                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 22 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT CHRISTOPHER; JANET                        No. 14-15244
STRATTON-CHRISTOPHER,
                                                 D.C. No. 2:12-cv-00345-DGC
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

SPECTRA ELECTRICAL SERVICES,
INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                     Argued and Submitted February 10, 2016
                            San Francisco, California

Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.

      Plaintiffs Robert Christopher, an electrician previously employed by Defendant

Spectra Electrical Services, Inc., and his wife, Jane Stratton-Christopher filed an

action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and 42 U.S.C.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1981, seeking compensatory and punitive damages for an alleged hostile work

environment and retaliation. They appeal the district court’s grant of partial summary

judgment to Spectra dismissing their request for punitive damages. They also appeal

the district court’s mid-trial denial of their oral motion to reconsider the summary

judgment order. The jury split its verdict, finding for the Christophers on their hostile

work environment claim, and for Spectra on the retaliation claim.             We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Spectra was liable for punitive damages only if it acted with “malice or reckless

indifference” to Mr. Christopher’s federally protected rights.               42 U.S.C.

§ 1981a(b)(1).    “Malice” and “reckless indifference” pertain to an employer’s

“knowledge that it may be acting in violation of federal law, not its awareness that it

is engaging in actual discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535

(1999). In other words, Spectra “must at least discriminate in the face of a perceived

risk that its actions will violate federal law to be liable in punitive damages.” Id. at

536. Therefore, the focus is on Spectra’s state of mind. Id. at 535.

      1. At the outset, we reject the Christophers’ argument that the district court

applied the wrong rule of law. The court correctly relied on Kolstad, and never

misstated the governing law nor applied an erroneous legal standard.




                                           2
      2. Spectra’s alleged failure to investigate or take remedial action after receiving

Mr. Christopher’s Charge of Discrimination – when he was no longer employed at

Spectra – does not raise a triable issue on punitive damages liability. Even assuming

Spectra was required to take some action to deter harassment by other employees, the

Christophers have pointed to no on-point authority stating the failure to do so meant

Spectra had violated Mr. Christopher’s federally protected rights. Because the

Christophers’ underlying theory of discrimination is therefore “novel or otherwise

poorly recognized,” id. at 537, Spectra’s alleged failure to take action cannot show the

requisite state of mind required under § 1981a(b)(1) and Kolstad to justify an award

of punitive damages.

      3. Spectra’s alleged failure to enforce its anti-discrimination policies similarly

cannot, on its own, subject Spectra to punitive damages. Spectra’s diligence in

implementing its anti-discrimination policies is relevant to defend a charge that

Spectra is vicariously liable for punitive damages due to a supervisor’s actions. See

id. at 544-46. But the district court observed that the Christophers had not argued

Spectra was vicariously liable for punitive damages, and the Christophers identify no

error in that conclusion. Accordingly, we affirm the grant of partial summary

judgment to Spectra on the Christophers’ claim for punitive damages.




                                           3
      4. At oral argument, the Christophers abandoned any challenge to the district

court’s denial of their mid-trial motion to reconsider the summary judgment order.

Keeping in mind our “review is limited to the record presented to the district court at

the time” of its decision, we find no error in the denial of reconsideration. Lippi v.

City Bank, 955 F.2d 599, 604 (9th Cir. 1992).

      5. We need not address whether the district court erred in refusing to provide

the jury with a punitive damages instruction. Because the Christophers did not raise

the issue in their opening brief, it is waived. See Avila v. Los Angeles Police Dep’t,

758 F.3d 1096, 1101 (9th Cir. 2014).

      AFFIRMED.




                                          4
