TABLE OF AUTHORITIES.......................................................................... iv

STATEMENT OF JURISDICTION................................................................ 1

STATEMENT OF THE ISSUES..................................................................... 2

STATEMENT OF THE CASE....................................................................... 3

A. Course of Proceedings.......................................................................... 3

B. Statement of the Facts........................................................................... 6

C. District Court’s Decisions................................................................... 20

1. Principal Appeal.............................................................................. 20

a. Order on Post-Verdict Motions (R.189).................................... 20

b. Order Granting Permanent Injunction (R.162)....................... 38

2. Cross-Appeal.................................................................................... 40

SUMMARY OF ARGUMENT..................................................................... 41

ARGUMENT................................................................................................ 44

I. Principal Appeal.................................................................................... 44

A. The District Court Correctly Denied Consol’s Renewed Motion for Judgment As A Matter of Law...................................................................................... 44

1. There Was More Than Sufficient Evidence to Support the Jury’s Finding that Consol Failed to Reasonably Accommodate Butcher’s Sincerely Held Religious Beliefs............................................................................................... 45

2. There Was More Than Sufficient Evidence to Support the Jury’s Finding that Butcher Was Constructively Discharged...................................... 49

3. There Was More Than Sufficient Evidence to Support the Jury’s Finding that CONSOL Energy and Consolidation Coal Company Both Employed Butcher........................................................................................................... 56

B. The District Court Did Not Abuse its Discretion in Denying Consol’s Motion for New Trial............................................................................................ 59

1. The District Court Correctly Excluded Evidence About the UMWA Grievance Process.............................................................................................. 60

2. The District Court Correctly Denied Consol’s Motion for
Mistrial............................................................................................. 62

3. The District Court Did Not Abuse Its Discretion in Refusing to Give Any of Consol’s Identified Proposed Jury Instructions............................ 64

4. The District Court Correctly Instructed the Jury to Continue Deliberations After Returning An Inconsistent Verdict Form...................................... 68

5. The District Court Correctly Excluded Testimony Pertaining to Butcher’s Job Search in the Coal Industry As Irrelevant to Any Issue Before the Jury. 72

C. The District Court Correctly Denied Consol’s Motion for New Trial Nisi Remittitur............................................................................................................... 74

D. The District Court Correctly Denied Consol’s Motion to Amend Its Findings And Conclusions......................................................................................... 77

1. The District Court Correctly Found that Butcher Reasonably Mitigated His Damages.......................................................................................... 78

2. The District Court Correctly Determined that Butcher’s Pension Benefits Derived From A Collateral Source And Should Not Offset His Pay Award. 80

E. The District Court Correctly Granted the EEOC’s Motion for Permanent Injunction............................................................................................. 82

II. Cross-Appeal on Punitive Damages.................................................... 83

The District Court Erred in Granting Consol’s Rule 50(a) Motion for Judgment as a Matter of Law Because a Reasonable Jury Could Find That Consol Engaged in a Discriminatory Practice With Reckless Indifference to Butcher’s Federally Protected Rights.................................................................................. 83

CONCLUSION............................................................................................. 89

CERTIFICATE OF COMPLIANCE............................................................ 90

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)...................................... 78

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)............................. 54, 55

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986)....................... 45, 46, 47

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)................................................ 56

Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc.,
99 F.3d 587 (4th Cir. 1996)...................................................................... 24

Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305
(4th Cir. 2001)........................................................................................... 82

Bozé v. Branstetter, 912 F.2d 801 (5th Cir. 1990) (per curiam).................... 55

Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269 (4th Cir. 1985)...... 36, 78

Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182 (4th Cir. 1994)....................................................................................................... 69, 70, 71

Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir. 1985).................... 30, 68

Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981)......................................... 39

Bunn v. Oldendorff Carriers GmbH & Co. KG, 723 F.3d 454
(4th Cir. 2013)........................................................................................... 65

Butler v. Drive Auto. Indus. of Am., 793 F.3d 404 (4th Cir. 2015)............... 56

California v. Altus Fin. S.A., 540 F.3d 992 (9th Cir. 2008)........................... 70

Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998).................. 45, 74

Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314 (4th Cir. 2011)............................................................................................................. 22, 52

Creekmore v. Maryview Hosp., 662 F.3d 686 (4th Cir. 2011)........................ 60

DeJarnette v. Corning Inc., 133 F.3d 293 (4th Cir. 1998).............................. 28

Deloughery v. City of Chicago, 422 F.3d 611 (7th Cir. 2005)........................ 76

Dotson v. Pfizer, Inc., 558 F.3d 284 (4th Cir. 2009)...................................... 44

Dugan v. R.J. Corman R. Co., 344 F.3d 662 (7th Cir. 2003)......................... 62

Duke v. Uniroyal Inc., 928 F.2d 1413 (4th Cir. 1991)................................... 77

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015)................ 46

EEOC v. Fed. Express Corp., 513 F.3d 360 (4th Cir. 2008).................... passim

EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307
(4th Cir. 2008)........................................................................................... 47

EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987)............. 39

EEOC v. Service Temps, Inc., 679 F.3d 323 (5th Cir. 2012)......................... 83

Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985)............. 37, 81, 82

Flame S.A. v. Freight Bulk Pte., Ltd., 807 F.3d 572 (4th Cir. 2015).............. 73

Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318 (1980)......................... 39

Giles v. Gen. Elec. Co., 245 F.3d 474 (5th Cir. 2001).................................... 77

Golson v. Green Tree Fin. Serv. Corp., 26 F. App’x 209
(4th Cir. 2002)..................................................................................... 85, 88

Green v. Brennan, 136 S. Ct. 1769 (2016)................................................ 50, 51

Greer v. Miller, 483 U.S. 756 (1987)............................................................... 63

Hafner v. Brown, 983 F.2d 570 (4th Cir. 1992)............................................. 70

Hinkle v. City of Clarksburg, 81 F.3d 416 (4th Cir. 1996)............................. 64

Hukill v. Auto Care, Inc., 192 F.3d 437 (4th Cir. 1999)................................ 56

Hylind v. Xerox Corp., 481 F. App’x 819 (4th Cir. 2012)............................. 81

Jiminez v. Mary Washington Coll., 57 F.3d 369 (4th Cir. 1995).................... 28

Johnson v. Flowers Indus., Inc., 814 F.2d 978 (4th Cir. 1987)..... 23, 56, 57, 59

Johnson v. Shalala, 991 F.2d 126 (4th Cir. 1993)..................................... 22, 52

Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658
(4th Cir. 2015)......................................................................... 31, 33, 34, 70

Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999)......................................... 84

Lauture v. St. Agnes Hosp., 429 F. App’x 300 (4th Cir. 2011)..................... 50

Martin v. Cavalier Hotel Corp., 48 F.3d 1343 (4th Cir. 1995)....................... 52

Minter v. Wells Fargo Bank, N.A., 762 F.3d 339 (4th Cir. 2014)............ 59, 73

Nichols v. Ashland Hosp. Corp., 251 F.3d 496 (4th Cir. 2001)...................... 28

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).............................. 50

Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir. 1997)........................ 55

Polk v. Montgomery Cty., 875 F.2d 316, 1989 WL 54029
(4th Cir. 1989)........................................................................................... 67

Premratananont v. S. Suburban Park & Rec. Dist., 149 F.3d 1191, 1998 WL 211543 (10th Cir. Apr. 30, 1998)............................................................. 55

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)................... 44

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235 (4th Cir. 2009)...... 83, 84

Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495 (4th Cir. 2007).... 33, 74, 76

Sloas v. CSX Transp., Inc., 616 F.3d 380 (4th Cir. 2010)........... 36, 37, 80, 81

Taylor v. Home Ins. Co., 777 F.2d 849 (4th Cir. 1985).................................. 77

Taylor v. Va. Union Univ., 193 F.3d 219 (4th Cir. 1999)............................. 32

United States v. Al–Hamdi, 356 F.3d 564 (4th Cir. 2004)............................. 61

United States v. Gregory, 871 F.2d 1239 (4th Cir. 1989).............................. 83

United States v. Wallace, 972 F.2d 344, 1992 WL 180101
(4th Cir. 1992)........................................................................................... 62

United States v. West, 877 F.2d 281 (4th Cir. 1989)..................................... 62

Weaver v. United States, 374 F.2d 878 (5th Cir. 1967).................................. 62

Whitten v. Fred’s, Inc., 601 F.3d 231 (4th Cir. 2010).............................. 21, 50

Williams v. Cerberonics, Inc., 871 F.2d 452 (4th Cir. 1989).......................... 44

Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d 1351
(10th Cir. 1997)......................................................................................... 55

Statutes & Regulations

28 U.S.C. § 1291.......................................................................................... 1, 2

28 U.S.C. § 1331.............................................................................................. 1

28 U.S.C. § 1343.............................................................................................. 1

28 U.S.C. § 1345.............................................................................................. 1

42 U.S.C. § 1981a(b)(1)................................................................................. 84

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq........................................................................................................ passim

42 U.S.C. § 2000e(j).................................................................................. 46

29 C.F.R. § 1605.1......................................................................................... 47

Rules & Other Authorities

Fed. R. App. P. 4(a)(1)(B)........................................................................... 1, 2

Fed. R. App. P. 4(a)(4)(A)(v).......................................................................... 2

Fed. R. App. P. 28.1(e)(2)(B)......................................................................... 90

Fed. R. App. P. 32(a)..................................................................................... 90

Fed. R. Civ. P. 49(b)...................................................................................... 30

Fed. R. Civ. P. 50.................................................................................... 40, 85

Fed. R. Civ. P. 50(a)............................................................................... passim

Fed. R. Civ. P. 52(a)(6)................................................................................. 77

Fed. R. Civ. P. 59.................................................................................... passim

Fed. R. Evid. 403.................................................................................... passim

Charles Alan Wright et al., Federal Practice & Procedure
(3d ed., database updated Apr. 2016).............................................. 51, 87

STATEMENT OF JURISDICTION

This is an enforcement action brought by the Equal Employment Opportunity Commission (“EEOC” or “Commission”) against CONSOL Energy, Inc. and Consolidation Coal Company (“Consol”)[1] pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e et seq.. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345.

On August 25, 2015, the district court entered final judgment on a jury verdict in favor of the EEOC in the amount of $586,860.74 with post-judgment interest. IX-JA-2428.[2] Consol filed a motion for new trial on September 18, 2015, which the district court denied on February 9, 2016. IX-JA-2429-30. Consol timely appealed on March 2, 2016. Id. See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

Cross-Appeal: In an oral ruling at trial on January 14, 2015, the district court granted Consol’s Rule 50(a) motion for judgment as a matter of law regarding punitive damages. IV-JA-902-03. The EEOC timely filed a notice of appeal on April 8, 2016. IX-JA-2430. See Fed. R. App. P. 4(a)(1)(B)(ii), 4(a)(4)(A)(v). This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether the district court correctly denied Consol’s Renewed Motion for Judgment as a Matter of Law based on the jury’s findings that (1) Consol failed to reasonably accommodate Charging Party Beverly R. Butcher, Jr.’s (“Butcher”) sincerely held religious beliefs; (2) Consol constructively discharged Butcher; and (3) CONSOL Energy was Butcher’s employer.

2. Whether the district court correctly denied Consol’s Motion for New Trial based on (1) its exclusion of evidence about the UMWA grievance process; (2) its denial of Consol’s Motion for Mistrial; (3) its refusal to give Consol’s identified proposed jury instructions; (4) its instruction to the jury to continue deliberations after returning an inconsistent verdict form; and (5) its exclusion of irrelevant testimony about Butcher’s job search in the coal industry.

3. Whether the district court correctly denied Consol’s Motion for New Trial Nisi Remittitur because the jury verdict was not excessive.

4. Whether the district court correctly denied Consol’s Motion to Amend Its Findings and Conclusions because (1) Butcher reasonably mitigated his damages; and (2) the court correctly refused to deduct the value of Butcher’s pension benefits from his damages award.

5. Whether the district court correctly granted the EEOC’s Motion for Permanent Injunction.

6. Cross-Appeal: Whether the district court erred in granting the defendants’ Rule 50(a) motion for judgment as a matter of law regarding punitive damages at the close of EEOC’s evidence at trial.

STATEMENT OF THE CASE

A. Course of Proceedings

This is an appeal from various rulings of the district court after a jury trial and post-trial evidentiary hearing in this Title VII enforcement action. On September 23, 2013, the EEOC filed a complaint alleging that Consol violated Title VII by failing to accommodate Butcher’s religious beliefs and constructively discharging him. I-JA-22. The EEOC requested injunctive relief, reinstatement, back and front pay, compensatory and punitive damages, and costs, and also requested a jury trial. I-JA-28-29.

The case was tried before a jury from January 13-15, 2015. IX-JA-2423-24. On January 14, 2015, at the close of the EEOC’s evidence, the district court granted Consol’s Rule 50(a) motion for judgment as a matter of law on punitive damages. IV-JA-902-03. On January 15, 2015, the jury returned a verdict in favor of the EEOC, finding both that CONSOL Energy was Butcher’s employer and that it was liable for failing to accommodate Butcher’s religious beliefs. II-JA-354-55. In the blank on the verdict form for the amount of compensatory damages, however, the jury wrote in “salary plus bonus & pension, court costs.” II-JA-357.

After sending the jury out of the courtroom and conferring with counsel, the district court called the jury back in and reinstructed it on compensatory damages. The court instructed the jury to resume deliberations and “determine whether or not you would award compensatory damages, if any … and then as a jury determine what amount, if any, compensatory damages you would award.” IV-JA-1162-63. Ten minutes later, the jury returned with a revised verdict form, with the blank for compensatory damages filled in with “$150,000.” II-JA-356; IV-JA-1165. At Consol’s request, the court polled the jury to verify that no portion of the $150,000 consisted of “salary, bonus, pension, or court costs,” which each juror confirmed. IV-JA-1167.

The parties then briefed the issue of equitable remedies, including front and back pay. IX-JA-2424-25. The EEOC also filed a motion for permanent injunction seeking to enjoin the defendants from violating Title VII with respect to reasonable accommodation of religious beliefs, which Consol opposed. IX-JA-2425; X-JA-2858-59. The court held an evidentiary hearing on these issues from June 17-18, 2015. IX-JA-2427.

On August 21, 2015, the district court granted the EEOC’s motion for permanent injunction and awarded $436,860.74 in back pay and front pay, in addition to the jury award of $150,000 in compensatory damages. Id.; V-JA-1309-47. On September 18, 2015, Consol filed a motion for new trial and renewed motion for judgment as a matter of law, which the EEOC opposed. IX-JA-2429-30. The district court denied Consol’s motions on February 9, 2016. IX-JA-2430; VI-JA-1674-1714. Consol filed its appeal on March 2, 2016, VI-JA-1714A-16, and the EEOC filed its appeal on April 8, 2016, X-JA-2882-84.

B. Statement of the Facts

Butcher worked for approximately thirty-seven years as a coal miner at the Robinson Run Mine in Shinnston, West Virginia. IV-JA-1194. Butcher testified at trial that he is an evangelical Christian and an ordained minister who “hold[s] to the beliefs of the inspiration of the scriptures, the authenticity … [and] authority of the scriptures.” III-JA-673-75. According to the scriptures, he explained, “God stands for good. The Antichrist stands for evil.” III-JA-676. Those who follow the Antichrist are condemned to “a place of torment, … terror, … [and] everlasting punishment. And that’s reserved for Satan himself, but it’s also reserved for those who follow the Antichrist, because when you follow the Antichrist, you’re also actually following Satan himself.” III-JA-678.

Butcher also testified at trial about his belief in the Mark of the Beast, as discussed in the Biblical Book of Revelation. III-JA-678-80. He explained:

The Mark of the Beast is talked about in … Revelation.… [T]he system of identification leads to receiving a mark in your hand or on your forehead …. I don’t know if it’s a mark that will be a visible mark, … but I think … it’s an influence.… [A]nd so because you’re willing to … be identified and how does he identify you? Through your hand … but not necessarily a mark, but it’ll be because of your willingness to use your hand, they will use some type of a scanner system that will identify you as being who you are.

III-JA-678-79. Butcher testified that he believed followers of the Antichrist received the Mark of the Beast. III-JA-679.

As of the summer of 2012, the relevant time period in this case, the Robinson Run Mine was owned by Defendant Consolidation Coal Company; Defendant CONSOL Energy was the parent corporation of Consolidation Coal. IX-JA-2506-07; IV-JA-979.[3] Officials from both corporate entities played direct roles in operating the mine. Mike Smith, the superintendent of the Robinson Run Mine, oversaw all day-to-day mine operations, including employment decisions. III-JA-666; IV-JA-905-06. Smith testified at his deposition that he was an employee of CONSOL Energy and at trial that he was an employee of Consolidation Coal; when asked about the discrepancy, he explained, “[f]or me it’s all the same thing, Consol Energy, Consolidation Coal Company.” IV-JA-931-33.

Chris Fazio, a supervisor of human resources, reported directly to Smith, and also testified that he had an “indirect reporting relationship” with Tom Hudson, a CONSOL Energy HR manager who oversaw several mines, including Robinson Run (IV-JA-1212). III-JA-791-92. Hudson, in turn, testified that he reported to Sam Johnson, who was at the time CONSOL Energy’s Director of HR.[4] IV-JA-1214.[5]

In mid-2012, CONSOL Energy officials, including Johnson, implemented a biometric hand scanner system at the Robinson Run Mine as part of a larger objective to install it at all of the company’s coal mining operations. IV-JA-978-79. In order for employees to participate in the system, they first had to be registered and “enrolled,” meaning that they had to hold up their hands (in most cases the right palm) to the scanner and allow it to measure their individual hand geometry. IV-JA-969, 1235. The scanner system would then associate the employee’s hand image with that person’s employee number, and it would be used to track time and attendance. IV-JA-913, 1236. Hourly employees were expected to scan their hands on the scanner twice per shift: before they entered the mine and when they left. IV-JA-913, 1180.

As of late July 2012 there were two Robinson Run hourly employees who were not expected to use the hand scanner system: Bruce Martin and Gary Persinger. III-JA-805; IV-JA-953-54. Both Martin and Persinger were missing fingers on their right hands, so they could not scan their right hands in the system, and Fazio testified that he was unable to enroll them using their left hands. III-JA-804-05. Fazio and Johnson testified that Johnson decided to allow them to sign in and out by entering their employee personnel numbers on the keypads attached to the scanner. III-JA-805; IV-JA-983-84.

Butcher testified that when he learned in mid-2012 that hand scanning would be implemented, he asked his union rep whether the union had any provision for employees who had a problem with hand scanning. III-JA-691-92. Butcher testified that the rep told him no, but the rep spoke to Consol HR, who directed Butcher to “bring a letter from my pastor explaining why I needed a religious accommodation for … scanning my hand ….” III-JA-692. According to Butcher, he responded by preparing a letter himself and by approaching Pastor Roy Weese, with whom he had attended church for approximately thirty years, and asking him for a character reference. Id.

Butcher met with Fazio and Smith about the hand scanning issue for the first time on June 18, 2012. III-JA-693. At that meeting, Butcher gave Fazio and Smith the letter he had written, which was introduced at trial as Plaintiff’s Exhibit 1. IV-JA-1173. The letter began by citing passages from the Book of Revelation (14:9-12), New King James Version, which explained that “anyone [who] worships the beast and his image, and receives his mark on his forehead or on his hand” “shall be tormented with fire and brimstone in the presence of the holy angels and in the presence of the Lamb … and the smoke of their torment ascends forever and ever; and they have no rest day or night.” The letter concluded:

As a Christian I believe it would not be in the best interest of a Christian believer to participate in the use of a hand scanner. Even though this hand scanner is not giving a number or mark, it is a device leading up to that time when it will come to fruition, and in good faith and a strong belief in my religion, I would not want to participate in this program.

According to Butcher, he “explained my position on the hand scan system and told them that as a Christian it was a system I didn’t think that I could or would want to participate in.” III-JA-694. At trial, Butcher testified unequivocally that he told Fazio and Smith he could not scan either hand, and that he had never told anyone at Consol that his objection to scanning was limited to the right hand. III-JA-686, 760. Fazio and Smith, however, testified that they understood Butcher’s religious objection to hand scanning not to include the left hand. III-JA-798; IV-JA-923-24, 967.

Butcher testified that he told Fazio and Smith he would be willing to check in and out with his supervisor or punch a time clock daily, both of which he had done previously without a problem. III-JA-698. He testified that he knew of no other timekeeping options at the mine; no one from Consol told him that there was an option to bypass the hand scanner by simply typing in an employee number, as Consol would later authorize Martin and Persinger to do. III-JA-700-01. Fazio conceded at trial that he never told Butcher that typing his employee number into the scanner system was a possibility, and that he had no reason to believe, at the time, that Butcher knew such an option existed. IV-JA-970-71.

Butcher, Fazio, and Smith all testified that Fazio responded by giving Butcher a copy of a form letter from Recognition Systems, Inc. (“RSI”), the scanner’s manufacturer. III-JA-700, 798; IV-JA-920-21, 1175. The letter stated that RSI’s hand scanners do not have any ability to detect or place any kind of mark, including the “mark of the Beast,” on anyone’s hand, and suggested that, since “[t]he Scriptures, regardless of version, consistently refer to the ‘mark of the Beast’ being found or placed only on the RIGHT hand or forehead,’” “we suggest that any individual having concerns regarding the ‘mark of the Beast’ be enrolled and use the hand scanner with their LEFT hand turned palm up.” IV-JA-1175.

Fazio testified that he asked Butcher to take the letter to his minister and review it with him. IV-JA-920, 963-64. Both Fazio and Smith testified that they asked Butcher to obtain a letter from his minister explaining the nature of his religious objection to hand scanning and bring it in to them for further review. IV-JA-921, 964.[6]

Between June and August 2012, Fazio, Hudson, Smith, and Johnson reviewed Butcher’s accommodation request and discussed how to respond. IV-JA-966, 982, 1221-22. Hudson testified that Consol’s policy was that if an individual could not or would not scan his right hand, he would have to at least attempt to scan his left hand. IV-JA-1225-26. Individuals who would not scan either hand “would be asked again and would ultimately be disciplined,” up to and including discharge. IV-JA-1226. Accordingly, Hudson testified, he, Smith, and Fazio recommended to Johnson that Butcher be required to scan his left hand, palm up. IV-JA-1227.

Johnson testified that he approved Hudson’s recommendation. IV-JA-982. In a single email dated July 25, 2012, he authorized Martin’s and Persinger’s accommodation of entering their employee numbers on the keypads and wrote, “let’s make our religious objector use his left hand.” IV-JA-1192. When asked why it was acceptable to allow Martin and Persinger to enter their employee numbers, but not Butcher, Johnson testified that “this is the system we’re going to use, was the decision that was made. We put a lot of effort into making sure that we were going to field this system properly, and our goal, remember, was to get as accurate as we could with whoever was entering the mine.” IV-JA-983-84. Hudson testified that he neither knew nor could think of any costs or burdens Consol incurred as a result of Martin and Persinger typing in their employee numbers instead of scanning their hands—nor could he think of any costs the company might incur by allowing Butcher to do the same. IV-JA-1257-60.

On August 6, 2012, Butcher met again with Smith and Fazio. III-JA-706. At this meeting, Smith and Fazio told Butcher that he would be permitted to scan his left hand in the system in response to his accommodation request. III-JA-707. Butcher asked if he could have some time to think and pray about the matter, and Smith and Fazio gave him until Friday, August 10. III-JA-708. Butcher testified that he “prayed very hard” about his accommodation request, and “went back to the scriptures again and … just re-referenced and studied them and went over them and prayed about it.” III-JA-708-09.

On August 10, Butcher met with Smith, Fazio, and William Higgs, a union representative. III-JA-709; IV-JA-864. Butcher told Smith and Fazio that “in good conscience I could not go along with this system of scanning my hand in and out.” III-JA-709; IV-JA-924, 951. At that time, Smith handed Butcher a copy of Consol’s hand scanner disciplinary policy and told him that it would be enforced against him if he refused to scan his left hand. III-JA-710; IV-JA-924, 952, 1180-84. According to the policy, the employee’s first and second missed scans would each result in a written warning; a third would result in a one- or two-day suspension, and a fourth would result in suspension with intent to discharge. IV-JA-1180-84. Butcher testified that, as he understood the policy, “if I didn’t go along with the hand scan system, their intent … was to fire me.” III-JA-711. Both Butcher and Consol’s witnesses testified that, once he refused to scan his left hand, no one offered to explore any other alternative accommodations with him. Id.; IV-JA-940-41, 983-84.

Butcher responded to Consol’s ultimatum by tendering his retirement. III-JA- 712; IV-JA-929-30, 952. Smith and Fazio both testified that Butcher told them he had been thinking about retiring anyway. IV-JA-929-30, 952. Butcher, however, testified that he told Smith and Fazio he “didn’t want to retire, that I didn’t have any hobbies, I wasn’t ready to retire, … I reiterated again, you know, that I really believed and tried to live by the scriptures and, well, almost practically just begged them to find a way to keep my job. And that was to no avail.” III-JA-711. Butcher testified (and Higgs corroborated) that he told them he “was retiring under protest …. They left me no choice.” III-JA-711-12; IV-JA-862. Butcher and his wife, Barbara, also testified that they had just purchased a new vehicle in April or May 2012, and they had planned for him to continue working at least until the vehicle was paid off. III-JA-713-14; IV-JA-859.

Shortly after retiring, Butcher testified, he learned through Chris Yanero, the president of his UMWA local, that Consol had been allowing Martin and Persinger to manage their timekeeping by “just punch[ing] their ID number into the system” instead of hand-scanning. III-JA-720-21. On August 22, 2012, Yanero filed a grievance through the union on Butcher’s behalf, alleging that “[m]anagement is in violation of the National Bituminous Coal Wage Agreement of 2011…. Mr. Butcher was forced to retire under protest because the use of the new hand scanner time clocks violate[s] his religious beliefs. Management could have accommodated Mr. Butcher as they did other employees.” X-JA-2801. On November 16, 2012, however, the Union Grievance Screening Committee withdrew Yanero’s grievance. Id. According to Joseph Reynolds, the International Field Representative in charge of handling the grievance at the time, the UMWA withdrew the grievance because it determined that “the National Bituminous Coal Wage Agreement of 2011 does not contain any provision prohibiting discrimination because of religion or requiring that employers provide religious accommodations to employees.” X-JA-2805.

Barbara Butcher testified that Butcher lost 30-35 pounds in the period following his forced retirement in August 2012. IV-JA-860. She also testified that he became less talkative, to the point that his fourteen-year-old grandson asked if anything was wrong with him. I d. By 2014, she testified, she had found Butcher sitting alone on two different occasions, and both times he told her he felt depressed. IV-JA-860-61.

Butcher did not stop working after leaving Robinson Run. At the post-trial evidentiary hearing in June 2015, he testified that he spent late summer and fall of 2012 looking for work: attending job fairs, looking for job postings, and applying for jobs. V-JA-1394. At the time, he was 58 years old and his highest level of education was a high school diploma. V-JA-1396. Prior to working in coal mining, Butcher testified, he had worked in commercial and residential construction, so he applied for construction jobs as well as coal mining and oil and gas jobs, along with anywhere else he saw was hiring. V-JA-1395-97.

For several months, Butcher received no job offers. Finally, he testified, he was hired as a carpenter helper by Personal Temporary Services, an employment agency, on October 22, 2012. V-JA-1400-01. Personal Temporary Services assigned Butcher to work for Middletown Home Sales, and Middletown eventually offered Butcher a permanent job in January 2013, which he accepted. V-JA-1405. Butcher worked at Middletown until September of 2013, when he left to take a job at Ryan Environmental that, he testified, “paid more and had benefits and had opportunity to move up.” V-JA-1407. Butcher was promoted to foreman at Ryan in September 2014, where he remained employed as of the time of the evidentiary hearing. V-JA-1410.

C. District Court’s Decisions

1. Principal Appeal

a. Order on Post-Verdict Motions (R.189)

On February 9, 2016, the district court entered an order denying Consol’s post-trial motions for judgment as a matter of law, for new trial, and to amend the court’s findings and conclusions. VI-JA-1674-714.

i. Denial of JMOL

The court began by noting that, “[o]n a renewed motion for judgment as a matter of law, the court considers whether the jury’s findings are supported by substantial evidence. In reviewing the evidence, the court may not weigh the evidence or make credibility determinations, but must view the evidence in the light most favorable to the nonmoving party.” VI-JA-1677-78 (internal citations and quotation marks omitted).

The court rejected Consol’s argument that there was “insufficient evidence to support the jury’s finding that the hand scanner policy conflicted with Butcher’s sincere religious beliefs.” VI-JA-1678. The court pointed to Butcher’s trial testimony that he “believed the hand scanner policy was immoral because it was part of an identification system and collection of personal information that would be used by the Christian Antichrist, and that participation in this system of identification was a showing of allegiance to the Antichrist.” Id. (citing III-JA-676-78, 680-82). According to the court, “[t]his is more than substantial evidence to support the jury’s findings on this issue.” VI-JA-1680.

Next, the court addressed Consol’s argument that “there was insufficient evidence to support the jury’s finding that Butcher was constructively discharged.” Id. As the court explained, Consol had argued that “the hand scanner policy had not been implemented before Butcher retired and that Butcher could have filed a grievance with his union, the United Mine Workers of America (‘UMWA’), under its collective bargaining agreement with CONSOL to challenge, through arbitration, any attempt to discharge Butcher.” Id.

The court rejected this argument as well. The court cited this Court’s legal standard for constructive discharge, specifically noting that:

“[A]n employee is constructively discharged if an employer deliberately makes the working conditions of the employee intolerable in an effort to induce the employee to quit.” Whitten v. Fred’s, Inc., 601 F.3d 231, 248 (4th Cir. 2010).… “[A] complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.” Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir. 1993); see also Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314, 324 (4th Cir. 2011). Similarly, deliberateness may be shown by evidence that the employer was aware of reasonable accommodations but did not offer them to the plaintiff.

VI-JA-1680-81.

The court then explained that “evidence of the collective bargaining agreement’s grievance procedure was irrelevant to a determination of whether Butcher was constructively discharged.” VI-JA-1681. The court found that, based on the record evidence pertaining to Martin and Persinger’s accommodation that enabled them to bypass the hand scanner, “there was sufficient evidence for the jury to find that the defendants were aware of a reasonable accommodation (the bypass method) but did not offer it to Butcher after several requests for an accommodation.” Id.

The court then turned to Consol’s argument that the EEOC had failed to prove that CONSOL Energy was Butcher’s employer. Id. The court explained:

“A parent company is the employer of a subsidiary’s personnel only if it controls the subsidiary’s employment decisions or so completely dominates the subsidiary that the two corporations are the same entity.” Johnson v. Flowers Indus., Inc., 814 F.2d 978, 980 (4th Cir. 1987).

VI-JA-1681-82.

The court then found that there was “ample evidence in the record to support the jury’s finding that CONSOL was Butcher’s employer.” VI-JA-1682. The court pointed to evidence adduced at trial that the hand scanner policy “was created by CONSOL and given to its subsidiaries for implementation,” that Butcher’s accommodation request was considered and denied by Fazio and Hudson, both of whom were CONSOL HR personnel, and that it was Johnson, CONSOL’s HR director, who “approved Fazio and Hudson’s decision to offer Butcher the option to scan his left hand palm up.” Id. The court also noted that Butcher’s retirement and benefits documents, as well as his employment records, were issued and maintained by CONSOL employees. Id. Accordingly, the court denied Consol’s renewed motion for judgment as a matter of law. VI-JA-1683.

ii. Denial of Motion for New Trial

The court then turned to Consol’s Fed. R. Civ. P. 59 Motion for New Trial. The court began by explaining that “‘A court may grant a new trial only if the verdict: (1) is against the clear weight of the evidence; (2) is based upon false evidence; or (3) ‘will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.’” VI-JA-1683 (quoting Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996)). It then addressed Consol’s argument that it had erred in excluding evidence about the grievance process contained in the UMWA’s collective bargaining agreement with CONSOL. VI-JA-1684. As the court explained, before trial the EEOC had filed a motion in limine to exclude all evidence regarding the grievance process as irrelevant, and the court had deferred ruling on the motion until trial. Id.

The court rejected Consol’s argument that evidence of the grievance process was relevant because “the EEOC had to show that Butcher had no option but to comply with the hand scanner policy or retire.” Id. The court explained that, because this Court has held that constructive discharge “may be shown by evidence that the employer was aware of reasonable accommodations but did not offer them to the plaintiff,” VI-JA-1684-85, as proved here, the availability of the grievance process “has no bearing on whether the defendants deliberately denied Butcher a religious accommodation” and hence is irrelevant to whether Butcher was constructively discharged. Id.

The court also rejected Consol’s argument that the grievance process was relevant to whether the defendants provided Butcher a reasonable accommodation. VI-JA-1685. It noted, “the evidence shows that Butcher’s constructive discharge was complete before the grievance process would have applied to an attempt to discharge Butcher.” Id. The court explained, “Title VII requires an employer to provide a reasonable accommodation when requested by the employee, not to provide a reasonable accommodation when ordered to do so by an arbitrator or some other tribunal.” VI-JA-1686.

The court then rejected Consol’s argument that the general arbitrability of Title VII claims in collective bargaining agreements was relevant in this case. Id. The court first noted that Consol admitted that its CBA did not require arbitration of Title VII claims. VI-JA-1687. In fact, even though “the UMWA filed a grievance on Butcher’s behalf after he retired, [it] withdrew the grievance because it concluded that the collective bargaining agreement did not cover religious discrimination claims. Thus, the grievance process could not have resulted in Butcher getting an accommodation.” Id.

The court also rejected Consol’s argument that “the grievance process evidence was admissible to impeach Butcher’s testimony that he had no option but to comply or retire,” noting that it “did not contradict Butcher’s statement” “that he believed his only options were to comply with the hand scanner policy, fail to comply and face discharge, or retire.” VI-JA-1687-88.

Next, the court rejected Consol’s argument that the EEOC had failed to object to the admission of the grievance process evidence. VI-JA-1688. It explained that “the EEOC was not required to object to any portion of Butcher’s testimony regarding the grievance process because it had already filed a motion in limine to exclude that evidence…. The EEOC did not waive its objection … by complying with this Court’s directions.” Id.

Finally, the court noted, pursuant to F ed. R. Evid. 403, “any probative value of the grievance process evidence was substantially outweighed by the risk of confusing the issues and misleading [the] jury.” VI-JA-1688-89. The court observed that “[s]uch evidence likely would have misled the jury regarding an employer’s obligations under Title VII, and likely would have confused the issues by injecting a factual question and speculation as to the potential outcome of any arbitration of Butcher’s claim.” VI-JA-1689.

The court then turned to Consol’s argument that a new trial was warranted based on the court’s denial of its motion for mistrial. The court rejected Consol’s position that it had been prejudiced by “the exclusion of the grievance process evidence and the jury instruction to disregard that evidence,” explaining that “the exclusion of evidence alone is not a ground for a mistrial,” and “[t]he jury is presumed to have followed” the curative instruction given by the court. Id. (citing Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 501 (4th Cir. 2001)). “This Court’s curative instruction was neutral and appropriate, and the defendants fail to demonstrate that they were unfairly prejudiced by this Court’s exclusion of the irrelevant grievance process evidence.” VI-JA-1689-90.

The court addressed Consol’s argument that it had erred in refusing to give several of the defendants’ proposed jury instructions.[7] Regarding Proposed Instruction No. 5, the court found that the business judgment instruction it gave the jury “clearly and correctly stated the standard by which a jury should evaluate an employer’s employment decisions.” VI-JA-1693 (citing DeJarnette v. Corning Inc., 133 F.3d 293, 298-99 (4th Cir. 1998), and Jiminez v. Mary Washington Coll., 57 F.3d 369, 376 (4th Cir. 1995)). Because the instruction was legally correct and “substantially covered the substance of the defendants’ proposed instruction,” the court found, “the defendants were not unfairly prejudiced.” Id.

Next, the court addressed Consol’s argument that it erred in denying the defendants’ Proposed Instruction No. 8 on nominal damages. VI-JA-1693. Instead, the court explained, it gave the jury “two sets of instructions” on compensatory damages. The first set of instructions, given as part of the initial jury charge, explained that compensatory damages were distinct from lost wages, that lost wages were an issue for the court and not for the jury, and that the mere fact that the court was instructing the jury on damages “does not imply or suggest that the Court believes that any damages are due.” VI-JA-1693-94.

The second set of instructions on compensatory damages, the court explained, was given after the jury had returned the first verdict form “stating compensatory damages as ‘salary plus bonus & pension, court cost.’” VI-JA-1694. The court rejected Consol’s argument that the jury’s initial verdict indicated that it found no compensatory damages or that it erred in refusing to give a nominal damages instruction. The court explained that its reinstruction on compensatory damages correctly stated the law and adequately informed the jury that it should not award damages if it did not find a basis for them, and it verified the jury’s intent by polling it after receiving the revised verdict. VI-JA-1695.

Finally, the court rejected Consol’s argument that it erred in refusing to give its Proposed Supplemental Instruction No. 4 on “unreasonably sensitive” employees and intolerable working conditions. VI-JA-1696. Instead, the court explained, it gave a different instruction that “correctly stated the standard for determining whether working conditions were intolerable.” VI-JA-1696-97 (citing Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). Thus, the court stated, its instruction covered that part of Consol’s proposed instruction that was supported by this Court’s case law, “and the defendants were not unfairly prejudiced.” VI-JA-1697.

Next, the court turned to Consol’s argument that it had erred under Fed. R. Civ. P. 49(b) when it directed the jury to continue deliberations on compensatory damages after returning the first verdict form. VI-JA-1698. The court noted that Rules 49(b)(3) and (4) give courts various options for handling inconsistent jury answers to special interrogatories, including entering judgment, directing the jury to continue deliberations, or ordering a new trial. VI-JA-1698-99. It explained that “the court also has discretion to determine whether a ‘verdict reflects jury confusion or uncertainty [and] … has a duty to clarify the law governing the case and resubmit the verdict for a jury decision.’ Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658, 673-74 (4th Cir. 2015) (internal quotation marks omitted).” VI-JA-1699.

Based on its initial set of jury instructions and the jury’s first damages award, the court explained, “this Court determined that the jury was confused regarding this Court’s instructions on damages and that the initial award did not complete the verdict form as to the question of what, if any, damages should be awarded.” Id. Accordingly, the court reasoned, it had a duty under this Court’s governing precedent to clarify the relevant law and resubmit the verdict. Id.

Next, the court addressed Consol’s argument that it had erred in excluding trial testimony pertaining to Butcher’s search for employment in the coal industry after he left Robinson Run. VI-JA-1700. The court had “excluded that evidence as irrelevant, concluding that Butcher was not required to seek employment in the coal mining industry to mitigate his early retirement and that any financial aspect of such testimony was irrelevant as reserved for this Court’s later determination of back pay damages.” Id.

The court held that whether Butcher would have to forgo his pension benefits if he took another coal mining job was irrelevant to any of the testimony Consol sought to impeach. VI-JA-1701. Rather, the court explained, the testimony was only relevant to back pay damages, which was not a jury issue, “and the risk of confusing the jury about financial specifics regarding mitigation substantially outweighed any probative value of the testimony.” Id. Moreover, the court noted, even if the testimony were relevant, Consol “failed to demonstrate that it was of such importance that its exclusion resulted in a manifestly unjust verdict.” VI-JA-1701-02 (citing Taylor v. Va. Union Univ., 193 F.3d 219, 235 (4th Cir. 1999)).

The court then rejected Consol’s argument that it should be granted a new trial nisi remittitur because the jury’s verdict of $150,000 in compensatory damages was unsupported by the evidence. VI-JA-1702. The court explained (id.):

“Under Rule 59(a) of the Federal Rules of Civil Procedure, a court may order a new trial nisi remittitur if it concludes that a jury award of compensatory damages is excessive.” Jones, 777 F.3d at 672 …. A court should order a new trial nisi remittitur if “the jury’s verdict is against the weight of the evidence or based on evidence which is false.” Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 502 (4th Cir. 2007) ….

The court then found that the jury’s award was supported both by Butcher’s own testimony and by his wife’s testimony about the effect of his retirement on him and on their household. Id. It noted Barbara Butcher’s testimony about her husband’s depression and weight loss and Butcher’s testimony about his anger, desperation to find another job, and loss of the relationships he had developed with his fellow miners over his thirty-five-year tenure at Robinson Run. VI-JA-1702-03. The court also noted that while Jones approved comparing cases to assess compensatory damages, it did not mandate such an approach, and Consol “do[es] not provide this Court with any comparable cases or authority to determine whether the damages award here is excessive.” VI-JA-1703 (citing Jones, 777 F.3d at 673).

iii. Denial of Motion to Amend Findings & Conclusions

The court then addressed Consol’s arguments challenging its findings and conclusions regarding back pay and front pay. First, the court rejected Consol’s argument that it “did not give enough weight to evidence that coal mining jobs were available to Butcher and that he took a job in a different industry to avoid losing his pension benefits.” VI-JA-1704. The court began by setting out the legal standard:

A T itle VII claimant is presumptively entitled to back pay unless the defendant shows that the claimant did not exert reasonable efforts to mitigate his damages.… [W]hether a claimant was reasonably diligent depends upon: (1) the economic climate; (2) the claimant’s skills and qualifications; (3) whether the claimant received a substantially equivalent job offer; and (4) the claimant’s age and personal limitations. A claimant may, in good faith, accept a lower paying job or a job in another field if his search for similar employment proves futile.

VI-JA-1704-05 (internal citations and quotation marks omitted).

The court then explained its finding that Butcher reasonably mitigated his damages. VI-JA-1705. The court noted that Butcher was seeking employment in a rural economic climate that “likely did not offer many high-paying employment opportunities,” but still needed to support his wife and two grandchildren and was not yet receiving his retirement benefits. Id. The court also pointed out that Butcher had only a high school education, and that, while he was highly skilled and qualified vis-à-vis the coal mining industry, his “coal mining skills did not transfer directly to high-paying employment in other industries, thus limiting his options for substantially similar employment.” VI-JA-1705-06. The court noted that Butcher tried multiple avenues to obtain a job in the mining industry, but when that failed, he “reasonably took a position in the construction or heavy machinery industry with lower pay to obtain income at a time when he had none.” VI-JA-1706.

The court also rejected Consol’s argument that it had not given enough weight to evidence about job openings at the Federal No. 2 mine. Id. The court pointed out that the openings in question only became available after Butcher had obtained steady employment elsewhere, and a claimant who, like Butcher, “‘exercised reasonable diligence to find similar employment, [was] … unable to do so, and then accepts a lower paying job’ is not required to ‘continue to search for higher paid employment.’” I d. (quoting Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1274 (4th Cir. 1985)). The court also noted that “the defendants failed to show that Butcher would have received substantially similar pay at the Federal No. 2 mine, as the evidence indicated that the pay rate could have varied downward by at least fifty percent.” Id. Accordingly, it found, Consol did not show that Butcher failed to mitigate his damages. Id.

Next, the court addressed Consol’s argument that it should have offset Butcher’s award of back pay and front pay with the pension benefits Butcher had received since his retirement. VI-JA-1706. The court turned first to Consol’s argument that the court had misapplied the “collateral source rule” in holding that the pension benefits in question were not subject to offset. VI-JA-1707.

The court explained:

[C]ompensation a plaintiff receives from a collateral source may not offset damages. [Sloas v. CSX Transp., Inc., 616 F.3d 380, 389 (4th Cir. 2010).] …[A] benefit is “from a collateral source unless it results from payments made by the employer in order to indemnify itself against liability.” Id.…

VI-JA-1707-08. The court also noted that, as a number of circuits have recognized, “pension benefits are generally considered to be a collateral source even if the employer contributed to the fund, because pensions are a term of employment rather than an attempt by the employer to indemnify itself against liability.” VI-JA-1708 (citations and internal quotation marks omitted).

The court then explained that, under the governing standard in Sloas, it determined that Butcher’s post-retirement pension benefits were a collateral source because “the pension was a term of Butcher’s employment with the defendants as governed by the UMWA’s collective bargaining agreement with CONSOL.” VI-JA-1709. It rejected Consol’s arguments that this case’s differing facts from Sloas warranted a different result, or that the court should have applied Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985), an inapposite case decided thirty years before Sloas. VI-JA-1709-10. The court also noted that the standard and rationale of Sloas are “in accord with other jurisdictions that have determined that pensions are from a collateral source.” VI-JA-1710 (citing cases).

b. Order Granting Permanent Injunction (R.162)[8]

On August 21, 2014, the district court granted the EEOC’s Motion for Permanent Injunction (R.133). V-JA-1333-43, 1345-47. The court noted that, to avoid injunctive relief:

An employer must show more than curative actions after the underlying litigation was filed …. [Rather,] an employer must show that the wrongful conduct was an isolated incident rather than systematic company-wide discrimination….

[T]he EEOC is able to seek relief beyond that needed to make the claimant whole as the EEOC has the right to advocate both for the employee’s personal interest and for the broader public interest…. As such, this Court must determine the following: (1) is the violation unlikely to recur and (2) is injunctive relief needed to eliminate the discriminatory effects of the past and bar future discrimination. Thus, Title VII remedies have not been limited to correcting only ongoing discriminatory policies.

V-JA-1337-39 (internal citations and quotation marks omitted).

The court then found that a permanent injunction was “required” in this case and that “the defendants have not met their heavy burden of proving that future discrimination will not occur.” V-JA-1341. It rejected Consol’s argument that its grievance and arbitration procedures were of any relevance, noting that they “are not considered in determining the validity of a Title VII claim.” Id. (citing Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318, 332 (1980)). It then noted its concern that “all four of the employees involved are still employed by the defendants or Murray”[9] and that Smith was still employed by CONSOL Energy in a direct supervisory position. V-JA-1342.

Accordingly, the court found, the injunction the EEOC sought was warranted and appropriate, and “all of the measures ordered in the injunction are measures that have been applied and upheld by other courts.” V-JA-1343 (citing EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987); Bundy v. Jackson, 641 F.2d 934, 947-48 (D.C. Cir. 1981)). The court entered a permanent injunction, scheduled to dissolve after three years, ordering the defendants to: (1) implement their hand scanner system in accordance with Title VII absent undue hardship, (2) provide complete exemption as an alternative for persons who need it as a reasonable accommodation; and (3) provide training on Title VII and the terms of the injunction to all management personnel within 120 days. V-JA-1345-47.

2. Cross-Appeal

In an oral ruling on the second day of trial, at the close of EEOC’s evidence, the district court granted Consol’s Rule 50 motion as to punitive damages. IV-JA-902-03. The court held:

[A]s to punitive damages, … I don’t think that under the Rule 50 standards there has been sufficient evidence that a reasonable jury would find a sufficient evidentiary basis for punitive damages. I believe there’s not sufficient evidence … that an agent or the corporation, through its management, personally acted with malice or reckless indifference.

Certainly there’s evidence that the parties recognized that there was a Title VII statute.… I note the Fourth Circuit’s law on this, but even with whatever inference may be given to that, I don’t think under Rule 50 there is sufficient evidence of malice or reckless indifference to the rights of Mr. Butcher.

SUMMARY OF ARGUMENT

Principal Appeal: Consol does not raise a single meritorious argument as to why any of the district court’s rulings on its post-trial motions should be disturbed. Regarding Consol’s renewed motion for JMOL, once a Title VII case has been tried on the merits, courts of appeal (including this one) do not review “prima facie cases” of discrimination; rather, they consider whether there was sufficient evidence to support the jury’s verdict on the ultimate question of discrimination vel non. Here, there was more than sufficient evidence to support the jury’s verdict that Consol failed to reasonably accommodate Butcher’s sincerely held religious beliefs. There was also more than sufficient evidence to support its verdict that Consol deliberately put Butcher in a position where he had no choice but to resign by forcing him to choose between his religious beliefs and his job. Finally, there is no basis to disturb the jury’s finding that CONSOL Energy and Consolidation Coal were a “single “ or “integrated” employer with respect to Butcher because there was abundant evidence at trial that CONSOL Energy employees were involved in HR decisions and day-to-day management at Robinson Run.

Nor does Consol offer a viable argument that the district court abused its discretion in denying its motion for new trial. It does not and cannot show that the district court’s decision to exclude evidence about the UMWA grievance process and about Butcher’s post-retirement job search as both irrelevant and more prejudicial than probative under Rule 403 was “arbitrary or irrational.” Consol cannot show that the district court erred—much less that it suffered any prejudice—based on the court’s denial of its motion for mistrial, in light of the curative instruction the court gave the jury. It also cannot show error in the district court’s refusal to give any of the proposed jury instructions it identifies, which were all either legally erroneous, inappropriate to this case, or redundant of instructions that were actually given. And Consol cannot demonstrate abuse of discretion in the district court’s reinstruction of the jury to continue deliberations after returning a patently inconsistent verdict form, particularly in light of the great care the court took to make sure it did not convey to the jury any opinion as to whether damages were warranted.

Consol also fails to show that the district court abused its discretion in concluding that the jury verdict was not excessive and that Butcher did not mitigate his damages, instead grossly mischaracterizing the trial testimony on both subjects. Finally, Consol simply refuses to recognize this Court’s governing standard in Sloas for what constitutes a “collateral source” for purposes of offset, which mandates that the pension benefits at issue here are a collateral source.

Cross-Appeal: The district court erred in taking the issue of punitive damages away from the jury at the close of the EEOC’s evidence at trial. By this time in the trial, there was more than adequate evidence to sustain a reasonable jury finding in the EEOC’s favor as to the first three prongs of the test for a punitive damages award based on reckless indifference to federally protected rights. The fourth prong, the employer’s failure to engage in good-faith efforts to comply with the law, is an affirmative defense as to which Consol bore the burden of proof.

ARGUMENT

I. Principal Appeal

A. The District Court Correctly Denied Consol’s Renewed Motion for Judgment As A Matter of Law.

Standard of Review: This Court “review[s] the denial of a motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to the prevailing party.” Dotson v. Pfizer, Inc., 558 F.3d 284, 292 (4th Cir. 2009). “‘A trial court may not appropriately enter [JMOL] unless it concludes, after consideration of the record as a whole in the light most favorable to the non-movant, that the evidence presented supports only one reasonable verdict, in favor of the moving party.’” Id. (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 458 (4th Cir. 1989)). In reviewing the record, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence…. [I]t must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).

1. There Was More Than Sufficient Evidence to Support the Jury’s Finding that Consol Failed to Reasonably Accommodate Butcher’s Sincerely Held Religious Beliefs.

Both the Supreme Court and this Court have repeatedly observed that, once a case has gone to trial on the merits, the McDonnell Douglas prima facie case of discrimination warrants no further consideration. See, e.g., Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67-68 (1986) (where “the defendant … failed to persuade the District Court to dismiss the action for want of a prima facie case, and the case was fully tried on the merits,” “these circumstances place the ultimate Title VII question of discrimination vel non directly before the court.… We may therefore proceed to the question whether the employer’s proposed accommodation of respondent’s religious practices comports with the statutory mandate of § 701(j).”); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (“[B]ecause this case comes to us following a full trial on the merits, our sole focus is ‘discrimination vel non’—that is, whether in light of the applicable standard of review the jury’s finding of unlawful [discrimination] is supportable.”). Accordingly, the question now before this Court is not, as Consol argues, whether the EEOC established a “prima facie case” of religious discrimination on behalf of Butcher. Rather, it is whether, viewing the evidence adduced at trial as a whole in the light most favorable to the EEOC and to the verdict, that evidence is sufficient to support the jury’s finding that Consol failed to reasonably accommodate Butcher’s sincerely held religious beliefs.

The Ansonia Court explained, “[t]he employer violates [Title VII] unless it ‘demonstrates that [it] is unable to reasonably accommodate … an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.’ 42 U.S.C. § 2000e(j).” 479 U.S. at 68. As the Supreme Court recently observed, Title VII’s requirement of reasonable accommodation for religious observance or practice “does not demand mere neutrality with regard to religious practices…. Rather, it gives them favored treatment…. [W]hen an applicant requires an accommodation as an ‘aspec[t] of religious … practice,’ … Title VII requires otherwise-neutral policies to give way to the need for an accommodation.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (internal citation and quotation marks omitted). Accordingly, this Court has held, to satisfy its burden, Consol must demonstrate “either (1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances or (2) that such accommodation was not provided because it would have caused an undue hardship—that is, it would have ‘result[ed] in “more than a de minimis cost” to the employer.’” EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (quoting Philbrook, 479 U.S. at 67).

There was more than enough evidence adduced at trial to support the jury’s finding that Consol failed to satisfy its burden. The jury heard Butcher testify at length about his sincerely held religious belief that, as an evangelical Christian, he could not scan either hand because of the scanner’s association with the Mark of the Beast. III-JA-673-80, 686, 694, 760; IV-JA-1173. As the EEOC’s interpretive guidelines explain, “[t]he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee[.]” 29 C.F.R. § 1605.1. Thus, whether Butcher believed that Consol’s scanner in fact transmitted the Mark of the Beast contemporaneously as it scanned a person’s hand or whether he believed it might do so later, as Consol argues (Consol-Br.32), is of no consequence. The jury was entitled to credit Butcher’s testimony that hand scanning violated his personal, sincerely held religious beliefs, and the jury evidently did just that.

Based on the trial evidence, the jury had ample support for its finding that Consol did not offer Butcher a reasonable accommodation for his religious belief that he could not scan either hand. It is undisputed that the only purported “accommodation” Consol offered was that Butcher be required to scan his left hand or be subjected to progressive discipline, up to and including discharge. IV-JA-1225-27. Johnson, CONSOL Energy’s Director of HR, approved this measure for Butcher on July 25, 2012, in the same email in which he authorized Martin’s and Persinger’s accommodation of entering their employee numbers on the keypads. IV-JA-982, 1192. Thus, the jury heard testimony that Consol had a simple, cost-free accommodation readily available to it, but simply chose not to offer it to Butcher because of his religious-based objection to hand scanning.

For the same reasons, there was abundant support for the jury’s finding that Consol could not demonstrate undue hardship. Hudson was asked point-blank at his deposition whether allowing Martin and Persinger to type numbers into the keypads instead of scanning their hands presented any additional burdens or costs to Consol—actual or conceivable—and he answered “no.” IV-JA-1257-58. EEOC’s counsel then asked Hudson the same questions with respect to allowing Butcher to do the same thing—and, again, he answered: “No, I can’t think of any costs.” IV-JA-1259-60. Because there was more than sufficient evidence to support a reasonable jury verdict in the EEOC’s favor, Consol’s Motion for JMOL with respect to the claim of failure to accommodate Butcher’s religious beliefs must be denied.

2. There Was More Than Sufficient Evidence to Support the Jury’s Finding that Butcher Was Constructively Discharged.

As the district court observed, this Court requires plaintiffs alleging constructive discharge to show that the employer “deliberately ma[de] the working conditions of the employee intolerable in an effort to induce the employee to quit.“ VI-JA-1680 (citing Whitten, 601 F.3d at 248) (internal alterations and quotation marks omitted). However, as the EEOC argued below (R.68 at 16-17 n.8), the “deliberateness” requirement is inconsistent with the Supreme Court’s articulation of the constructive discharge standard in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). Suders, 542 U.S. at 141 (“Under the constructive discharge doctrine, … [t]he inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?”). This Court has acknowledged the issue on several occasions, but each panel opined that it was without power to revise the standard. See, e.g., Lauture v. St. Agnes Hosp., 429 F. App’x 300, 307 n.4 (4th Cir. 2011); Whitten, 601 F.3d at 248 n.8.

Earlier this year, the Supreme Court revisited the legal standard for constructive discharge in Green v. Brennan, 136 S. Ct. 1769 (2016). After restating the Suders test (id. at 1777), the Court explained:

The whole point of allowing an employee to claim “constructive” discharge is that in circumstances of discrimination so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him.… We do not also require an employee to come forward with proof—proof that would often be difficult to allege plausibly—that not only was the discrimination so bad that he had to quit, but also that his quitting was his employer's plan all along.

Id. at 1779-80 (internal citation omitted) (emphasis added).

The Supreme Court has now clearly articulated an objective standard for constructive discharge that does not include a “deliberateness” requirement, abrogating this Court’s contrary case law. We respectfully suggest that this Court should henceforth follow Green. See 13 Charles Alan Wright et al., Federal Practice & Procedure § 3506 & n.16 (3d ed., database updated Apr. 2016) (“Wright & Miller”) (observing that the general rule ”that one panel is bound by the previous decision of another panel of that court” “does not apply if an intervening decision by the Supreme Court … casts doubt on the prior ruling”).

Nonetheless, as the EEOC argued below, even applying this Court’s “deliberate” constructive discharge standard, there was more than enough evidence at trial to support the jury’s finding that Butcher was constructively discharged. As this Court has observed, “[d]eliberateness can be demonstrated by actual evidence of intent by the employer to drive the employee from the job, or circumstantial evidence of such intent, including a series of actions that single out a plaintiff for differential treatment.” Johnson, 991 F.2d at 131. See also Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1355 (4th Cir. 1995) (“[I]n assessing the deliberateness of an employer’s conduct, an employer must necessarily be held to intend the reasonably foreseeable consequences of its actions.”) (internal citations and quotation marks omitted). “[A] complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.” Johnson, 991 F.2d at 132; see also Crabill, 423 F. App’x at 324.

The jury heard testimony that Butcher told Fazio and Smith that he could not scan either hand because hand-scanning was against his religious beliefs. III-JA- 686, 694, 760; IV-JA-1173. It then heard testimony that Consol responded by forcing Butcher to choose between his religious beliefs and his continued employment—he could scan his left hand or be subjected to Consol’s progressive discipline policy, which would culminate in termination. III-JA-710-11; IV-JA-924, 952, 982, 1180-84, 1192, 1225-27. It also heard uncontroverted testimony that, once Butcher refused to scan his left hand, no one from Consol offered to explore any alternative accommodations with him or told him that typing his employee number into the scanner system was an option. IV-JA-940-41, 970-71, 983-84. Finally, the jury heard Butcher testify that he told Smith and Fazio he didn’t want to retire, “practically just begged them to find a way to keep my job,” and finally told them he “was retiring under protest …. They left me no choice.” III-JA-711-12; IV-JA-862.

This is all evidence sufficient to support the jury’s finding that Consol, “intend[ing] the reasonably foreseeable consequences of its actions,” deliberately made Butcher’s working conditions intolerable in an effort to induce him to retire, which he did. Nonetheless, on appeal, Consol continues to insist that, so long as Butcher could have filed a grievance under the CBA, he could not have been constructively discharged under Title VII. Consol-Br.33-39. Consol is wrong.

First, the uncontroverted record evidence reflects that Butcher could not have filed a grievance pertaining to his request for religious accommodation because it was the UMWA’s position that the collective bargaining agreement contains no provision prohibiting religious discrimination or requiring accommodation. X-JA-2805. As the EEOC explained below, the grievance Butcher’s union rep attempted to file was withdrawn on precisely those grounds. X-JA-2801. Thus, as the district court recognized, whether or not Butcher filed a union grievance simply had no bearing on the constructive discharge issue. VI-JA-1685-87.

Nor is the case law—including any of the cases Consol cites—to the contrary. Even aside from the fact that the CBA in this case did not cover religious accommodation issues, as the Supreme Court observed, “Title VII was designed to supplement rather than supplant, existing laws and institutions relating to employment discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 (1974). The Alexander Court explained that “[t]he distinctly separate nature of … contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence.” Id. at 49-50.

The cases Consol relies on, by contrast, are both from non-binding jurisdictions and entirely inapposite. They all involve factual scenarios where employees simply chose to quit rather than utilizing their employers’ internal “grievance” procedures—not collective bargaining agreements. See Premratananont v. S. Suburban Park & Rec. Dist., 149 F.3d 1191, 1998 WL 211543, at *1 (10th Cir. Apr. 30, 1998) (plaintiff resigned while internal grievance process was ongoing); Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d 1351, 1355 (10th Cir. 1997) (plaintiffs resigned while investigation was ongoing); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) (plaintiff resigned even though defendant had offered to separate her from harasser); Bozé v. Branstetter, 912 F.2d 801, 803-04 (5th Cir. 1990) (per curiam) (plaintiff was removed from probation after complaining, but subsequently resigned anyway). There is no basis for this Court to disturb the jury’s verdict on this point.

3. There Was More Than Sufficient Evidence to Support the Jury’s Finding that CONSOL Energy and Consolidation Coal Company Both Employed Butcher.

The parties do not dispute that Consolidation Coal Company was, at the relevant time, a wholly owned subsidiary of CONSOL Energy. This Court applies the “single employer” or “integrated employer” doctrine to assess when “a parent company and its subsidiary can be considered a single employer for purposes of Title VII liability.” Butler v. Drive Auto. Indus. of Am., 793 F.3d 404, 408 n.3 (4th Cir. 2015). As the district court correctly recognized, this Court originally explained the single employer standard in Flowers:

In an employment context, the parent company can be the employer of a subsidiary’s workers if it exercises excessive control in one of two ways. First, the parent could control the employment practices and decisions of the subsidiary. If the parent company hired and fired the subsidiary employees, routinely shifted them between the two companies, and supervised their daily operations, it would be hard to find that the parent was not their employer. Second, the parent might so dominate the subsidiary’s operations that the parent and the subsidiary are one entity and thus one employer.

814 F.2d at 981. See also Hukill v. Auto Care, Inc., 192 F.3d 437, 442 (4th Cir. 1999), abrogated on other grounds by Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) (applying four-factor “integrated employer” test including (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership/financial control, where no single factor is conclusive, but control of labor operations is the most critical factor).

As the district court correctly ruled, the EEOC adduced more than enough evidence to establish that CONSOL Energy and Consolidation Coal were a single or integrated employer with respect to Butcher. The jury heard extensive testimony that CONSOL Energy “control[led] the employment practices and decisions” of Consolidation Coal. Flowers, 814 F.2d at 981. It heard Butcher’s and Smith’s testimony (III-JA-666; IV-JA-905-06) that Smith oversaw all day-to-day operations at Robinson Run, including employment decisions—and Smith’s testimony that “[f]or me it’s all the same thing, Consol Energy, Consolidation Coal Company.” IV-JA-931-33. The jury also heard Fazio testify that he reported to Hudson, a CONSOL Energy HR manager (III-JA-791-92), who in turn testified that he reported to Johnson, CONSOL Energy’s Director of HR. IV-JA-1214.

The jury also heard extensive testimony that CONSOL Energy and its officials implemented employment policies and made decisions that affected Butcher directly.[10] It heard Johnson testify that CONSOL Energy decided to implement the scanner system at all its mines, including Robinson Run. IV-JA-978-79. It heard Fazio’s and Hudson’s testimony that it was Johnson—CONSOL Energy’s HR Director—who decided to require Butcher to scan his left hand, while exempting Martin and Persinger. III-JA-805; IV-JA-982, 984, 988, 1225-26. The jury even saw, as a trial exhibit, Johnson’s email of July 25, 2012, in which he concurrently authorized Martin’s and Persinger’s accommodation of entering their employee numbers on the keypads and wrote, “let’s make our religious objector use his left hand.” IV-JA-1192.

This was all evidence before the jury that CONSOL Energy, the parent company, “control[led] the employment practices and decisions of” Consolidation Coal, its subsidiary, such that “it would be hard to find that the parent was not [Butcher’s] employer.” Flowers, 814 F.2d at 981. Accordingly, the district court correctly denied Consol’s motion for JMOL.

B. The District Court Did Not Abuse its Discretion in Denying Consol’s Motion for New Trial.

Standard of Review: “A district court’s denial of a motion for a new trial is reviewed for abuse of discretion, and will not be reversed save in the most exceptional circumstances.” M inter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014) (internal citations and quotation marks omitted). “[U]nder [Fed. R. Civ. P. 59], the district court must ‘set aside the verdict and grant a new trial[ ] if … (1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.’” Id. (internal citation omitted).

Rulings on the admissibility of evidence are reviewed for abuse of discretion, and can be overturned only if “arbitrary and irrational.” Minter, 762 F.3d at 349. Moreover, this Court will not “set aside or reverse a judgment on the grounds that evidence was erroneously admitted unless justice so requires or a party’s substantial rights are affected.” Creekmore v. Maryview Hosp., 662 F.3d 686, 693 (4th Cir. 2011).

1. The District Court Correctly Excluded Evidence About the UMWA Grievance Process.

The district court did not abuse its discretion in excluding trial testimony about the availability of the UMWA grievance process, nor was its exclusionary ruling “arbitrary or irrational.” First, as explained supra at 18, it was the UMWA’s own position that Butcher could not vindicate his right to religious accommodation via its collective bargaining agreement. Accordingly, the district court correctly ruled that the grievance process could not have been any part of a reasonable accommodation for Butcher. VI-JA-1685. For the same reasons, evidence about the grievance process was irrelevant to whether Butcher was constructively discharged based on Consol’s denial of his request for religious accommodation. VI-JA-1687. And it could not have “impeached” Butcher’s testimony that he reasonably felt he had no option but to comply with Consol’s hand scanner policy or retire, as it afforded no viable alternative. VI-JA-1688.[11]

Nor did the district court abuse its discretion in ruling that the EEOC did not waive its objection to the admission of the grievance testimony. As the court explained (VI-JA-1688), the EEOC had filed a motion in limine to exclude this evidence well before trial. IX-JA-2420 (R.77, filed Dec. 11, 2014). The district court allowed counsel to reargue the motion at the end of the first day of trial (III-JA-825-35), and did not rule on it until the morning of the second day of trial (IV-JA-902-03). The court related that, because it “held that motion under consideration …. The EEOC did not waive its objection to the admissibility of evidence about the grievance process by complying with this Court’s directions.” VI-JA-1688.

Moreover, as the EEOC argued below (R.185 at 13-14), whether or not the EEOC “waived” its objection is of no legal consequence because district courts have the authority to exclude evidence sua sponte. See, e.g., United States v. Wallace, 972 F.2d 344, 1992 WL 180101, at *3-4 (4th Cir. 1992) (affirming sua sponte Rule 403 exclusion); see also, e.g., Dugan v. R.J. Corman R. Co., 344 F.3d 662, 669 (7th Cir. 2003) (“[A] judge is entitled to exclude unreliable evidence even if no party objects.”); Weaver v. United States, 374 F.2d 878, 882 (5th Cir. 1967) (holding that district court did not err in sua sponte excluding improper testimony; “It is not only the trial judge’s right but his duty to see that only proper and relevant evidence was admitted.”).

2. The District Court Correctly Denied Consol’s Motion for Mistrial.

“The grant or denial of a motion for … mistrial is within the trial court’s discretion and will not be overturned absent a clear abuse of that discretion. A [movant] must show prejudice in order for the court’s ruling to constitute an abuse of discretion[.]” United States v. West, 877 F.2d 281, 287-88 (4th Cir. 1989) (internal citations omitted).

Consol cannot show that the district court abused its discretion in refusing to grant its motion for mistrial—much less that Consol suffered any prejudice as a result. After the court decided to grant the EEOC’s motion in limine, it gave the jury a curative instruction in which it explained that it had “determined that such testimony and evidence is inadmissible because it is not relevant to your determination of the plaintiff’s religious discrimination claim …. Therefore, I am striking any testimony dealing with the union grievance proceedings and you shall disregard that testimony….” IV-JA-855. As the district court put it, its curative instruction was entirely “neutral and appropriate” (VI-JA-1689)—it assigned no blame to any party for mentioning the excluded testimony, and simply told the jury to disregard it.

Both the Supreme Court and this Court have observed repeatedly that juries are presumed to follow their instructions, including curative instructions. See, e.g., Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (“We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court’s instructions ….”) (internal citation omitted); Hinkle v. City of Clarksburg, 81 F.3d 416, 427 (4th Cir. 1996) (“Juries are presumed to follow instructions provided them, … and the mere fact the jury found for Appellees is not evidence that it ignored this curative instruction.”).

Consol offers no logical reason to think that the jury in this case ignored the district court’s instruction or was otherwise prejudicially confused by the grievance testimony on the first day of trial. In effect, Consol’s mistrial argument amounts to a rehashing of its earlier, meritless arguments regarding the court’s exclusion of the grievance evidence. Consol-Br.41, 43. This Court should affirm the district court’s ruling.

3. The District Court Did Not Abuse Its Discretion in Refusing to Give Any of Consol’s Identified Proposed Jury Instructions.

[A] trial court’s jury instructions [are reviewed] for abuse of discretion…. Instructions will be considered adequate if construed as a whole, and in light of the whole record, they adequately informed the jury of the controlling legal principles without misleading or confusing the jury to the prejudice of the existing party.

Bunn v. Oldendorff Carriers GmbH & Co. KG, 723 F.3d 454, 468 (4th Cir. 2013) (internal citations and quotation marks omitted).

Consol complains that the district court refused to give three of its proposed jury instructions. Consol-Br.43-47. Consol in no way shows that the district court erred with respect to any of the challenged instructions, much less that any error was problematic in light of the body of instructions as a whole or that it resulted in prejudice, as the law requires.

First, Consol argues that the jury should have been instructed on “business judgment” (Proposed Instruction No. 5). Consol-Br.44-45. It was so instructed. IV-JA-1132. Moreover, Consol stated affirmatively at the charge conference that it believed the Court’s instruction on this issue was correct. IV-JA-1024.

Next, Consol complains that the court’s refusal to instruct the jury on nominal damages (Proposed Instruction No. 8) “led to the award of unjustified damages.” Consol-Br.45. This argument springs from Consol’s continued insistence that the jury’s initial verdict form, on which it wrote “salary plus bonus & pension, court cost” in the blank for compensatory damages, reflected the jury’s unambiguous intent to award zero compensatory damages. Id. This argument is addressed in further detail infra at 69.

For present purposes, we note that, at the charge conference, the district court explained its view that a nominal damages instruction was inappropriate in this case. IV-JA-1035-36. The court explained that “[u]nless there’s a fee shifting provision, we don’t do this in a regular case,” because the usual function of a nominal damages instruction is to enable a civil rights plaintiff to recover attorney’s fees when liability is proven in the absence of compensatory damages. IV-JA-1036. In this case, the court observed, such an instruction would simply be “confusing,” noting that Consol was free to argue to the jury that the EEOC was “not entitled to anything.” Id.

The district court’s reasoning was logical, correct, and consistent with this Court’s law. “An award of nominal damages is inappropriate where deprivation of a civil right has caused actual, probable injury…. And an improper instruction on damages—such as a nominal damages instruction given in a case where no possibility for nominal damages exists—can be so prejudicial as to warrant a new trial.” Polk v. Montgomery Cty., 875 F.2d 316, 1989 WL 54029, at *2 (4th Cir. 1989) (unpublished) (internal citations omitted). The fact that the jury ultimately disagreed with Consol, and awarded compensatory damages to the EEOC, does not render the instruction erroneous.

Finally, Consol insists that the district court abused its discretion in not including, in its constructive discharge instruction, Consol’s full proposed language about employees who quit prematurely without giving their employers a reasonable chance to work out problems in the workplace (Proposed Supplemental Instruction No. 4). Consol-Br.46-47. This argument is meritless.

The court instructed the jury, in relevant part, as follows (IV-JA-1135):

Intolerability of the working conditions is assessed by the objective standard of whether a reasonable person in the employee’s position would have felt compelled to resign. An employee is not guaranteed a working environment free from stress. It is the obligation of an employee not to assume the worst and not to jump to conclusions too quickly. An employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged.

As the district court pointed out, it based this instruction on this Court’s Bristow decision—the very case Consol now cites in its brief to this Court as articulating the correct legal standard for constructive discharge. Compare Consol-Br. 46 with VI-JA-1696-97. Even Consol cannot muster an argument that the district court’s instruction was in any way improper or contrary to this Court’s law, and, to the extent it assigns error based on the court’s failure to follow the inapposite law of other circuits, it is simply wrong.

4. The District Court Correctly Instructed the Jury to Continue Deliberations After Returning An Inconsistent Verdict Form.

Initially, Consol is incorrect in stating—without any legal support—that this issue is “a legal error subject to de novo review.” Consol-Br.47. As explained supra at 59, because Consol argues this issue as a basis for granting a motion for new trial, it is reviewed only for abuse of discretion. Moreover, “[t]he use of special verdicts rests with the discretion of the district court, and the exercise of this discretion extends to the language used in the form, and [the appellate court] reviews for an abuse of discretion. Additionally, the district court exercises the discretion to determine whether the jury’s findings as evidenced by the special verdicts will support the verdict rendered or whether certain issues should be resubmitted to the jury.” Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994) (internal citations omitted).

Consol’s argument on this point boils down to this: when the jury initially returned a verdict finding Consol liable and awarding the EEOC “‘salary plus bonus & pension, court costs’ in compensatory damages,” “the Jury clearly decided to award no damages for emotional distress and related losses ….” Consol-Br.47. Then, when “the Court sent the jury back to deliberate again as to compensatory damages,” it “essentially direct[ed] the Jury to make a finding for compensatory damages.” Id.

The district court did not abuse its discretion by disagreeing with Consol. When the jury returned the initial verdict form with “salary plus bonus & pension, court costs” written into the blank for “compensatory damages,” there was nothing “clear” about the result. Had the jury “clearly” intended to award zero compensatory damages, it could have written “zero” or “none”; instead, it wrote something nonresponsive. As the Ninth Circuit has observed, “[i]n reconciling answered verdict forms, no inference may be drawn from the jury’s failure to answer a verdict form.… The court may properly enter judgment only if the answered verdict forms conclusively dispose of the issues submitted to the jury.” C alifornia v. Altus Fin. S.A., 540 F.3d 992, 1004-05 (9th Cir. 2008) (internal citation omitted).

This Court has stated repeatedly that when a jury indicates confusion or renders an inconsistent verdict, it can be entirely appropriate—if not obligatory—for the district court to provide clarification to the jury and resubmit the verdict. See, e.g., Jones, 777 F.3d at 674 (“A district judge who ‘concludes that an inconsistent verdict reflects jury confusion or uncertainty … has the duty to clarify the law governing the case and resubmit the verdict for a jury decision.’” (quoting Hafner v. Brown, 983 F.2d 570, 575 (4th Cir. 1992))); Bristol, 41 F.3d at 191 (“[O]nce a jury makes known its difficulty, it is the duty of the judge to be responsive to that difficulty, and he is required to give such supplemental instructions as may be necessary.”) (internal citations and quotation marks omitted).

The district court’s actions here were thoroughly consistent with this Court’s law. After receiving the inconsistent verdict, the court conferred with the parties, decided that the jury was very likely confused about the meaning of “compensatory damages”, and decided to reinstruct the jury and resubmit the verdict. IV-JA-1157-61. In reinstructing the jury, the court reminded it about the distinction between compensatory damages and lost wages, and reminded the jury that its answer to Question 7 should only address compensatory damages. IV-JA-1162. It also told the jury explicitly that “[t]he fact that I am sending you back does not indicate my feelings as to the amount of damages or whether damages—compensatory damages should be awarded.” Id. Then, after the jury returned a second verdict awarding $150,000 in compensatory damages, at Consol’s request, the court specifically asked the jury whether its compensatory damages award included “any amount for salary, bonus, pension, or court costs,” and the jury confirmed that it did not. IV-JA-1167. The court did not abuse its discretion.

5. The District Court Correctly Excluded Testimony Pertaining to Butcher’s Job Search in the Coal Industry As Irrelevant to Any Issue Before the Jury.

Lastly, Consol complains that the district court allowed the EEOC to elicit trial testimony from Butcher about his post-retirement job search in the coal mining industry, but that it ostensibly did not allow Consol to cross-examine Butcher about the same issue. Consol-Br.51-52. The initial testimony arose in the EEOC’s direct examination of Butcher, in which, consistent with the court’s ruling, counsel elicited general testimony regarding Butcher’s plans to continue working rather than to retire in 2012. III-JA-713-20. Consol then sought to elicit more detailed testimony on cross-examination about the financial consequences of Butcher’s post-retirement job search, and the district court excluded it as both irrelevant and inadmissible under Fed. R. Evid. 403. III-JA-755-57.

Due to the bifurcated nature of the proceedings in this case, as the district court observed, the financial aspects of whether Butcher mitigated his damages vis-à-vis lost wages were not before the jury. III-JA-757; VI-JA-1700-01. Nor were they relevant to any issue that actually was before the jury—i.e., whether being a coal miner had otherwise been important to Butcher and whether losing his job had negatively impacted his life as a result. The EEOC’s testimony had been allowed in only for that limited purpose, and the court had repeatedly sustained Consol’s objections whenever the EEOC’s questions had appeared to call for more financial detail. III-JA-714-16, 719-20.

Consol cannot show that the district court abused its discretion in excluding the testimony in question, much less that its ruling was “arbitrary and irrational.” Minter, 762 F.3d at 349. Moreover, even if Consol could make such a showing, this Court would find any such error harmless unless Consol could show that it “substantially affect[ed] the judgment.” Flame S.A. v. Freight Bulk Pte., Ltd., 807 F.3d 572, 586 (4th Cir. 2015). This Consol has failed to do.

C. The District Court Correctly Denied Consol’s Motion for New Trial Nisi Remittitur.

Standard of Review: This Court reviews the denial of motions for new trial nisi remittitur with respect to compensatory damages for abuse of discretion, by “apply[ing] Fed. R. Civ. P. 59(a) and the standards announced for interpreting it.” Cline, 144 F.3d at 305. “[J]ury determinations of factual matters such as … the amount of compensatory damages will be reviewed [under the first two prongs of our standard,] by determining whether the jury’s verdict is against the weight of the evidence or based on evidence which is false.” Id. (internal citation and quotation marks omitted). “[This Court has] long recognized that the decision as to whether to grant a new trial on such grounds is entrusted to the sound discretion of the district court and [such determinations] will be reversed on appeal only upon a showing of abuse of discretion …. giv[ing] the benefit of every doubt to the judgment of the trial judge.” Sloane, 510 F.3d at 502 (internal citation and quotation marks omitted).

In its brief (Consol-Br.58), Consol grossly mischaracterizes and understates the trial testimony on compensatory damages. First and foremost, Consol completely disregards Barbara Butcher’s testimony about her husband’s two-year period of depression, weight loss, and isolation from his family after his retirement, described supra at 18. IV-JA-859-61.

But Consol also gives short shrift to Butcher’s own testimony. Butcher testified in detail how his initial numbness and disbelief at Consol’s refusal to “try to work out a solution of some kind” transformed into anger and panic because “I didn’t know where I was going to get a job … I still had bills. I still have three grandchildren I’m raising. [I] still have all the expenses of running a home and I really didn’t know what I was going to do.” III-JA-727. Butcher also testified that, since leaving his job at the mine and taking other employment that required more travel, he felt intense concern “because I’m having to leave my wife and my grandchildren and my wife’s having to do everything…. You know, they’re teenagers and they’re all into all the different activities and everything and really she’s not able… to physically do what she’s required to do when I’m not home.” III-JA-730.

The jury also heard Butcher testify that he considered being a coal miner his “mission field,” where he practiced not only coal mining but also being a pastor. III-JA-728. As a result, when he lost his job at Robinson Run, he lost close pastoral relationships with his coworkers that he had developed over many years through answering questions about Scripture, offering requested prayers, and doing hospital visits. III-JA-729.

As this Court explained in Sloane, it has tended to reduce significant compensatory awards in discrimination cases when the evidence of emotional distress consisted of conclusory assertions with no evidence of how the distress manifested itself; the distress was brief and did not persist over time; or there was no evidence of effect on the plaintiff’s ability to perform the job. Id. at 504. Based on the evidence adduced at trial and comparable decisions of this Court, this is not such a case. Compare, e.g., Sloane, 510 F.3d at 506-07 (in FCRA action, remitting compensatory award to $150,000 based on plaintiff’s testimony about twenty-one-month period of anxiety, anger, humiliation, and adverse effect on marital relationship); Deloughery v. City of Chicago, 422 F.3d 611, 620 (7th Cir. 2005) (affirming remittitur to $175,000 in compensatory damages where “[t]he record can be read as the story of a highly motivated female police officer, with a family heritage in law enforcement, being frustrated in her quest for greater responsibility simply because she had asserted her right to be free from discrimination….”); Giles v. Gen. Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001) (in ADA discrimination case, granting remittitur to $150,000 in compensatory damages where plaintiff “testified that he has had trouble sleeping, suffered headaches and marital difficulties, and lost the prestige and social connections associated with his position at GE and his service as treasurer of the local union”).

D. The District Court Correctly Denied Consol’s Motion to Amend Its Findings And Conclusions.

Standard of Review: This Court reviews a district court’s award of back pay or front pay under Title VII for abuse of discretion. Duke v. Uniroyal Inc., 928 F.2d 1413, 1424 (4th Cir. 1991). It reviews findings of fact on which such an award is based for clear error. See Taylor v. Home Ins. Co., 777 F.2d 849, 860 (4th Cir. 1985); Fed. R. Civ. P. 52(a)(6).

1. The District Court Correctly Found that Butcher Reasonably Mitigated His Damages.

The district court’s recitation of this Court’s legal standard for mitigation (VI-JA-1704-05), see supra at 34, was correct, and Consol offers no contrary argument. Prevailing Title VII claimants are presumptively entitled to back pay, and to overcome that presumption it was Consol’s burden to show that Butcher was not reasonably diligent in seeking and accepting new and substantially equivalent employment. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975); Brady, 753 F.2d at 1273. Although a claimant “need not go into another line of work, accept a demotion, or take a demeaning position,” “after an extended period of time searching for work without success, a claimant must consider accepting suitable lower paying employment in order to satisfy the duty to mitigate damages.” Brady, 753 F.2d at 1274-75. The record reflected, and the district court found, that Butcher readily met this standard. See supra at 35-36 (noting that the Federal No. 2 mining job only became available after Butcher had already found other employment).

The district court did not abuse its discretion in finding that Consol failed to carry its burden, and none of its factual findings on mitigation were erroneous at all, much less clearly erroneous. See V-JA-1323-31. In its brief, Consol merely states, without citation or support, that “Butcher intentionally did not seek employment in the coal industry due to not wanting to forego his pension benefits,” and that “[a]t the evidentiary hearing stage, the job search evidence proved his failure to mitigate.” Consol-Br.52.

These bare statements do not come close to meeting Consol’s burden of persuasion, but, regardless, they are also false. Butcher testified that he applied for the only coal mining job opening he knew of, for which he was not hired, as well as for jobs in the related oil and gas industry. V-JA-1395, 1397, 1400. Moreover, Butcher did not testify—and the district court did not clearly err in not finding—that he deliberately avoided seeking employment in the coal industry to protect his pension. When Consol’s counsel tried to pressure Butcher into making that admission at the evidentiary hearing, he explained:

In my deposition I did say that I didn’t want to lose my pension, … and what I meant is I didn’t want to take a job like GMS that pays $12 an hour when my pension’s going to pay that amount of money. That would be kind of foolish to take a job that pays less than what my pension pays, so I didn’t want to take a job like that …. [I]f the job paid enough, like Leer Mining, which would pay a coal miner’s salary, then why would I need my pension?

V-JA-1423 (emphasis added). There is no basis for this Court to disturb the district court’s mitigation findings.

2. The District Court Correctly Determined that Butcher’s Pension Benefits Derived From A Collateral Source And Should Not Offset His Pay Award.

In Sloas, decided in 2010, this Court enunciated the legal standard for when the collateral source rule warrants a setoff from a front pay award as follows:

[C]ompensation from a collateral source should be disregarded in assessing tort damages.… [I]f the tortfeasor does not provide the benefit to the plaintiff as compensation for his or her injury, the benefit is from a collateral source and should not be offset against the sum awarded from the tort nor considered in determining that award. We accordingly consider a benefit to be from a collateral source unless it results from payments made by the employer in order to indemnify itself against liability.

616 F.3d at 390 (internal citations and quotation marks omitted).

Applying Sloas to Butcher’s pension payments from the UMWA Health and Retirement Funds, it is plain that the district court did not err in denying offset. It is of no legal consequence whether, as Consol argues, some or all of Butcher’s pension payments were “based on the amount the defendants paid on his behalf.” Consol-Br.56. Rather, as the district court observed, “the pension was a term of Butcher’s employment with the defendants as governed by the UMWA’s collective bargaining agreement with CONSOL,” and it was thus a term of Butcher’s employment, rather than an attempt by Consol to indemnify itself against liability. VI-JA-1709. See also VI-JA-1708-09 (citing cases explaining that pension benefits are generally held to be collateral sources, regardless of whether the employer contributed to the fund, because “pensions are a term of employment rather than an attempt by the employer to indemnify itself against liability.”).

As the district court also noted, Consol’s attempt to argue that Fariss, rather than Sloas, controls this issue as a matter of law is simply unavailing. VI-JA-1710; Hylind v. Xerox Corp., 481 F. App’x 819, 824-25 (4th Cir. 2012) (applying Sloas and overturning district court’s application of Fariss to collateral source issue). Also unavailing is Consol’s insistence (Consol-Br.56-57) that “elemental arithmetic” shows the district court somehow authorized “triple recovery,” which is essentially an argument against the collateral source rule itself. Much as Consol might wish it otherwise, the law on this point is clear: Butcher’s pension payments were derived from a collateral source, and the district court did not abuse its discretion in denying offset.

E. The District Court Correctly Granted the EEOC’s Motion for Permanent Injunction.

Standard of review: This Court reviews the grant of a permanent injunction for abuse of discretion. Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 347 (4th Cir. 2001).

As described supra at 38, the district court described the legal standard for a permanent injunction under Title VII correctly and in great detail. V-JA-1337-40. Consol’s only argument that the district court abused its discretion in entering a permanent injunction here hinges on its meritless arguments that the EEOC should have lost at trial.

As a matter of law, “when a plaintiff has prevailed and established the defendant's liability under Title VII, there is no discretion to deny injunctive relief completely,” United States v. Gregory, 871 F.2d 1239, 1246 (4th Cir. 1989), and Consol has the burden to demonstrate that injunctive relief should be curtailed, EEOC v. Service Temps, Inc., 679 F.3d 323, 338 (5th Cir. 2012). Having made no argument explaining why the EEOC, after having prevailed, nonetheless should be denied an injunction, Consol has failed to show that the district court abused its discretion in entering one.

II. Cross-Appeal on Punitive Damages

The District Court Erred in Granting Consol’s R ule 50(a) Motion for Judgment as a Matter of Law Because a Reasonable Jury Could Find That Consol Engaged in a Discriminatory Practice With Reckless Indifference to Butcher’s Federally Protected Rights.

Standard of Review: This Court reviews the grant or denial of a Rule 50(a) motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to the nonmoving party. E.g., Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 240 (4th Cir. 2009); see also EEOC v. Fed. Express Corp., 513 F.3d 360, 370 (4th Cir. 2008) (applying de novo standard of review to district court’s denial of post-trial motion for judgment as a matter of law on punitive damages award). “Pursuant to Fed. R. Civ. P. 50(a), a district court may grant a motion for judgment as a matter of law during a jury trial after a party has been fully heard on an issue only if there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue.” Robinson, 560 F.3d at 240 (internal citations and quotation marks omitted).

Title VII provides that a “complaining party may recover punitive damages … against a respondent … if [s/he] demonstrates that the respondent engaged in a discriminatory practice … with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). As this Court has recognized, and as the Supreme Court has explained, “proof of ‘actual malice’ is unnecessary for a finding of punitive damages liability if, at a minimum, the plaintiff is able to prove ‘recklessness in its subjective form.’“ FedEx, 513 F.3d at 371 (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)).

To justify an award of punitive damages based on reckless indifference, the evidence must support four jury findings: (1) discrimination in the face of a perceived risk that the decision would violate federal law; (2) that the decision maker was a principal or served the employer in a managerial capacity; (3) that the decisionmaker acted within the scope of his employment in making the challenged decision; and (4) that the employer failed to engage in good-faith efforts to comply with the law. FedEx, 513 F.3d at 372. The fourth prong is an affirmative defense as to which the employer, not the plaintiff, bears the burden of persuasion. See, e.g., Golson v. Green Tree Fin. Serv. Corp., 26 F. App’x 209, 214 (4th Cir. 2002) (citing cases).

In its ruling at the close of the EEOC’s evidence, the district court simply stated that “I don’t think under Rule 50 there is sufficient evidence of malice or reckless indifference to the rights of Mr. Butcher.” IV-JA-903. It is somewhat unclear how exactly the district court thought the EEOC’s showing was insufficient, but, particularly at this early stage of the trial, its conclusion was unwarranted. With the evidence viewed in the light most favorable to the EEOC as the nonmoving party, a reasonable jury could find that Consol acted with reckless indifference to Butcher’s Title VII right of religious accommodation.

Prongs 2 and 3 of the FedEx test are not materially in dispute here: the trial testimony reflects unequivocally that Johnson, CONSOL Energy’s corporate director of HR, was the ultimate decisionmaker vis-à-vis Butcher and that he was acting within the scope of his employment in denying Butcher an accommodation. IV-JA-982, 1192.[12]

With respect to prong 1—perceived risk of violation of federal law—as the district court recognized, this Court has “heretofore found evidence sufficient to support a jury finding of a perceived risk in cases where the employer’s managerial agent had ‘at least a rudimentary knowledge’ of the import of a federal anti-discrimination statute.” FedEx, 513 F.3d at 372-73 (citing cases). Johnson, Hudson, and Fazio all testified that they knew that Title VII prohibited religious discrimination and required accommodation of employees’ religious beliefs under some circumstances. III-JA-790-91; IV-JA-869, 1271-72. A reasonable jury could readily find that this testimony satisfied prong 1’s test for perceiving a risk of violating federal law.

Regarding prong 4, the court erred in two respects. First, the court erred in taking this issue, as to which Consol had the burden of proof, away from the jury before Consol put on a single witness and before the EEOC had any opportunity to cross-examine Consol’s witnesses. “[I]t has been said to be ‘the better and safer practice … to defer a ruling upon [a motion for JMOL] … until both sides have finally rested.’… The exercise of restraint may prevent the entry of an erroneous judgment.” 9B Wright & Miller § 2533.

Second, the evidence adduced both before and after the district court’s ruling reveals that a reasonable jury could have found that Consol failed to meet its burden. As this Court has explained, “a jury is not obliged to find that an employer has engaged in good-faith efforts to comply with the law if the sincerity of [the employer’s] commitment to a company-wide policy against … discrimination in the workplace is called into question by other evidence.” FedEx, 513 F.3d at 374 (internal citation and quotation marks omitted); see also Golson, 26 F. App’x at 214 (“Evidence that an employer is not sincerely committed to enforcing the policy may undermine the existence of a company-wide policy.”).

Johnson’s and Hudson’s testimony reflects that the highest-level Consol HR officials effectively decided, as of July 2012, that they would not offer any religious accommodations for hand-scanning beyond scanning the left hand—regardless of the employee’s actual religious beliefs. IV-JA-983-84 ,1192, 1225-26. They singled out Butcher for this treatment at the exact same time that they decided to allow individuals who could not scan their hands for physical reasons to bypass hand scanning entirely, and, as Hudson testified, there were no actual (or even conceivable) extra costs or burdens associated with allowing Butcher to do the same. IV-JA-1192, 1257-60. Accordingly, a reasonable jury could find that Consol did not engage in good faith efforts to comply with Title VII, and the district court erred in taking this issue away from the jury.

CONCLUSION

For the foregoing reasons, this Court should affirm the district court’s denial of Consol’s post-trial motions for judgment as a matter of law, for new trial, and to amend the district court’s findings and conclusions. This Court should vacate the district court’s grant of judgment as a matter of law with respect to punitive damages and remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2)(B) because it contains 16,471 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: July 6, 2016

[1] The EEOC will refer to the defendants collectively as “Consol,” and to specific corporate entities by their respective names.

[2] Citations to the Joint Appendix take the form [volume #]-JA-[page #].

[3] Consol’s responses to the EEOC’s first request for production of documents, filed with the district court on summary judgment, reflected that all seven directors of Consolidation Coal were also either directors or officers of CONSOL Energy. IX-JA-2524-27. Out of Consolidation Coal’s 16 listed officers, only five were not also officers of CONSOL Energy. Id.

[4] Hudson’s earlier deposition testimony was read into the record on the second day of trial.

[5] Butcher is considered a CONSOL Energy retiree, and his retiree health benefits are provided by CONSOL Energy. IV-JA-1186-91, 1193. His employee information is also maintained in CONSOL Energy’s data systems. IV-JA-1195.

[6] At some point in mid-June 2012, Butcher provided Smith with a letter from Pastor Weese. IV-JA-1174. Weese’s letter attested generally to Butcher’s deep and sincere Christian faith, but made no mention of hand scanning or any specific doctrine. Id.

[7] The EEOC will only address the proposed jury instructions Consol has raised on appeal.

[8] The district court addressed other matters in this order as well, but because it also addressed them in its ruling on Consol’s Motion for New Trial, we will not repeat them.

[9] Murray Energy Corp. purchased Consolidation Coal Company in 2013. V-JA-1342.

[10] It was undisputed at trial that Butcher is a CONSOL Energy retiree and his retiree health benefits are provided by CONSOL Energy. See supra note 5.

[11] The district court excluded this evidence not only because it was irrelevant, but also on Rule 403 grounds. See supra at 27. Consol makes no mention of the Rule 403 issue in its opening brief, and accordingly it has abandoned any such argument on appeal. See, e.g., United States v. Al–Hamdi, 356 F.3d 564, 571 n. 8 (4th Cir. 2004) (“It is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned.”).

[12] The same rationale would apply to Hudson and Fazio as decisionmakers. III-JA-791-92; IV-JA-1212.