No

The EEOC is satisfied with Exel’s statement of jurisdiction.

After a trial during which the jury heard evidence that General Manager Dave Harris said he “would not put a woman in a management position” and where Harris himself admitted that charging party Contrice Travis was 100% more qualified for the inventory position than the male selectee, the jury returned a verdict in favor of the EEOC on its Title VII claim of sex discrimination. Did the district court properly deny Exel’s motions for judgment as a matter of law and a new trial?

STATEMENT OF THE CASE

1. Nature of the case and course of proceedings.

This is an employment discrimination case in which a jury returned a verdict in favor of the EEOC and the Intervenor, Contrice Travis, finding that Exel Inc. discriminated against Travis based on her sex in denying her a promotion. The EEOC brought this enforcement action 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) alleging that Exel violated Title VII when it refused to promote Travis to the position of Inventory Control Supervisor because of her sex. R.1 (¶¶1,15). The EEOC sought injunctive relief, back pay, compensatory damages, and punitive damages. R.1. Travis intervened. R.12.

After a three-day trial, the jury returned a verdict in favor of the EEOC and Travis, finding that Exel denied Travis the promotion because of her sex. R.120, p.1. The jury awarded back pay and compensatory and punitive damages. R.120, p.2. Exel filed a renewed motion for JMOL or, alternatively, for a new trial. R.133-1. The district court denied the motion as to liability but granted it as to the punitive damage award, vacating the entire award. R.147. All parties appealed. R.159,175,178.

2. Statement of Facts

The EEOC’s opening brief sets forth the relevant facts as to Exel’s structure, the PPG facility, and the role of General Manager Dave Harris. See EEOC-Br.2-4.

Contrice Travis begins work at Exel in Inventory Control

Contrice Travis began working at Exel’s PPG facility in 2005. R.165, p.120 (Travis). General Manager Bob Brown (Harris’ predecessor) soon promoted her to Inventory Control Lead. R.165, p.113 (Travis). As a lead, Travis ran shifts of fifteen people on the weekends. R.165, p.120 (Travis). Operations Manager Tommy Chambers called her “outstanding” and said she “sometimes . . . performed better than the supervisors.” R.166, p.292 (Chambers). The PPG customer representative who worked at the site described Travis as “very good.” R.166, p.377 (Gezo). Travis trained everyone from associates to supervisors to Operations Managers in inventory control. R.165, p.115 (Travis). Harris sent her to California four times to train employees and once “to fill in for an Operations Manager” for two weeks. R.165, p.116 (Travis).

Teal becomes “Inventory Control Supervisor” in June 2007

One of the Operations Supervisors at the PPG facility was James (Kenny) Teal. R.166, p.207 (Teal). As first-shift supervisor, Teal supervised fifty employees. R.166, p.208 (Teal). At some point, Harris approached him and said “they needed somebody strong in . . . inventory” and asked him to “take the Inventory Control Supervisor’s position.” R.166, pp.209, 208 (Teal). According to Teal, the Inventory Control Supervisor was a “new position”—“completely separate” from Operations Supervisor—that Harris had created. R.166, pp.209, 243 (Teal). The Inventory Control Supervisor position was never posted, and Teal never applied for it. R.166, pp.209-10 (Teal). Rather, Harris simply asked Teal to take the position. R.166, p.209 (Teal). Once Teal became Inventory Control Supervisor, he had only one supervisee: Travis. R.166, p.211 (Teal).

Travis learned of Teal’s new position in June 2007 when Operations Supervisor Donald (Richard) Crankshaw told her that Teal was going to become the “Inventory Control Supervisor” and become her boss. R.165, pp.116-17 (Travis); R.166, pp.258-60 (Crankshaw). Travis immediately went to Harris to ask if “Inventory Control Supervisor” was a position. R.165, p.117 (Travis). Travis “let him know that if there was such a position, [she] wanted to be considered, [she] wanted the job.” Id. Harris denied the position existed. Id. But a week later, Harris announced at a pre-shift meeting that Teal would be “the new Inventory Control Supervisor.” R.165, p.118 (Travis).

Harris discourages Travis from applying for Shift Supervisor

At some point, Travis also expressed her interest to Harris in two second-shift supervisor positions. R.165, p.119 (Travis). Harris told her she “wasn’t qualified,” “wasn’t ready,” and “didn’t have a college degree.” R.165, p.119 (Travis). Neither Harris nor Teal had a college degree, however, and a college degree was not required for supervisory positions. R.167, p.497 (Harris); R.166, p.220 (Teal); R.166, p.273 (Crankshaw). Travis did not bother to submit a written application for the shift supervisor positions because Harris told her “he’s not going to consider [her].” R.165, p.120 (Travis)

At some point, Chambers recommended that Harris promote Travis to Operations Supervisor because of her “stellar” performance, but Harris refused, stating that Travis was “not ready” and “needed more time,” and Harris said it was his decision whom to hire. R.166, pp.293-94 (Chambers). Chambers believed that Harris would never promote Travis, and he told Travis she should consider finding a new job. R.166, pp.294-95 (Chambers). It “crossed [Chambers’] mind” that Harris would not promote Travis because she was a woman. R.166, p.295 (Chambers). Chambers described Harris as “standoffish towards females, even the ones that were his direct reports.” R.166, p.295 (Chambers). Harris even wanted Chambers “to address” the women who reported directly to Harris. Id.

Although Harris never told Travis directly that he would not promote her because of her sex, Harris’ comments and conduct made Travis believe this to be true. R.165, pp.122, 181 (Travis). Harris “limited his contact” with female staff, telling Travis he wanted her to “manage the ladies in the office,” which included the customer service representatives. R.165, pp.161,181 (Travis). While Harris offered male employees encouragement, Harris “really didn’t want to talk to [Travis] or deal with [her] on any level.” R.165, p.123 (Travis). Rather, Harris told Travis to talk to Teal and not to e-mail him (Harris). R.165, pp.123-24 (Travis). Harris also told Travis not to “wear [her] emotions on [her] sleeve” and when she went to him with a video of a forklift operator asleep on the job, Harris told her to “stop spreading rumors.” R.165, p.123. When Travis was doing inventory work, Harris once told her to come into the warehouse to clean up one of the aisles because the “pickers”—who were all male—had not done a good job cleaning. R.165, p.123 (Travis).

Travis complains about sex discrimination

Travis complained to a Human Resources (HR) official named Marie Murphy that she felt Harris would not promote her because she is a woman. R.165, p.122 (Travis). Murphy told Travis “she understood,” as Murphy had dealt with the same problem as HR Coordinator. R.165, p.124 (Travis). Because Murphy did not have oversight over the PPG facility, however, Murphy directed Travis to talk to HR Manager Franklin Hudson. R.165, pp.122, 125 (Travis). Travis reiterated her complaints to Hudson, who said his “best advice” was that she transfer. R.165, p.127 (Travis). Neither Murphy nor Hudson ever investigated Travis’ complaints. R.165, pp.126-27 (Travis). Travis also complained to Teal and Chambers that Harris was treating her unfairly. R.165, p.121-22 (Travis).

Travis seeks promotion to “Inventory Control Supervisor”

In June 2008, Teal learned that Chambers was leaving Exel. R.166, p.212 (Teal). Teal approached Harris and told him that he was interested in the Operations Manager position. Id. A few days later—without Teal ever submitting a formal application—Harris made Teal the Operations Manager. Id.

When Travis learned of Teal’s promotion, she went to Harris’ office and said “it’s out there now that there is a[n] Inventory Control Supervisor position.” R.165, p.129 (Travis). Travis told Harris, “okay, [Teal] has been promoted, I want his job.” Id.; see R.165, pp.137-38 (Travis). Even Harris admits that Travis told him she wanted to be Inventory Control Supervisor. R.166, p.349 (Harris). Harris told Travis that he would be posting for an Operations Supervisor position, not Inventory Control Supervisor. R.166, p.350 (Harris). Harris admits he did not encourage Travis to apply for Operations Supervisor or consider her for the position. R.166, pp.350-51,526 (Harris). To the contrary, Harris looked Travis “in [her] eyes” and said “he was not going to make [her] a supervisor” and he “was never going to” make her a supervisor. R.165, p.130 (Travis). Harris added, “just stop asking me, I’m not going to do it.” R.165, p.138 (Travis).

The conversation with Harris made Travis feel “hurt,” “mad,” “stuck,” and “let down.” R.165, p.130 (Travis). Travis looked online to see if the Inventory Control position was posted, but it was not; had the position been advertised, she “would have applied for the job.” Id.

Harris refuses to promote Travis to Inventory Control Supervisor

Teal testified that when he moved to Operations Manager “and the Inventory Control Supervisor’s position became available . . . I mentioned to Mr. Harris that [Travis] should have that job.” R.166, p.216 (Teal). Harris refused, however, stating that Travis was unqualified and “he would not put a woman in a management position.” R.166, p.216 (Teal). According to Teal, Harris said “a couple of times” “in his office behind closed doors” that he would not put a woman in a management position. R.166, pp.216-17 (Teal). Teal could not recall the exact dates of the comments, but he testified that they were made “during the time period from when I was Inventory Control Supervisor.” R.166, p.239 (Teal). Although Teal had a duty to report Harris’ discriminatory comment, he did not because “it would have been my word against his.” R.166, p.217 (Teal).

In Teal’s view, Travis—not Michael Pooler, who was later selected—was the best candidate for Inventory Control Supervisor. R.166, p.214 (Teal). Teal explained that Travis was “very qualified” and regularly stepped in for him when he was absent. Id. Teal believed Harris refused to promote Travis because of her sex. R.166, p.218 (Teal). Teal believed this based on Harris’ statement and the fact that Teal had never seen a female manager during his seven years at Exel. Id. (“Anything that came open [in management] there was never a female to fill that position.”). Teal’s testimony was corroborated by Crankshaw, who testified that when he worked under Harris at the PPG facility, there were never any female supervisors or managers, and only males transferred in. R.166, p.273 (Crankshaw).

Harris selects Michael Pooler for “Inventory Control Supervisor”

Instead of following Teal’s recommendation to promote Travis, Harris selected another employee, Michael Pooler, for Inventory Control Supervisor. R.147, p.15. Pooler came to PPG from Exel’s Hawaiian Tropic site. R.166, p.324 (Pooler). Pooler had worked at the Hawaiian Tropic site as a quality assurance coordinator before his lay off in a workforce reduction. R.166, pp.324-29 (Pooler).

According to Pooler, one Saturday morning he was called into the Hawaiian Tropic office for a meeting with his supervisor, Michael Blose, and Hudson. R.166, pp.324-25 (Pooler). He was told “not to speak to anyone about anything” and was informed that they might have “[a]n Inventory Supervisor position at PPG” for him. R.166, pp.325, 329 (Pooler). Blose was “very emphatic” and even “threatening” in instructing Pooler not to tell anyone about the PPG position, or the “position will not be available.” R.166, p.334 (Pooler). This was unusual, as other employees who were transferred were not told to keep quiet. R.166, p.278 (Crankshaw). Even Exel’s HR representative, Hudson, admitted that conditioning an employee’s selection for a position on keeping it secret would be highly unusual. R.167, p.409 (Hudson).

After sitting at home for two weeks following the elimination of his Hawaiian Tropic position, Pooler received a call from Harris to come to PPG. R.166, pp.328-29 (Pooler). Although Harris later testified that Exel’s “priority transfer” practice called for selecting Pooler, since his position had been eliminated, Teal testified that he never heard of this unwritten practice. R.166, p.214 (Teal); R.166, p.466 (Guydon) (practice was unwritten). Harris admitted that the unwritten priority transfer practice did not require him to hire Pooler. R.166, pp.361-62 (Harris); see also R.166, pp.312-13 (Guydon) (admitting hiring manager made final decision). Exel also could have promoted Travis into the Inventory Control Supervisor position and then put Pooler into Travis’ vacated position. R.167, p.427 (Hudson).

In July 2008, Pooler started at PPG as a shift supervisor. R.166, p.325 (Pooler); PX25 (position statement).[1] A few days after Pooler started, Harris moved him to second shift supervisor. R.166, p.325 (Pooler). But Pooler never supervised anyone; “it was a one-man show.” R.166, p.330 (Pooler). Harris told Pooler he seemed unfamiliar with supervising or operations; Pooler agreed, stating he had been in “quality control, FDA guidelines.” R.166, pp.325-26 (Pooler). Another week went by, and Pooler, by his own account, was “looking stupid” and felt “lost.” R.166, p.326 (Pooler). During this time, Pooler was training with Travis in inventory; when Pooler expressed questions about his role, Harris told Pooler to continue training with Travis. R.166, p.326 (Pooler).

For two weeks, Travis trained Pooler in “everything [she] knew about inventory.” R.165, p.131 (Travis). Although Travis had trained many supervisors and operations managers, this training was “unusual” in terms of its “length of time and everything [she] showed him.” R.165, p.180 (Travis) (she trained Pooler on “everything from A to Z”). Travis soon realized that although Pooler’s official title was second shift operations supervisor, she was actually training Pooler to fill Teal’s vacant position, or her own. R.165, p.132 (Travis). Given that realization, Harris’ “lie[]” about the existence of the Inventory Control Supervisor position, and Harris’ earlier statement that he would “never make [her] a supervisor,” Travis began looking for a new job. Id. By mid-July, Travis obtained a new job and gave her two-week notice. Id.

Once Travis announced she was leaving, Harris called Pooler into his office and told him he was Inventory Control Supervisor. R.166, p.326 (Pooler); R.166, p.356 (Harris) (agreeing he called Pooler “Inventory Supervisor” immediately after Travis’ departure). According to Pooler, Travis knew 100% more than he did about inventory and was “absolutely” more qualified for the Inventory Control position than he was. R.166, pp.331-32, 334 (Pooler). Even Harris agreed that Travis was 100% more qualified than Pooler “in the inventory area for the inventory position.” R.166, p.362 (Harris).

Evidence that “Inventory Control Supervisor” was a position

Confirming that Pooler really did take on the “Inventory Control Supervisor” position, Teal later testified that Pooler “was brought in to fill the position of Inventory Control Supervisor that I vacated.” R.166, p.213 (Teal). When Pooler’s position was later eliminated, his position title was listed as “Inventory Management Supervisor.” R.166, p.332 (Pooler).

Crankshaw—who took over Pooler’s duties when he left—testified that the PPG client, Joe Gezo, called him “Inventory Supervisor.” R.166, p.267 (Crankshaw). Crankshaw also testified that his boss called him “Inventory Control Supervisor,” which was the job title on his February 2011 write-up. R.166, p.268 (Crankshaw).

Travis’ charge of discrimination and Exel’s response

In January 2009, Travis filed a charge of discrimination; Title VII requires the EEOC to send notice of a charge to an employer within ten days. 42 U.S.C. § 2000e-5(b). Despite the filing of the charge, no one interviewed Teal regarding Travis’ complaint before his June 2009 resignation. R.166, 218-19 (Teal).

During the EEOC’s investigation, Exel submitted a position statement to EEOC prepared by Exel’s Senior Legal Analyst, Stacey Alvey. R.166, pp.430-32 (Alvey). Alvey prepared the document based on her review of documents and information provided by Harris and Lisa Guydon, an Area HR Manager, whose name Alvey signed to the statement. R.166, p.431 (Alvey); PX25. Exel’s position statement contained five false statements, which the jury heard about at trial.

First, the position statement asserted that Harris promoted Travis to Inventory Control Lead, but Harris admitted at trial this was untrue; Bob Brown had promoted Travis before Harris came to PPG. R.166, pp.352-53 (Harris); R.165, p.113 (Travis). Second, the position statement asserted that Harris encouraged Travis to apply for the Operations Supervisor position in June 2008, but Harris admitted at trial this was false; he never encouraged Travis to apply. R.166, p.351 (Harris). Third, the position statement asserted that Travis told Harris she was not interested in a supervisor position because everyone knew her and it would be difficult to supervise her former co-workers, but Harris admitted at trial this was another false statement; Travis told him she wanted to be a supervisor, but Harris never considered her for the position vacated by Teal. R.166, pp.353-54 (Harris). Fourth, the position statement asserted that Pooler was an Operations Supervisor prior to the transfer, but Pooler was actually quality control coordinator at Hawaiian Tropic. R.167, p.433 (Alvey). Fifth, the position statement asserted that Pooler was transferred because he applied, but Pooler never applied to work at PPG. R.166, p.328 (Pooler). While the position statement notes that Pooler’s facility was closing, it does not mention the unwritten priority transfer practice. PX25.

Exel’s policy and Harris’ knowledge of Travis’ rights

Exel has an anti-discrimination policy. PX25, Ex.A (policy). Exel also conducts training on its policy, although Cranskhaw testified that he had received training upon promotion to operations supervisor in 2006 but had no training in the subsequent five years. R.166, pp.262-65 (Crankshaw). Harris testified that he received training on employment discrimination and knew it was against the law to discriminate based on sex. R.166, pp.345-46 (Harris).

Jury Trial and Verdict

In June 2013, the case went to trial. Harris denied that Chambers or Teal had recommended Travis for promotion; he denied telling Travis she was unqualified or needed a college degree for promotion; and he denied telling Teal he would not promote a woman to a management position. R.167, p.495-96 (Harris).

The district court instructed the jury that the EEOC’s theory was that Exel had denied Travis the June 2008 promotion because of her sex and that Exel’s theory was “that no one was promoted.” R.119, p.10. Specifically, the court told the jury that Exel’s argument was that “a current Exel employee with supervisory experience who was being laid off at a nearby Exel facility due to downsizing” was transferred into the position “pursuant to Exel’s priority transfer practice.” Id. The jury rejected Exel’s theory of the case, returning a verdict in favor of the EEOC and Travis and awarding $25,000 in compensatory damages, $1,183.37 in back pay (stipulated before trial), and $475,000 in punitive damages. R.120.

The court subsequently reduced the punitive damage award to $275,000 pursuant to Title VII’s statutory limit. See 42 U.S.C. § 1981a(b)(3)(D) (limiting combined compensatory and punitive damage award to $300,000 for the largest employers). Exel filed a renewed motion for JMOL or a new trial. R.133. The court denied the motion as to the jury’s verdict on liability but granted it as to punitive damages. R.147. Travis filed a notice of appeal. R.158. The court issued an order granting EEOC’s requested injunctive relief and issued a second amended judgment. R.161,162. EEOC and Exel filed timely notices of appeal. R.175, R.178.

3. District Court Decision

The district court denied Exel’s renewed motion for JMOL or, alternatively, for a new trial as to Exel’s liability for the sex discrimination. R.147. Relying on this Court’s precedent, the court held that the focus of the inquiry was on the ultimate question of whether Travis was the victim of intentional sex discrimination, not on whether the EEOC established a prima facie case of discrimination. R.147, pp.8-10 (citing Collado v. United Parcel Serv., 419 F.3d 1143 (11th Cir. 2005)). The court therefore rejected Exel’s argument that it was entitled to JMOL because the EEOC purportedly failed to establish a prima facie case. R.147, pp.9-10.

The district court held in the alternative that the EEOC did establish a prima facie case. Contrary to Exel’s argument, the court held the evidence sufficient for the jury to find “that the position actually filled was an Inventory Supervisor position, as opposed to the Operations Supervisor position that was actually posted.” R.147, p.11. Agreeing with the EEOC, the court also held that “there [wa]s a legally sufficient evidentiary basis from which a jury could conclude that Travis did apply for the position at issue – or was kept from applying for it by subterfuge.” R.147, p.12. The court agreed with the EEOC that Exel’s counsel had conceded in its closing that Travis did apply, but the court concluded that “in the absence of binding authority” it could not hold that the concession judicially estopped Exel from arguing that Travis had not applied. R.147, p.12 n.4.

Next, the district court held that “there [wa]s a legally sufficient evidentiary basis for a jury to reject the priority transfer practice as a legitimate non-discriminatory reason for not promoting Travis.” R.147, p.15. The court pointed to Blose’s comment to Pooler “to keep his mouth shut” about the transfer opportunity, which, the court held, was a deviation from the unwritten priority transfer practice and therefore constituted circumstantial evidence of pretext. R.147, p.16. The court also pointed to Teal’s testimony that Harris would not put a woman in a management position. R.147, p.17. The court acknowledged that Teal’s trial testimony contradicted his affidavit as to the timeframe of Harris’ comment, but the court held that the discrepancy was a credibility issue for the jury, and that, in any event, Exel never made Teal’s affidavit a trial exhibit. R.147, p.19. Finally, the court held that Travis’ prior complaints of sex discrimination as to other positions, as well as Hudson’s response to Travis’ complaint, supported the jury’s finding of sex discrimination. R.147, pp.20-21.

The court also denied Exel’s motion for a new trial, finding that the jury’s verdict was not against the great weight of the evidence. R.147, p.33. As discussed in the EEOC’s opening brief, the court granted JMOL as to the punitive damage award.

4. Standard of Review

This Court reviews the denial of a motion for JMOL de novo. Castle v. Sangamo Weston, 837 F.2d 1550, 1558 (11th Cir. 1988). A motion for JMOL should be granted only when, viewing the evidence in the light most favorable to the non-moving party, the facts and inferences point so strongly in favor of one party that reasonable persons could not arrive at a contrary verdict. Id.; see Fed. R. Civ. P. 50(a)(1) (motion should be granted only if no “legally sufficient evidentiary basis for the jury to find for that party on that issue” exists). As this Court has recognized, it “is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.” Lipphardt v. Durango Steakhouse of Brandon, 267 F.3d 1183, 1186 (11th Cir. 2001) (internal quotation marks and citation omitted). The trial court’s denial of a new trial is reviewed for abuse of discretion, which is found only when the jury’s verdict is contrary to the great, not merely greater, weight of the evidence. Id.

Summary of argument

After a three-day trial during which the jury had the opportunity to hear all of the witnesses and make credibility determinations, the jury found that Exel discriminated against Contrice Travis because of her sex by failing to promote her to Inventory Control Supervisor. After trial, Exel sought to upend the jury’s verdict by filing a motion for JMOL or, alternatively, a new trial. The district court properly denied Exel’s motions as to liability, as the evidence was more than enough to support the jury’s finding of sex discrimination.

Exel’s argument on appeal that the jury’s verdict cannot stand essentially boils down to the contention that the jury could have reached a verdict in Exel’s favor. But that is not the standard for granting JMOL, or a new trial. Rather, JMOL may be granted only when, viewing the evidence in the light most favorable to the non-movant, no reasonable jury could have reached the verdict it did. Similarly, a motion for a new trial may be granted only when the verdict is contrary to the great weight of the evidence. Here, the jury heard abundant evidence at trial to support its finding of sex discrimination.

At the outset, Exel argues that the district court erred in refusing to grant JMOL because the EEOC purportedly failed to establish a prima facie case. This argument is misplaced, as this Court’s “don’t-look-back” rule precludes revisiting the prima facie case after a jury has considered the ultimate question of whether there was discrimination. Additionally, Exel’s counsel stated during closing arguments that Exel was not arguing that Travis failed to apply, which constitutes a binding judicial admission. In any event, the jury heard sufficient evidence to find that Travis applied for the job like everyone else at Exel applied for a job: she told her boss she wanted to be considered. The jury also heard evidence from which it could have found that General Manager Dave Harris misled Travis into not formally applying by telling her the open position was for “Operations Supervisor,” not “Inventory Control Supervisor,” and/or that applying would have been futile, given that Harris said he would never promote her.

The evidence also supported the jury’s determination that sex discrimination—not Exel’s unwritten priority transfer practice—was the real reason that Harris bypassed Travis and instead selected Michael Pooler to be Inventory Control Supervisor. Harris admitted that he did not have to select Pooler under the unwritten priority transfer practice, and the jury heard evidence that its application in this case deviated from its typical operation. Significantly, the jury also heard former Operations Manager James Teal testify that when he recommended that Harris promote Travis to Inventory Control Supervisor in June 2008, Harris said he would “not put a woman in a management position.” Other circumstantial evidence included evidence that Harris felt uncomfortable with women and told Travis he would “never” promote her; Teal, Pooler, and even Harris believed Travis was more qualified for the position than Pooler; Harris lied repeatedly to Travis about the position, telling her falsely that the opening was for “Operations Supervisor”; and Exel made five false statements in its EEOC position statement as to why Travis was not promoted. This evidence more than sufficed to support the jury’s verdict.

Exel also responds to the EEOC’s argument that this Court’s standard for imposing liability for punitive damages conflicts with the Supreme Court’s decision in Kolstad v. American Dental Association, 527 U.S. 526, 119 S. Ct. 2118 (1999), and is at odds with the law of ten other circuits. Exel insists that this Court’s “high-enough-up-the-corporate-ladder” standard is in accord with Kolstad, but Exel’s argument fails to explain away the language in Kolstad strongly suggesting that a managerial agent need not be a company’s top official. Exel also does not dispute that this Court’s standard does in fact conflict with ten other circuits. Exel argues, in the alternative, that the jury’s finding of malice or reckless indifference was not supported by the evidence and that it established the good-faith defense as a matter of law, but these arguments fail. Exel’s argument that the award was excessive also fails, as the award comported with Title VII’s statutory limit and was justified by Harris’ blatant discrimination against Travis, despite his knowledge that sex discrimination is unlawful. Accordingly, this Court should correct its standard for imputing liability for punitive damages—sitting en banc, if necessary—and reinstate the jury’s $275,000 punitive damage award.

ARGUMENT

I. The district court properly denied Exel’s motions for JMOL and a new trial

because the evidence supported the jury’s finding that Exel refused to promote

Contrice Travis because of her sex.

During trial, the EEOC and Exel presented dueling evidence as to the real reason for Exel’s refusal to promote Travis to Inventory Control Supervisor. After hearing all of the conflicting evidence and weighing the credibility of the witnesses, the jury returned a verdict in the EEOC’s favor on its Title VII sex discrimination claim. See 42 U.S.C. §§ 2000e-2(a)(1),-(2)(m). After trial, Exel sought to vacate the jury’s verdict by renewing its motion for JMOL or, alternatively, requesting a new trial. The district court properly denied each motion.

On appeal, Exel recycles the arguments it made to the district court as to why the jury’s verdict should be set aside. Those arguments fail because they are based on a selective presentation of the trial record and do not accord with the standard for granting JMOL or a new trial. Contrary to Exel’s presentation of the record on appeal, the evidence must be viewed in the light most favorable to the EEOC as the non-movant in evaluating Exel’s motion for judgment as matter of law. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 151, 120 S. Ct. 2097, 2110 (2000) (“[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.”). Exel essentially argues that the jury could have found in its favor. To be sure, “[t]he verdict could have gone either way, [but] it went [EEOC’s] way.” Ash v. Tyson Foods, Inc., 664 F.3d 883, 898 (11th Cir. 2011) (affirming denial of Rule 50(b) motion). Given the ample evidentiary basis supporting the jury’s verdict, the district court’s denial of Exel’s renewed JMOL must be affirmed.

Similarly, the district court acted well within its discretion in denying Exel’s motion for a new trial. As this Court has said, “[b]ecause it is critical that a judge does not merely substitute his judgment for that of the jury, ‘new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great – not merely the greater – weight of the evidence.’” Lippahardt, 267 F.3d at 1186. Here, the jury’s verdict was not against “the greater” weight of the evidence, much less the “great” weight of the evidence. To the contrary, the jury’s finding of sex discrimination was based on a plethora of evidence presented at trial. Therefore, this Court should affirm both the district court’s denial of Exel’s motion for JMOL or, alternatively, a new trial.

A. Exel cannot re-litigate after trial the denial of summary judgment

or the existence of the prima facie case.

Exel alludes throughout its brief to the district court’s rejection of the magistrate judge’s recommendation that Exel’s summary judgment motion be granted. Exel implies that the district court erred in denying summary judgment, requiring reversal of the district court’s denial of Exel’s renewed JMOL. To the extent this is Exel’s argument, Exel is mistaken, as this Court has long recognized that a denial of summary judgment cannot be reviewed after trial. Univ. of Fla. v. KPB, Inc., 89 F.3d 773, 775 (11th Cir. 1996). Rather, once summary judgment has been denied, “the proper inquiry . . . is directed to the sufficiency of the evidence as presented at trial.” Id.

Exel also attacks the jury’s verdict by arguing that the EEOC failed to establish a prima facie case of discrimination, purportedly because “Travis did not apply and . . . no one was promoted.” Exel-Br.17-18. Exel’s attack on the EEOC’s prima facie case is misplaced, as the district court found. To be sure, this Court has held that a plaintiff seeking to establish a prima facie case based on circumstantial evidence usually must prove that she was qualified for and applied for a promotion and was rejected in favor of an equally or less qualified employee outside the protected class. See Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001) (setting forth prima facie case elements). However, the Supreme Court has held that “when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection, the factfinder must then decide whether the rejection was discriminatory within the meaning of Title VII.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S. Ct. 1478, 1481-82 (1983) (footnote omitted). In accordance with Aikens, this Court has held that the “don’t-look-back rule” prohibits courts from reviewing the existence of a prima facie case after trial, except where “a component of the prima facie case is also an element of the claim.” Collado, 419 F.3d at 1150-54 (holding that whether a plaintiff is disabled is an element of an ADA claim that can be reviewed after trial).

Here, the district court held correctly that the “don’t-look-back rule” precludes Exel’s argument that its motion for JMOL should have been granted. R.147, pp.9-11. After the district court denied summary judgment, Exel responded to the EEOC’s proof by offering evidence at trial that the unwritten priority transfer practice, not sex discrimination, was the reason for Pooler’s selection for the vacant Inventory Control Supervisor position. Thus, at that point, the jury was presented with the ultimate question of whether Exel’s failure to promote Travis was discriminatory, and the jury found that it was. Under Aikens and this Court’s precedent, then, it would have been improper for the district court to enter JMOL for Exel after trial on the ground that the EEOC failed to establish a prima facie case.

Further, Exel cannot avail itself of the exception to the “don’t-look-back rule” for proof issues going to an element of the plaintiff’s claim. See Collado, 419 F.3d at 1150-54. In Collado, this Court stated that in a failure-to-promote case, it would be improper to grant a Rule 50(b) motion for a plaintiff’s purported failure to establish the fourth prong of the prima facie case, i.e., that equally or less qualified employees outside the class were promoted. Id. at 1154. This Court stated that the absence of comparators might be relevant to establishing a factual question as to pretext but that it was “not necessarily a claim-killing fact at the post-Rule 50(b) stage” because “a promotion could be denied for discriminatory reasons even though no one outside the protected class was promoted.” Id. As Collado demonstrates, in a failure-to-promote case, neither the second nor the fourth prongs of the prima facie case (which are the prongs Exel challenges) are elements of a claim, dictating the conclusion that it would be improper to grant Exel’s Rule 50(b) motion on the ground that Travis did not apply and/or that no one was promoted.

B. In any event, the jury heard evidence sufficient to establish the

prima facie case.

Even assuming, arguendo, that Exel is able to challenge the EEOC’s prima facie case in the wake of the jury’s verdict, Exel’s arguments are insufficient to grant JMOL or a new trial.

1. Exel conceded that Travis applied.

Exel made a judicial admission below that precludes Exel’s argument that Travis did not apply. During closing argument Exel’s counsel stated that “Nobody is saying, well, we’re defending the case because she didn’t apply. Nobody is saying that. I’m not saying that.” R.167, 599. This “straightforward judicial admission” is “a binding concession.” United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991) (holding that party’s concession in closing argument that he was not suggesting he filed valid tax returns constituted a judicial admission that was “binding before both the trial and appellate court[]”). Further, Exel never requested that the jury be instructed that it had to find that Travis applied for the job in order to return a verdict for the EEOC. See R.100 (Exel’s proposed jury instructions). This failure is consistent with Exel’s concession below that Travis did apply and should preclude Exel from now attacking the jury’s verdict on this basis.

In its ruling below, the district court appeared to agree with the EEOC that the concession of Exel’s counsel during oral argument constituted a binding concession, but the district court stated it could not make this ruling in the absence of Eleventh Circuit precedent. R.147, p.12 n.4. The EEOC notes that precedent from the Supreme Court and this Court support the conclusion that Exel’s concession during the closing argument constitutes a binding judicial admission.

See N. Ins. Co. of New York v. Catham Cnty., Ga., 547 U.S. 189, 195, 126 S. Ct. 1689, 1694 (2006) (holding that a party’s concession in a brief that it was not entitled to Eleventh Amendment immunity, which was also the presumption underlying the question on which the Court granted certiorari, was “dispositive”); Bartley v. Kim’s Enter. of Orlando, 568 F. App’x 827, 834 (11th Cir. 2014) (holding that the plaintiffs’ concessions “throughout every phase of the trial, including in opening and closing arguments, that the police” had acted appropriately “fatally undermined their claims for false detention”) (emphasis added).

2. The jury heard evidence that Travis applied, was misled

into not applying, and/or that applying would have been futile.

In any event, the jury heard ample evidence from which it could have reasonably determined that Travis did apply for Inventory Control Supervisor, as the district court held. R.147, pp.12-13. Travis testified that she told Harris that she wanted to be considered for Inventory Control Supervisor as soon as Teal was promoted into the position. R.165, p.117 (Travis). Travis further testified that she again told Harris she wanted the Inventory Control Supervisor position around June 2008, when Teal was promoted out of the position—which Harris admitted at trial. R.165, p.129 (Travis); R.166, p.349 (Harris). While it is true that Travis did not submit a formal application, Harris, Teal, and Pooler testified that they were promoted or transferred without submitting an application. R.167, p.522 (Harris); R.166, pp.207-08, 212, 222 (Teal); R.166, p.328 (Pooler). Accordingly, the jury reasonably could have found that Travis applied for the Inventory Control Supervisor position the way everyone else at Exel applied for a position: she made it known that she wanted the job. See Barron v. Fed. Reserve Bank of Atlanta, 129 F. App’x 512, 516 (11th Cir. 2005) (holding that employee who has not applied for a position can nevertheless establish a prima facie case by showing that “the company had some reason or duty to consider him for the post”) (internal quotation marks and citation omitted).

The jury also could have found, as the district court held, that Harris prevented Travis from formally applying through the use of “subterfuge.” R.147, p.12. The jury heard an abundance of evidence that although the posted position was for “Operations Supervisor,” the position really was for “Inventory Control Supervisor.” Travis testified that had she seen a posting for “Inventory Control Supervisor,” she would have applied. R.165, p.130 (Travis).

This Court has also held that an employee who fails to apply for a job opening can still establish a prima facie case where “the employer’s clear policy of exclusion would make an application a useless exercise”; in such cases, a plaintiff must show that she would have applied but for the discrimination and that she would have been discriminatorily rejected. Barron, 129 F. App’x at 516. Here, the jury could have found that Travis’ formal application would have been futile. As stated, Travis testified that had she seen a posting for “Inventory Control Supervisor,” she would have applied. R.165, p.130 (Travis). Travis also testified that when she told Harris she wanted Teal’s position as Inventory Control Supervisor, Harris looked her in the eyes and said “he was not going to make [her] a supervisor” and would “never” make her a supervisor. R.165, p.130 (Travis). Additionally, Teal testified that Harris said he would never put a woman in a management position, allowing the jury to find that Travis would have been discriminatorily rejected had she formally applied for the posted “Operations Supervisor” position.

3. The jury heard evidence that Pooler was selected for the

vacant Inventory Control Supervisor position.

Exel also argues that JMOL is warranted because “no one was promoted into a supervisor position in June 2008.” Exel-Br.16. This argument misses the mark. Whether it was a promotion or a lateral transfer, there is no dispute on this record that Exel chose Pooler in June 2008 for the vacant position Teal had previously filled. It was also undisputed that the position would have been a promotion for Travis. R.166, p.363 (Harris).

Moreover, although Exel argued strenuously below (although not as strenuously on appeal) that the open position was for “Operations Supervisor” and not “Inventory Control Supervisor,” the EEOC presented the following contrary evidence at trial:

· Travis testified that Harris created a new “Inventory Control Supervisor” position and asked him to apply. R.166, pp.208-09.

· Crankshaw told Travis that Teal would be her boss as “Inventory Control Supervisor.” R.165, pp.116-17.

· Harris announced at a meeting that Teal was the “Inventory Control Supervisor.” R.165, p.118.

· Upon promotion to Inventory Control Supervisor, Teal supervised only Travis. R.166, p.211.

· Pooler was told there was a vacant “Inventory Supervisor” position at PPG. R.166, p.325, 329.

· Upon selection, Pooler took over Teal’s duties and, like Teal, he did not supervise anyone except Travis. R.166, p.213.

· After Travis left, Harris told Pooler he was “Inventory Supervisor.” R.166, p.326, 332.

· When Pooler’s position was eliminated, his title was listed on his separation letter from Harris as “Inventory Management Supervisor.” R.166, p.332.

· The PPG client referred to Crankshaw—who took over Pooler’s duties—as “Inventory Supervisor,” and Crankshaw’s boss and others called him “Inventory Control Supervisor.” R.166, pp.267-68.

Thus, the jury had before it an abundance of evidence that Pooler was selected for the position vacated by Teal, and that the position was for “Inventory Control Supervisor”—which is the position Travis continually sought to fill.

C. The evidence supported the jury’s finding of sex discrimination.

Exel next argues that it presented “overwhelming” evidence that the true reason it failed to select Travis was its unwritten priority transfer practice, not sex discrimination, and that no reasonable jury could find otherwise. Exel-Br.18. This argument is meritless. To support its argument, Exel cites cases standing for the general proposition that JMOL is appropriate where a plaintiff fails to produce evidence that an employer’s nondiscriminatory reason is a pretext for discrimination. Exel-Br.19. These cases are of no help to Exel, however, because a review of the evidence shows that the jury had ample evidence to support its finding of sex discrimination.

As this Court has said, “[w]hen pretext is the issue, and [JMOL] to the defendant is under consideration, [courts] must evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Ash, 664 F.3d at 892 (internal quotation marks and citation omitted); see also Reeves, 530 U.S. at 148-49, 120 S. Ct. at 2109 (whether JMOL is appropriate depends on a number of factors such as “the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered” on a motion for JMOL). Here, the EEOC’s evidence sufficed under this standard to allow the jury to determine that Exel’s proffered legitimate reason for not promoting Travis was a pretext for sex discrimination.

1. The unwritten priority transfer practice explanation was not worthy of belief.

Exel argues that Harris selected Pooler “via the routine application” of the unwritten priority transfer practice, suggesting that Harris had no choice but to select Pooler. Exel-Br.13. The trial record, however, establishes that Harris did not have to select Pooler and, moreover, that there was nothing “routine” about the the practice’s application in this case.

Harris admitted he did not have to select Pooler, even under the priority transfer practice. R.166, p.361 (Harris). Harris also admitted he could have promoted Travis to Inventory Control Supervisor and put Pooler into Travis’ vacated position. R.167, p.525 (Harris). Hudson also admitted that Harris could have promoted Travis and put Pooler in her vacated position. R.167, p.427 (Hudson). This evidence casts doubt on the validity of the unwritten priority transfer explanation.

Significantly, when Travis first approached Harris and expressed her interest in promotion to the Inventory Control Supervisor position Teal vacated, Harris said absolutely nothing about having to fill the position with Pooler or any other priority transfer candidate. To the contrary, the jury heard evidence that Harris did not even know about Pooler until after the position was posted and Hudson provided Harris with Pooler’s name. R.166, p.361 (Harris); R.167, p.421 (Hudson). Thus, the evidence at trial was that at the time Travis and Harris spoke about the Inventory Control Supervisor position, Harris had not been told about any priority transfer candidate. Other testimony at trial established that Harris made on-the-spot promotions and transfers, as Teal testified that Harris simply moved him into Inventory Control Supervisor and later promoted him to Operations Manager just a few days after Teal said he was interested, without Teal ever submitting a formal application. R.166, pp.208-09, 212 (Teal). Based on this evidence, the jury reasonably could have inferred that Harris could have promoted Travis to Inventory Control Supervisor without posting the position or waiting around for a priority candidate. Given Travis’ testimony that Harris told her that he would “never” make her a supervisor and Harris’ candid concession that he never considered her for the vacant position, the jury could have further found that Exel manufactured the unwritten priority transfer practice explanation to cover up the real reason Harris refused to promote Travis: her sex.

The jury also could have disbelieved that the unwritten priority transfer practice was the reason for Pooler’s selection given evidence that Harris did not tell Travis at the time that the practice might require him to fill Teal’s position with a transfer candidate. The jury could have found that had the unwritten transfer practice been the been the real reason Travis was not selected, Harris would have given Travis this straightforward explanation when she said she wanted the Inventory Control Supervisor position. See Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (explanation of selectee’s superior “computer proficiency” was so straightforward “one might expect that [the employer] would have mentioned it if it really were the explanation”). But Harris did not give Travis this explanation, or even say it was a possibility. Instead, he said nothing about the unwritten priority transfer practice and simply told her he would “never” promote her. Harris also denied that he would be hiring an Inventory Control Supervisor and instead said he would be posting for an Operations Supervisor position. R.166, pp.349-50. The jury easily could have found that Harris lied to Travis about the nature of the position, casting additional doubt on the legitimacy of the belated priority transfer practice explanation.

Additionally, although Exel repeatedly calls the application of the unwritten priority transfer practice in this case “routine,” the jury heard contrary evidence. Teal testified that he had never even heard of the practice. R.166, p.214. HR Manager Lisa Guydon admitted the practice is unwritten. R.167, p.466. Even assuming that it was a legitimate practice, however, the jury heard evidence that its application in this case was anything but routine, which would support a finding of pretext. See Bass v. Bd. of Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1108 (11th Cir. 2001) (“An employer’s violation of its own normal hiring procedure may be evidence of pretext.”), overruled in part as recognized by Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008). Here, Hudson testified that priority transfer candidates fill out an internal application, but Pooler testified he never did. R.167, p.401-02 (Hudson); R.166, p.328 (Pooler). Additionally, Pooler testified that Blose told—and even threatened—him to keep quiet about the Inventory Control Supervisor position. R.166, pp.325, 329, 334. Hudson admitted that conditioning an employee’s transfer on keeping quiet would be an aberration from the unwritten priority transfer practice, and Crankshaw was not told to keep quiet when he was transferred. R.167, p.409 (Hudson); R.166, p.278 (Crankshaw). Thus, as the district court held, the jury could have found Exel’s application of the unwritten priority transfer practice in this case suspicious, thereby suggesting it was not the real reason for Travis’ non-selection. R.147, p.16. See Moore v. Jefferson County Dep’t of Human Res., 277 F App’x 857, 859 (11th Cir. 2008) (“A decision is even more suspicious where established rules were bent or broken to give an applicant an edge in the hiring process.”).

2. Harris’ discriminatory animus.

The jury also heard evidence of Harris’ animus towards women. Most significantly, Teal testified that when he recommended that Harris promote Travis into the Inventory Control Supervisor position, Harris responded that he “would not put a woman in a management position.” R.166, p.216 (Teal). If the jury credited Teal’s testimony, as it was entitled to do, then the jury could have found that Harris’ statement constituted direct evidence of discrimination. See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-28 (11th Cir. 2002) (“To be direct evidence, the remark must indicate that the employment decision in question was motivated by [a protected trait].”); Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (stating that “direct evidence . . . is evidence, that, if believed, proves the existence of a fact in issue without inference or presumption” and “that direct evidence is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor”) (internal quotation marks and citation omitted).

Exel tries to diffuse the impact of Harris’ discriminatory comment by suggesting he never made it. Specifically, Exel questions why Teal did not report the comment immediately instead of in 2010 and asserts that Teal has no contemporaneous notes of the comment and no corroborating witnesses, and Exel implies that Teal was lying because Exel later fired him for sexual harassment. Exel-Br.13, 23. These points go to Teal’s credibility, however, and it is axiomatic that it is for the jury, not the courts, to made credibility determinations. See Lipphardt, 267 F.3d at 1186 (stating that it is the jury’s function, not the courts, to weigh witnesses’ credibility).

Exel also argues that Teal’s testimony did not suffice to support the jury’s finding of sex discrimination because Harris made the comment in 2007, rendering it a “stray remark.” To support this argument, Exel points to its cross-examination of Teal based on statements in his 2010 affidavit and his 2011 deposition. Exel’s argument fails for a number of reasons. The first problem with this argument, the district court stressed, is that Exel never made Teal’s affidavit (or his deposition) an exhibit at trial. R.147, p.19. As the district court stated, this Court “has ‘recognized that motions for [JMOL] must be decided . . . on the evidence that has been admitted.’” R.147, p.19 (quoting Ramirez v. Sec’y U.S. Dep’t of Transp., 686 F.3d 1239, 1244 n.1 (11th Cir. 2012)).

In any event, Exel’s argument lacks merit because it is based on a selective presentation of the trial record and fails to accord with the standard for granting JMOL, which requires the evidence to be viewed in the light most favorable to the EEOC. On direction examination, Teal testified that Harris made the comment during a conversation in Harris’ office after Teal was promoted to Operations Manager and Teal recommended that Travis be selected for Inventory Control Supervisor, which was June 2008. R.166, p.216 (Teal). Teal also testified that Harris made the comment “a couple of times.” R.166, p.217 (Teal). During cross-examination, Exel’s counsel pressed Teal on exactly when Harris made the comment. Specifically, Exel’s counsel asked whether the comment was made in 2007, when Teal became Inventory Control Supervisor. R.166, p.237 (Teal). Teal responded, “no” and repeated that Harris made the comment while the two men were discussing that “there was going to be an opening [in] inventory control.” Id. Exel’s counsel then asked Teal about a statement in his 2010 affidavit that Harris made the remark “in or around 2007.” R.166, p.238 (Teal). Teal responded that the affidavit did not refresh his memory, “because it’s been so long ago.” R.166, p.239 (Teal). Teal repeated, however, that Harris made the comment “during the time . . . I was Inventory Control Supervisor to the General Manager’s position.” R.166, p.239 (Teal). On re-cross examination, Exel’s counsel questioned Teal about statements in his deposition. Although it is far from clear, it appears that Teal agreed with his deposition statement that Harris made the comment in late 2006 or early 2007, “not too long after Ms. Travis started with PPG.” R.166, p.257-58 (Teal).

As the above discussion shows, Teal testified repeatedly that Harris made the comment while discussing Travis and the open Inventory Control position, which was in June 2008. To the extent Teal’s testimony was contradictory as to the exact date of Harris’ comment, or comments, the discrepancy raised a credibility issue for the jury to resolve, as the district court held. R.147, p.18; see Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 792 (11thCir. 1999) (stating that “a witness may err when testifying regarding dates of events that occurred several years prior” and that counsel can “urge the jury to consider the testimony in assessing the witness’s credibility”); Lipphardt, 267 F.3d at 1186 (stating that it is for the jury “to weigh conflicting evidence and inferences, and determine the credibility of witnesses”).

Moreover, Exel presents a false dichotomy when it suggests that Harris made the sexist remark either in June 2007 or in June 2008. Teal actually testified that Harris made the comment “a couple of times.” R.166, p.217 (Teal). The jury therefore reasonably could have found that Harris made the remark about refusing to put a woman in management during conversations with Teal in both 2007 and in 2008. See Reeves, 530 U.S. at 150, 120 S. Ct. at 2110 (all reasonable inferences must be drawn in favor of non-moving party when ruling on renewed JMOL).

Alternatively, the jury may have concluded that Harris made the sexist comment only in June 2007 or earlier. If so, the jury reasonably could have found that the remark still constituted powerful circumstantial evidence of pretext. See, e.g., Ross v. Rhodes Furniture, 146 F.3d 1286, 1292 (11th Cir. 1998) (holding that racist remarks made prior to the plaintiff’s termination constituted circumstantial evidence that would support an inference of discrimination). While Exel characterizes Harris’ comment as a “stray remark,” the jury could have inferred that Harris said he would not put a woman in a management position in the context of a discussion between Teal and Harris about Travis’ promotion potential. See R.166, p.258 (testifying that “this one here would have been not too long after Ms. Travis started with PPG”).

In any event, and even if Harris’ remark was untethered to a conversation about Travis’ promotion potential, it constituted circumstantial evidence of pretext. See Ross, 146 F.3d at 1291-92 (holding that decisionmakers’ “Tarzan” remark and statement to a white man that he was “going to get rid of” the plaintiff, who was African-American, constituted “circumstantial evidence of those decisionmakers’ discriminatory attitude”). Indeed, even the cases Exel cites underscore the probative value of a “stray” discriminatory remark. Exel-Br.24. For instance, in Rojas, 285 F.3d at 1342-43, this Court held that a single sexist comment not even about the plaintiff was insufficient, standing alone, to establish a jury question, but this Court affirmed that “such comments can contribute to a circumstantial case for pretext.” Similarly, in Floyd v. Federal Express Corp., 423 F. App’x 924, 932-33 (11th Cir. 2011), this Court held that a single racist statement made to another employee a year before the plaintiff’s termination about an “incident completely unrelated” to the plaintiff was insufficient, by itself, to establish a jury question as to pretext. Exel also cites Scott, 295 F.3d at 1229 n.1, but the Scott case merely held that a comment unrelated to the decision at issue does not typically suffice, by itself, to support a finding of pretext.

Unlike in Rojas, Floyd, and Scott, in this case Harris’ comment was not the “only evidence of sex bias,” as Exel disingenuously claims. Exel-Br.22. As discussed, the jury heard considerable evidence casting doubt on the legitimacy of the unwritten priority transfer practice explanation. Additionally, the jury heard a plethora of evidence suggesting that Harris simply did not like, or did not feel comfortable with, women and did not want to promote Travis for this reason. Chambers testified that Harris was “standoffish” towards women and wanted Chambers “to address” the women who reported to Harris, and Chambers testified that Harris demurred when Chambers recommended promoting Travis, saying she was “not ready.” R.166, pp.293-95 (Chambers). It crossed Chambers’ mind that the reason Harris refused to promote Travis was because she is a woman. R.166, p.295 (Chambers). Travis similarly testified that Harris limited his contact with female staff and directed her to “manage the ladies in the office.” R.165, p.161. She also testified that Harris treated her differently, as he encouraged other employees but “really didn’t want to talk to [her] or deal with [her] on any level” and instructed her to talk with Teal and not even to e-mail him. R.165, pp.123-24. Harris once even told her to clean up after male employees who had made a mess. R.165, p.123.

Travis also testified that Harris told her flatly that he would never make her a supervisor and was “not going to consider [her]” for promotion to shift supervisor. R.165, pp.130, 120. Given that Teal and Chambers both recommended to Harris that he promote Travis, whom Chambers called “stellar,” a jury could find that Harris’ steadfast refusal to do so supported an inference of sex discrimination. The jury also could have concluded that Harris lied when he told Travis that a college degree was a prerequisite to promotion, since neither Harris nor Teal had a college degree and Harris admitted one was not required. R.167, p.497. The jury could have found that Harris’ deception supported the inference that the real reason he would not promote Travis—for any position, at any time—was sex discrimination.

Additionally, the jury heard undisputed evidence that no female managers worked at PPG under Harris and that only male employees transferred in. R.166, p.273. Teal also testified that during his seven years at Exel, he had never seen a female manager. R.166, p.218.

3. Travis was far more qualified than Pooler.

The jury also could have inferred that Travis’ non-selection was due to her sex based on the undisputed evidence presented at trial that Travis was far more qualified than Pooler for the position of Inventory Control Supervisor. This Court has held that “[i]n the failure-to-promote context, evidence of a disparity in qualifications between the plaintiff and the candidate selected may establish pretext.” Brooks v. CSX Transp., 555 F. App’x 878, 881-82 (11th Cir. 2014). When the qualification disparity “is not the sole basis for arguing pretext, the disparity need not be so dramatic to support an inference of pretext.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 772 (11th Cir. 2005).

Here, the disparity between Travis’ and Pooler’s qualifications was stark. Pooler testified that Travis knew 100% more than he did about inventory and that she was “absolutely” more qualified than he was, and Harris agreed that Travis was 100% more qualified than Pooler “in the inventory area for the inventory position.” R.166, pp.331-32, 334 (Pooler); R.166, p.362 (Harris). Additionally, Chambers called Travis’ performance “outstanding” and testified that she sometimes performed “better than the supervisors,” as she ran shifts on the weekends. R.166, p.292 (Chambers); R.165, p.120 (Travis).

Pooler, on the other hand, testified that when he started at PPG, he was “looking stupid” and felt “lost.” R.166, p.326. Pooler agreed with Harris that he (Pooler) was unfamiliar with supervising or operations; as Pooler told Harris, he had been in “quality control, FDA guidelines.” R.166, pp.325-26. Travis also testified that she had to train Pooler on “everything from A to Z” in inventory, allowing the jury to find that Pooler knew nothing about inventory and was woefully less qualified for Inventory Control Supervisor than the lone employee he supervised—Travis. R.165, p.180. This evidence was certainly enough for the jury to have determined that Pooler’s lack of qualifications vis-à-vis Travis was one more piece of circumstantial evidence showing that Exel’s proffered reason for selecting Pooler was a pretext for sex discrimination. See Ash, 664 F.3d at 895 (affirming denial of JMOL where the selectee “had so little experience in chicken processing that [the plaintiff] had to train him when he took over as shift manager”).

4. HR’s response to Travis’ earlier complaints.

The district court also held correctly that evidence as to Travis’ complaints about sex discrimination preceding the 2008 non-promotion also supported an inference of discrimination. R.147, p.20. As discussed above, the jury heard evidence that Harris refused to promote Travis, or even consider her for promotion, prior to 2008 under circumstances that permitted the jury to infer sex discrimination was the reason. When Travis complained to Murphy that Harris would not promote her because of her sex, Murphy said she “understood,” since she had the same problem as HR coordinator. R.165, p.124 (Travis). The jury reasonably could have found that Murphy’s response constituted an implicit acknowledgement of the existence of sex discrimination at Exel. Hudson’s response to Travis’ complaints also suggested tacit acknowledgement of sex discrimination at PPG, as Hudson’s “best advice” to Travis was to transfer. R.165, p.127 (Travis).

5. False statements in the position statement.

The jury also could have inferred that sex discrimination, not the unwritten priority transfer practice, was the real reason for Travis’ non-promotion based on the multiple false statements in the position statement Exel submitted to the EEOC. See Zann Kwan v. Andalex Group, 737 F.3d 834, 847 (2d Cir. 2013) (holding that discrepancies between the defendant’s position statement and subsequent testimony as to the reason for the plaintiff’s termination would allow “a reasonable juror [to] infer that the explanation given by the defendant was pretextual”); see also Vessels, 408 F.3d at 771 (holding that “inconsistencies, incoherencies, [and] contradictions in the employer’s proffered legitimate reason for its action” would allow a reasonable factfinder to find the reason given unworthy of belief).

As discussed, infra at pp.15-16, the jury heard testimony at trial—from Exel’s own witnesses—establishing that Exel’s position statement contained five false statements: (1) Harris promoted Travis to Inventory Control Lead (Bob Brown actually promoted her); (2) Harris encouraged Travis to apply in June 2008 for Teal’s vacated position (Harris admitted he did not encourage her); (3) Travis told Harris she was not interested in becoming a supervisor because she would have to supervise former co-workers (Harris admitted this was untrue and Travis said she wanted to be a supervisor); (4) Pooler had been an Operations Supervisor at Hawaiian Tropic (he had actually been quality control coordinator and later agreed with Harris that he knew nothing about operations); and (5) Pooler was transferred after he applied (Pooler never applied). Perhaps most significantly, the position statement says nothing at all about the unwritten priority transfer practice. PX25.

Thus, the jury could have found that the position statement contained numerous, and significant, false statements designed to cover up the real reason for Travis’ non-selection: her sex. Cf. Moore 277 F. App’x at 860 (holding that “slight[]” differences between EEOC position statement and deposition testimony, standing alone, “do[] not establish pretext”). The position statement mentioned that Pooler’s facility was closing, but it said nothing about any unwritten priority transfer practice. Exel’s failure to mention this straightforward explanation in its position statement would also have allowed the jury to infer that sex discrimination, not the unwritten priority transfer practice Exel touted at trial, was the real reason for Travis’ non-promotion. See Zann, 737 F.3d at 847 (employer’s failure to mention “poor performance” in position statement as reason for the plaintiff’s termination permitted a jury to infer discrimination); Lindahl, 930 F.2d at 1438 (explanation of “computer proficiency” was such a straightforward explanation that “one might expect that [the employer] would have mentioned it if it really were the explanation”).

II. The punitive damage award should be reinstated.

In its opening brief, the EEOC argued that the jury’s $275,000 punitive damage award should be reinstated. As the EEOC explained, the district court agreed with the EEOC that evidence at trial supported the jury’s finding that Exel acted with malice or reckless indifference to Travis’ federally protected rights and that Exel failed to establish the good-faith affirmative defense from Kolsatd, 527 U.S. 526, 119 S. Ct. 2118. See R.147, pp.22-23 (order). Accordingly, the court refused to grant Exel’s Rule 50(b) motion on these grounds. The district court nevertheless vacated the award, with some reluctance, after determining that this Court’s judicial precedent requires that the discriminating employee be sufficiently high up the corporate ladder. See R.147, pp.28-29 (noting that “at least one court has expressed doubt as to the Eleventh Circuit’s” standard).

Exel responds by insisting that this Court’s “high-enough-up-the-corporate-ladder/higher management” standard does not conflict with Kolstad. Exel additionally argues that this Court could affirm the grant of JMOL on the alternative ground that the evidence at trial did not support the jury’s finding of malice or reckless indifference or the jury’s rejection of the Kolstad affirmative defense. Exel also argues, almost in passing, that the amount of the award was excessive. These arguments are meritless, as the district court held in its conditional rulings.

A. Exel failed to counter the EEOC’s argument that this Court’s standard

for imputing liability for punitive damages conflicts with Kolstad and the law of ten other circuits.

In its opening brief, the EEOC argued that this Court should correct its standard for imputing liability for punitive damages under 42 U.S.C. § 1981a because this Court’s standard conflicts with Supreme Court precedent, every circuit to address the issue, and this Court’s own 2013 Civil Pattern Jury Instructions. While this Court’s judicial precedent holds that liability for punitive damages may be imposed only when the discriminating employee was sufficiently “high up the corporate hierarchy” or when “higher management countenanced or approved” the conduct, the Supreme Court stated in Kolstad, 527 U.S. 526, 119 S. Ct. 2118, that the imputation of liability for punitive damages under Restatement (Second) of Agency § 217 C(c) depends upon whether the discriminator acted in a “managerial capacity,” which the Court described as a fact-intensive inquiry focusing on the type of authority and the amount of discretion given the employee in what is done and how it accomplished. The Court also suggested that an employee must be “important” but perhaps need not be the employer’s top management. 527 U.S. at 543, 119 S. Ct. at 2128.

The EEOC acknowledged that this Court has held that Kolstad did not disturb this Court’s “corporate ladder/higher management” standard, but the EEOC contended that this Court had never actually grappled with Kolstad’s “managerial capacity” standard and that Kolstad abrogated this Court’s standard, as this Court’s own 2013 Civil Pattern Jury Instructions suggest. Indeed, the EEOC contended, this Court stands alone in requiring that a discriminating employee be “high enough up the corporate hierarchy” or that “higher management” countenance or approve the discrimination; ten other circuits apply Kolstad’s broader “managerial capacity” standard. Further, the EEOC asserted, this Court’s standard effectively insulates large employers from punitive damage awards—as a review of this Court’s precedent reveals—which is a result Congress could not have intended. Accordingly, the EEOC urges this Court to reconsider its precedent and, if necessary, to sit en banc to correct it.

Exel devotes only three pages of its brief to responding to the EEOC’s argument. Exel’s response fails to convincingly counter the EEOC’s explanation for why Kolstad cannot be reconciled with this Court’s precedent. Exel first contends that Kolstad cited “with approval” this Court’s “imputation standard” from Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317 (11th Cir. 1999). Exel-Br.55. Exel also asserts that the EEOC misrepresented the Supreme Court’s citation to Dudley when the EEOC asserted that “‘Kolstad merely cited Dudley for the general concept that courts of appeals have relied on agency principles in interpreting 42 U.S.C. § 1981a.’” Exel-Br.56 (quoting EEOC’s Br.37). Exel’s criticism is misplaced, as this is exactly what the Supreme Court said. Specifically, the Court said in Kolstad that “Courts of Appeals, too, have relied on these liability limits [as to agency principles] in interpreting 42 U.S.C. § 1981a. See, e.g., Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322-1323 (C.A.11 1999)).” Kolstad, 527 U.S. at 541, 119 S. Ct. at 2127. Thus, it is Exel, not the EEOC, who has misrepresented the Court’s citation to Dudley, as nothing in the Court’s citation to Dudley suggests that the Court was endorsing this Court’s “high-enough-up-the-corporate-ladder-rule.”

Exel’s contrary argument also founders upon reading a few more pages into Kolstad. As the EEOC argued at pages 37-38 of its opening brief, the Supreme Court’s subsequent discussion of the “managerial capacity” standard did not endorse Dudley in any way; rather, the Court refuted Dudley’s holding by suggesting that the standard is a fact-intensive one that focuses on the discriminating manager’s discretion and authority and while a manager must be “important,” he “perhaps need not be the employer’s top management, officers, or directors.” 527 U.S. at 543, 119 S. Ct. at 2128.

Exel also disputes the EEOC’s assertion that this Court’s standard conflicts with the standard used by ten other circuits, which all follow Kolstad. Exel-Br.57-58. According to Exel, this assertion is mistaken because only the Sixth Circuit in Jeffries v. Wal-Mart Stores, 15 F. App’x 252 (6th Cir. 2001), stated explicitly that it disagreed with this Court’s standard. Exel-Br.57. Exel’s argument here champions form over substance. As an initial matter, the EEOC did not state that each of the ten circuits had explicitly disagreed with the Dudley standard. Rather, the EEOC argued that “no other circuit applies this Court’s ‘corporate ladder/higher management’ standard” and that “the ten other circuits to address the issue have uniformly followed Kolstad’s ‘managerial capacity’ standard.” EEOC-Br.40, 30-31. But in any event, the salient point is that Exel does not disagree that the ten circuits apply the Kolstad standard, and Exel does not suggest that EEOC misrepresented the holdings of any of the cases cited at pages 30-31 of the EEOC’s brief.

Nor does Exel have any response to the EEOC’s argument that the divergence between this Court’s standard and that of the other circuits is underscored by comparing cases in which the discriminating manager was a Wal-Mart store manager. As the EEOC explained with citation to cases, four circuits have held that the managerial capacity standard encompasses a Wal-Mart store manager, while this Court has held it does not. EEOC-Br.41-42. Exel does not even try to respond to the EEOC’s argument here, implicitly conceding that this Court’s standard does not accord with the law of other circuits, resulting in the uneven application of federal law.

Finally, Exel has no rejoinder to the EEOC’s argument that this Court’s standard effectively insulates large employers from punitive damage awards, instead reserving such awards for small employers with small corporate structures. EEOC-Br.42-46.

B. No other ground exists for vacating the punitive damage award.

Exel posits two alternative grounds for affirming the grant of JMOL and also suggests that the award is excessive. The district court properly rejected these arguments because the jury’s verdict and award of $275,000 was amply supported by the evidence at trial and comports with the legal standard for awarding punitive damages.

1. The evidence a trial supported the jury’s finding of

malice or reckless indifference.

Contrary to Exel’s arguments on appeal, the evidence supported the jury’s finding of malice or reckless indifference. Exel-Br.39-43. Punitive damages may be awarded upon a showing that the employer discriminated “with malice or reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a. Egregious misconduct is not required to meet this standard. See Kolstad, 527 U.S. at 535-36, 119 S. Ct. at 2124-25. Rather, “malice” means simply “an intent to harm and recklessness means serious disregard for the consequences of [one’s] actions.” EEOC v. W&O, 213 F.3d 660, 611 (11th Cir. 2000) (internal quotations marks omitted); see Kolstad, 527 U.S. at 536, 119 S. Ct. at 2125 (standard requires that an employer “at least discriminate[d] in the face of a perceived risk that its actions w[ould] violate federal law”). Examples of conduct that could support a punitive damages award include: “(1) a pattern of discrimination, (2) spite or malevolence, or (3) a blatant disregard for civil obligations.” Goldsmith v. Bagby Elevator, 513 F.3d 1261, 1280 (11th Cir. 2008). Reckless disregard may also be shown where “the defendant’s employees lied, either to the plaintiff or to the jury, in order to cover up their discriminatory actions.” Hall v. Consolidated Freightways Corp. of Del., 337 F.3d 669, 675 (6th Cir. 2003) (relying on Bruso v. United Airlines, 239 F.3d 848, 857 (7th Cir. 2001)).

Here, the jury heard evidence more than sufficient to support a finding of malice or reckless indifference. Most significantly, the jury heard credible evidence that Harris knew it was against the law to discriminate but did it anyway. This Court has repeatedly held that this showing suffices to establish reckless indifference. See W&O, 213 F.3d at 612 (standard satisfied where employer fired employees because they were pregnant, even though the discriminators “knew that pregnancy discrimination violated federal law”); Bogle v. McClure, 332 F.2d 1347, 1360 (11th Cir. 2003) (knowledge of illegality showed malice or reckless indifference).

Second, the jury heard evidence from which it could have found that Exel’s employees lied repeatedly—to the EEOC, to Travis, and to the jury—which also supports the jury’s finding of malice or reckless indifference. See Hall, 337 F.3d at 675. As discussed, supra pp.15-16, trial testimony established that Exel’s EEOC position statement contained at least five false statements. Additionally, based on the trial testimony of Teal and Pooler, the jury could have found that Harris lied to Travis about a college degree being a prerequisite for promotion; Harris lied to Travis when he denied in 2007 the existence of an “Inventory Control Supervisor” position”; and Harris lied to Travis in 2008 when he again denied that such a position existed or that he would be filling that position. The jury also could have found that Harris lied at trial when he denied that Teal or Chambers recommended Travis for promotion, denied saying he would not promote a woman, and denied telling Travis she was unqualified for promotion or needed a college degree. R.167, pp.496-97. Further, the jury could have found that Murphy and Hudson lied during the trial about Travis’ earlier complaints of sex discrimination

Third, the jury heard evidence of a pattern of sex discrimination against Travis. Although the EEOC did not seek relief as to Harris’ earlier failures to promote Travis, the jury could have found that the denial of promotion in June 2008 was one of a string of promotions that Harris denied Travis because of her sex. Specifically, Chambers and Teal testified that they recommended Travis for promotion before 2008, but Harris refused. Travis also testified that she told Harris she was interested in becoming a supervisor, but he lied to her and told her a college degree was required.

Finally, the jury also could have found reckless indifference based on the failure of Hudson and Murphy to respond to Travis’ earlier complaints of sex discrimination. See Goldsmith, 513 F.3d at 1281 (employer’s “apathetic” response to complaints supported finding of reckless indifference). This was a company, the jury could find, that simply did not care about Travis’ federal right to be free of sex discrimination in the workplace.

2. Exel did not establish the Kolstad affirmative defense

as a matter of law.

Relying on Ash and a selective presentation of the record, Exel proclaims boldly that the factual basis of its good-faith defense under Kolstad is “unassailable.” Exel-Br.52. The district court, however, had a different view of the evidence. Rather, the court ruled conditionally that there was a “legally sufficient evidentiary basis to . . . rebut the good faith defense.” R.147, pp.22-23. This Court should affirm that holding, as the record and this Court’s precedent support it.

In Kolstad, the Supreme Court held that “an employer may not be vicariously liability for the discriminatory employment decisions of a managerial agent where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’” 527 U.S. at 545-46, 119 S. Ct. at 2129. Exel concedes that it has the burden of establishing the good-faith defense. Exel-Br.52. Here, Exel failed to establish its defense as a matter of law. To be sure, Exel offered evidence of its anti-discrimination policy. But the mere existence of a written policy is not enough to establish the good-faith defense; rather, the policy must be effective. See Goldsmith, 513 F.3d at 1281 (rejecting the employer’s good-faith defense argument where “the record supports the finding of the jury that the antidiscrimination policy of Bagby Elevator was totally ineffective.”).

Exel also offered evidence that it trained its employees on its anti-discrimination policy. But the jury also heard Crankshaw testify that during the five years after he became Operations Supervisor in 2006, he had no training whatsoever on employment discrimination. R.166, pp.262-65. Exel also asserts that the EEOC “cannot cite any example of Exel management not following its EEO policies beyond the at-issue promotion decision.” Exel-Br.51. This assertion is plainly untrue. Teal—who had an obligation to report discrimination—testified that he did not bother to report Harris’ statement that he would never put a woman in management because “it would have been pretty much my word against his.” R.166, p.248. Since Teal was a member of management with an obligation to report discrimination, the jury could have found that other members of Exel’s management—besides Harris—failed to follow Exel’s policies. The jury could also infer from Teal’s testimony that he did not report the comment because he believed Exel would not take his complaint seriously. Travis also testified that she complained to both Teal and Crankshaw about Harris’ unfair treatment, but they evidently did nothing about her complaints. R.165, pp.121-22.

Furthermore, the jury heard evidence that both Murphy and Hudson—two other members of Exel’s management—failed to follow the company’s EEO policies. According to Travis, her complaints in 2007 about Harris’ sex discrimination fell on deaf ears. When Travis complained to Murphy that Harris would not promote her because she is female, Murphy told Travis she understood because the same thing had happened to her when she was the HR Coordinator, and Murphy directed Travis to go talk to Hudson. R.165, pp.124 (Travis). When Travis repeated her complaint to Hudson, he said his “best advice” was to transfer. Id. at 127. Neither Murphy nor Hudson started an investigation, as they were supposed to do upon receiving a complaint. R.165, p.127 (Travis); R.167, p.462 (Guydon).

Finally, a jury could find that Exel did not make good-faith efforts to comply with Title VII based on the numerous false statements contained in Exel’s position statement, which would support the jury’s inference that Exel was more concerned with covering up a Title VII violation than with addressing one.

Thus, this case is distinguishable from Ash, which Exel cites. Exel-Br.51-52. In Ash, this Court held that Tyson’s evidence of the good-faith defense was “overwhelming” and “uncontradicted” where Tyson had an anti-discrimination policy and there was no evidence before the jury that anyone besides the discriminating manager had violated the company’s anti-discrimination policy. 664 F.3d at 905-06. In contrast to Ash, in this case the EEOC offered evidence that in addition to Harris, at least three Exel employees failed to follow Exel’s anti-discrimination policy (Teal, Hudson, and Murphy). Also unlike Ash, in this case the jury heard evidence that Exel engaged in a cover-up of the discrimination by providing false statements in its EEOC position statement. Accordingly, this Court should reject Exel’s argument that JMOL was justified on the ground that Exel established the good-faith affirmative defense.

3. The $275,000 punitive damage award was not excessive.

Finally, Exel relies on three state tort law cases to make the cursory assertion that it is “entitled to a new trial because the punitive damages award is excessive.” Exel-Br.64. Exel’s argument lacks any merit, as the district court’s conditional holding that the $275,000 award was not excessive was correct. R.147, p.34.

Exel suggests that the award here violates due process under BMW of North America v. Gore, 517 U.S. 559, 116 S. Ct. 1589 (1996). To be sure, this Court has applied BMW to assess whether a punitive damage award under Title VII is excessive. See W&O, 213 F.3d at 614. However, since this Court’s W&O decision in 2000, the Supreme Court clarified that where Congress has acted to set statutory caps, due process concerns are allayed. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 502 (2008) (federal law “precedes and should obviate any application of the constitutional standard”). Accordingly, a punitive damage award that falls within Title VII’s statutory caps necessarily comports with due process. See, e.g., Lust v. Sealy, 383 F.3d 580, 590 (7th Cir. 2004) (“When Congress sets a limit, and a low one, on the total amount of damages that may be awarded, the ratio of punitive to compensatory damages in a particular award ceases to be an issue of constitutional dignity.”); Abner v. Kansas City S. R.R., 513 F.3d 154, 164 (5th Cir. 2008) (same).

In any event, the court acted within its discretion in holding that the award was not excessive under the three BMW factors: (1) reprehensibility; (2) ratio of compensatory damages to punitive damages; and (3) comparison to other civil penalties. R.147, pp.34-35. There was evidence that Harris engaged in reprehensible conduct by denying Travis a promotion because of her sex, thus “violat[ing her] civil rights.” W&O, 213 F.3d at 614. There was also evidence that Harris denied Travis earlier promotions based on her sex and that Exel failed to respond to her earlier complaints. See generally W&O, 213 F.3d at 615 (reprehensibility supported by showing that discriminatory act was not an isolated instance by a single supervisor but part of a company practice). And there was evidence that Exel tried to cover up the discrimination, as the position statement contained false statements and there was evidence that Hudson, Murphy, and Harris lied at the trial. See Bogle, 332 F.3d at 1362 (evidence the employer tried to cover up racial discrimination supported $1.9 million punitive damage award).

Also, the ratio of actual to punitive damages was not excessive. Travis’ actual damages totaled $26,183.37 ($25,000 in compensatory damages + $1,183.37 in back pay). The ratio of punitive damages to actual damages was therefore 10.5 to 1, which is less than, or on par with, other awards this Court has affirmed. See W&O, 213 F.3d at 616 (affirming punitive damages where ratios of punitive damages to back pay were 16:1 and 26.3:1 for two victims); Goldsmith, 513 F.3d at 1283-84 (affirming punitive damages with a 9.2 to 1 ratio and citing cases upholding awards with ratios of 2,173 to 1 and 100 to 1). Moreover, nothing suggests the award exceeded other civil penalties, and Exel “does not argue that the award is disproportionate in comparison to the net worth of the company.” W&O, 213 F.3d at 616-17.[2] Accordingly, the district court did not err in holding that “the award is not excessive [and] serves the interest of deterrence” and Exel was on notice of the potential penalty from 42 U.S.C. § 1981a. R.147, p.35.

CONCLUSION

For the foregoing reasons, the EEOC respectfully requests that this Court affirm the jury’s verdict as to liability and reinstate the $275,000 punitive damage award.

[1] This exhibit is in EEOC’s Supplemental Appendix.

[2] As EEOC argued to the jury, Exel’s 2008 revenue was $4.8 billion dollars. R.167,p.607.