                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     August 3, 2007
                     UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 Y V O N NE FLITTO N ,

          Plaintiff–Appellant,
 v.                                                    No. 06-4048
                                               (D.C. No. 2:03-CV -00481 TS)
 PR IM A RY RESID EN TIA L                               (D. Utah)
 M ORTGAGE, INC.

          Defendant–Appellee.




                             OR DER AND JUDGM ENT *


Before L UC ER O, M U RPH Y, and GORSUCH, Circuit Judges.


      Yvonne Flitton brought suit against her former employer, Primary

Residential M ortgage, Inc. (“PRM I”), alleging retaliatory and discriminatory

termination in violation of Title VII, and seeking both compensatory and punitive

damages. The case proceeded to trial. At the close of Flitton’s case, PRM I filed

a motion for judgment as a matter of law (“JM OL”). The district court granted

PRM I’s motion with respect to the discrimination and punitive damages claims,



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
but denied it with respect to the retaliation claim. After the jury found for Flitton

on her retaliation claim, however, the court granted PRM I’s renewed motion for

JM OL. Flitton appeals the dismissal of all three claims. Assuming jurisdiction

under 18 U.S.C. § 1291, we REVERSE with respect to each.

                                           I

                                          A

      In July 2000, PRM I hired Flitton to help manage its wholesale subprime

mortgage division, which at the time was headed by Larry Lockwood. W ithin a

few months of her hiring, Lockwood was terminated for performance issues, and

Flitton took over the division. She reported to Dave Zitting, the Chief Executive

Officer of PRM I, Steve Chapman, the Chief Financial Officer, and Jeff Zitting,

executive vice president over marketing. 1

      Flitton and Chapman worked closely on matters relating to the wholesale

division; Chapman, however, made Flitton feel uncomfortable. A ccording to

Flitton, Chapman would often come into her office uninvited and discuss intimate

details of his marriage with her. He once told her, “[I]f it were up to my wife she

w ould be perfectly fine if w e never had sex again. And if it were up to me, w e

would have sex all the time.” Chapman complained to her that “he had sexual

thoughts quite frequently and how that was really frustrating for him because his



      1
        W e hereinafter refer to Dave Zitting as “Zitting” and Jeff Zitting by his
full name.

                                           2
wife at the time . . . wasn’t even sleeping in their bed.” He once speculated that

“if it were up to women . . . procreation would cease to exist.” Unsurprisingly,

these discussions were unwelcomed by Flitton.

      Also unwelcomed w ere Chapman’s detailed, explicit comm entaries on other

female employees’ dress habits. According to Flitton, Chapman expressed to her

his disapproval of specific individuals’ thong underwear, breast tattoos, and

pierced nipples. Flitton testified that she frequently caught Chapman staring at

her chest area, and that upon noticing her catch his unseemly glances in this

direction, he told her to button up her shirt. On one occasion, while Flitton was

copying papers in front of his office, Chapman yelled her name from several feet

away and, in front of her employees, motioned for her to pull up her blouse.

      In addition to these sexual references, Chapman made disparaging

comm ents about Flitton’s income. He told her he “had never known a woman that

made as much money” as her and joked that, in light of her earnings, “maybe he

should stay at home and . . . put his wife to work.” One day, Chapman informed

Flitton that he knew her husband was a broker and must earn some money.

Flitton testified that Chapman insinuated she had withheld pertinent information

about her household income, as Chapman had previously assumed that her

husband was unemployed.

      At various points during her employment, Flitton told Zitting about her

difficulties in dealing with Chapman, including Chapman’s tendency to linger in

                                          3
her office and bring up inappropriate topics. In August 2002, Flitton had a one-

one-one conversation with Zitting in which she reported she had a “dysfunctional

relationship” with Chapman. She informed Zitting that Chapman w ould look at

her chest area, ask her to button up her blouse, and make remarks about her

compensation. Flitton testified that, in response, Zitting “laughed hysterically”

and said, “well, can you blame the guy. He never gets any at home.” Zitting then

proceeded to draw a cycle for her explaining how Chapman’s mind worked.

According to Flitton, he provided the following commentary to his diagram:

      [Y ]ou know, Steve [Chapman] is a very, very religious man. And because
      of this, he lives in a very limited world. And . . . in this limited world and
      due to his religious beliefs . . . it’s not within that belief to find a pretty
      woman attractive. And so what happens is if he sees a beautiful woman
      that is attractive and he becomes aroused, then he blames that woman for
      making him feel that way. And so what happens is he takes it out on that
      person for making him feel that way. And then there is a period of guilt
      and feeling bad. And so then there may be a period of time where he’s nice
      to you and then the cycle starts all over again.

Zitting concluded, “Yvonne, Steve has had problems with every attractive woman

that w e’ve ever hired.” At oral argument, PRM I conceded that this conversation,

including the drawing of Chapman’s “sexual cycle,” took place.

      Zitting did not investigate Flitton’s claims or report them to the Human

Resources Director, Stacy Stetner. At trial, Zitting explained that he took no

action because Flitton told him she could handle Chapman. Apparently aw are

that Chapman’s difficult behavior continued, Zitting told Flitton and others at a

staff meeting in September 2002 that the proper w ay to deal with Chapman was to

                                         4
put on a “pretend biohazard suit.” W hile in the suit, Zitting said, they could

ignore Chapman, and continue to work while simply nodding in agreement with

anything he said. After awhile, Zitting stated, Chapman would simply go away.

      In October 2002, Chapman and Flitton got into an argument involving the

compensation scheme for the wholesale division. Chapman had previously

informed Flitton that he wanted the compensation scheme changed, so that

employees in the wholesale division would be paid an incentive for yield, or sale,

of loans rather than for the production, or closing, of loans. Flitton proceeded to

implement the requested change, and by September, she and her employees were

paid commissions for selling loans rather than closing them. During an October

9, 2002 meeting with Flitton, Chapman became aware of the change in

comm ission structure and took issue with certain aspects of it. In particular, he

was concerned Flitton and her employees had been double-paid on certain loans,

by receiving commissions for the closing of these loans prior to the change in

compensation scheme, and receiving commissions again for the sale of the same

loans after the change. 2 Chapman demanded that Flitton pay back her September

incentive bonus. He then asked Flitton what she “needed to make.” Flitton took



      2
        Although Flitton testified she understood “how he could see it that w ay,”
she stated that she “absolutely” did not view the receipt of commissions under the
new system as double payment because “when you are in upper level
management, you make such little amount on each loan that it’s not viewed as
though you are being paid on an individual loan. . . . It’s an incentive plan to
drive the type of behavior you are looking for in someone.”

                                          5
offense at the question and responded that her compensation should be tied to

results and not need. Chapman proceeded to inform Flitton that he would be

capping her salary, and that the maximum comm ission she could earn in any

given month w ould be $3,000. 3 This cap w ould have resulted in a sharp decrease

in her take-home pay: Flitton’s comm ission pay for the month of October 2002,

based on loans from September 2002, would have amounted to $11,400 under the

old pay structure and to $8,000 under the new pay structure. Upset by this

exchange, Flitton left Chapman’s office.

      Shortly thereafter, in an email time-stamped W ednesday, October 9, 2002,

5:59 P.M ., Chapman w rote Flitton stating that he would “like to continue our

meeting and discuss the items that we need to.” He proposed “set[ting] up a time

that we can sit down with Dave [Zitting] [and] Jeff [Zitting] . . . to discuss the

monthly review.” Flitton responded by email the next afternoon: 4

      I feel like you were completely out of line in so many areas. I am
      speechless that you would suggest that I go a month without
      incentive. The fact that you asked me how much income I need to
      make is completely irrelevant. I don’t think it is w ise that we sit
      down again in the future without someone else present. I feel
      discriminated against by your almost regular comments regarding my


      3
        Flitton’s base pay of $5,000 per month remained unaffected by the
change. Chapman admitted at trial that he understood the new comm ission pay
structure implemented by Flitton decreased her September 2002 commissions.
      4
        At trial, Flitton testified that she had no reason to believe the times listed
on her emails were inaccurate. Zitting, however, testified that because the servers
for PRM I’s network were located on the East Coast, the timestamps may have
been two hours ahead.

                                           6
      income and it is becoming increasingly uncomfortable. This is not a
      new subject and your comments reach back well beyond a year ago.
      I honestly feel that if I w ere a man that you would have no issue with
      my income level at all.
      [. . . ]
      I actually came in this morning and left due to the fact that I just
      could not get over your flagrant suggestion to cap my income and
      payback September incentive.

      Flitton sent an email to Zitting later that afternoon with the subject line

“Unsuccessful Bio Hazard.” This message states in part:

      Bio hazard did not work yesterday. Steve [Chapman] is way out of
      line and his only impact on me is fear and de-motivation. . . .
      Interaction with Steve is very counterproductive. . . . He suggested
      that I pay September incentive back over a period of time because his
      simplistic view actually sees the initial loan yield month v.
      production as “double-paying” on the same loans. This is absurd.
      An individual at my level isn’t paid on specific loans. . . . W ith this
      new plan [I implemented], I actually make less! . . . I will not put
      myself in a situation where I am not shown the same respect that I
      have demonstrated. . . . He actually asked me what I “needed” to
      make with the suggestion to cap my income.
      [. . . ]
      I don’t think it is right to simply say . . . “that’s just Steve!” I am
      mostly tired of his continual remarks regarding my income and his
      obvious attempts to reduce it. His attitude tow ard women is very
      transparent. I know if I were a man this would not be an issue.

On the morning of Thursday, October 10, 2002, Zitting and Chapman approached

Scott Petersen in his office. Zitting and Chapman had not seen Flitton at work

that day and thought she might have quit her position. They asked Petersen to fill

her post, and told him that even if Flitton returned to work the next day, she was

“most likely” going to be fired.

      On Friday, October 11, 2002, Flitton returned to work and was terminated

                                          7
by Zitting. Petersen w as chosen to run the wholesale division in her stead. At

trial, Zitting testified that he first learned of the October 9 meeting from Chapman

and became “extremely concerned.” W hen he did not see Flitton at work the next

day, he assumed that she had quit. Zitting went on to testify that he received

Flitton’s email that evening, and that it was a factor in his decision to terminate

her. In response to counsel’s question, “[A]fter you read and reviewed [Flitton’s

email], did you make any decisions with respect to M s. Flitton’s employment

either that night or w henever, the next morning?” Zitting stated, “Yes. I

determined that – I determined that I needed to terminate [Flitton’s] employment.

I felt it was too great a risk for the division and I felt that this was the straw that

broke the camel’s back.”

      At trial, PRM I asserted four main reasons for Flitton’s termination: (1)

Flitton’s receipt of “double payment” of commissions due to the changed

incentive pay plan, (2) the profitability and risk-management of the wholesale

division under Flitton, (3) the division’s large overhead in relation to its revenue,

and (4) Flitton’s “inability to communicate.” Chapman testified that he had

concerns about the financial stability of the wholesale division under Flitton.

Flitton, however, presented evidence and testimony disputing PRM I’s

characterization of the w holesale division’s profitability and overhead costs. In

particular, she points to Chapman’s own testimony that he pushed $300,000 of

profits from fiscal year 2002 into previous years on the balance sheets he

                                            8
prepared after her termination, which made her division appear less profitable

than it actually was. In contrast to their alleged concerns, Chapman sent Flitton

an email congratulating her on “another great month” in August 2002, and Zitting

offered effusive and continuous praise of Flitton’s division during a September

2002 luncheon.

                                          B

      W ithin a few months of her termination, Flitton brought suit against PRM I

under Title VII, alleging claims of discriminatory and retaliatory termination, and

seeking punitive damages. These claims proceeded to trial. At the close of

Flitton’s case, PRM I filed a motion for JM OL pursuant to Fed. R. Civ. P. 50(a).

Reasoning as follows, the district court granted the motion with respect to the

discrimination claim:

      In order to prevail at trial on Plaintiff’s Title VII gender
      discrimination claim, she must establish both that Defendant
      discharged her, and that her gender was a motivating factor in the
      Defendant’s decision. The Court finds that there has been no
      evidence provided other than Plaintiff’s own subjective belief that
      gender was a motivating factor in her termination, which is
      insufficient to satisfy the elements just noted.

      Defendant called a number of witnesses, none of which expressed
      any view that they witnessed or experienced any gender
      discrimination on the part of Defendant. Evidence did indicate that
      Plaintiff’s predecessor, who was male, was terminated by Defendant
      for poor performance – the same reasons given by Defendant for
      Plaintiff’s termination.

In addition, the district court noted Flitton’s testimony that the salary “cap”



                                          9
would apply to all incentive-paid employees in the wholesale division – males and

females alike. W ith respect to the punitive damages claim, the court found “that

Plaintiff has produced no legally sufficient evidence whatsoever that Defendant

acted with either malice or with reckless indifference to Plaintiff’s federally

protected rights,” and granted PRMI’s motion. The court declined to grant JM O L

with respect to Flitton’s retaliation claim. That claim proceeded to the jury,

which found in her favor.

      PRM I then filed a renewed motion for JM OL. After considering the

evidence from trial, the court granted judgment to PRM I and vacated the jury

verdict in favor of Flitton. The court found that neither the August 2002

conversation between Flitton and Zitting nor the October 10, 2002 emails from

Flitton to Chapman and Zitting supported the retaliation claim. W ith respect to

the former, the court stated, “the only items [from the August conversation] which

could arguably be considered to touch upon gender were that Chapman would

look at her chest area a lot, and asked her to button up her blouse” (emphasis in

original). Concluding that Flitton’s statements evidenced a mere “personal

grievance” against Chapman, the court held that her comm ents to Zitting did not

suffice as a complaint against discrimination. W ith respect to the emails, the

court found that, notwithstanding Zitting’s testimony that Flitton’s email of

October 10, 2002 was the “straw that broke the camel’s back,” the record clearly

established Zitting made his decision to terminate Flitton before receiving her

                                          10
email. The court’s finding on this point relied largely on the testimony of Scott

Petersen, whom it described as “a disinterested witness.”

      Flitton appeals the dismissal of all three of her claims.

                                          II

      W e review de novo the district court’s dismissal of Flitton’s gender

discrimination and punitive damages claims pursuant to Rule 50(a), as well as its

dismissal of her retaliation claims under Rule 50(b). See K nowlton v. Teltrust

Phones, Inc., 189 F.3d 1177, 1186 (10th Cir. 1999) (Rule 50(a) motions); Deters

v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000) (Rule

50(b) motions). Under Rule 50, a court may grant judgment as a matter of law

“[i]f a party has been fully heard on an issue during a jury trial and the court finds

that a reasonable jury would not have a legally sufficient evidentiary basis to find

for the party on that issue.” Fed. R. Civ. P. 50(a)(1). Dismissal of a claim is

proper “only if the evidence points but one way and is susceptible to no

reasonable inferences which may support the opposing party’s position.” Davis v.

U.S. Postal Serv., 142 F.3d 1334, 1339 (10th Cir.1998) (quotation and citation

omitted). In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51

(2000), the Supreme Court clarified:

      [I]n entertaining a motion for judgment as a matter of law . . . the
      court must draw all reasonable inferences in favor of the nonmoving
      party, and it may not make credibility determinations or weigh the
      evidence. Credibility determinations, the weighing of the evidence,
      and the draw ing of legitimate inferences from the facts are jury

                                         -11-
      functions, not those of a judge. Thus, although the court should
      review the record as a whole, it must disregard all evidence favorable
      to the moving party that the jury is not required to believe. That is,
      the court should give credence to the evidence favoring the
      nonmovant as well as that evidence supporting the moving party that
      is uncontradicted and unimpeached, at least to the extent that that
      evidence comes from disinterested w itnesses.

(internal citations and quotations omitted). W ith these instructions in mind, we

turn to Flitton’s appeal.

                                          A

      Flitton first claims that the district court erred in dismissing her

discrim inatory termination claim at the close of the presentation of her case.   On

the merits of a plaintiff’s case, the burden shifting framework of M cDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), does not control. Instead, the

central issue is whether the adverse employment action was motivated by a

plaintiff’s membership in a protected class. See Stewart v. Adolph Coors Co.,

217 F.3d 1285, 1288 (10th Cir. 2000).     Nonetheless, in considering this ultimate

question of discrimination, it is useful to examine the M cD onnell Douglas factors

– a plaintiff’s prima facie case, an employer’s proffered reasons for adverse

action, and the plaintiff’s showing of pretext – as these elements will provide

guidance as to “whether judgment as a matter of law is appropriate in any

particular case.” Reeves, 530 U.S. at 148; M essina v. Kroblin Transp. Sys., Inc.,

903 F.2d 1306, 1308 (10th Cir. 1990) (“M cDonnell Douglas inferences provide

assistance to a judge as he addresses motions to dismiss, for summary judgment,

                                         -12-
and for directed verdict”). In some, but not all, cases, “a prima facie case and

sufficient evidence to reject the employer’s explanation may permit a finding of

liability.” Id. at 149.

       To establish a prima facie case of discrimination, a plaintiff need only show

that: (1) She belongs to a protected class; (2) She was qualified for her job; (3)

Despite her qualifications, she was discharged; and (4) The job was not

eliminated after her discharge. Kendrick v. Penske Tranp. Servs., Inc., 220 F.3d

1220, 1229 (2000). PRM I does not dispute that Flitton belongs to a protected

class and was terminated, or that her position remained open after her discharge.

It does, however, contest Flitton’s job qualification by asserting that she

performed poorly in her position. Subjective assessments of a plaintiff’s

performance, however, cannot be used to defeat a prima facie case. See EEOC v.

Horizon/CM S Healthcare Corp., 220 F.3d 1184, 1192 (10th Cir. 2000) (“[A ]n

employer may not defeat a plaintiff’s prima facie case by asserting that the

plaintiff failed to satisfy subjective qualifications.”) (quotation and citation

omitted). M oreover, a plaintiff’s burden of showing job qualification is not

onerous: She may satisfy this prong of her prima facie case merely “by credible

evidence that she continued to possess the objective qualifications she held when

she was hired, or by her own testimony that her work was satisfactory, even when

disputed by her employer, or by evidence that she had held her position for a

significant period of time.” Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1470

                                          -13-
(10th Cir. 1992). Flitton served as head of PRM I’s wholesale division for over

two years, and presented evidence that her supervisors praised her work. She has

more than adequately established her qualification for her position.

      PRM I offered four reasons for its termination of Flitton: (1) the division’s

large overhead in relation to its revenue, (2) the profitability and risk-

management of the wholesale division under Flitton, (3) Flitton’s receipt of

“double payment” of commissions due to the changed incentive pay plan, and (4)

Flitton’s “inability to communicate.” Flitton may show that these reasons are

pretextual by casting doubt on whether PRM I “honestly believed those reasons

and acted in good faith upon those beliefs.” Rivera v. City and County of

Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (quotation and alterations

omitted). To prove a discriminatory motive, however, she need neither prove that

all the employer’s proffered reasons are false, nor show that discrimination was

the “sole motivating factor in the employment decision.” Elmore v. Capstan, Inc.,

58 F.3d 525, 530 (10th Cir. 1995) (quotation and citation omitted). “Instead, the

employee must prove only that a discriminatory factor was also a reason for the

employers decision and that it was the factor that made a difference” – or, in

other w ords, that it w as a motivating factor. Id. (quotations and citation omitted).

      Our review of the record leads us to conclude that the district court failed

to draw all reasonable inferences in Flitton’s favor and did not disregard all

evidence favorable to PRM I that the jury was not required to believe. See

                                          -14-
Reeves, 530 U.S. at 150-51. At trial, Flitton offered numerous pieces of evidence

showing that PRM I’s reasons were unworthy of credence or even demonstrative

of discrimination. To begin with, Flitton’s alleged communications problems

arose primarily from her strained relationship with Chapman. As Zitting testified

at trial, his decision was largely based on his impression that Flitton’s

relationship with Chapman w as “deteriorating rapidly.” He explained he had a

“major concern” that Flitton was “unwilling to communicate with the CFO of the

company.” Yet the evidence at trial reveals that Zitting understood that Flitton

and Chapman’s relationship w as strained in part because Chapman could not work

well with women. In August 2002, just two months before Flitton’s termination,

Zitting expressly told Flitton that Chapman had difficulty dealing with her

because she was an attractive woman. In response to Flitton’s complaints about

Chapman’s behavior, Zitting drew Flitton the “sexual cycle” diagram, in which

Chapman’s varying degrees of guilt and attraction caused him to treat attractive

women differently than men. Zitting attributed Flitton’s complaints to the

operation of this cycle – including her complaints that she found it difficult to

meet with Chapman, that Chapman stared at her breasts, and that Chapman made

sarcastic remarks about her income. Because Flitton’s inability to get along with

Chapman w eighed heavily on Zitting’s decision to terminate her, and because

undisputed evidence demonstrates that Zitting attributed C hapman and Flitton’s

problematic relationship to the fact that Flitton was an attractive woman, a

                                         -15-
reasonable jury could conclude Flitton’s gender was a motivating factor in her

termination – even if it also believed some of PRM I’s other proffered reasons.

See Elmore, 58 F.3d at 530.

      Our determination that the district court erred in dismissing Flitton’s

discrimination claim does not rest on the court’s failure to draw these reasonable

inferences in her favor, alone. It also failed to credit evidence offered by Flitton

that cast doubt on whether PRM I honestly believed its other proffered reasons for

her termination. Regarding the profitability of the wholesale division, Chapman

testified that the profit and loss statements he prepared after Flitton’s termination

showed only $12,000 in profits for 2002 because he had intentionally pushed

$300,000 of the profits from 2002 into previous years. A reasonable jury could

conclude, based on this fact, that PRM I did not honestly believe the wholesale

division was insufficiently profitable. M oreover, Flitton testified that her senior

managers – including Chapman and Zitting – gave her consistent and effusive

praise and expressed excitement about her division from August 2002 until the

time she was fired. On August 1, 2002, Chapman sent Flitton an email

congratulating her on “another great month,” and during a September 2002

luncheon, Zitting highly praised Flitton’s performance. This evidence weakens

PRM I’s assertion that it had deep-seated concerns about Flitton’s management of

the wholesale division.

      Finally, the district court failed to accord any weight to Chapman’s

                                         -16-
sarcastic and derogatory remarks about Flitton’s income as a woman. W hile

these comments, alone, may not suffice to show discrimination, a rational juror

could find them adequate to support Flitton’s claim of gender discrimination on

consideration of the record as a whole. 5 See M iller v. Eby Realty Group LLC,

396 F.3d 1105, 1114 (10th Cir. 2005) (acknowledging that isolated comments are

insufficient in themselves to prove discrimination, but stating that a jury could

find discrimination when considering the prima facie case and a plaintiff’s

showing of pretext, “coupled with the comments”).

         Accordingly, we reverse the dismissal of Flitton’s gender discrimination

claim.

                                        B

         Title VII’s anti-retaliation provision prohibits an employer from

discriminating against an employee because that employee has opposed

discrimination in the workplace. 42 U.S.C. § 2000e-3(a).       To make out a prima




         5
         W e realize that Zitting, not Chapman, was the ultimate decisionmaker in
this case. However, our caselaw permits us to impute the biases of subordinates
to an ultimate decisionmaker if “the biased subordinate’s discriminatory reports,
recommendation, or other actions caused the adverse employment action.” See
EEOC v. BCI Coca-Cola B ottling Co. of Los A ngeles, 450 F.3d 476, 487 (10th
Cir. 2006). The record reveals that the meeting between Chapman and Flitton,
and Chapman’s report of that meeting to Zitting, influenced Zitting’s decision to
terminate Flitton. Petersen’s testimony that Zitting and Chapman approached him
together on October 10, 2002, to discuss the possibility of Flitton’s termination
also supports the view that Chapman and Zitting acted in tandem – or, at the very
least, that Zitting was persuaded to fire Flitton based on the actions of Chapman.

                                            -17-
facie case of retaliation, a plaintiff must show that: (1) She engaged in protected

activity; (2) The employer took an adverse employment action against her; and (3)

There exists a causal connection between the protected activity and the adverse

action. Aquilino v. Univ. of Kan., 268 F.3d 930, 933 (10th Cir. 2001). Flitton’s

October 10, 2002 email to Zitting lists a number of problems she had with

Chapman’s behavior and concludes, “[Chapman’s] attitude tow ard women is very

transparent. I know if I were a man this would not be an issue.”    This complaint

of Chapman’s disparate treatment of women constitutes protected activity and

satisfies the first prong of her prima facie case. Flitton’s termination was an

adverse employment action, thus satisfying the second prong. On the third prong,

the district court held as a matter of law that no causal connection existed

between the email and Flitton’s termination. Based largely on the testimony of

Petersen, the court found that Zitting made the decision to terminate Flitton

before receiving the email, that the email only reinforced this prior decision, and

that no reasonable juror could find otherw ise.

      W e fail to see how the court reached this conclusion in light of Zitting’s

testimony that Flitton’s email was the “straw that broke the camel’s back” with

respect to his decision to terminate Flitton. A reasonable juror could construe this

statement as evidence that Flitton’s email was a motivating factor for Zitting’s

decision. See Elmore, 58 F.3d at 530 (10th Cir. 1995) (holding that an

impermissible reason need not be the sole factor in a decision). Zitting’s

                                        -18-
testimony also allows a reasonable juror to find that Zitting received Flitton’s

email before making his decision to terminate – contrary to the district court’s

conclusion.

      Petersen’s testimony does not preclude such a finding. As an initial matter,

we do not agree that Petersen was merely a “disinterested witness.” N ot only did

Petersen replace Flitton as head of the wholesale division, the trial transcript

reveals a great deal of hostility between Flitton and Petersen. M ore importantly,

however, the district court improperly concluded that Petersen’s testimony

unambiguously indicated that Zitting and Chapman had already decided to

terminate Flitton on the morning of Thursday, October 10, 2002. Petersen

testified that Zitting and Chapman told him during the relevant meeting that

Flitton would “most likely” be fired – not that she undoubtedly would be fired.

Contrary to the district court’s conclusion, this testimony could be read as

supporting Flitton’s contention that a final decision had not been made regarding

her employment at the time Zitting read her email. Drawing reasonable

inferences in favor of Flitton, and “disregard[ing] all evidence favorable to

[PR MI] that the jury is not required to believe,” Reeves, 530 U.S. at 151, we

conclude that a reasonable jury could find that retaliation was a motivating factor

for Flitton’s termination. W e thus reverse the dismissal of her retaliation claim.

                                          III

      W e now turn to the district court’s grant of PRM I’s motion for judgment as

                                         -19-
a matter of law on Flitton’s punitive damages claim. W hether sufficient evidence

exists to support punitive damages is a question of law that we review de novo.

M cInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1136 (10th Cir. 2006). Punitive

damages are available in Title VII actions only if a plaintiff proves that her

employer engaged in intentional discrimination “with malice or with reckless

indifference to the federally protected rights of an aggrieved individual.” 42

U.S.C. § 1981a(b)(1). In Kolstad v. America Dental Ass’n, 527 U.S. 526, 535

(1999), the Supreme Court explained that “malice” or “reckless indifference”

does not require “a showing of egregious or outrageous” conduct. Instead, a

plaintiff must present proof that the employer acted “in the face of a perceived

risk that its actions would violate federal law.” Id. at 536.

      In EEOC v. Heartway Corp., 466 F.3d 1156, 1169 (10th Cir. 2006), we held

that a punitive damages claim may proceed under Kolstad “where (1) there is

sufficient evidence for the jury to decide whether an employer intentionally and

illegally discriminated on the basis of a disability and (2) there is evidence that

the employer knew the requirements of the ADA.” 6 (citing EEOC v. W almart

Stores, 187 F.3d 1241 (10th Cir. 1999)). Similarly, in considering the sufficiency

of evidence to support a punitive damages award in M cInnis, we first analyzed




      6
         Although that case addressed a disability discrimination claim, it
elaborates on the proper inquiry under Kolstad, which involved punitive damages
in a Title VII case.

                                         -20-
whether “a reasonable jury could find that M cInnis’s termination was illegal

retaliation against her federally protected rights for reporting sexual harassment,”

458 F.3d at 1137-38, then looked to whether the retaliatory actions w ere taken “in

the face of a perceived risk that such actions would violate federal law,” id. at

1138 (quoting Kolstad, 527 U.S. at 543). In both cases, we denied JM OL to

employers that engaged in intentional acts of discrimination and testified that they

understood their obligations under federal law . See also Juarez v. ACS Gov’t

Solutions Group, 314 F.3d 1243, 1247 (10th Cir. 2003) (allowing award of

punitive damages where evidence of retaliation was coupled with evidence that

supervisors received EEO training).

      As previously discussed, a reasonable jury could find that gender

discrimination and/or retaliation motivated Zitting’s decision to terminate Flitton.

In an August 2002 meeting that occurred two months before Flitton was fired,

Flitton reported problems in her relationship with Chapman to Zitting. Zitting

informed Flitton that these problems arose from Chapman’s cycle of sexual

attraction and resulted in his disparate treatment of attractive women. One day

before Flitton was fired, Zitting received an email from Flitton complaining of

Chapman’s discriminatory treatment – including treatment similar to the kind she

had reported to Zitting during their prior meeting. Zitting admitted at trial that

his decision to fire Flitton was motivated both by Flitton’s email and by Flitton’s

strained relationship with Chapman.

                                         -21-
      Zitting also testified that, as part of his M BA program at the University of

Utah, he received six weeks of training on human resource law. He admitted that

he was knowledgeable about civil rights in the workplace, and specifically of the

civil rights of women in the workplace. This testimony, coupled with evidence or

discriminatory and/or retaliatory termination, could lead a reasonable juror to

conclude that Zitting acted in the face of a perceived risk that his actions w ould

violate Title VII. M cInnis, 458 F.3d at 1137. M oreover, considering that Zitting

was the CEO of the company, his actions can form the basis of a punitive

damages claim under a theory of direct liability. See id. at 1138 n.4 (explaining

that an employer may be held directly liable for punitive damages when the

employee taking relevant action is “sufficiently highly ranked”). We therefore

reverse the district court’s grant of judgment as a matter of law to PRM I on

Flitton’s punitive damages claim.

                                         IV

      Finally, we consider Flitton’s contention that the district court erred in

directing that parties exclude testimony and evidence of polygamy and the

viewing of pornography by PRM I board members and senior officers. 7 Because

we reverse and remand the district court’s ruling on gender discrimination and



      7
        Parties dispute the extent to w hich the district court granted PRM I’s
motion in limine with respect to evidence of polygamy and pornography.
Although the lower court’s order w as somewhat am biguous, we need not settle
this dispute here.

                                        -22-
punitive damages, retrial of these issues will necessarily involve a new record.

The district court will need to reconsider this evidence in the context of that new

record. Fed. R. Evid. 403 balancing can be conducted on that basis.

                                          V

      W e REVERSE the dismissal of Flinton’s claims of discrimination and for

punitive damages, and R EM A N D for trial on those claims. W e REV ER SE the

grant of JM OL on the retaliation claim and REM AND for entry of judgment on

the jury’s verdict relating to that claim. W e GRANT Flitton’s m otion to

supplement the appendix. All other pending motions are DENIED.



                                                Entered for the Court

                                                Carlos F. Lucero
                                                Circuit Judge




                                         -23-
