           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2     Hall v. Consolidated                  Nos. 00-4316/4431
        ELECTRONIC CITATION: 2003 FED App. 0248P (6th Cir.)                 Freightways
                    File Name: 03a0248p.06
                                                                                          _________________
UNITED STATES COURT OF APPEALS                                                                 COUNSEL
                  FOR THE SIXTH CIRCUIT                               ARGUED: Edward L. Gilbert, SLATER, ZURZ &
                    _________________                                 GILBERT, Akron, Ohio, for Appellant. Todd H. Lebowitz,
                                                                      BAKER & HOSTETLER, Cleveland, Ohio, for Appellee.
 JAMES HALL ,                     X                                   ON BRIEF: Edward L. Gilbert, SLATER, ZURZ &
           Plaintiff-Appellant/ -                                     GILBERT, Akron, Ohio, for Appellant. Todd H. Lebowitz,
               Cross-Appellee, -                                      Jose C. Feliciano, Sr., BAKER & HOSTETLER, Cleveland,
                                   -  Nos. 00-4316/4431               Ohio, for Appellee.
                                   -
           v.                       >                                   CLAY, J., delivered the opinion of the court, in which
                                   ,                                  WILLIAMS, D. J., joined. DAUGHTREY, J. (p. 20),
                                   -
 CONSOLIDATED                                                         delivered a separate concurring opinion.
                                   -
 FREIGHTWAYS CORPORATION           -                                                      _________________
 OF DELAWARE ,                     -
          Defendant-Appellee/ -                                                               OPINION
              Cross-Appellant. -                                                          _________________
                                   -
                                 N                                       CLAY, Circuit Judge. In Case No. 00-4316, Plaintiff-
      Appeal from the United States District Court                    Appellant/Cross-Appellee, James Hall, appeals from the
       for the Northern District of Ohio at Akron.                    district court’s order granting in part the motion brought by
     No. 98-02554—Dan A. Polster, District Judge.                     Defendant-Appellee/Cross-Appellant, Consolidated
                                                                      Freightways Corporation of Delaware, under Federal Rule of
                     Argued: June 14, 2002                            Civil Procedure 50 for partial judgment as a matter of law or,
                                                                      in the alternative, to alter judgment, grant remittitur, or grant
               Decided and Filed: July 25, 2003                       a new trial, following the jury verdict awarding Plaintiff
                                                                      $50,000 in compensatory damages and $750,000 in punitive
    Before: DAUGHTREY and CLAY, Circuit Judges;                       damages in this case alleging race discrimination, wrongful
           WILLIAMS, Senior District Judge.*                          termination, hostile work environment, and retaliation under
                                                                      state and federal law. Specifically, Plaintiff challenges the
                                                                      district court’s order granting Defendant’s Rule 50 motion as
                                                                      it relates to reducing Plaintiff’s jury award from a total of
                                                                      $800,000 to $302,400 in order to comply with the federal
    *
                                                                      statutory cap.
     The Honorable Glen M. Williams, Senior United States District
Judge for the Western District of Virginia, sitting by designation.

                                1
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  In Case No. 00-4431, Defendant cross appeals from the           damages.      Defendant filed this timely cross-appeal
district court’s order denying its Rule 50 motion as it relates   challenging the district court’s order denying partial judgment
to Plaintiff receiving punitive damages in any amount.            as a matter of law with respect to the award of punitive
Specifically, Defendant maintains that the evidence in this       damages to Plaintiff in any amount.
case did not support an award of punitive damages under
federal or state law.                                                                          Facts

  For the reasons set forth below, in Case No. 00-4316, we          Plaintiff began his employment as a truck driver at
REVERSE the district court’s order remitting Plaintiff’s jury     Defendant’s facility located in Richfield, Ohio, in February of
award on punitive damages and REMAND with instructions            1984. Plaintiff had an excellent work record, having missed
for the court to reinstate the full jury award; in Case No. 00-   only one day of employment in approximately fifteen years of
4431, we AFFIRM the district court’s order denying                service. Plaintiff claimed, however, that during the course of
Defendant’s Rule 50 motion for judgment as a matter of law        his employment, he had to endure numerous incidents of
regarding the award of punitive damages to Plaintiff.             racist graffiti on company property, and numerous incidents
                                                                  of racial slurs such as having his supervisors profess to
                STATEMENT OF FACTS                                Plaintiff that he was a problem because of his race—African
                                                                  American. In addition, Plaintiff claimed that he was
                    Procedural History                            demeaned and harassed by co-workers without objection from
                                                                  supervisors.
   Plaintiff, a truck driver employed by Defendant since 1984,
filed suit against Defendant on November 6, 1998, alleging           After several years of enduring these racial attacks, Plaintiff
race discrimination, racially hostile work environment,           filed a complaint with the Ohio Civil Rights Commission and
wrongful termination based on race, and retaliation in            the Equal Employment Opportunity Commission (“EEOC”)
violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C.    on December 27, 1996. Thereafter, according to Plaintiff, the
§ 2000(e) et seq., and in violation of Ohio Revised Code          incidences of racial harassment increased. For example a Klu
§ 4112 et seq. The case was tried before a jury beginning on      Klux Klan symbol and membership card solicitation were
May 9, 2000. Ten days later, on May 19, 2000, the jury            placed on Plaintiff’s locker. This escalated racial harassment
returned a verdict in favor of Plaintiff on all counts, and       led Plaintiff to file a second complaint of discrimination and
awarded Plaintiff $50,000 in compensatory damages and             retaliation on August 8, 1997.
$750,000 in punitive damages.
                                                                    About three months later, on November 7, 1997, Plaintiff
  Defendant filed a Rule 50 motion for partial judgment as a      was abruptly and inappropriately terminated for what Plaintiff
matter of law or, in the alternative, to alter judgment, grant    characterized as minor and false reasons. Plaintiff claimed
remittitur, or grant a new trial. The district court granted      that the termination was actually in retaliation for his filing of
Defendant’s motion in part, by remitting the award of             the discrimination complaints, and because of his race.
punitive damages to the federal statutory cap ($750,000 to        Plaintiff filed a third complaint of racial discrimination, and
$252,400). Plaintiff then filed this timely appeal, challenging   the Ohio Civil Rights Commission found probable cause to
the district court’s order remitting the award of punitive        sue. In the meantime, through the union contract, it was ruled
Nos. 00-4316/4431                    Hall v. Consolidated        5    6    Hall v. Consolidated                  Nos. 00-4316/4431
                                              Freightways                  Freightways

that Plaintiff’s termination was improper and he was ordered          evidentiary basis for a reasonable jury to have found for that
reinstated to his job. Plaintiff was issued his right to sue letter   party with respect to that issue.” Fed. R. Civ. P. 50(a)(1).
on September 22, 1998, and this case ensued.
                                                                         For plaintiffs who did not obtain compensatory or punitive
                        DISCUSSION                                    damages under 42 U.S.C. § 1981, but prevailed in a Title VII
                                                                      case other than one relying on a disparate impact theory of
Case No. 00-4431 – Cross-Appeal by Defendant1                         discrimination, § 1981a permits but limits such awards. See
                                                                      42 U.S.C. §§ 1981(a)(1), 1981a(b)(3)(D) (capping
   This Court reviews de novo a district court’s decision to          compensatory and punitive damages, exclusive of any
grant judgment as a matter of law pursuant to Rule 50(a) of           backpay award, at $300,000 for those defendants employing
the Federal Rules of Civil Procedure. See Monday v.                   more than 500 employees). In adopting this provision,
Ouellette, 118 F.3d 1099, 1101-102 (6th Cir. 1997). In                “Congress sought to expand the available remedies by
reviewing the decision, we must consider the evidence in the          permitting the recovery of compensatory and punitive
light most favorable to the nonmovant, giving that party the          damages in addition to previously available remedies, such as
benefit of all reasonable inferences. See Tuck v. HCA Health          front pay.” Pollard v. E.I. du Pont de Nemours & Co., 532
Servs. of Tenn., 7 F.3d 465, 469 (6th Cir. 1993).                     U.S. 843, 854 (2001). To recover punitive damages under the
Accordingly, when faced with a Rule 50(a) motion, a district          statute, a plaintiff must demonstrate that his employer
court may not weigh the evidence or make credibility                  engaged in a discriminatory practice “‘with malice or with
determinations, as these are jury functions. See Lytle v.             reckless indifference to the [plaintiff’s] federally protected
Household Mfg., Inc., 494 U.S. 545, 554-55 (1990). A                  rights.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535
dismissal pursuant to Rule 50(a) is improper where the                (1999) (quoting 42 U.S.C. § 1981a(b)(1) and resolving circuit
nonmovant presented sufficient evidence to raise a material           spilt by rejecting the argument that a defendant’s conduct
issue of fact for the jury. See Sawchik v. E.I. du Pont de            must be egregious to support an award of punitive damages).
Nemours & Co., 783 F.2d 635, 636 (6th Cir. 1986) (citing              “Malice” and “reckless indifference” under the statute refer to
O’Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir. 1975)). In          “the employer’s knowledge that it may be acting in violation
other words, the decision to grant judgment as a matter of law        of federal law, not its awareness that it is engaging in
or to take the case away from the jury is appropriate                 discrimination.” Id. at 535. That is, “in the context of
“whenever there is a complete absence of pleading or proof            § 1981a, an employer must at least discriminate in the face of
on an issue material to the cause of action or when no                a perceived risk that its actions will violate federal law to be
disputed issues of fact exist such that reasonable minds would        liable in punitive damages.” Id. at 536.
not differ.” Id. Judgment as a matter of law pursuant to Rule
50(a) is appropriate only where “a party has been fully heard            In considering Defendant’s Rule 50 motion with respect to
with respect to an issue and there is no legally sufficient           the jury’s award of punitive damages, the district court
                                                                      recognized that the Supreme Court’s decision in Kolstad v.
                                                                      American Dental Ass’n, 527 U.S. 526 (1999) was controlling,
                                                                      inasmuch as in Kolstad the Supreme Court clarified that
    1
      W e shall address Defendant’s cross-appeal first inasmuch as
                                                                      standards to be applied when determining the appropriateness
resolution of the cross-appe al affects P laintiff’s appeal.          of punitive damages in a Title VII case. Specifically, the
Nos. 00-4316/4431                  Hall v. Consolidated        7   8     Hall v. Consolidated                 Nos. 00-4316/4431
                                            Freightways                  Freightways

district court recognized that under Kolstad, “malice or              Defendant goes on at length in the statement of facts
reckless disregard for federally protected rights is sufficient    section of its brief regarding its alleged “good faith” measures
to support a punitive damages award.” (J.A. at 72.) In light       to comply with Title VII. That is, Defendant claims that it is
of this, the district court opined:                                “undisputed” that it made extensive efforts to comply with
                                                                   Title VII by having and posting a comprehensive zero-
     The jury for this case was not a “runaway” jury in any        tolerance racial harassment policy since 1994, by holding
  sense of the word. It was an all white jury that heard the       meetings to educate the staff about the policy, and by
  evidence as it was presented to them by both sides.              enforcing the policy. In response, Plaintiff claims that the
  There were numerous instances throughout the trial               facts are very much in dispute, and cites trial testimony from
  where the two parties to a conversation or meeting               various witnesses refuting Defendant’s claims. For example,
  testified in a diametrically opposing fashion and the            in refuting Defendant’s statement that it “takes the additional
  testimony could not be reconciled. The jurors had to             affirmative step of holding anti-discrimination meetings every
  conclude that one witness or the other was not telling the       year to ensure that every employee and every manager was
  truth. They weighed the credibility of the witnesses and         familiar with the [anti-discrimination/anti-harassment]
  found Plaintiff and his witnesses to be more credible than       policy,” (Defendant’s Brief at 10), Plaintiff states that “as the
  Defendant’s witnesses. That is their role.                       historical testimony of Rick Peterson, the company’s
                                                                   [Defendant’s] highest ranking black employee, helped to
     As an aside, the Court notes that had Consolidated            establish, the existence of such meetings has long been in
  Freightways been as aggressive in responding to graffiti,        dispute.” (Plaintiff’s Final Reply Brief at 4.) Plaintiff adds
  flyers, and persistent offensive slurs as it was to              that Peterson’s testimony was buttressed by the trial
  allegations that an African American supervisor, Ricky           testimony of several other witnesses who claimed that they
  Peterson, had engaged in verbal sexual harassment of a           were never at any such meetings. (Plaintiff’s Final Reply
  subordinate, the unlawful conduct would have been                Brief at 6-7, citing trial testimony of African American as
  eliminated. The jury concluded that Plaintiff was                well as Caucasian employees such as Willie Askew, James
  subjected to years of discriminatory treatment and               Adams, William Barrow, Ed Clay, Clarence Chapman, and
  hostility, and that the company did not take meaningful          Frederick Armstrong).
  action. These are things that should have and could have
  been corrected, but weren’t. While the jury could have             Similarly, with respect to Defendant’s claim that it posted
  concluded that the company was merely negligent, there           the anti-discrimination policy throughout the facility and
  was evidence from which the jury could have found                made the policy widely available to employees, (Defendant’s
  “reckless indifference.” Therefore, the punitive damage          Brief at 9), Plaintiff states that the policy was not posted
  award is not unreasonable. For all of these reasons,             anywhere that any worker would notice, and that few workers
  Defendant’s request to vacate the jury’s award is                in fact did notice. (Plaintiff’s Final Reply Brief at 3.) In
  DENIED.                                                          support of Plaintiff’s contention, he relies upon the testimony
                                                                   of Peterson who testified that he never saw the policy posted
(J.A. at 73 (emphasis in original).)                               until December of 1997. Likewise, regarding Defendant’s
                                                                   contention that it made good faith efforts to enforce the
                                                                   policy, Plaintiff notes that the two individuals Defendant cites
Nos. 00-4316/4431                   Hall v. Consolidated       9    10       Hall v. Consolidated                       Nos. 00-4316/4431
                                             Freightways                     Freightways

as being disciplined for violating the policy were not              However, the record does not support Defendant’s assertion
disciplined until 1998, several years before circumstances          in this case.
existed to enforce the policy (i.e., grounds existed to enforce
the policy’s disciplinary measures since 1994). Plaintiff also         As illustrated, the record is replete with testimony refuting
makes note of the fact that when sexual harassment was              Defendant’s alleged “good faith” efforts. The Seventh Circuit
alleged by an employee, Defendant offered a $1,000 reward           has found that in determining whether punitive damages were
for information because “rewards” in the trucking industry          properly awarded in the wake of Kolstad, the plaintiff must
“always got results;” indeed, the sexual harassment came to         first demonstrate that the employer acted with the requisite
a stop. However, when the issue was racial harassment, no           mental state.2 See Bruso v. United Airlines, Inc., 239 F.3d
such reward incentives were offered, and the racial                 848, 857 (7th Cir. 2001). The Bruso court found that a
harassment did not stop; rather, it escalated. (Plaintiff’s Final   plaintiff may demonstrate the requisite mental state by
Reply Brief at 7-9 relying upon testimony of Peterson and           showing that “the relevant individuals knew of or were
Madigan).                                                           familiar with the antidiscrimination laws and the employer’s
                                                                    practices for implementing those laws.” Id. Alternatively,
  The above-referenced testimony indicates that the district        the Bruso court opined, a plaintiff may demonstrate that the
court was correct in asserting that the decision to award           employer acted with the requisite mental state (reckless
punitive damages came down to the credibility of witnesses.         disregard for the plaintiff’s federally protected rights) by
Inasmuch as neither the district court nor this Court is            showing the defendant’s employees lied, either to the plaintiff
permitted to make credibility determinations or to weigh the        or to the jury, in order to cover up their discriminatory
evidence on a Rule 50 motion, the jury’s decision to credit the     actions. Id. at 858 (citing Passantino v. Johnson & Johnson
testimony of Plaintiff’s witnesses over that of Defendant’s
witnesses cannot be disturbed. See Lytle, 494 U.S. at 554-55.
Moreover, this testimony also indicates that Plaintiff met his           2
burden of proving that punitive damages were appropriate.                  The Seventh Circuit established a formal three-part test in the wake
As Kolstad establishes, “malice” and “reckless indifference”        of Kolstad for determining whether punitive damages were appropriate:
                                                                    the first step requires the plaintiff to show that the employer acted with the
under the statute refer to “the employer’s knowledge that it        requisite mental state; once the plaintiff has met this burden, then the
may be acting in violation of federal law . . . .” Kolstad, 527     second step requires a showing by the plaintiff that the employees who
U.S. at 535. Defendant argues that its actions cannot be            discriminated against him were managerial agents; and finally, if the
found to be in knowing violation of federal law because of its      showing is made, then the employer may avoid liability by showing that
good faith efforts to comply with Title VII, such as having a       it engag ed in good faith efforts to implement an antidiscrimination p olicy.
policy, posting the policy, having meetings regarding the           See Bruso v. United Airlines, Inc., 239 F.3d 84 8, 857-58 (7th Cir. 2001).
                                                                    Although it appe ars that this C ourt ha s not per se adop ted the expre ss
policy, and enforcing the policy. Defendant is correct in its       three-step process as announc ed by the Seventh C ircuit, the C ourt ha s in
assertion that, under Kolstad, “in the punitive damages             effect somewhat followed the process in light of Kolstad. See EEOC v.
context, an employer may not be vicariously liable for the          Harbert-Yeargin, Inc., 266 F.3d 498, 512 -14 (6th Cir. 2001) (discussing
discriminatory employment decision of managerial agents             the requisite showing of malice/ reckless indifference, but not addressing
where those decisions are contrary to the employer’s ‘good          the good faith defense); see also Jeffries v. Wal-Mart Stores, Inc., No. 99-
                                                                    4150, 200 1 W L 84 548 6 (6th Cir. July 20, 2001) (unpublished) (same);
faith efforts to comply with Title VII.’” See id. at 545.           EEOC v. EMC Corp. of Ma ss., No. 98-1517 , 2000 W L 1918 19 (6th Cir.
                                                                    Feb. 8, 2000) (unpub lished) (same).
Nos. 00-4316/4431                  Hall v. Consolidated      11    12   Hall v. Consolidated                 Nos. 00-4316/4431
                                            Freightways                 Freightways

Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000)).         United States v. Spinelle, 41 F.3d 1056, 1057 (6th Cir. 1994);
In the matter at hand, the diametrically opposed testimony         United States v. Brown, 915 F.2d 219, 223 (6th Cir. 1990).
from Defendant’s employee witnesses versus that of
Plaintiff’s employee witnesses provides support for the              In ruling that the statutory cap applied to the jury’s award
conclusion that Defendant’s employees were not truthful in         of damages in this case, the district court opined:
their actions, such that it may be said that Plaintiff
demonstrated that Defendant acted with reckless disregard for          Defendant’s final contention with respect to the
his federal rights. See id.                                          compensatory and punitive damage award is that it must
                                                                     be reduced to conform to the $300,000 statutory cap for
   In addition, the Bruso court found that for any employer to       noneconomic damages under Title VII. Section 1981a
show that it engaged in good faith efforts so as to avoid            caps an employer’s exposure to compensatory and
liability for punitive damages, it is not enough that the            punitive damages along a sliding scale that varies with
employer have a written or formal anti-discrimination policy.        the employer’s size. . . .
See 239 F.3d at 858. Rather, the employer must demonstrate
that it engaged in good faith efforts to implement the policy.          Pursuant to the statute, Defendant calculates that
See id. (emphasis added). “Otherwise, employers would have           Plaintiff’s compensatory damages were limited to three
an incentive to adopt formal policies in order to escape             weeks of missed work and emotional distress. Because
liability for punitive damages, but they would have no               the Plaintiff earned approximately $20 per hour, three
incentive to enforce those policies.” Id.; see also Cadena v.        weeks of lost pay would total approximately $2,400 ($20
Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000);              per hour x 5 days per week x 3 weeks). The remaining
Passantino, 212 F.3d at 517. In this case, Defendant cannot          $47,600 of his $50,000 compensatory award is therefore
succeed in showing that it implemented its policy in good            attributable to emotional distress and is subject to the
faith where it did not enforce the policy until 1998, despite        $300,000 cap. Thus, in accordance with 42 U.S.C.
numerous incidents of racial animus in the prior four years,         § 1981a(b)(3), the punitive damages award must not
and where Defendant did not implement the policy with the            exceed $252,400, which is $300,000 less $47,600 in
same force as to race that it did as to sex.                         emotional distress damages.

  We therefore conclude that the district court did not err in          Plaintiff argues against the application of the federal
denying Defendant’s Rule 50 motion as to the award of                cap because his claims were tried under both Title VII
punitive damages.                                                    and Chapter 4112 of the Ohio Revised Code, and
                                                                     contends damages in excess of the federal cap could be
Case No. 00-4316 – Appeal by Plaintiff                               properly awarded. Citing Laderach v. U-Haul, 207 F.3d
                                                                     825, 828 (6th Cir. 2000), Plaintiff maintains that the
  A district court’s construction of the damage caps in              “title” of an instruction is irrelevant. He argues that
§ 1981a is a question of statutory construction and is therefore     whether the Court “titled” the jury instructions under
reviewed de novo. See Hudson v. Reno, 130 F.3d 1193, 1198            Title VII or under Ohio law is of no consequence, since
(6th Cir. 1997), abrogated on other grounds, Pollard v. E.I.         state and federal employment discrimination claims
de Pont de Nemours & Co., 532 U.S. 843 (2001); see also
Nos. 00-4316/4431                 Hall v. Consolidated     13   14    Hall v. Consolidated                  Nos. 00-4316/4431
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 parallel one another. “If the proof is sufficient to find          Accordingly, because the jury was instructed under
 one, it is sufficient to find the other also.”                   federal law and under federal standards, the federal cap
                                                                  must be applied. Defendant’s motion to alter judgment
   Plaintiff further argues that the Court’s punitive             and grant remittitur is GRANTED. Pursuant to 42
 damage instruction, while applying the federal standards,        U.S.C. § 1981a, the punitive damage award is hereby
 was sufficient to award punitive damages under state             reduced to the statutory maximum of $300,000 plus, the
 standards. However, to so construe Plaintiff’s argument          amount of the backpay award ($2,400). Judgment for
 would be to render the federal cap on damages                    Plaintiff is amended to reflect a damage award of
 meaningless. The Court finds that the statutory cap of           $302,400. Defendant’s Rule 50 motion for judgment as
 $300,000 is applicable here.                                     a matter of law is DENIED in all other respects.
    As a final argument, Plaintiff asserts that the Ohio        (J.A. at 74-76 (emphasis in original).)
 Supreme Court held in Rice v. CertainTeed Corp., 84
 Ohio St. 3d 417 (Ohio 1999), that punitive damages are            On appeal, Plaintiff argues that the district court erred in
 unlimited when federal and state claims are tried              capping his damages under § 1981a. Plaintiff notes that under
 together. However, as Defendant points out, the sole           federal law, punitive damages are permitted if the jury finds
 issue before the Ohio Supreme Court in Rice was                that a defendant acted with “malice” or “reckless indifference
 whether punitive damages could be assessed at all under        to the rights of others;” while under state law, punitive
 Ohio law. Furthermore, Rice also restated the Ohio law         damages are permitted if the jury finds that a defendant acted
 requirement that “[i]n Ohio, punitive damages are              with “actual malice.” Plaintiff argues, however, that despite
 awarded only upon a finding of actual malice.” Rice, 84        the difference between the federal and state standards, the jury
 Ohio St. 3d at 422.                                            made a finding of actual malice in this case sufficient to
                                                                satisfy Ohio’s statute. Plaintiff makes two arguments in
    Here the jury was instructed, under the federal             support of his position. First, Plaintiff contends that the
 standard, that punitive damages could be awarded if they       jury’s finding of retaliation satisfied Ohio’s actual malice
 found that Defendant “had engaged in a discriminatory          standard; and second, in the alternative, Plaintiff contends that
 and/or retaliatory practice or practices with malice or        “[e]ven if the jury awarded punitive damages based on a
 reckless indifference to the rights of Plaintiff James Hall    finding of reckless indifference, the ‘conscious indifference’
 to be free from such intentional discrimination and/or         to rights required to find reckless indifference satisfies the
 retaliation in employment.” (Court’s Jury Instruction at       ‘conscious disregard’ for rights standard required to find
 15) (emphasis provided). The fact that the jury                actual malice under Ohio State law.” (Plaintiff’s Brief on
 concluded that there was malice or recklessness in the         Appeal at 11.) Based upon the jury instructions regarding
 Defendant’s conduct does not necessarily mean that it          what the jury needed to find in order to support a verdict of
 concluded that there was actual malice – as would be           reckless indifference as well as what the jury needed to find
 required by Ohio law. Because we do not have an                in order to support a verdict of malice, we find that the district
 affirmative finding on malice, the Ohio standard is not        court erred in capping the damages.
 satisfied.
Nos. 00-4316/4431                   Hall v. Consolidated       15    16   Hall v. Consolidated                  Nos. 00-4316/4431
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   In Zoppo v. Homestead Insurance Co., 644 N.E.2d 397,                  Two, a conscious disregard for the rights and safety of
399, 401-02 (Ohio 1994), the Ohio Supreme Court held that              other persons that has a great probability of creating
§ 2315.21(C)(2) of the Ohio Revised Code, the section which            substantial harm.
required a court to set the amount of punitive damages even
in jury trials, violated the right to trial by jury under the Ohio       Reckless indifference means indifference of an
Constitution. As a result, unlike the federal statute (§ 1981a),       egregious character to the plaintiff’s rights to be free of
punitive damages are not capped under Ohio law. See id.                such discriminatory or retaliatory conduct. Reckless
The Ohio Supreme Court also noted that punitive damages                indifference reflects that entire want of care which would
may be recovered upon proof of “actual malice.” Id. at 402.            raise the presumption of a conscious indifference to
“Actual malice” for purposes of satisfying the award of                consequences.
punitive damages is defined under Ohio law as “‘(1) that state
of mind under which a person’s conduct is characterized by           (J.A. at 309-10 (emphasis added).)
hatred, ill will or a spirit of revenge, or (2) a conscious
disregard for the rights and safety of other persons that has a         “Indifference” is defined as “the quality, state, or fact of
great probability of causing substantial harm.’” Id. (emphasis       being indifferent.” See WEBSTER’S NEW COLLEGIATE
is original) (quoting Preston v. Murty, 512 N.E.2d 1174 (Ohio        DICTIONARY 585 (1974). “Indifferent,” in turn, is defined as
1987)).                                                              “that [which] does not matter one way or the other” or to be
                                                                     “marked by a lack of interest in or concern about something.”
  Here, in charging the jury before deliberations, the district      See id. “Disregard” is defined as “to pay no attention to,” or
court instructed as follows regarding the award of punitive          to “neglect.” See id. at 330. Because the district court
damages:                                                             instructed the jury that “reckless indifference” was that
                                                                     conduct which would raise a presumption of a “conscious
     In this case, you may award punitive damages if you             indifference” to the consequences of Defendant’s actions, a
  find that the Defendant Consolidated Freightways                   finding of “reckless indifference” by the jury was sufficient
  engaged in a discriminatory and/or retaliatory practice or         to meet Ohio’s definition of “actual malice.” See Zoppo, 644
  practices with malice or reckless indifference to the              N.E.2d at 402 (defining “actual malice” as “‘a conscious
  rights of Plaintiff James Hall to be free from such                disregard for the rights and safety of other persons that has a
  intentional discrimination and/or retaliation in                   great probability of causing substantial harm’” (emphasis
  employment.                                                        added)). In other words, because Ohio defines “actual
                                                                     malice” in the alternative as acting with a “conscious
    Malice is defined as either:                                     disregard,” and because the district court in the matter at hand
                                                                     instructed the jury that “reckless indifference” was that
    One, that state of mind in which a person’s conduct is           conduct which rises to the level of creating a “conscious
  characterized by hatred, ill-will, or spirit of revenge, or        indifference” to the consequences of one’s actions, the district
                                                                     court erroneously concluded that it was unable to determine
                                                                     whether the jury found actual malice for purposes of
                                                                     satisfying Ohio’s requirements for awarding punitive
                                                                     damages. See J.A. at 74-76 (indicating the district court’s
Nos. 00-4316/4431                  Hall v. Consolidated      17    18   Hall v. Consolidated                  Nos. 00-4316/4431
                                            Freightways                 Freightways

ruling that because “the jury concluded that there was malice      compensatory damages and $1,286,000 in punitive damages
or recklessness in the Defendant’s conduct does not                under the D.C. Human Rights Act. Id. at 1339, 1349.
necessarily mean that it concluded that there was actual           Pursuant to a post-trial motion, the district court, among other
malice – as would be required by Ohio law. Because we do           things, reduced damages awarded under Title VII to $453,500
not have an affirmative finding of malice, the Ohio standard       pursuant to the statutory cap. Id. at 1340. The plaintiff
is not satisfied”). We see no appreciable difference between       appealed to the D.C. Circuit arguing, among other things, that
a “conscious indifference” or a “conscious disregard” for          “any Title VII damages exceeding the cap should be
purposes the jury’s awarding punitive damages under Ohio           reallocated to her D.C. Human Rights Act recovery.” Id. at
law in this case. Although Defendant is correct in noting that     1349. The D.C. Circuit agreed. Id.
the Ohio Supreme Court has specifically rejected “any
definition of ‘actual malice’ which include[s] recklessness as       In so ruling, the court began by noting that “[t]he district
an element,” “recklessness” was not made an element here;          court gave the jury a single set of instructions applicable to
rather, pursuant to the jury instructions, “recklessness” was      Martini’s claims under both Title VII and the D.C. Human
defined as a “conscious disregard” which the Ohio courts           Rights Act[,]” and, “[a]s required by law, the court never
recognize as meeting the standard for “actual malice.” See         informed the jury about Title VII’s damages cap.” Martini,
Motorists Mut. Ins. Co. v. Said, 590 N.E.2d 1228, 1234 (Ohio       178 F.3d at 1349. The court went on to reason:
1992), rev’d on other grounds, Zoppo, 644 N.E.2d at 399.
                                                                       Because the jury used exactly the same instructions in
  We find support for our conclusion in Martini v. Federal           evaluating Martini’s Title VII and D.C. law claims, and
National Mortgage Assoc., 178 F.3d 1336 (D.C. Cir. 1999),            because the jury had no knowledge of Title VII’s damage
wherein the United States Court of Appeals for the D.C.              cap, it had no legal basis for distinguishing between the
Circuit held that punitive damages awarded in excess of the          two statutes. Thus, for any one claim against any one
federal statutory cap could be reallocated to the plaintiff’s        defendant, distinguishing between damages that the jury
award for punitive damages awarded under the D.C. Human              awarded under Title VII and damages that it awarded
Rights Act. See id. at 1349. In Martini, the plaintiff had filed     under the D.C. Human Rights Act makes no sense. . . .
suit under Title VII and the D.C. Human Rights Act against           To be sure, only $300,000 of [the award] may be
her former employer, Federal National Mortgage Association           awarded under Title VII. But we see no reason why
(“Fannie Mae”), and former supervisors, claiming sexual              Martini should not be entitled to the balance under the
harassment and retaliation. Id. at 1338. The jury found              D.C. Human Rights Act, since the local law contains the
Fannie Mae liable under both the federal and state statutes,         same standards of liability as Title VII but imposes no
and awarded a total of nearly seven million dollars. Id.             cap on damages.
Specifically, pursuant to a verdict form with “special
interrogatory questions” for assessing damages for each type
of claim against each defendant (Fannie Mae or a named
supervisor) under each statute (Title VII or D.C. Human
Rights Act), the jury awarded $153,500 in backpay,
$1,894,000 in front pay and benefits, and $3,000,000 in
punitive damages under Title VII; as well as $615,000 in
Nos. 00-4316/4431                          Hall v. Consolidated          19     20   Hall v. Consolidated                  Nos. 00-4316/4431
                                                    Freightways                      Freightways

Id. (emphasis added).3 Similarly, in the matter at hand, where                                   ______________________
the jury was instructed in such a fashion sufficient to support
punitive damage awards under both the federal as well as the                                        CONCURRENCE
state statute, Plaintiff should be entitled to the balance of the                                ______________________
award in excess of the federal $300,000 cap under state law.
                                                                                   MARTHA CRAIG DAUGHTREY, Circuit Judge,
   In light of this conclusion, we need not address Plaintiff’s                 concurring. As the majority notes, the plaintiff in this case
alternative argument that the jury’s finding of retaliation                     advanced alternative theories upon which the jury’s award of
necessarily included a finding of actual malice for purposes                    punitive damages could be sustained under state law, despite
of satisfying Ohio’s standard for awarding punitive damages.                    the federal cap in § 1981a. The majority takes great pains to
                                                                                uphold the award under both theories, including what I find
                           CONCLUSION                                           to be a somewhat strained analysis with regard to whether the
                                                                                jury instructions on “reckless indifference” and “conscious
  For the reasons set forth above, we AFFIRM the district                       disregard” can support a finding of “actual malice,” the
court’s order denying Defendant’s motion for judgment as a                      prerequisite in Ohio for an award of punitive damages.
matter of law with respect to jury’s award of punitive                          Nevertheless, I conclude that the jury could, and undoubtedly
damages in Case No. 00-4431; we REVERSE the district                            did, find that the defendant’s retaliation in this case met the
court’s order capping the jury’s award of punitive damages                      Ohio definition of “actual malice” as “that state of mind under
under the federal statute in Case No. 00-4316; and REMAND                       which a person’s conduct is characterized by . . . a spirit of
the case to the district court with instructions to reinstate the               revenge.” Zoppo v. Homestead Insurance Co., 644 N.E.2d
jury’s full award of damages.                                                   397,402 (Ohio 1994).
                                                                                  For this reason, and because I concur in the remainder of
                                                                                the majority’s analysis on the issues raised in both the appeal
                                                                                and the cross-appeal in this case, I would reach the same
                                                                                result as the majority does in reinstating the jury’s full award
    3                                                                           of damages.
      The jury instructions themselves were not set forth in Ma rtini.
However, § 1981a provides that punitive damages may be awarded “if the
complaining party demonstrates that the respondent engaged in a
discriminatory practice or discriminatory practices with m alice or with
reckless indifference to federally protected rights of an aggrieved
individual,” see 42 U.S.C. § 1981a, while the D.C. Human Rights Act
provides that punitive damages are available if the “employee can
establish evil motive or actual malice on [the] part of her employer.” See
D.C. Code Ann. § 2-1403.16 (2001). Therefore, without knowing
precisely how the jury was instructed, it would appear that the fact that the
D.C. statute requires actual malice, but the federal statute requires actual
malice or reckless indifference , was of no consequence to the court’s
finding that damages awarded in excess of the federal cap could be
reallocated to the state award.
