Revised September 28, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60448

DEBORAH H. HARDIN,

Plaintiff - Appellee-Cross-Appellant,

versus

CATERPILLAR, INC.

Defendant - Appellant-Cross-Appellee.

Appeals from the United States District Court

For the Northern District of Mississippi

September 12, 2000

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM:

Approximately three and a half months after Caterpillar fired

Deborah Hardin, she filed suit against Caterpillar asserting claims

under the Family Medical Leav e Act, the Pregnancy Discrimination

Act of Title VII, and a claim under the Americans with Disabilities

Act. The latter claim was dismissed, and the remaining claims were

tried to a jury in Mississi ppi. The jury returned a verdict for

Hardin, awarding her $55,000 in lost wages from the FMLA claim and

$45,000 for the PDA violation. The district court granted Hardin’s2

motion for liquidated damages under FMLA but denied her motion for

reinstatement or front pay. By agreement of the parties, it

limited Hardin’s cl aim for lost wages to the sum of $22,558. It

then awarded the same sum in liquidated damages, together with

$45,000 for mental anxiety, all with interest. Hardin and

Caterpillar appeal.

Caterpillar argues insufficiency of evidence and defends the

other rulings of the trial court. Hardin complains that the

district court erred in not awarding reinstatement or front pay.

The district court refused, pointing out that in the pre-trial

order the plaintiff only asserted “a claim for actual, punitive and

liquidated damages for violations of Title VII and the FMLA” and

made no claim for reinstatement or front pay. The court further

observed that the issues were not tried by consent.

I

After oral argument, we are persuaded that the judgment below

must be affirmed in all respects, except for the district court’s

dismissal of the claim for punitive damages. A final pre-trial

order controls the issues to be tried, and the district court acted

within its discretion in refu sing reinstatement or front pay for

the reasons it gave. We reject summarily Caterpillar’s contention

that the verdict is not supported by the evidence. We pause only

to treat the more difficult issue of punitive damages.

II3

H ardin at all times asserted a claim for punitive damages.

The district court acting without the benefit of the decision of

the Supreme Court i n K olstad v. American Dental Association

, 527

U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), declined to

submit the issue to the jury. K olstad explained that there was no

requirement of eg regiousness, and the plaintiff Hardin points to

that ruling. It held that compensatory and punitive damages are

limited to acts of intentional discrimination (Section 1981A(a)(1))

done with malice or reckless indifference. The court in K olstad

further observed, “... in the punitive damages context, an employer

may not be vicariously liable for the discriminatory employment

decisions of managerial agents where these decisions are contrary

to the employer’s ‘good-faith efforts to comply with Title VII,’”

119 S.Ct. 2118, 2129, (quoting Kolstad

, 139 F.3d 958, 974 (D.C.

Cir. 1998) (Tatel, J., dissenting)).

1

In refusing to submit punitive damages, the trial judge made

explicit reference to Deffenbaugh I

. D effenbaugh-Williams v. WalMart Stores, Inc.

, 156 F.3d 581, 592-94 (5th Cir. 1998). We later

took Deffenbaugh I en banc and reinstated the panel opinion except

its treatment of punitive damages. We left to the panel the task

of applying Kolstad ’s treatment of punitive damages. Williams v.

Wal-Mart Stores, Inc. , 182 F.3d 333 (5th Cir. 1999) (en banc).

Kolstad made clear that malice did not require the proof of

“egregious” conduct. In this respect it changed nothing in1 See D effenbaugh-Williams v. Wal-mart Stores, Inc. , 188 F.3d

278, 282-84 (5th Cir. 1999). Caterpillar could not, absent timely

objection at trial, deploy Kolstad in an attack upon a punitive

damage award against it. If punitive damages are to be otherwise

considered afresh, Kolstad must be part of that mix. Caterpillar

offered significant evidence of good faith efforts. It is true

that in awarding liquidated damages under FMLA, the district court

found that Caterpillar did not prove it acted in good faith. It is

not clear whether Caterpillar’s corporate policy directed toward

enforcement of FMLA was considered in that decision.

4 Deffenbaugh I on which the district court relied. K olstad also

clarified that punitive damages would not ordinarily be imputed to

an employer if the discriminatory acts upon which they were

predicated were contrary to good faith efforts of the employer to

prevent such conduct. This was a change from D effenbaugh I

. It is

unclear whether when the district court turned to the question of

punitive damages, it considered evidence of the defendant’s efforts

to prohibit discriminatory acts by its policy statements, manuals,

and such. Nonetheless, K olstad ’s anno uncement of the rules for

attribu t ing malicious or recklessly indifferent conduct to an

employer could not have injured Ms. Hardin. The new rules were

more favorable to Caterpillar than D effenbaugh I ’s approach,

applied by the district court. Indeed, these new rules likely

reinforce the decision of the trial court to not submit punitive

damages. Yet, we cannot apply for the first time on appeal their

fact-based inquiries into Caterpillar’s good faith in reviewing the

decision to not submit punitive damages to the jury. 1 Regardless,

there was no error in refusing to submit punitive damages if,

imputation to Caterpillar a side, the question of whether5

C aterpillar employees acted with malice or reckless indifferenc e

toward Ms. Hardin did not raise genuine issues of material fact.

We turn to that question.

2

First, two caveats: not every sufficient proof of pretext and

discrimination is sufficient proof of malice or r eckless

indifference. Nor is there a useful litmus for marking the point

at which proof of violation sufficient to impose liability becomes

sufficient to also support a finding of malice or reckless

indifference.

3

The district court did not explain its decision further than

to say that the case was different from that in Def fenbaugh I

.

Kolstad explained the meaning of malice and reckless indifference

drawing on its decision in Smith v. Wade , 461 U.S. 30 (1983).

While the Smith court determined that it was unnecessary

to show actual malice to qualify for a punitive award .

. . its intent standard, at a minimum, required

recklessness in its subjective form. The court referred

to a “subjective consciousness” of a risk of injury or

illegality and a “criminal indifference to civil

obligations.”

Id. at 2125. The court further relied upon Professor McCormick’s

statement that “a positive element of conscious wrongdoing is

always required.” Id. at 2126.

With these standards in mind, we are persuaded that if the

jury credited Ms. Hardin’s version of the events over those of

Caterpillar’s representatives, a reasonable juror could conclude2 Ms . Hardin’s pregnancy induced routine bouts of nausea and

vomiting, requiring frequent use of the bathroom.

6 that the rep resentatives were either lying or consciously

indifferent to the truth and the legality of their acts.

There was direct evidence that Ms. Hardin was a good worker

and that she was fired because she was pregnant. Although

Caterpillar asserts a history of difficulties and comments by Ms.

Hardin’s supervisor, the jury could conclude that she was a good

worker who held her own in an overwhelmingly male work environment.

Ms. Hardin’s testimony depicts a management that was unreceptive to

pregnancy and illness claims. Her personnel manager, Gayra Quinn,

and Rick Mercer, the plant manage r at Caterpillar’s Prentiss

facility, apparently told workers that doctor’s excuses were “a

dime a dozen” and “not worth the pap er they were printed on.”

Although Caterpillar may see this as a proper response to abuse by

the work force of rules regarding absenteeism, the jury may see it

in the context of the events here, as expressing hostility toward

women working in a team environment facing a risk of pregnancy.

According to Ms. Hardin, prior to the birth of her first child in

1995, she also faced criticism from management personnel about her

pregnancy interfering with her work. She testified that Manager

Jeff Vatalaro even required Ms. Hardin to get his permission before

going to the bathroom

– a requirement not placed o n the plant’s

male employees. 2 Moreover, she recalled that while pregnant in

1997, her supervisor, Dale Kendrick, told her that her earlier7

pregnancy had been detrimental to her work and that she needed to

“pull her end” of the team’s responsibilities.

Caterpillar contended at trial that Ms. Hardin failed to

produce required documentation of the medical needs associated with

her pregnancy. Ms. Hardin maintained that she did so and

Caterpillar’s assertion was both false and a pretext for its true

purpose. She testified that Wallace Hurley of the personnel

department called her late on Friday the 14th, 1997, advising that

she needed more documentation from her doctor; that she told him

she would see her doctor on Monday the 17th. Hardin testified that

Hurley told her that he would be out of town the following week and

she should send it to the office. She explained that she asked her

doctor on Monday the 17th to send the information to Caterpillar.

Caterpillar however mailed her a letter on Tuesday the 18th

terminating her employment for “being habitually tardy or absent

from work without prior notification.”

She testified that when she asked why she was being

terminated, she was referred to Chris Glynn, the plant manager, and

met with him on March 24th. Ms. Hardin testified that although

Glynn admitted at the meeting that he had talked to her doctor, he

told her that she was being fired for lack of documentation. Yet

if her testimony be credited, she had earlier left copies of

“everything she had” with Dale Kendrick, her supervisor. The plant

manager’s later drafted memorandum of this meeting with Ms. Hardin

characterized the meeting as an appeal of discharge. It recited8

that Ms. Hardin had been fired for being absent without leave. The

memorandum also related that the date of discharge w as February

25th, 1997, rather than March 8, 1997.

Caterpillar’s defense also ran into problems in the face of

cross-examination. It tendered a similarly situated employee, but

that effort imploded at trial with the disclosure that the tendered

comparable was indeed AWOL

– he was in jail, or likely there. This

stretch to use this employee to prove its evenhandedness left the

jury free to conclude that only Ms. Hardin received this treatment.

In sum, Caterpillar and Ms. Hardin offered conflicting

interpretations of the events leading to her discharge. But if Ms.

Hardin be ful ly credited, a reasonable juror might conclude that

she faced lying and dec eit calculated to rid the plant of a

pregnant worker. But even this conclusion is not here a complete

answer.

III

We are urged to reverse the decision not to submit punitive

damages to the jury by examining the evidence in the artificial

legal lab we find ourselves in, post- K olstad

, an artificiality

created by the case’s procedural position and developing law. The

step up from proof sufficient to prove intentional discrimination

to proof of malice or reckless indifferent conduct of employees is

much shorter in a regime that would automatically impute those acts

to an employer than in the regime post- Kolstad

, at least where9

there is evidence that the accused conduct of employees contravenes

corporate policy.

In short, this issue of whether the acts of the employer were

malic ious or indifferent, stripped of K olstad ’s rules of

attribution, is sufficiently close that we are persuaded that it

should be decided by the district court in the first instance and

that any new trial must be with the benefit of Kolstad . While it

seems doubtful that the evidence so considered w ill warrant

submission of the claim for punitive damages from the corporation,

that decision ought be first made by the trial judge. Should the

district court reach a different conclusion

– and find that the

issue should have gone to a jury, it will face a second difficulty

to which we now turn.

IV

Hardin wants a new trial at which the issue of punitive

damages alone will be tr ied. Remanding for a trial of punitive

damages alone, however, is not so simple. The difficulty inheres

in the very nature of a jury’s decision making. The jury’s

decision on the claim of punitive damag es would have been

intertwined with its view of the facts determining liability and

its award of damages for emotional injury, here $45,000. The

amount to be awarded fo r emotional injury was not a sum of

calculable costs. It was a jury’s judgment – the classic black box

decision said to be the quintessential jury question. This, in

part, because its precise sum is not independently defensible, at10

least not beyond a second judgment by a reviewer that it is not

“unfair” or “unreasonable,” or other equally tautological

description.

A jury decidi ng whether to award punitive damages and their

amount responds to the evidence of intentional acts essential here

to the underlying finding of liability. But intentional acts span

a range of inte nsity, purpose, and foreseeability, a range that

oscillates with the perceived level of emotional injury and its

appropriate compensation. Many legal systems reflect this linkage

of actual and punitive damages in locating caps for punitive

awards. It is no answer that liability and damages here come in

distinct legal capsules, because it is equally true that their

expression in a verdict is a meld, a phenomenon providing essential

anchors and focus to the open-ended character of punitive damages.

Courts have struggled with these difficultie s in the context of

issues revolving around Rule 42, F ED

. R. C IV

. P ROC

., and the

structure of trials in complex cases.

Separability issues also arise on appeal, such as today. Even

with the familiar bifurcati on of liability and damages, similar

difficulties of intertwined issues arise, such as attempting to try

separately the question of liability and damages in a civil rights

excessive force case. S ee

, e.g.

, Martin v. Heideman

, 106 F.3d 1308

(6th Cir. 1997).

We are persuaded of the practical inseparability of the issues

of intent, of damages for emotional injury, and of punitive damages11

in this case, a conclusion we can and do reach withou t deciding

that they are inseparable as a matter of law across all cases; and

we do not suggest that punitive damages may not walk alone in other

contexts. S ee Black v. Fidelity & Guaranty Insurance Underwriters,

Inc.

, 5 82 F.2d 984 (5th Cir. 1978). Nor need we grapple with

questions of a constitutional right to a single jury. Arguably, any

right to a single jur y could not be asserted by Caterpillar here,

it having insisted upon the dismissal of punitive damages at the

first trial. In any event, it would not follow from the fact that

Caterpillar had no such constitutional right that Hardin has a right

to try her claim for punitiv e damages to a jury free of the

discipline and focu s of facing decisions of liability and

compensation for emotional injury.

Caught in these conflicting principles of entitleme n ts to a

jury trial of punitive damages and to a unitary trial, by our remand

we le ave the choice to Hardin of whether she wants a new trial,

should the d istrict court conclude that the question of punitive

damages ought to have gone to the jury.

We do so because we are persuaded that any right of Hardin to

jury trial of the punitive damages question does not extend to a

trial of that issue divorced from the question of intentional acts

and compensation for emotional injury. Such a trial is too removed

from the disciplinary regim e of the framing subsidiary questions.

So the district court cannot grant Hardin a trial of the issue of

punitive damages without the price of riskin g her victory to date12

by a second trial. But that choice she must have if she has a right

to try the issue to the jury.

V

We vacate the judgment below and remand the case to the

district court with instructions to consider again the decision

whether to submit punitive damages to a jury, this time with the

benefit of Kolstad

. Should the district court reach a different

conclusion, it must grant a new trial on all issues, including

punitive damages, if a new trial is requested by the plaintiff. If

plaintiff elects not to try the case a second time, the district

court will enter judgment awarding the damages for lost wages in the

amount of $22,558, liquidated damages in that amount, together with

$45,000 for mental anxiety, all with interest.

The judgment below is VACATED and the case is REMANDED with

instructions.