I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision of the Supreme Court of the United States:

Kolstad v. American Dental Association, 527 U.S. 526 (1999)

I express a belief, based on a reasoned and studied professional judgment, that this appeal involves a question of exceptional importance: whether the correct standard for imputing liability for punitive damages under 42 U.S.C. § 1981a is this Court’s “higher management” standard, which focuses on the discriminating employee’s rank in the corporate hierarchy, or the “managerial capacity” standard, which focuses on the discriminating employee’s authority and responsibility. Consistent with Kolstad, the authoritative decisions of nine circuits use the “managerial capacity” standard; no circuit, besides this one, uses the “higher management” standard.

/s/ Anne Noel Occhialino

Attorney of Record for EEOC

TABLE OF CONTENTS

Rule 35(b)(1) Statement of Counsel................................................................. i

Table of Authorities........................................................................................ ii

Statement of the Issue that Merits En Banc Consideration............................ 1

Statement of the Case...................................................................................... 1

A. Course of Proceedings and Disposition Below.................................... 1

B. Statement of Facts.................................................................................. 2

C. Panel Decision....................................................................................... 8

Argument....................................................................................................... 10

This Court’s “higher management” standard for imputing liability

for punitive damages under 42 U.S.C. § 1981a conflicts with Supreme

Court precedent, nine other circuits, and this Court’s own Pattern Jury

Instructions............................................................................................... 10

A. The “higher management” standard conflicts with

Kolstad’s “managerial capacity” standard....................................... 12

B. Nine Circuits and this Court’s Civil Pattern Jury Instructions

use the “managerial capacity” standard. ......................................... 15

C. This Court’s “higher management” standard insulates large

employers from punitive damage awards...................................... 20

Conclusion..................................................................................................... 22

Certificate of Compliance............................................................................. C1

Certificate of Service..................................................................................... C2

Addendum: Panel Decision

TABLE OF AUTHORITIES

Cases

*Arrieta-Colon v. Wal-Mart Puerto Rico, Inc.,
434 F.3d 75 (1st Cir. 2006)......................................................................... 18

Ash v. Tyson Foods, Inc.,
664 F.3d 883 (11th Cir. 2011)............................................................... 14, 20

Austrum v. Fed. Cleaning Contractors, Inc.,
190 F. Supp. 3d 1132 (N.D. Ga. 2016)....................................................... 20

*Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127 (2d Cir. 2008)........................................................................ 18

*Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,
188 F.3d 278 (5th Cir. 1999)....................................................................... 18

Dudley v. Wal-Mart Stores, Inc.,
166 F.3d 1317 (11th Cir. 1999)............................................................. passim

EEOC v. Service Temps, Inc.,
679 F.3d 323 (5th Cir. 2012)....................................................................... 16

EEOC v. W&O, Inc.,
213 F.3d 600 (11th Cir. 2000)..................................................................... 21

EEOC v. Wal-Mart Stores, Inc.,
187 F.3d 1241 (10th Cir. 1999)............................................................. 17, 18

Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261 (11th Cir. 2008)................................................................... 21

Hertzberg v. SRAM Corp.,
261 F.3d 651 (7th Cir. 2001)....................................................................... 16

Howell v. Compass Grp.,
448 F. App’x 30 (11th Cir. 2011).......................................................... 15, 21

*Jeffries v. Wal-Mart Stores, Inc.,
15 F. App’x 252 (6th Cir. 2001)............................................................ 17, 18

*Kolstad v. American Dental Association,
527 U.S. 526 (1999).............................................................................. passim

Lopez v. Aramark Uniform & Career Apparel, Inc.,
426 F. Supp. 2d 914 (N.D. Iowa 2006)...................................................... 17

Lowery v. Circuit City Stores, Inc.,
206 F.3d 431 (4th Cir. 2000)....................................................................... 16

Maner v. Linkan, LLC
LLC, No. 12-1088, 2013 WL 6145326 (N.D. Ala. Nov. 21, 2013).............. 20

Medcalf v. Trs. of Univ. of Pa.,
71 F. App’x 924 (3d Cir. 2003).................................................................. 17

Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269 (11th Cir. 2002)................................................................... 14

Monteagudo v. Asociacion de Empleados Estado Libre Asociado de P.R., 554 F.3d 164 (1st Cir. 2009).............................................................................. 15

*Ogden v. Wax Works, Inc.,
214 F.3d 999 (8th Cir. 2000)....................................................................... 16

*Swinton v. Potomac Corp.,
270 F.3d 794 (9th Cir. 2001)....................................................................... 17

Thomas v. Alabama Home Constr.,
271 F. App’x 865 (11th Cir. 2008).............................................................. 21

*Tisdale v. Fed. Exp. Corp.,
415 F.3d 516 (6th Cir. 2005)....................................................................... 16

Wilbur v. Correctional Servs. Corp.,
393 F.3d 1192 (11th Cir. 2004)................................................................... 14

Zimmerman v. Assoc. First Capital Corp.,
251 F.3d 376 (2d Cir. 2001)........................................................................ 15

Statutes

42 U.S.C. § 1981a..................................................................................... passim

42 U.S.C. § 1981a(b)(1)................................................................................... 10

42 U.S.C. § 1981a(b)(3)................................................................................... 22

42 U.S.C. § 1981a(b)(3)(D)............................................................................... 2

42 U.S.C. § 2000e-5..................................................................................... 1, 10

Other Authorities

Eleventh Circuit Civil Pattern Jury Instructions 2013, http://www.ca11.uscourts.gov/ sites/default /files/courtdocs/clk/FormCivilPatternJuryInstruction.pdf.................. 8, 19

Restatement (Second) of Torts § 909............................................................. 12

Restatement (Second) of Agency § 217C...................................................... 12

Statement of the Issue that Merits En Banc Consideration

Whether the proper standard for imputing liability for punitive damages under 42 U.S.C. § 1981a is the heightened “higher management” standard applied by this Court, or the “managerial capacity” standard used by the Supreme Court in Kolstad v. American Dental Association, 527 U.S. 526 (1999), which nine circuits and this Court’s own 2013 Civil Pattern Jury Instructions use.

STATEMENT OF THE CASE

A. Course of Proceedings

The EEOC filed this enforcement action against Exel Inc. under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e-5), and Title I of the Civil Rights Act of 1991 (42 U.S.C. § 1981a). The EEOC alleged that General Manger Dave Harris refused to promote Contrice Travis because of her sex. A jury returned a verdict in favor of the EEOC and Travis (who intervened). The jury awarded back pay (stipulated as $1,184.37), $25,000 in compensatory damages, and $475,000 in punitive damages. R.120, p.2.

In accordance with Title VII’s statutory limits, 42 U.S.C. § 1981a(b)(3)(D), the district court reduced the punitive damage award to $275,000. R.124, pp.1-2. Exel filed a renewed motion for judgment as a matter of law, or alternatively, for a new trial, arguing that the evidence was insufficient to support the jury’s verdict as to liability or punitive damages. R.133-1. The district court denied the motion as to liability but granted it as to the punitive damage award, reasoning that, under this Court’s precedent, Harris was not sufficiently “high up the corporate hierarchy such that his behavior could be imputed to Exel” and higher management neither countenanced nor approved his conduct. R.147, pp. 23, 24-29. The district court issued an amended judgment. R.162. All parties appealed. R.158, R.175, R.178. The panel affirmed 2-1 the jury’s liability verdict and affirmed 3-0 the vacatur of the punitive damage award under this Court’s “higher management” precedent. Slip op. (attached).

B. Statement of the Facts

Exel provides supply chain management services such as shipping, receiving, and warehouse storage. R.167, p.397. It employs 500,000 people in 220 countries; in 2008, Exel had 25,000 employees in North America. R.147, p.23. Exel’s campus in Fairburn, Georgia, had 1,300 employees working in ten distribution sites. R.167, pp.397-98; R.147, p.23; R.167, p.445. One of the smaller campus sites serviced Pittsburgh Paint & Glass (“PPG”). R.147, p.23; R.167, p.447. The PPG site had about twenty-five employees. R.167, pp.447, 474.

General Manger Dave Harris oversaw the PPG site. R.116, p.477. Harris was one of 329 General Managers. R.147, p.24. Exel maintained three levels of General Managers (“GM”), whose designation depended on head count, profitability, and site size. R.147, p.24; R.167, pp.446-47. Harris occupied “GM1,” the highest level. R.167, p.366. At the PPG facility, Harris was the highest-ranking Exel employee. R.167, p.343. He had responsibility for the facility, including “complete authority” over hiring and “complete control over promotions.” R.167, p. 343-44. Harris oversaw two tiers of management: operations managers (direct reports), and supervisors (who reported to operations managers). R.167, p.343-44. Harris reported to Tom McKenna, a Director of Operations, whose office was on the Fairburn campus. R.167, p.523.

Contrice Travis worked as Inventory Control Lead at the PPG site. R.165, p.120; R.166, p.113. As a lead, Travis ran fifteen-person shifts on weekends. R.165, p.120. An operations manager deemed her performance “outstanding,” saying she “sometimes . . . performed better than the supervisors.” R.166, p.292. PPG’s customer representative echoed that positive assessment, describing Travis as “very good.” R.166, p.377. Travis trained employees (including supervisors and operations managers) in inventory control. R.165, p.115.

In June 2007, a supervisor told Travis that another supervisor, James Teal, was going to become the “Inventory Control Supervisor,” making him Travis’s supervisor. R.165, pp.116-17, 119. Travis immediately went to Harris and told him of her interest in the job. R.165, p.117. Nevertheless, Harris soon announced that Teal was “the new Inventory Control Supervisor.” R.165, p.118. Teal testified that Harris had approached him, saying that he needed Teal to “take the Inventory Control Supervisor’s position.” R.166, pp.208-209, 243. Teal supervised only Travis and oversaw only inventory. R.165, p.119; R.166, pp.208, 211.

At some point, Travis expressed to Harris her interest in two shift supervisor positions. R.165, p.119. Harris said she “wasn’t qualified,” “wasn’t ready,” and “didn’t have a college degree.” Id. But neither Harris nor Teal had college degrees, which supervisory positions did not require. R.167, p.497; R.166, p.220; R.166, p.273. Operations Manager Tommy Chambers also recommended that Harris promote Travis, but Harris refused. R.166, p.293.

Chambers described Harris as “standoffish towards females,” including “his direct reports.” R.166, p.295. Harris wanted Chambers “to address” the women who reported directly to Harris. Id. Chambers believed Harris would never promote Travis, and he told Travis to consider finding a new job. R.166, pp.294-95.

Travis also testified that Harris “limited his contact” with female staff, telling Travis he wanted her to “manage the ladies in the office.” R.165, p.161. Harris encouraged male employees but did not want to talk or interact with Travis, telling her to talk to Teal and not email him. R.165, pp.123-24. Travis complained to the HR Manager that Harris would not promote her because of her sex; he advised her to transfer. R.165, pp.122, 127.

In June 2008, Harris promoted Teal to Operations Manager. R.166, p.212. Teal recommended that Harris promote Travis to the now-vacant Inventory Control Supervisor position. R.166, pp.216-17, 236. Harris refused, saying Travis “wasn’t qualified” and “he would not put a woman in a management position.” R.166, p.216. Teal also testified that “a couple of times” while he was Inventory Control Supervisor he heard Harris say he would not put a woman in a management position. R.166, pp.216-17.

After learning of Teal’s promotion, Travis again asked Harris for the opportunity to be Inventory Control Supervisor. R.165, p.129. Harris responded that he “was not going to make [her] a supervisor” and “was never going to” make her a supervisor, adding “just stop asking.” R.165, p.138.

Harris instead selected Michael Pooler to replace Teal. R.147, p.15. According to Exel, its unwritten “priority transfer” policy (PTP) called for selecting Pooler, since his position had been eliminated in a layoff. R.166, p.466. But the jury heard evidence casting doubt on Exel’s explanation, including from Harris, who testified he did not have to select Pooler. R.166, pp.312-13, 361-62. Exel also argued that Pooler had been placed in a different position, not Inventory Control Supervisor. Again, the jury heard contrary evidence, including Teal’s testimony, that Pooler was “brought in to fill the position of Inventory Control Supervisor that I vacated.” R.166, p.213. The jury also heard evidence—from Pooler, Teal, and even Harris—that Travis was more qualified than Pooler for the inventory position. R.166, pp.214, 331-32, 334, 362.

After Pooler started, Travis was tasked with training him in inventory. R.166, p.326. She soon realized that although Pooler’s title was shift supervisor, she was actually training him to fill Teal’s vacant position. R.165, p.132. Travis began looking for a new job, which she soon found. Id.

The case went to trial. The district court utilized this Court’s 2013 Civil Pattern Jury Instructions to instruct the jury on punitive damages. Pursuant to Instruction 4.5, the court instructed the jury that to obtain punitive damages, plaintiffs had to prove that “an employee of Exel, acting in a managerial capacity,” acted with malice or reckless indifference to Travis’s federally protected rights. R.119, p.13. The jury found for the plaintiffs and awarded $475,000 in punitive damages. R.120.

The district court denied Exel’s renewed motion for judgment as a matter of law or for a new trial as to the jury’s finding of sex discrimination but granted it as to the punitive damage award. R.147. The court held that it was “bound by the established Eleventh Circuit precedent adhering to the ‘higher management capacity’ standard post-Kolstad,” and that Harris did not meet the standard. R.147, p.26.

C. Panel Decision

The panel affirmed. The panel majority held that the jury reasonably could have concluded that Exel discriminated against Travis based on her sex. Slip op. 4-9 (Pryor, Jill J.,); see id. at 14-15 (Moody, J., concurring). The panel gave two reasons for affirming the verdict: (1) “the jury heard evidence that Harris could have promoted Travis despite being presented with a PTP candidate”; and (2) “the evidence showed that Harris harbored a bias against women,” including Teal’s testimony that when he recommended Travis for his vacated position, Harris said “he would never put a woman in a management position.” Id. at 5-7. Judge Tjoflat dissented. Id. at 16-51.

The panel unanimously affirmed the vacatur of punitive damages. Id. at 9-13. The panel acknowledged that Kolstad’s “managerial capacity” standard “appears to conflict with [this Court’s] higher management standard” from Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1323 (11th Cir. 1999). Slip op. at 11. The panel also noted that this Court has “never squarely addressed the apparent conflict between Kolstad and Dudley[.]” Id. But, the panel said, it remained bound by prior panel precedent applying the “higher management” standard even after Kolstad. Id. Finally, applying Dudley, the panel held that Harris was insufficiently high up Exel’s corporate hierarchy to impute liability. Id. at 12.

ARGUMENT

This Court’s “higher management” standard for imputing

liability for punitive damages under 42 U.S.C. § 1981a conflicts with Supreme Court precedent, nine other circuits,

and this Court’s own Pattern Jury Instructions.

In 1991, Congress amended Title VII to make punitive damages available where a respondent discriminates “with malice or reckless indifference to the federally protected rights” of an individual. 42 U.S.C. § 1981a(b)(1). This Court subsequently held that liability may be imposed under Title VII for punitive damages when the discriminating employee was “high[] up the corporate hierarchy” or “higher management countenanced or approved” his conduct. Dudley, 166 F.3d at 1323 (internal quotation marks and citation omitted). This “higher management” standard, which focuses on the discriminating employee’s rank in the corporate hierarchy (or the rank of the employee who countenanced his conduct), conflicts with the Supreme Court’s decision in Kolstad, which uses the “managerial capacity” standard. In contrast to the rigid “higher management” standard, Kolstad’s “managerial capacity” standard is a fact-intensive inquiry focusing on the type of authority and the amount of discretion given the discriminating employee in what is done and how it is accomplished, and the Court suggested that an employee must be “important” but perhaps need not be the employer’s top management. Kolstad, 527 U.S. at 543.

Nine circuits to address the issue after Kolstad have used the Supreme Court’s “managerial capacity” standard. In contrast, no other circuit except this one uses the “higher management” standard. Thus, in every other circuit except this one, a jury may award punitive damages based on discriminating conduct perpetrated (or approved) by an employee imbued by the employer with sufficient authority and discretion. In this circuit, however, a jury is foreclosed from awarding punitive damages unless the discriminating employee is near the top of the corporate hierarchy, or someone in higher management approved the discrimination. As this case illustrates, the unintended effect of this Court’s “higher management” standard has been to insulate the largest employers from punitive damage awards while reserving such awards for smaller employers. Congress could not have intended this result. Rehearing en banc is therefore warranted.

A. The “higher management” standard conflicts with Kolstad’s “managerial capacity” standard.

After this Court adopted its “higher management” standard, the Supreme Court addressed in Kolstad the circumstances allowing an award of punitive damages under 42 U.S.C. § 1981a. The Court first discussed the meaning of “malice or . . . reckless indifference.” 527 U.S. at 534-39. The Court then addressed the “proper legal standards for imputing liability to an employer in the punitive damage context.” Id. at 540 (concluding that this issue was “easily subsumed” within the question on which certiorari was granted). Relying on the Restatements (Second) of Agency § 217C and (Second) of Torts § 909, the Court held that liability may be imputed, inter alia, where the discriminating employee serves in a “managerial capacity” and acts within the scope of his employment. 527 U.S. at 543-45; see id. at 546 (remanding for determination of whether employee who made promotion recommendation, the acting head of the DC office, “was serving in a ‘managerial capacity’”). The Court described the “managerial capacity” inquiry as a “fact-intensive” determination focusing on “the type of authority that the employer has given to the employee, [and] the amount of discretion that the employee has in what is done and how it is accomplished.” Id. at 543 (internal quotation marks and citation omitted). The Court also noted that the Restatement (Second) of Torts suggests that “an employee must be ‘important’ but perhaps need not be the employer’s ‘top management, officers, or directors,” to be acting ‘in a managerial capacity.’” Id. (citation omitted).

As the panel said, Kolstad’s “managerial capacity” standard “appears to conflict with [this Court’s] higher management standard[.]” Slip op. at 11. While Kolstad says the “managerial capacity” inquiry is fact intensive, focusing on the discriminating employee’s authority and responsibilities, this Court’s “higher management” standard embraces a hard-and-fast rule focused on an employer’s size and the discriminating employee’s rank in the corporate hierarchy. This Court’s insistence that the discriminating employee be high up the corporate ladder (or that his acts be countenanced by someone high up the ladder) is directly at odds with Kolstad’s suggestion that employees “must be important but perhaps need not be the employer’s ‘top management, officers, or directors.’” 527 U.S. at 543 (citation omitted).

This Court has never squarely addressed the conflict between Kolstad’s “managerial capacity” standard and this Court’s “higher management” standard. In Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1280 (11th Cir. 2002), this Court applied Dudley’s “higher management” standard to disallow punitive damages without any discussion of whether Kolstad’s “managerial capacity” standard had overruled it. This Court’s failure to grapple with Kolstad’s impact on the “higher management” standard is understandable, given that the plaintiff in Miller argued only that the standard was satisfied, not that Kolstad overruled it. See Br. for Appellee at 29-32, Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002) (No. 00-10544), 2000 WL 33977050. Subsequent panels have continued to apply the “higher management” rule, relying on Miller. See, e.g., Ash v. Tyson Foods, Inc., 664 F.3d 883, 902 n.12 (11th Cir. 2011) (“Miller reiterates and applies Dudley’s high-in-the-hierarchy rule.”); Wilbur v. Correctional Servs. Corp., 393 F.3d 1192, 1205 (11th Cir. 2004) (citing Miller and applying “higher management” standard); Howell v. Compass Grp., 448 F. App’x 30, 38 (11th Cir. 2011) (“Even after Kolstad . . . the high-enough-up-the-ladder rule” from Dudley “is still binding precedent.”). Rehearing en banc is thus the only way for this Court to correct its erroneous panel precedent.

B. Nine circuits and this Court’s Civil Pattern Jury Instructions use the “managerial capacity” standard.

This Court stands alone in adhering to the “higher management” standard. The nine circuits to address the issue in published decisions have uniformly followed Kolstad’s “managerial capacity” standard, as has the Third Circuit in an unpublished decision.[1] See, e.g., Monteagudo v. Asociacion de Empleados Estado Libre Asociado de P.R., 554 F.3d 164, 176 (1st Cir. 2009) (Kolstad’s “managerial capacity” standard satisfied where discriminating employee was a “a payroll, fringe benefits, and compensation manager” who supervised the plaintiff); Zimmerman v. Assoc. First Capital Corp., 251 F.3d 376, 384-85 (2d Cir. 2001) (quoting Kolstad’s “managerial capacity” language and affirming award based on acts of the Operations Vice-President of Retail Sales Finance); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 442-44 (4th Cir. 2000) (discriminating employee, who had supervisory and hiring authority, but “was not top management, nor an officer or director” satisfied Kolstad’s “managerial capacity” standard); EEOC v. Service Temps, Inc., 679 F.3d 323, 336-37 (5th Cir. 2012) (account manager with supervisory and hiring authority acted in a “managerial capacity” under Kolstad); Tisdale v. Fed. Exp. Corp., 415 F.3d 516, 531-32 (6th Cir. 2005) (“We, along with several other courts of appeals, have held that non-senior management employees can serve in a managerial capacity” under Kolstad.); Hertzberg v. SRAM Corp., 261 F.3d 651, 661-63 (7th Cir. 2001) (plant manager with hiring and firing authority constituted managerial agent under Kolstad); Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000) (employee who supervised several stores and conducted performance evaluations satisfied Kolstad’s “managerial capacity” standard); Swinton v. Potomac Corp., 270 F.3d 794, 810-12 (9th Cir. 2001) (supervisor of shipping department with responsibility for receiving complaints qualified as managerial agent under Kolstad; supervisor was not too “low-level” to impute liability); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1247 (10th Cir. 1999) (assistant manager and store manager satisfied Kolstad’s “managerial capacity” standard); see also Medcalf v. Trs. of Univ. of Pa., 71 F. App’x 924, 932 (3d Cir. 2003) (Senior Associate Athletic Director, in charge of hiring, “act[ed] in her managerial capacity” under Kolstad).

To be sure, this Court is not bound by any other circuit’s precedent. But the circuits’ uniform application of Kolstad’s “managerial capacity” standard strongly suggests that this Court’s “higher management” standard is incorrect, warranting en banc review under Fed. R. Civ. P. 35(b)(1)(B). See Jeffries v. Wal-Mart Stores, Inc., 15 F. App’x 252, 265-66 (6th Cir. 2001) (stating Kolstad rejected Dudley’s “higher management” standard); Lopez v. Aramark Uniform & Career Apparel, Inc., 426 F. Supp. 2d 914, 959 (N.D. Iowa 2006) (“Dudley’s precedential value was significantly eroded by Kolstad.”).

And the difference between the two standards matters, as an apples-to-apples comparison of cases involving Wal-Mart store managers demonstrates. Under this Court’s heightened “higher management” standard, punitive damage liability cannot be imposed for discrimination by Wal-Mart store managers because they are not high enough up the corporate hierarchy. See Dudley, 166 F.3d at 1323 (questioning whether store managers are even in the corporate hierarchy). Four circuits, however, have held that liability can be imposed under the “managerial capacity” standard for discrimination by store managers and even assistant store managers. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 137 (2d Cir. 2008) (immediate supervisor and store manager); Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 89-90 (1st Cir. 2006) (assistant managers); Jeffries, 15 F. App’x at 265-66 (store manager and district manager); EEOC v. Wal-Mart, 187 F.3d at 1247 (assistant manager and store manager); see also Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 285-86 (5th Cir. 1999) (Wal-Mart district manager with authority to make personnel decisions satisfied Kolstad’s “managerial capacity” standard). The availability of punitive damages under federal law should not depend upon the vagary of the location of the particular Wal-Mart in which an employee works, underscoring why this Court should rehear this case en banc.

Rehearing en banc is further warranted because, consistent with nine circuits, this Court’s own 2013 Civil Pattern Jury Instructions (which are still in effect) use Kolstad’s “managerial capacity” standard. Instruction 4.5, which the district court followed, states that to be entitled to an award of punitive damages, a plaintiff must show that an employee “acting in a managerial capacity” acted with malice or reckless indifference to the plaintiff’s federally protected rights. See http://www.ca11.uscourts.gov/ sites/default/files/courtdocs/clk/FormCivilPatternJuryInstruction.pdf. Tracking Kolstad, the instruction further states that “[t]here is no bright-line rule” to determine managerial capacity but that an employee’s “type of authority” and “amount of discretion” in what and how things are done should be considered. Id. The Pattern Jury Instruction’s adherence to Kolstad conflicts with this Court’s precedent applying Dudley, evidently giving rise to confusion over how district court judges should instruct juries and apply the standard. See generally Austrum v. Fed. Cleaning Contractors, Inc., 190 F. Supp. 3d 1132, 1134 (N.D. Ga. 2016) (upholding punitive damage award and noting employer conceded project manager acted in “managerial capacity” capacity under Kolstad); Maner v. Linkan, LLC, No. 12-1088, 2013 WL 6145326, at *3 (N.D. Ala. Nov. 21, 2013) (applying Kolstad’s “managerial capacity” standard and upholding punitive damage award where discriminating employee set weekly restaurant schedule and could give instructions to employees).

C. This Court’s “higher management” standard insulates large employers from punitive damage awards.

The inadvertent effect of this Court’s “higher management” standard has been to reserve punitive damages for smaller employers, with the fewest levels of corporate hierarchy, while all but exempting the largest employers. This Court’s case law bears out this perverse dichotomy.

Applying Dudley, this Court has routinely disallowed punitive damages against large corporations. See Ash, 664 F.3d at 903 (vacating punitive damages where plant manager oversaw 1,400 employees because that represented just 1.5% of company’s employees; questioning whether plant manager was even in the corporate hierarchy); Howell, 448 F. App’x at 38 (disallowing punitive damages because discriminating employee was one of 400 Directors of Dining Services at subsidiary company of 20,000 employees and parent company had 366,000 employees); Dudley, 166 F.3d at 1323 (vacating award where discriminating employees were store managers because Wal-Mart is a “giant business” with 2,000 stores).

Conversely, this Court has routinely upheld punitive damages against smaller companies. See, e.g., Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1284 (11th Cir. 2008) (upholding award against company with 150 employees); Thomas v. Alabama Home Constr., 271 F. App’x 865, 867-69 (11th Cir. 2008) (upholding awards against company with no more than 19 employees); EEOC v. W&O, Inc., 213 F.3d 600, 612 (11th Cir. 2000) (upholding award limited to statutory cap of $100,000, meaning employer had fewer than 201 employees).

Congress could not have intended this outcome. Congress’s inclusion of statutory limits on punitive damage awards conveys its intent that the largest employers would pay the highest awards, not that they would pay no awards at all. 42 U.S.C. § 1981a(b)(3) (allowing awards of up to $300,000 for respondents with 500+ employees; $200,000 for respondents with 201-500 employees; $100,000 for respondents with 101-200 employees; and $50,000 for respondents with 15-100 employees).

CONCLUSION

For the foregoing reasons, the EEOC asks this Court to grant rehearing en banc.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

s/Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4724

Annenoel.Occhialino@eeoc.gov

[1] It does not appear that the District of Columbia Circuit has had occasion to apply the “managerial capacity” standard after Kolstad. But because Kolstad arose in the District of Columbia Circuit, it may be more accurate to say that all the circuits apply Kolstad’s “managerial capacity” standard (including the Third Circuit in an unpublished opinion), making this Court a true outlier.