                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 22 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    VICKI POWELL,

                Plaintiff-Appellant,

    v.                                                   No. 01-1181
                                                     (D.C. No. 96-Z-2691)
    COBE LABORATORIES, INC., a                             (D. Colo.)
    corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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. 36.3.
       Plaintiff Vicki Powell appeals from the district court’s order on punitive

damages which followed our decision in a previous appeal in this case,         Powell v.

COBE Laboratories, Inc. , Nos. 98-1350, 98-1363, 2000 WL 235241 (10th Cir.

Mar. 2, 1000). We affirm.

       Powell sued COBE Laboratories, Inc., her former employer, alleging

several state and federal causes of action.     1
                                                     After a jury awarded Powell back pay,

compensatory damages, and punitive damages on her claim of gender

discrimination in violation of Title VII, 42 U.S.C. § 2000e to 2000e-17, the

district court granted COBE’s motion for judgment as a matter of law and set

aside the punitive damages award. Powell appealed to this court.

       While the appeal was pending, the United States Supreme Court clarified

the test used to determine whether punitive damages are appropriate in a

particular Title VII case.    See Kolstad v. Am. Dental Ass’n      , 527 U.S. 526 (1999).

We vacated the district court’s decision on this issue and remanded the matter to

the district court for an application of the        Kolstad holding. Powell , 2000 WL

235241, at **10.




1
      The underlying facts of this case are set out in our previous unpublished
order and judgment, which addressed appeal issues concerning the district court’s
dismissal of Ms. Powell’s related state and federal claims, evidentiary rulings,
reduction of the compensatory damage award, and denial of COBE’s post-trial
motion for a new trial.

                                               -2-
       In Kolstad , the Supreme Court recognized that Title VII provides that a

plaintiff may recover punitive damages where the plaintiff demonstrates that the

defendant “engaged in a discriminatory practice . . .      with malice or with reckless

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

Kolstad , 527 U. S. at 534 (quoting 42 U.S.C. § 1981a(b)(1)) (emphasis in

Kolstad ). The Court determined that, in order to establish the requisite malice or

reckless indifference, a plaintiff need not show that the defendant committed

egregious or outrageous acts. Rather, a plaintiff need only demonstrate that the

“employer . . . at least discriminate[d] in the face of a perceived risk that its

actions will violate federal law.”   Kolstad , 527 U.S. at 536. Further, “in the

punitive damages context, an employer may not be vicariously liable for the

discriminatory employment decisions of managerial agents where those decisions

are contrary to the employer’s ‘good faith efforts to comply with Title VII.’”        Id.

at 545 (quoting Kolstad v. Am. Dental Ass’n , 139 F.3d 958, 974 (D.C. Cir. 1998)

(Tatel, J., dissenting)).

       On remand, the district court properly stated the     Kolstad test and

reconsidered the relevant evidence. It concluded that there was no legally

sufficient basis for a punitive damage award, in that (1) plaintiff failed to provide

evidence that a jury could find that her supervisor acted with malicious or

reckless indifference to a possible violation of Title VII and (2) defendant


                                            -3-
demonstrated sufficient good-faith efforts to comply with Title VII. Accordingly,

the court reaffirmed its order setting aside the punitive damage award.

      A judgment as a matter of law is appropriate only if the “‘evidence points

but one way and is susceptible to no reasonable inferences supporting the party

opposing the motion.’”        Baty v. Willamette Indus., Inc   ., 172 F.3d 1232, 1241

(10th Cir. 1999) (quoting      Mason v. Okla. Turnpike Auth ., 115 F.3d 1442, 1450

(10th Cir. 1997)). We review de novo a district court’s conclusion concerning the

sufficiency of evidence to support a punitive damages award in an employment

discrimination case.       Griffin v. Steeltek, Inc. , 261 F.3d 1026, 1028 (10th Cir.

2001). We have examined the entire record on appeal, the parties’ appellate

briefs, and the citations of supplemental authority submitted by Powell on

December 23, 2001.     2
                             We conclude that the district court did not err in striking

the punitive damage award and AFFIRM the district court’s ruling for

substantially the same reasons as stated in its order dated April 6, 2000.



                                                           Entered for the Court



                                                           John C. Porfilio
                                                           Circuit Judge


2
      The record on appeal in this case incorporates the appellant’s appendix
from prior appeal Nos. 98-1350 and 98-1363.

                                               -4-
