1Hawk brings retaliation claims under both Title VII and New

Hampshire Revised Statute Annotated chapter 354-A. Chapter 354-

A, however, does not permit an award of punitive damages. Madeja

v. MPB Corp., 149 N.H. 371, 389 (2003).

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Linda Hawk

v. Civil No. 05-cv-283-JD

Land Air Express of

New England, Ltd.

O R D E R

Land Air Express of New England, Ltd., has filed two motions

in limine, arguing in the first that Linda Hawk should be

precluded from raising punitive damages as an issue in this case

and requesting in the second motion that the court give a

preliminary instruction on sexual harassment. Because Hawk’s

sexual harassment claims were resolved against her on summary

judgment, Land Air’s request for a preliminary instruction on

sexual harassment is moot. Hawk objects to Land Air’s motion to

preclude punitive damages.

42 U.S.C. § 1981a provides for an award of compensatory and

punitive damages in a Title VII case against an employer “who

engaged in unlawful intentional discrimination.”1 Proof of

intentional discrimination alone, however, is an insufficient

Case 1:05-cv-00283-JD Document 33 Filed 10/05/06 Page 1 of 3
2

basis for an award of punitive damages. McDonough v. City of

Quincy, 452 F.3d 8, 23 (1st Cir. 2006). Instead, “[p]unitive

damages are justified ‘when the defendant’s conduct is shown to

be motivated by evil motive or intent, or when it involves

reckless or callous indifference to the federally protected

rights of others.’” Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d

72, 85 (1st Cir. 2006) (quoting Kolstad v. ADA, 527 U.S. 526, 536

(1999)). “[M]alice and reckless indifference concern, not the

employer’s awareness that it is discriminating, but the

employer’s knowledge that it is acting in violation of federal

law.” McDonough, 452 F.3d at 24. An employer can avoid punitive

damages “by demonstrating that it has made good-faith efforts to

comply with Title VII.” Id. at 23; see also Arrieta-Colon v.

Wal-Mart P.R., Inc., 434 F.3d 75, 90 (1st Cir. 2006) (holding

that “a finding of a good-faith effort to comply with the law” is

necessary to avoid punitive damages liability).

In support of its motion to exclude any mention of punitive

damages, Land Air asserts that Hawk did not act in good faith,

because she did not provide feedback on her negative evaluation,

which precludes punitive damages on her retaliation claim. Land

Air appears to be mistaken as to the applicable standard. Good

faith in the context of punitive damages under Title VII refers

to the employer’s good faith efforts to comply with Title VII

Case 1:05-cv-00283-JD Document 33 Filed 10/05/06 Page 2 of 3
3

rather than to the good faith of the employee. “Demonstrating

good faith compliance is an affirmative defense, and the burden

of proof therefore rests with the employer.” Rodriguez-Torres v.

Caribbean Forms Mfr., Inc., 399 F.3d 52, 64 (1st Cir. 2005).

Therefore, Land Air’s motion in limine to preclude mention

of punitive damages is denied.

Conclusion

For the foregoing reasons, the defendant’s motion in limine

to preclude mention of punitive damages (document no. 23) is

denied, and the motion for a preliminary instruction (document

no. 25) is terminated as moot.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 5, 2006

cc: Thomas M. Closson, Esquire

David W. McGrath, Esquire

John c. Sikorski, Esquire

Case 1:05-cv-00283-JD Document 33 Filed 10/05/06 Page 3 of 3