vulgarities and was prone to excessive anger; (4) h e had made disparaging remarks about the company to customers; and (5) he had disclosed confidential information to OBI’s competitors. The jury rejected these arguments, finding that defendant would not have terminated plaintiff in th e absence of retaliatory animus. 2 Once plaintiff presented evidence that retaliation played a motivating part in defendant’s decision to discharge him, it became defendant’s burden to prove by a preponderance that it “ would have made the same decision” notwithstanding its retaliatory motive. Denny’s , 111 F.3d at 1511 (quoting Price Waterhouse v. Hopkins , 490 U.S. 228, 244-45 (1989), overruled in part by 42 U.S.C. §§ 2000e2(m), 2000e-5(g)(2)(B) (providing broader remedies for plaintiff who demonstrates unlawful criterion was “motivating fac tor” in adverse employment decision)). 3 If the defense does not carry that burden, the pl aintiff will prevail.- 10 -

See NFLPA , 131 F.3d at 203 (citing Price Waterhouse , 490 U.S. at 276 (O’Connor, J., concurring)). It is true that defendant presented numerous ground s at trial upon which it claims it would have terminated plaintiff’s employm ent. However, the jury was fully entitled not to find this evidence credible. Given our conclusion that the suspension and termination letters in conjunction w ith the timing of plaintiff’s suspension and ultimate discharge constitute directevidence of retaliatory animus, disbelief of defendant’s proffered justifications is not unreasonable. See Conner v. Schnuck Mkts., Inc. , 121 F.3d 1390, 1396 n.5 (10th Cir. 1997) (noting that direct evidence may go to prove that employer’ s reasons are pretextual and therefore unworthy of belief); accord Penk v. Oregon State Bd. of Higher Educ. , 816 F.2d 458, 462 (9th Cir. 1987); see also 1 Lex K. Larson, Employment Discrimination § 8.07, at 8-109 (2d ed. 1998) (noti ng that plaintiffs proceeding under McDonnell Douglas framework may use direct evidence to show pretext)

. Were we the triers of fact, we might have evaluated the evidence differently. In reviewing a denial of JMOL, however, it is well est ablished that “[t]he jury . . . has the exclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in the evidence, and reaching ultimate conclusions of fact.” Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co. , 104 F.3d 1205, 1212 (10th Cir.- 11 -

1997) (internal quotations omitted). Consequently, we conclude there is sufficient evidence to support the jury’s verdict.
B Defendant also contends that the evidence was insuf ficient to support the jury’s finding of punitive damages. Although a jury is never required to award punitive damages, see Smith v. Wade , 461 U.S. 30, 52 (1983), a plaintiff may receive such an award if it demonstrates that defen dant “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to [her] federally protected rights.” 42 U.S.C. § 1981a(b)(1). The purpose of punitive damages is “to punish what has occurred and to deter its repetition.” Pacific Mut. Life Ins. Co. v. Haslip , 499 U.S. 1, 21 (1991). This court has not had occasion to determine compre hensively what burden a plaintiff must carry to prove “malice or reckless indifference to . . . federally protected rights” within the meaning of § 1981a(b)( 1). This case, however, does not require our eliciting that standard in any anal ytic detail. Plaintiff has produced evidence sufficient to prove retaliation. He has also adduced evidence that in the very letter effecting his retaliatory d ischarge, his employer expressly acknowledged plaintiff’s “protected legal rights to pursue a lawsuit against the Company without retaliation.” Appellant’s Add. App . at 3013. We have no doubt- 12 -

that the jury was well within the bounds of reason in determining such conduct to manifest reckless indifference to plaintiff’s feder ally protected rights.
III OBI argues that we must reverse because the distric t court erred in instructing the jury. It claims three specific err ors: (1) the jury should have been given a McDonnell Douglas as opposed to a mixed motive instruction; (2) the verdict form improperly required the jury to hold a gainst defendant for discharging plaintiff based on information it learn ed during discovery; and (3) the district court failed to instruct the jury that def endant’s damages could be limited based on events that took place after his terminati on. We review the district court’s decision to give a particular instruction for abuse of discretion. See Denny’s , 111 F.3d at 1509. To determine whether the jury was adequately instructed on the applicable law, we review the ins tructions in their entirety de novo to determine whether the jury was misled in any way. See Coleman v. B-G Maintenance Mgmt. of Colo., Inc. , 108 F.3d 1199, 1202 (10th Cir. 1997). The instructions as a whole need not be flawless, but w e must be satisfied that, upon hearing the instructions, the jury understood the i ssues to be resolved and its duty to resolve them. See Brodie v. General Chem. Corp. , 112 F.3d 440, 442 (10th Cir. 1997).- 13 - A Defendant contends that the district court erred by giving the jury a “motivating factor,” or “mixed motive,” instruction on plaintiff’s Title VII retaliation claim. Defendant assert that the courtshould instead have required Medlock to show pretext under the familiar McDonnell Douglas framework. See 411 U.S. at 802-05. Its argument is two-fold. Fir st, it argues that 42 U.S.C. § 2000e-2(m), which was added to Title VII pursuant t o the Civil Rights Act of 1991 and which codifies the motivating factor stand ard, does not apply to retaliation cases. Therefore no mixed motivation i nstruction should have been given unless the case met the standard for such instructions enunciated in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989). Second, it claims that unde r the Price Waterhouse standard it was not appropriate to instruct the ju ry on mixed motives in this case. Section 107(a) of the Civil Rights Act of 1991, nowcodified at 42 U.S.C. § 2000e-2(m), overruled the Supreme Court’s decision in Price Waterhouse to the extent that that decision holds an employer can avo id a finding of liability by proving it would have taken the same action even ab sent the unlawful motive. Compare 42 U.S.C. § 2000e-2(m) (providing that “an unlawfu l employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment4Defendant claims that, by its plain language, 42 U.S.C. § 2000e-2(m)

does not apply to retaliation cases. See McNutt v. Board of Trustees of the Univ. of Ill. , 141 F.3d 706, 709 (7th Cir. 1998); Woodson v. Scott Paper Co. , 109 F.3d 913, 933-35 (3d Cir. 1997); Tanca v. Nordberg , 98 F.3d 680, 685 (1st Cir. 1996). But see 2 Larson, Employment Discrimination § 35.04[1], at35-25 (noting that the EEOC interprets this section to apply to retali ation claims). Because we conclude that Price Waterhouse and its progeny control our analysis of whether it is appropriate to give a mixed motive instruction i n any given case, we need not resolve this issue. We would, of course, be oblige d to reach the issue had the jury concluded defendant would have terminated Medlock e ven in the absence of a retaliatory motive. But the jury specifically found otherwise. See infra note 5. - 14 - practice, even though other factors also motivated the practice”) with Price Waterhouse , 490 U.S. at 258 (holding defendant may avoid find ing of liability by proving that it would have made the same decision e ven in the absence of unlawful motive). Thus, the Civil Rights Act of 19 91 does not create the mixed motive standard. Instead, the Act expands the reli ef available to a plaintiff who demonstrates that an unlawful criterion played a mo tivating part in an employment decision, even though the employer shows that it would have made the same decision regardless. See 42 U.S.C. § 2000e-5(g)(2)(B). Furthermore, the Act does not address what type of evidence is r equired to meet this standard and so warrant a mixed motive instruction. Consequ ently, we agree with defendant that Price Waterhouse continues to control when a mixed motive instruction is appropriate. 4See Fuller v. Phipps , 67 F.3d 1137, 1142 (4th Cir. 1995).- 15 -

Once a plaintiff proves that retaliation played a m otivating part in an employment decision, the burden shifts to defendantto demonstrate by a preponderance of the evidence that it would have ma de the same decision even if it had not taken the retaliatory motive into account. See Price Waterhouse , 490 U.S. at 250 (plurality opinion); Kenworthy , 979 F.2d at 1470-71; accord 42 U.S.C. § 2000e-5(g)(2)(B). A mixed motive instruct ion is therefore appropriate in any case “‘where the evidence is sufficient to a llow a trier to find both forbidden and permissible motives.’” Denny’s , 111 F.3d at 1512 (quoting Ostrowski v. Atlantic Mut. Ins. Cos. , 968 F.2d 171, 181 (2d Cir. 1992)). Because we have already concluded that the suspension and t ermination letters along with the timing of plaintiff’s discharge directly reflec t defendant’s retaliatory animus, we must also conclude that the jury could reasonabl y have found both “forbidden and permissible motives” for defendant’s decision. Id. We therefore conclude that the district court did not abuse its discretio n by instructing the jury on mixed motive.
B Defendant next argues that, even if it was appropri ate to instruct the jury on mixed motive, the verdict form misled the jury by e ffectively instructing that defendant could not rely on information it obtainedduring the discovery process to discharge plaintiff. The verdict form stated that if the jury found OBI- 16 -

terminated plaintiff’s employment in retaliation fo r his filing and pursuing charges of race discrimination, it was also require d to determine whether OBI would have discharged plaintiff “even in the absenc e of his filing and pursuing charges of race discrimination.” III Appellant’s App. at 800. Defendant suggests that the jury could not help but answer that questi on in the negative because the company’s asserted justifications for discharging p laintiff were all learned during the discovery process. “No party may assign as error the giving or the fai lure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Fed. R. Civ. P. 51. Because the purpose of the obj ection is to give the court an opportunity to correct any mistake before the jury enters deliberations, see, e.g. , Transnational Corp. v. Rodio & Ursillo, Ltd. , 920 F.2d 1066, 1069 (1st Cir. 1990), an excessively vague or general objection to the propriety of a given instruction is insufficient to preserve the issue f or appeal. Here, although defendant objected generally to the propriety of gi ving a mixed motive instruction, see IX Appellant’s App. at 2734, it did not object to the language in the verdict form that it now claims is misleading. Our review of the disputed verdict form is therefore limited to whether it was “patently plainly erroneous and prejudicial.” Zimmerman v. First Fed. Sav. & Loan Ass’n , 848 F.2d 1047, 10545 Again, we need not determine whether 42 U.S.C. § 2000e-2(m) applies

because the “motivating factor” standard also applies under Price Waterhouse

. See 490 U.S. at 250 (plurality opinion); id. at 274 (O’Connor, J., concurring). Both the 1991 amendments to Title VII and Price Waterhouse shift the burden to the employer to prove it would have taken the same action even in the absence of the unlawful motive. Compare 42 U.S.C. § 2000e-5(g)(2)(B) with Price Waterhouse , 490 U.S. at 258 (plurality opinion). The only di fference between the Price Waterhouse standard and § 2000e-2(m) is the legal consequence of a finding that the employer would have taken the same action even in the absence of the unlawful motive. Under Price Waterhouse , the defendant avoids a finding of liability altogether. See 490 U.S. at 258 (plurality opinion); id. at 261 (O’Connor, J., concurring). Under the 1991 amendments, defend ant is still liable but plaintiff is limited in what forms of relief she may receive. See 42 U.S.C. § 2000e5(g)(2)(B). This difference is of no consequence i n the present case because the jury found that defendant had not shown it would have discharged plaintiff absent retaliatory motive. Thus, we need not decide wheth er the jury should have been instructed that such a showing would absolve defend ant of liability or would only limit the relief to which plaintiff was entitled. - 17 - (10th Cir. 1988) (internal quotation omitted). Onl y rarely will we reverse based on allegedly erroneous instructions to which there was no objection at trial; the party claiming plain error has “the heavy burden of demonstrating fundamental injustice.” Id. (internal quotation omitted). We discern no such error here. Based on our review , the instructions conveyed the appropriate standard to the jury regar ding plaintiff’s burden to demonstrate that retaliatory animus was a “motivati ng factor” in OBI’s decision to terminate him. 5 If the jury found that plaintiff met his burden, the instructions correctly required defendant to show by a preponder ance that it would have taken the same action “in the absence of the unlawful mot ive.” III Appellant’s App. at6Defendant concedes that the mixed motive instruct ion to the jury

correctly set forth defendant’s obligation to show it would have taken the same action in the absence of the unlawful motive. See Appellant’s Br. at 42. - 18 - 761. In addition, the instructions clearly state t hat should the jury find defendant had made such a showing, it should mark the verdict form accordingly. See id. 6 In contrast, the verdict form first asks whether th e jury found that OBI fired plaintiff in retaliation for his “filing and pursui ng charges of race discrimination.” Id. at 799. Because the jury answered that question a ffirmatively, it was also required to determine whether OBI would have made the same decision even in the absence of the retaliatory motive. Rather than using the term “retaliatory motive,” however, the verdict form simply parallels its own language in the question regarding liability—i.e., whether defendant would have taken the same action even in the absence of plaintiff’s “filing a nd pursuing charges of race discrimination.” Id. at 800. Defendant is correct that it may rely on informatio n obtained during the discovery process in making employment decisions so long as it does not do so as a pretext for discrimination or retaliation. See Hetreed v. Allstate Ins. Co. , 135 F.3d 1155, 1157-58 (7th Cir. 1998); cf. McKennon v. Nashville Banner Publ’g
Co. , 513 U.S. 352, 362 (1995) (holding that informatio n obtained during discovery about employee misconduct that would have justified termination had it been known at the time may limit remedies available to plaintiff). The verdict- 19 -

form, however, does not plainly state the contrary. Read as a whole and in conjunction with the instructions on retaliatory di scharge, the verdict form may readily be understood to require the jury to determ ine whether OBI would have made the same decision in the absence of a retaliat ory motive, which is the correct standard for a mixed motive case. See Denny’s , 111 F.3d at 1511-12; 42 U.S.C. § 2000e-5(g)(2)(B). Because we cannot concl ude that the verdict form was interpreted in the manner defendants suggest, w e cannot hold it “patently plainly erroneous.”
C Defendant claims the district court erred in refusi ng to instruct that plaintiff’s conduct after he had been terminated co uld serve to limit damages if defendant showed that the conduct “was of such seve rity that the Plaintiff in fact would have been terminated on those grounds alone.” See Appellant’s Br. at 44 (quoting III Appellant’s App. at 735). In support of this argument, defendant points to the McKennon decision. See 513 U.S. at 362 (holding that evidence of employee misconduct occurring during tenure with employer but not discovered until after termination may be used to limit relief if employer can demonstrate that prior conduct was so severe that it would have discharged employee on those grounds alone). Defendant asserts that the logic of McKennon extends to conduct of an employee after he has been discharged. We re view the district court’s- 20 -

refusal to give an instruction on after-occurring e vidence for abuse of discretion.
See Denny’s , 111 F.3d at 1509. Under McKennon , information that an employer learns after it has discharged an employee is not relevant to the deter mination of whether an employer violated Title VII because it necessarily played no role in the actual decision. See 513 U.S. at 358-60. Nevertheless, if an employer learns of employee wrongdoing after it has fired that employe e, and it can prove that the “wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer h ad known of it at the time of the discharge,” the employee may not obtain front p ay or reinstatement and may also be denied backpay to which she would otherwise be entitled. Id. at 361-62. According to the Court, it would not comport with the “employer’s legitimate concerns” to ignore evidence of misconduct on the part of the employee. See id.
at 361. Although McKennon states as a general rule that front pay and reinstatement are not appropriate remedies where th ere is after-acquired evidence of pre-termination wrongdoing, the Court was careful to state that “[ t]he proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinarycourse of further decisions, for- 21 -

the factual permutations and the equitable consider ations they raise will vary from case to case.” Id. ; see also id. at 362 (“In determining the appropriate order for relief, the court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party.”). Defendant argues that it would have terminated plai ntiff on the basis of his post-termination conduct at his unemployment compensation benefits hearing, during which he “touched and cursed at Defendant’s counsel.” Appellant’s Br. at 43. Although we do not foreclose the possibility that in appropriate circumstances the logic of McKennon may permit certain limitations on relief based on post-termination conduct, see Christine Neylon O’Brien, The Law of After-Acquired Evidence in Employment Discriminatio n Cases: Clarification of the Employer’s Burden, Remedial Guidance, and the E nigma of Post-Termination Misconduct , 65 UMKC L. Rev. 159, 174 (1996) (concluding that egregious posttermination misconduct should ordinarily bar reinst atement and curtail backpay), we cannot conclude that the district court abused i ts discretion in refusing to adopt defendant’s proffered instruction. The alleg ed misconduct to which defendant points occurred at a hearing occasioned b y plaintiff’s termination. In this case, as in most cases in which the alleged mi sconduct arises as a direct result of retaliatory termination, the necessary balancing of the equities hardly mandates7It is not difficult to envision a defendant goadi ng a former employee into

losing her temper, only to claim later that certain forms of relief should be unavailable because it would have discharged the pl aintiff based on her inability to control her temper.

8 The verdict form required the jury to determine M edlock’s entitlement to “[f]uture damages.” See III Appellant’s App. at 799. Appellee contends th at the $185,153.62 awarded on this basis constitutes “front pay.” Appellee’s Br. at 39. The record supports this contention. “Front pay re fers to the award of money as compensation for the future loss of earnings.” James v. Sears, Roebuck & Co. , 21 F.3d 989, 997 (10th Cir. 1994). The court instruct ed the jury that it could award “future damages for the wages and benefits that he would have earned during the period from the date of your verdict until the date when plaintiff would have (continued...) - 22 - a McKennon -type instruction on after-occurring evidence. 7Consequently, the failure to give such an instruction is not reversib le error.
IV Under 42 U.S.C. § 1981a, “[t]he sum of the amount o f compensatory damages awarded . . . 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 . . . shall not exceed” $200,000 against a defendant, like OBI, who has mor e than 200 and fewer than 501 employees. See 42 U.S.C. § 1981a(b)(3)(C). Defendant claims that plaintiff’s damages award, which included $100,000 in compensatory damages, $185,132 in front pay, $75,000 for mental anguish, emotional pain, loss of enjoyment of life, and inconvenience, and $100,000 in punitive damages, exceeds the applicable cap. 8 Plaintiff responds that, because front pay is notappropriately8 (...continued)

voluntarily resigned from Ortho Biotech, Inc., or o btained other employment,” III Appellant’s App. at 768, and that its calculation m ust be based on “the total amount of any anticipated future loss of compensati on,” discounted to present value over “the number of years over which the futu re loss is reasonably certain to be sustained,” id. at 769. No other “future damages” instruction was provided. Under these circumstances, we are satisfied that th e verdict form’s reference to “future damages” signifies front pay only. - 23 - considered under § 1981a, the district court committed no error in refusing to reduce his damage award to $200,000. Whether “futu re pecuniary losses” includes an award of front pay is an issue of law that we review de novo. See Southern Ute Indian Tribe v. Amoco Prod. Co. , 119 F.3d 816, 820 (10th Cir. 1997). At least one court has made this determination by l ooking to the “ordinary, contemporary, common meaning” of the phrase “future pecuniary losses,” then construing this meaning to be broad enough to cover front pay. See Hudson v.
Reno , 130 F.3d 1193, 1203-04 (6th Cir. 1997) (citation omitted). This approach, however, fails to understand the relevant statutoryterms “in light of the language and structure of the Act as a whole.” Dole v. United Steelworkers of America , 494 U.S. 26, 41 (1990). Under § 1981a(b)(2), Congress expressly excludes ce rtain forms of relief from the “compensatory damages” cap listed in 42 U. S.C. § 1981a(b)(3)(C). These exclusions include “backpay, interest on backpay, or any other type of9This circuit allows an equitable award of front pay in lieu of

reinstatement even when the plaintiff does not seekreinstatement in the pleadings in order “to achieve the broad purpose of eliminati ng the efforts of discriminatory practices and restoring the plaintiff to the positi on that she would have likely enjoyed had it not been for the discrimination.” Fitzgerald v. Sirloin Stockade, Inc. , 624 F.2d 945, 957 (10th Cir. 1980). - 24 - relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g)].” An award of front pay fits squarel y within this list of exclusions because it constitutes “other equitable relief” that “the court may grant if deemed appropriate” pursuant to 42 U.S.C. § 2000e-5(g). 9EEOC v. General Lines, Inc. , 865 F.2d 1555, 1561 (10th Cir. 1989); see also 5 Larson, Employment Discrimination § 93.03, at 93-11 (“[T]he sweeping e xemption for ‘any other type of relief authorized under section 706(g)’ of Title VII will likely compel the courts to exclude traditional front pay” from the d efinition of “future pecuniary loss”). Thus, even though “future pecuniary losses” could be understood to include front pay, the statute makes clear that the term is not to be understood in that fashion—or at least not for the purposes of de termining the amounts subject to the § 1981a(b)(3)(C) compensatory damages cap. Consequently, the district court committed no error in refusing to reduce plai ntiff’s damages.

V- 25 -

Finally, because we affirm the judgment of the dist rict court, defendant’s claim that plaintiff is no longer entitled to attor ney fees as a prevailing party is necessarily without merit.
AFFIRMED.