      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2    White v. Burlington Northern Nos. 00-6780; 01-5024
   ELECTRONIC CITATION: 2004 FED App. 0102P (6th Cir.)        & Santa Fe Ry. Co.
               File Name: 04a0102p.06
                                                                             _________________
UNITED STATES COURT OF APPEALS                                                    COUNSEL
             FOR THE SIXTH CIRCUIT                       ARGUED: Bryan P. Neal, THOMPSON & KNIGHT,
               _________________                         Dallas, Texas, for Appellant. William B. Ryan, DONATI
                                                         LAW FIRM, Memphis, Tennessee, for Appellee.
SHEILA WHITE ,                   X                       ON BRIEF: Bryan P. Neal, THOMPSON & KNIGHT,
            Plaintiff-Appellee/ -                        Dallas, Texas, Ralph T. Gibson, BATEMAN GIBSON,
              Cross-Appellant, -                         Memphis, Tennessee, for Appellant. William B. Ryan,
                                  -  Nos. 00-6780;       Donald A. Donati, DONATI LAW FIRM, Memphis,
                                  -  01-5024             Tennessee, for Appellee. Ann E. Reesman, Robert E.
           v.                      >                     Williams, McGUINESS, NORRIS & WILLIAMS,
                                  ,
                                  -                      Washington, D.C., Jenifer M. Bosco, NATIONAL
BURLINGTON NORTHERN &             -                      EMPLOYMENT LAWYERS ASSOCIATION, San
SANTA FE RAILWAY CO .,            -                      Francisco, California, Ralph E. Lamar IV, Collegeville,
                                                         Pennsylvania, for Amici Curiae.
         Defendant-Appellant/ -
               Cross-Appellee. -                                             _________________
                                 N
      Appeal from the United States District Court                               OPINION
   for the Western District of Tennessee at Memphis.                         _________________
  No. 99-02733—Jon Phipps McCalla, District Judge.
                                                            GIBBONS, J., announced the judgment and majority
                Argued: June 11, 2003                    opinion of the en banc court on all issues. The entire en banc
                                                         court joined Parts I (Background) and III (Attorney’s Fees) of
          Decided and Filed: April 14, 2004              the majority opinion. Part II (Adverse Employment Action)
                                                         of the majority opinion was joined by BOGGS, C. J., and
Before: BOGGS, Chief Judge; MARTIN, KRUPANSKY,           KRUPANSKY, BATCHELDER, GILMAN, ROGERS,
   BATCHELDER, DAUGHTREY, MOORE, COLE,                   SUTTON, and COOK, JJ., and Part IV (Punitive Damages)
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and               was joined by MARTIN, DAUGHTREY, MOORE, COLE,
              COOK, Circuit Judges.                      CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51),
                                                         filed a separate concurring opinion joining Parts I, III, and IV
                                                         of the majority opinion and writing separately as to Parts II
                                                         and V, in which he was joined by MARTIN, DAUGHTREY,
                                                         MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an
                                                         opinion concurring in Parts I - III and dissenting from Parts


                           1
Nos. 00-6780; 01-5024 White v. Burlington Northern            3    4    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                      & Santa Fe Ry. Co.

IV and V, in which he was joined by BOGGS, C. J., and                                  I. BACKGROUND
KRUPANSKY, BATCHELDER, and ROGERS, JJ.
                                                                     Before June 1997, Ralph Ellis operated the stationary
  JULIA SMITH GIBBONS, Circuit Judge. In this appeal,              forklift for Burlington Northern at its Tennessee Yard in
the en banc court addresses the meaning of “adverse                Memphis. In June 1997, Ellis resigned from the forklift
employment action” for purposes of Title VII. We decide that       position in order to work on a mobile track gang, in which
a thirty-seven day suspension without pay constitutes an           position Ellis earned more pay than he would have if he had
adverse employment action regardless of whether the                continued working in the forklift position. Marvin Brown,
suspension is followed by a reinstatement with back pay. We        roadmaster of the Tennessee Yard, interviewed White for a
also address several other issues raised by this appeal.           job with Burlington Northern and expressed interest in
                                                                   White’s experience operating a forklift. On June 23, 1997,
  Sheila White brought this action against her employer,           Burlington Northern hired White to work in its Maintenance
Burlington Northern & Santa Fe Railway Company                     of Way department at its Tennessee Yard, and following
(Burlington Northern), alleging sex discrimination and             White’s hire, Brown assigned her to operate the forklift at the
retaliation in violation of Title VII of the Civil Rights Act of   Tennessee Yard.
1964, as amended, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3. The
jury returned a verdict in favor of Burlington Northern on the        White was the only female working in the Maintenance of
sex discrimination claim and in favor of White on the              Way department at the Tennessee Yard. White’s immediate
retaliation claim. The jury awarded White compensatory             supervisor was foreman Bill Joiner. Joiner had never
damages but no punitive damages. After the trial, the district     supervised a woman before, and he admitted at trial that he
court denied Burlington Northern’s motion for judgment as a        treated White differently because of her gender. He also
matter of law on the retaliation claim and granted White’s         admitted that he did not believe that the Maintenance of Way
motion for attorney’s fees.                                        department was an appropriate place for women to work.
                                                                   According to White, Joiner repeatedly expressed this belief to
   Burlington Northern appeals from the denial of its motion       her while she was working under his supervision. According
for judgment as a matter of law and from the award of              to Joiner, several other Burlington Northern employees also
attorney’s fees to White. White cross-appeals, challenging         expressed the belief that women should not work on a
the district court’s jury instruction regarding punitive           railroad. Another Burlington Northern employee agreed at
damages. For the reasons set forth below, we affirm the            trial that there was “a general anti-woman feeling” among
district court’s denial of Burlington Northern’s motion for        Burlington Northern employees at the Tennessee Yard.
judgment as a matter of law and the district court’s award of
attorney’s fees to White. We conclude, however, that the             Despite concerns about the propriety of a woman working
district court erred in instructing the jury on the issue of       on the railroad, the evidence was uncontradicted that White
punitive damages, and therefore we remand the case for             did not have difficulty performing her job. According to
further proceedings consistent with this opinion.                  Brown, he never received a complaint regarding White’s
                                                                   performance operating the forklift. Joiner testified that White
                                                                   had no problems performing her job. Furthermore, another
                                                                   Burlington Northern foreman testified that no one expressed
Nos. 00-6780; 01-5024 White v. Burlington Northern           5    6     White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                      & Santa Fe Ry. Co.

concern about White’s ability to get along well with others in    forklift before she complained of discrimination but that he
the workplace or about anything specific to White other than      did not remove her from the position until after she
her gender.                                                       complained of discrimination.
   On September 16, 1997, White complained to Brown and             Brown’s trial testimony is inconsistent with Burlington
other company officials about specific incidents of alleged       Northern’s interrogatory response. In that response, the
sexual harassment committed by Joiner. The company                railroad stated that it removed White from the forklift position
investigated.    Following the investigation, Burlington          because a more senior employee claimed the job according to
Northern suspended Joiner for ten days and ordered him to         the collective bargaining agreement. Brown, however,
attend a training session regarding sexual harassment.            testified at trial that the forklift job was not governed by the
                                                                  collective bargaining agreement and that he had the discretion
  On September 26, 1997, Brown met with White to inform           to place anyone he chose in that position regardless of
her that Joiner had been disciplined pursuant to her complaint.   seniority. Moreover, neither the union, nor anyone else,
He also, however, told her that the company had learned           initiated a grievance about White’s operation of the forklift.
during the investigation of several complaints about her          A union official testified that the union’s records did not
working in the forklift position. According to Brown, the         reflect any complaints regarding White’s assignment to the
complaints did not relate to her performance but related to the   forklift position. Only White and Ellis were qualified to
fact that the forklift position was a less arduous and cleaner    perform the forklift position. Ellis, who had voluntarily
job than other track laborer positions. Brown testified that      resigned from the forklift job for a higher-paying job, testified
other employees, including Ellis, complained about a junior       that he did not complain to Brown or anyone else about White
employee being allowed to work the forklift instead of “a         operating the forklift and that he did not request that he be
more senior man.” Other witnesses testified that the forklift     returned to the position.
job was generally considered a physically easier and cleaner
job than other track laborer positions, although it required        On October 10, 1997, White filed a charge with the Equal
more qualifications. Joiner testified that other track laborers   Employment Opportunity Commission (EEOC) alleging sex
complained about White being allowed to hold the position         discrimination and retaliation. She filed a second charge with
instead of a male employee.                                       the EEOC on December 4, 1997, alleging retaliation. In her
                                                                  second EEOC charge she alleged that Brown had placed her
  During the September 26 meeting regarding the resolution        under surveillance and was checking on her daily activities.
of White’s internal sexual discrimination complaint, Brown        Her second EEOC charge was mailed to Brown on
informed White that he was removing her from the forklift         December 8, 1997.
position and assigning her to a standard track laborer position
because of her coworkers’ complaints. Her pay and benefits          On December 11, 1997, White was working in Blytheville,
remained the same, but her new job was, by all accounts,          Arkansas, supporting a regional tie gang. She was working
more arduous and “dirtier” than the forklift position. Brown      under the supervision of Burlington Northern foreman Percy
replaced White with Ellis, the only other employee qualified      Sharkey. At some point during the day, Sharkey instructed
to perform the forklift job. Brown admitted at trial that he      White to ride in a truck with another foreman, James Key.
had heard complaints about White being allowed to work the        Sharkey instructed another track laborer, Greg Nelson, to ride
Nos. 00-6780; 01-5024 White v. Burlington Northern             7    8    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

with him in his vehicle. According to White, when she               her union appealing the decision within fifteen days. White
approached Key he told her that she had to ride with Sharkey        timely filed such a grievance and also filed another EEOC
because Key wanted Nelson to ride with him. Against                 charge on December 15, 1997, alleging retaliation.
Sharkey’s order, Nelson rode away with Key. White testified
that Sharkey became very upset when she returned and told             While her grievance was pending, White was without a job
him that Nelson had ridden away with Key and that she               and without income and she did not know if or when she
would have to ride with him. Contrary to White’s testimony,         would be allowed to return to work. During this period,
Sharkey testified that White refused to ride with Key,              White sought medical treatment for emotional distress and
claiming that she had seniority over Nelson and insisting           incurred medical expenses. The grievance remained pending
upon riding with Sharkey.                                           through the end of December and the first half of January
                                                                    1998. After an investigation and a hearing, the hearing
   According to Sharkey, he called Brown to discuss the             officer, who was a Burlington Northern manager, found that
situation and Brown told him that, based on Sharkey’s               White had not been insubordinate and that she should not
description of events, White had been insubordinate and             have been suspended. After being suspended without pay for
should be removed from service immediately. On the                  thirty-seven days, White was reinstated to her position with
afternoon of December 11, Sharkey informed White that she           full back pay on January 16, 1998.
was suspended. Although Sharkey had the authority to
suspend White himself, Sharkey testified that Brown made              After exhausting her avenues for relief before the EEOC,
the decision to suspend White. Brown testified that Sharkey         White filed this action against Burlington Northern in the
made the decision. White testified that Sharkey told her at the     district court, alleging sex discrimination and retaliation in
time that Brown had instructed him to suspend her. In a letter      violation of Title VII. A jury trial was conducted from
to the EEOC, Burlington Northern stated that Brown made             August 29, 2000, to September 5, 2000. The jury returned a
the decision, but Brown testified that this letter was incorrect.   verdict in favor of Burlington Northern on White’s sex
Nelson received no discipline, although Sharkey                     discrimination claim and a verdict in favor of White on her
acknowledged at trial that Nelson had disobeyed his direct          retaliation claim. The jury awarded White $43,500 in
order.                                                              compensatory damages, including $3,250 in medical
                                                                    expenses, on her retaliation claim. The jury found against
  White testified that Sharkey had told her at some point           White on her claim for punitive damages. After the trial,
before her suspension that Brown considered White a                 pursuant to Federal Rule of Civil Procedure 50(b), Burlington
“troublemaker.” Sharkey acknowledged at trial that he had           Northern filed a renewed motion for judgment as a matter of
told White that the railroad was trying to “get rid” of her.        law on the retaliation claim, which the district court denied.
                                                                    White filed a motion for an award of attorney’s fees pursuant
  The decision to suspend White occurred seven days after           to 42 U.S.C. § 2000e-5(k), and the district court awarded
White filed her second EEOC charge and three days after the         White $54,285, which represented eighty percent of White’s
charge was mailed to Brown. The suspension took effect              total attorney’s fees.
immediately and was without pay. According to company
policy, the suspension without pay would automatically
become a termination if White did not file a grievance with
Nos. 00-6780; 01-5024 White v. Burlington Northern             9    10   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

 II. MOTION FOR JUDGMENT AS A MATTER OF                             insufficient evidence for the jury to conclude rationally that
                   LAW                                              Burlington Northern’s asserted legitimate, non-discriminatory
                                                                    reasons for transferring and suspending White were pretexts
  We first review the district court’s denial of Burlington         for retaliation.
Northern’s post-trial motion for judgment as a matter of law
pursuant to Rule 50(b). Our standard of review is de novo.            In determining whether Burlington Northern is entitled to
Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595,            judgment as a matter of law, we first discuss the meaning of
598 (6th Cir. 2001). The inquiry for resolving a motion for         “adverse employment action” for purposes of Title VII. Then
judgment as a matter of law pursuant to Rule 50 is the same         we discuss whether White’s transfer and suspension were
as the inquiry for resolving a motion for summary judgment          adverse employment actions. Finally we address whether
pursuant to Rule 56. Reeves v. Sanderson Plumbing Prods.,           there was sufficient evidence for the jury to rationally find
Inc., 530 U.S. 133, 150 (2000). We review all of the evidence       that Burlington Northern’s asserted legitimate reasons were
in the record in the light most favorable to the nonmoving          pretexts for unlawful retaliation.
party and determine whether there was a genuine issue of
material fact for the jury. Gray, 263 F.3d at 598.                  A. Defining Adverse Employment Action

   We must affirm the jury verdict unless there was “no               Title VII’s anti-retaliation provision provides:
legally sufficient evidentiary basis for a reasonable jury to
find for [the prevailing] party.” Fed. R. Civ. P. 50(a). We           (a) Discrimination for making charges, testifying,
draw all reasonable inferences in favor of the prevailing party,      assisting, or participating in enforcement proceedings
and we do not make any credibility determinations or weigh
the evidence. Reeves, 530 U.S. at 150. Therefore, we “must            It shall be an unlawful employment practice for an
disregard all evidence favorable to the moving party that the         employer to discriminate against any of his employees
jury is not required to believe.” Id. at 151. “That is, the court     or applicants for employment . . . because he has opposed
should give credence to the evidence favoring the nonmovant           any practice made an unlawful employment practice by
as well as that ‘evidence supporting the moving party that is         this subchapter, or because he has made a charge,
uncontradicted and unimpeached, at least to the extent that           testified, assisted, or participated in any manner in an
that evidence comes from disinterested witnesses.’” Id.               investigation, proceeding, or hearing under this
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 300           subchapter.
(1986)).
                                                                    42 U.S.C. § 2000e-3(a) (section 704(a) of Title VII)
   Burlington Northern contends that it is entitled to judgment     (emphasis added). Title VII does not define the phrase
as a matter of law on White’s retaliation claim because,            “discriminate against,” which is repeated in Title VII’s other
according to Burlington Northern, neither White’s transfer          anti-discrimination provisions, but courts have made clear
from the forklift job to a standard track laborer job nor her       that not just any discriminatory act by an employer constitutes
suspension without pay for thirty-seven days constitutes an         discrimination under Title VII. See Burlington Indus., Inc. v.
adverse employment action for purposes of Title VII. In the         Ellerth, 524 U.S. 742, 761 (1998) (citing cases requiring a
alternative, Burlington Northern contends that there was            “tangible employment action” to support a Title VII claim).
Nos. 00-6780; 01-5024 White v. Burlington Northern                    11     12    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                 & Santa Fe Ry. Co.

Employment actions that are de minimis are not actionable                    charge with the EEOC. After a bench trial, the district court
under Title VII. Bowman v. Shawnee State Univ., 220 F.3d                     found that “[p]laintiff failed to show any adverse employment
456, 462 (6th Cir. 2000). “If every low evaluation or other                  action in response to her EEOC charge or any other protected
action by an employer that makes an employee unhappy or                      activity. While additional tension arose after others became
resentful were considered an adverse action, Title VII would                 aware of [plaintiff]’s charge, such ‘predictable tension’ is not
be triggered by supervisor criticism or even facial expressions              ‘the type of adverse employment action prohibited by Title
indicating displeasure.” Primes v. Reno, 190 F.3d 765, 767                   VII’s retaliation clause.’” 735 F.2d at 994 (quoting the
(6th Cir. 1999).                                                             district court). This court affirmed, stating:
  To prevent lawsuits based upon trivial workplace                             We agree with the district judge that a general increase of
dissatisfactions, we require that a plaintiff prove the existence              tension in the workplace would be expected to follow
of an “adverse employment action” to support a Title VII                       revelation that a claim of discrimination in employment
claim. Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir.                    had been filed. However, evidence of such an increase
1999) (defining “adverse employment action” as a “materially                   should be considered, and any discrete act or course of
adverse change in the terms and conditions of [plaintiff’s]                    conduct which could be construed as retaliation must be
employment”).1 This case requires us to clarify further the                    examined carefully. After such examination we conclude
meaning of “adverse employment action” for purposes of                         that the finding that no ‘adverse employment action’
Title VII.                                                                     resulted from the filing of the EEOC charge is not clearly
                                                                               erroneous, particularly in view of the contrary evidence
  The first time this court required a plaintiff to prove the                  ....
existence of an “adverse employment action” as part of a Title
VII claim was in Geisler v. Folsom, 735 F.2d 991 (6th Cir.                   735 F.2d at 996 (quoting the district court’s use of the phrase
1984). In Geisler, the plaintiff alleged that her employer                   “adverse employment action”).
violated Title VII’s anti-retaliation provision by
discriminating against her for filing a sex discrimination                     A few months after deciding Geisler, this court stated that
                                                                             to support a claim for retaliation under Title VII a “plaintiff
                                                                             must establish: (1) that he engaged in activity protected by
    1
      Although this court and most other courts use the term “adverse        Title VII; (2) that he was the subject of adverse employment
employment action,” some courts, including the Supreme Court, use the        action; and (3) that there exists a casual [sic] link between his
term “tangible employment action” or some other variation for the same       protected activity and the adverse action of his employer.”
concept. See, e.g., Bu rlington In dus., 524 U.S. at 761 (“tangible          Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375
employment action”); Bowman, 220 F.3d at 461 n.5 (“Courts use the            (6th Cir. 1984). The Jackson court did not cite Geisler as a
terms ‘tangible employment detriment’ and ‘materially adverse
emp loyment action ’ interchangeably.”).                                     basis for including “adverse employment action” among the
     As the one alternative to showing the existence of an adverse           elements of a Title VII retaliation claim; instead it relied upon
employment action, a plaintiff may support a Title VII claim by showing      cases from the Fifth, Tenth, and Eleventh Circuits. Id. (citing
that “plaintiff was subjected to severe or pervasive retaliatory [or other   Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343
discrimination based] harassment by a supervisor.” Morris v. Oldham          (10th Cir. 1982); Jones v. Lumberjack Meats, Inc., 680 F.2d
County Fiscal Co urt, 201 F.3d 784, 79 2 (6th Cir. 2000). What constitutes
severe or p ervasive harassme nt is not at issue in this appeal.
                                                                             98, 101 (11th Cir. 1982); Whatley v. Metro. Atlanta Rapid
Nos. 00-6780; 01-5024 White v. Burlington Northern                       13     14       White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                       & Santa Fe Ry. Co.

Transit Auth., 632 F.2d 1325, 1328 (5th Cir. 1980)). The                           After Yates, it was almost ten years before we had another
cases cited by Jackson, like Jackson itself, each involved a                    opportunity to develop the definition of adverse employment
termination of employment, and so none of these cases                           action. In Kocsis v. Multi-Care Management Inc., this court
addressed the issue of what types of employment actions                         considered the definition of adverse employment action in the
short of termination constitute adverse employment actions.2                    context of a discrimination claim under the Americans with
                                                                                Disabilities Act. 97 F.3d 876, 885-87. Relying in part upon
   Ever since Geisler and Jackson, the adverse-employment-                      the Seventh Circuit’s definition, this court held that a plaintiff
action element has remained a part of a Title VII claim in this                 claiming employment discrimination must show that she
circuit. After Geisler, the first time that this court decided a                suffered “a materially adverse change in the terms of her
case based on the adverse-employment-action element was in                      employment.” Id. at 885 (citing Spring v. Sheboygan Area
Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987). In                      Sch. Dist., 865 F.2d 883 (7th Cir. 1989), which involved an
Yates, this court reversed a district court’s factual finding of                age discrimination claim). A “mere inconvenience or an
retaliation, holding that it was clear error for the district court             alteration of job responsibilities” or a “bruised ego” is not
to find that a temporary job reassignment that resulted in no                   enough to constitute an adverse employment action. Id. at
pay or benefits reduction was an adverse employment action                      886 (citing Crady v. Liberty Nat’l Bank and Trust Co., 993
cognizable under Title VII’s anti-retaliation provision. For                    F.2d 132, 136 (7th Cir. 1993), and Flaherty v. Gas Research
this holding, the Yates court relied solely upon a district court               Inst., 31 F.3d 451, 456 (7th Cir. 1994)).
decision from Delaware. Id. (citing and endorsing Ferguson
v. E.I. duPont deNemours and Co., 560 F. Supp. 1172, 1201                         Furthermore, according to Kocsis, “reassignments without
(D. Del. 1983), which held that a job reassignment is not an                    salary or work hour changes do not ordinarily constitute
adverse employment action if it is only temporary and results                   adverse employment decisions in employment discrimination
in no reduction in pay or benefits).                                            claims.” Id. at 885 (citing Yates, 819 F.2d at 638, which
                                                                                applied to “temporary” reassignments). A reassignment
                                                                                without salary or work hour changes, however, may be an
    2                                                                           adverse employment action if it constitutes a demotion
      The decisio ns cited by Jackson from the Tenth and Eleventh
Circuits, Burru s and Jones, both c ite Sm alley v. City of Eato nville, 640
                                                                                evidenced by “a less distinguished title, a material loss of
F.2d 765, 769 (5th Cir. 1981), which in turn cites Whatley as the basis for     benefits, significantly diminished material responsibilities, or
including “adve rse em ploym ent actio n” am ong the elem ents of a Title VII   other indices that might be unique to a particular situation.”
claim. Whatley cites a treatise published in 1976. 632 F.2d at 1328             Id. at 886 (citing Crady, 993 F.2d at 136).
(citing B. Schlei & P. Grossman, Em ployment Discrimination Law, Ch.
15 (1976)). It appears that the inclusion of “adverse employment action”          In this circuit, Kocsis is the seminal case for defining
as an element of a T itle VII claim originated with the treatise cited by
Whatley. See Williams v. Bo orstin, 663 F.2d 109, 120 (D.C. Cir. 1980)
                                                                                adverse employment action.3 The Supreme Court in
(J. Bazelon, concurring) (stating that “adverse em ploym ent actio n” is
among the elements of a Title VII retaliation claim under “the standard
found in B. Schlei & P. Grossman, Employment Discrimination Law 436                  3
(1976)”). The first reported case in the nation to include “adverse                   For instance, in Hollins v. Atlantic Co., this court relied upon Kocsis
employment action” as an element of a Title VII claim was decided the           to decide that an employee had not suffered an adverse employment
year after publication of the treatise. EEO C v. Locals 14 an d 15 Int’l        action when she received lower ratings in a performance evaluation. 188
Union of O perating Eng ’rs, 438 F. Supp. 876 , 881 (S.D.N.Y . 1977).           F.3d 652, 662 (6th Cir. 1999). The Hollins court held that lower ratings
Nos. 00-6780; 01-5024 White v. Burlington Northern                      15     16       White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                      & Santa Fe Ry. Co.

Burlington Industries v. Ellerth relied upon Kocsis and                        the EEOC Guidelines. The EEOC has interpreted “adverse
several decisions from other circuits when it stated that “[a]                 employment action” in the context of a Title VII retaliation
tangible employment action constitutes a significant change                    claim to mean “any adverse treatment that is based on a
in employment status, such as hiring, firing, failing to                       retaliatory motive and is reasonably likely to deter a charging
promote, reassignment with significantly different                             party or others from engaging in protected activity.” EEOC
responsibilities, or a decision causing a significant change in                Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998).
benefits.” 524 U.S. 742, 761 (1998). The Supreme Court                         Although EEOC Guidelines are not binding on the courts,
also observed that:                                                            they “constitute a body of experience and informed judgment
                                                                               to which courts and litigants may properly resort for
  A tangible employment action in most cases inflicts                          guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65
  direct economic harm . . . . Tangible employment                             (1986) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
  actions are the means by which the supervisor brings the                     (1944)).
  official power of the enterprise to bear on subordinates.
  A tangible employment decision requires an official act                        The EEOC claims that this court’s development of the
  of the enterprise, a company act. The decision in most                       adverse-employment-action element has been unfaithful to
  cases is documented in official company records, and                         the letter and purpose of Title VII’s anti-retaliation provision.
  may be subject to review by higher level supervisors.                        According to 42 U.S.C. § 2000e-3(a), it is unlawful for an
                                                                               employer to “discriminate against” an employee for engaging
Id. at 762. But see Ray v. Henderson, 217 F.3d 1234, 1242                      in protected conduct. The EEOC contends that the most
n.5 (9th Cir. 2000) (rejecting the contention that Burlington                  natural reading of this language is that it prohibits “any form
Industries set forth a standard for adverse employment actions                 of discrimination” against an individual for opposing
in the retaliation context).                                                   discrimination or filing a charge. The Ninth and Seventh
                                                                               Circuits have also embraced a broad interpretation of Title
  In this appeal, White and the EEOC, which has filed an                       VII’s anti-retaliation provision. See Ray v. Henderson, 217
amicus curiae brief on White’s behalf, urge us to revise our                   F.3d 1234, 1243 (9th Cir. 2000) (“This provision does not
definition of adverse employment action for purposes of Title                  limit what type of discrimination is covered, nor does it
VII retaliation cases and adopt the interpretation included in                 prescribe a minimum level of severity for actionable
                                                                               discrimination.”); Knox v. State of Indiana, 93 F.3d 1327,
                                                                               1334 (7th Cir. 1996) (“There is nothing in the law of
                                                                               retaliation that restricts the type of retaliatory act that might
were not enough in the absence of “evidence to show that the lowered           be visited upon an employee who seeks to invoke her rights
performance ratings actually had an effect on her wages such that a court
may conc lude that there was a m aterially ad verse emp loyment action .”      by filing a complaint.”).4
Id. In Bowm an v. Sha wnee Sta te Un iversity, this court relied upon Kocsis
and Hollins to hold that the temporary removal of a university instructor
from his position as the Coordinator of Sports Studies did not rise to the          4
level of an adverse employment action. 220 F.3d 456, 46 1-62 (6th Cir.               W e have recognized that the dictionary definition of “discriminate”
2000). The Bowman court focused on the facts that the removal was for          is “to distinguish; to make distinctions in treatment; show partiality or
only ten days, the employee maintained his position as a full-time             prejudice .” Mattei v. Mattei, 126 F.3d 79 4, 804 (6th Cir. 1997) (quoting
university instructor, and he never lost an y incom e. Id.                     W ebster’s New W orld Dictio nary); see also Oxford English Dictionary
Nos. 00-6780; 01-5024 White v. Burlington Northern                  17    18       White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                 & Santa Fe Ry. Co.

   Despite the EEOC’s contention that “any form of                        provision, this court’s definition, properly interpreted, also
discrimination” falls within the most natural reading of the              accomplishes the goal while appropriately counterbalancing
statute, the EEOC acknowledges in its brief that its definition           the need to prevent lawsuits based upon trivialities. Instead
of adverse employment action excludes “petty slights and                  of requiring district courts to determine on a case-by-case
trivial annoyances” and anything that is not reasonably likely            basis what actions by an employer are reasonably likely to
to deter employees from engaging in protected activity. The               deter an employee from engaging in protected activity, we
EEOC does not explain how it justifies excluding such                     have over the last twenty years given some shape to the
discriminatory acts under its strictly literal reading of the             definition by describing the kinds of material adverse
statute, which prohibits discrimination without any explicit              employment actions that rise above the level of trivial. As we
textual limitation regarding the type of discrimination or level          recognized in Kocsis, however, it is impossible to list every
of severity required. Therefore, the EEOC admits that a                   possible employment action that falls into the definition of
strictly literal reading of “discriminate against” is not a fair          adverse employment action and a court must consider
interpretation of Title VII since it is unlikely that Congress            “indices that might be unique to a particular situation.”
intended to authorize Title VII claims over trivial matters.              Kocsis, 97 F.3d at 886.
  We developed the adverse-employment-action element to                     In addition, this court’s definition has the benefit of
prevent the kind of claims based upon trivial employment                  applying equally to all Title VII discrimination claims, not
actions that a strictly literal reading of Title VII’s anti-              only to retaliation claims. Having a different standard for
retaliation provision would allow. Because the language of                different provisions of Title VII would be burdensome and
Title VII does not explicitly provide any limit on the types of           unjustified by the text of the statute, which uses the same
discriminatory acts prohibited, the language of Title VII does            phrase “discriminate against” in each of its anti-
not favor the EEOC’s proposed limitations over the                        discrimination provisions. See Morris v. Oldham County
limitations this court has developed during the last twenty               Fiscal Court, 201 F.3d 784, 791-92 (6th Cir. 2000) (applying
years of defining the adverse-employment-action element of                rules of statutory construction to hold that “discriminate
a Title VII claim.                                                        against” means the same thing each time it appears in Title
                                                                          VII); Mattei v. Mattei, 126 F.3d 794, 806 (6th Cir. 1997)
  The EEOC argues that the purpose of Title VII’s anti-                   (presuming that Congress intended the phrase “discriminate
retaliation provision supports its definition. “In enacting               against” to have the same basic meaning each time it is used
section 2000e-3, Congress unmistakably intended to ensure                 in a statute).5
that no person would be deterred from exercising his rights
under Title VII by the threat of discriminatory retaliation.”
EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993).                      5
                                                                                Although both § 2 000e-2(a)(1) and § 20 00e-3(a) use the phrase
While the EEOC’s proposed definition more overtly                         “discriminate against,” the former specifies that the prohibited
incorporates the purpose of Title VII’s anti-retaliation                  discrimination must be “with respect to his com pensation, terms,
                                                                          conditions, or privileges of employment,” while the anti-retaliation
                                                                          provision contains no such language. The parties dispute whether this
                                                                          additional language is a limitation or an expansion of the conduct
(2d ed. 1989) (“to discriminate against: to make an adverse distinction   pro hibited. W e have never before d istinguished between the types of
with regard to; to distinguish unfavorably from others”).                 conduct prohibited in the different provisions, and we do not do so here.
Nos. 00-6780; 01-5024 White v. Burlington Northern                    19     20   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                & Santa Fe Ry. Co.

   We therefore reject White’s and the EEOC’s request that                   a reinstatement with back pay, is not an adverse employment
we adopt a new definition of adverse employment action for                   action. For this argument, Burlington Northern primarily
purposes of Title VII retaliation cases, and we reaffirm the                 relies upon Dobbs-Weinstein v. Vanderbilt University, 185
definition that we have developed in cases such as Kocsis and                F.3d 542 (6th Cir. 1999).
its progeny. Since the adverse-employment action element
developed by this Circuit is an exception to a broad, strictly                 In May 1994, a Vanderbilt University dean denied tenure
literal reading of Title VII’s anti-discrimination provisions,               to Professor Dobbs-Weinstein and advised her that her
we will continue to define the exception narrowly so as not to               teaching appointment at Vanderbilt would end on August 31,
frustrate the purpose of Title VII while deterring lawsuits over             1995. Id. at 543. Dobbs-Weinstein filed an internal
trivial matters.                                                             grievance with Vanderbilt, alleging gender and national-
                                                                             origin discrimination among other things, and in May 1995,
B. Suspension Without Pay                                                    she filed an action under Title VII. Id. On August 31, 1995,
                                                                             her employment contract with Vanderbilt ended. Id. at 544.
  We now apply our definition of adverse employment action                   In November 1995, while her lawsuit was still pending, the
to the actions at issue in the present case. We consider the                 Vanderbilt Board of Trustees reversed the decision of the
suspension first.     Burlington Northern argues that a                      dean and rehired her as a tenured professor. Id. The board
suspension without pay, followed thirty-seven days later by                  also granted her back pay to account for the delayed
                                                                             promotion and the period of unemployment. Id. Dobbs-
                                                                             Weinstein persisted with her lawsuit, however, seeking
                                                                             interest on the back pay and compensation for emotional
W e find it untenable to interpret the additional language as an expansion
of prohibited conduct because “with respect to” is a phrase comm only
                                                                             distress and injury to reputation. Id.
used to limit. But cf. Mattern v. Eastman Kodak Co., 104 F.3d 702, 709
(5th Cir. 19 97) (“Th e anti-retaliation provision speaks only of              Despite the facts that she was initially denied tenure and her
‘discrim ination’; there is no mentio n of the vague harms contemplated in   employment ended temporarily, this court held that Dobbs-
§ 2000e-2(a)(2). Therefore, this provision can only be read to exclude       Weinstein had not suffered an adverse employment action
such vague harms, and to include only ultimate employment decisions.”).      cognizable under Title VII. Id. at 545. We recognized that
The D.C. Circuit and the United States District Court for the Northern
District of Ohio have written well-reasoned opinions that conclude that
                                                                             “‘tenure decisions in an academic setting involve a
the absence of the additional language from the anti-retaliation provision   combination of factors which tend to set them apart from
means that an employer is prohibited from retaliating in materially          employment decisions generally.’” Id. (quoting Zahorik v.
adverse ways, regardless of whether the retaliatory acts affect              Cornell Univ., 729 F.2d 85, 92-93 (2d Cir. 1984)). We relied
emp loyment. Passer v. American Chem. Soc., 935 F.2d 322, 330-31             upon the fact that Vanderbilt reversed the decision of its dean
(D.C. Cir. 19 91) (holding that an emp loyer’s cancellation of a major
pub lic symposium in former employee’s honor could be an act of
                                                                             and granted Dobbs-Weinstein back pay as the result of its
retaliation under a statute that parallels Title VII’s anti-retaliation      internal grievance procedure. Id. This reversal, we reasoned,
provision); EEOC v. Outback Stea khou se of Florida, Inc., 75 F.Supp.2d      was the “ultimate employment decision.” Id. We held that
756, 758-60 (N .D. Ohio 199 9) (holding that Title VII’s anti-retaliation    “intermediate” tenure decisions that are appealable through a
provision is not limited to d iscrimina tion affecting employm ent). It is   tenure review process cannot form the basis of a Title VII
unnecessary for us to resolve the question addressed in Passer and
Outback S teakho use because the actions at issue in the present case (job
                                                                             claim. Id. We did not, however, cite any section of Title VII
transfer and suspension) clearly affect employment.                          that requires exhaustion of internal grievance procedures
Nos. 00-6780; 01-5024 White v. Burlington Northern                       21     22       White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                       & Santa Fe Ry. Co.

before one files a lawsuit.6 Instead, we relied upon a decision                 Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir.
from the Fourth Circuit, Page v. Bolger, 645 F.2d 227, 233                      2003) (applying “ultimate employment decision” standard
(4th Cir. 1981), which we interpreted as holding that Title VII                 without discussing Burlington Industries or Fierros). And
applies only to “ultimate employment decisions such as                          while the Eighth Circuit has ostensibly adopted the “ultimate
hiring, granting leave, discharging, promoting, and                             employment decision” standard, it has consistently applied a
compensating.” Id. Neither the Fourth Circuit nor the                           broader standard. See, e.g., Manning v. Metro. Life Ins. Co.,
Dobbs-Weinstein court, however, cited a statutory provision                     127 F.3d 686, 692 (8th Cir. 1997) (ultimate employment
that limits Title VII’s application to ultimate employment                      decision includes “tangible change in duties or working
decisions.                                                                      conditions that constituted a material employment
                                                                                disadvantage”); Kim v. Nash Finch Co., 123 F.3d 1046, 1060
   Since deciding Page, the Fourth Circuit has retreated from                   (8th Cir. 1997) (ultimate employment decision includes
the “ultimate employment decision” standard. Von Gunten v.                      reduction of duties, actions that disadvantage or interfere with
Maryland, 243 F.3d 858, 865, 866 n.3 (4th Cir. 2001)                            the employee’s ability to do his or her job, “papering” of an
(limiting Page and holding that “‘ultimate employment                           employee’s file with negative reports and reprimands even
decision’ is not the standard in this circuit”). Furthermore,                   though employee was “not discharged, demoted, or
the majority of other circuits have either implicitly or                        suspended”).
explicitly rejected a standard limiting Title VII’s reach to
ultimate employment decisions. See id. at 864, 866 n.4                             We now join the majority of other circuits in rejecting the
(citing cases). Indeed, the only other circuits where this                      “ultimate employment decision” standard.7 First and
standard even arguably has any viability are the Fifth and the                  foremost, it is contrary to the plain language of Title VII,
Eighth. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707                         which provides that an employer must not “discriminate
(5th Cir. 1997) (applying the “ultimate employment decision”                    against” an employee based upon a prohibited classification.
standard); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th                    As this court has found, the words “discriminate against”
Cir. 1997) (same).                                                              literally mean “any kind of adverse action.” Mattei, 126 F.3d
                                                                                at 805. Congress could have provided that employers shall
  The Fifth Circuit, however, has questioned whether the                        not “discriminate against an employee when making ultimate
“ultimate employment decision” standard survived the
Supreme Court’s pronouncements in Burlington Industries
regarding the definition of tangible employment action.
Fierros v. Texas Dep’t of Health, 274 F.3d 187, 192-93 & n.2                         7
(5th Cir. 2001) (pretermitting question); but see Hernandez v.                        W e recognize that our decision in Do bbs-Weinstein was based in
                                                                                part upon the unique nature of “tenure decisions in an academic setting.”
                                                                                185 F.3d at 545. Other circuits also have acknowledged the unique nature
    6
                                                                                of tenure decisions. See Ta nik v. S. M ethodist Univ., 116 F.3d 775, 776
      In fact, as will be mentioned again below, the Supreme Court has          (5th Cir. 19 97); Brousard-Norcross v. Augustana Coll. Ass’n, 935 F.2d
pointed out to this court before that internal grievance procedures and an      974, 976 (8th C ir. 199 1); Kumar v. Bd. of Trs., U niv. of Mass., 774 F.2d
action under Title VII are “legally independent” such that the statute of       1, 11 (1 st Cir. 19 85); Zah orik, 729 F.2d at 92-93 (2d C ir. 1984). Beca use
limitations on a Title VII claim is not tolled during the pendency of an        we are not presented here with a denial of tenure, we do not decide to
internal grievance process. Int’l Union of Elec. Workers v. Ro bbins &          what extent our holding in Do bbs-Weinstein survives our d ecision in this
Myers, Inc., 429 U.S. 229 , 236 (1976) (reversing a S ixth Circuit decision).   case.
Nos. 00-6780; 01-5024 White v. Burlington Northern           23    24    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

employment decisions,” but instead it chose to use the words       pay, attorney’s fees, and emotional suffering. In this case, the
“discriminate against” with no such qualifier.                     jury found that White had suffered $43,500 in damages other
                                                                   than back pay due to Burlington Northern’s retaliation.
   Second, the employment action taken in the present case
(suspension without pay for thirty-seven days) is not the type       Lastly, the “ultimate employment decision” standard is in
of employment action that this court developed the adverse-        tension with Supreme Court cases holding that the statute of
employment-action element to filter.             The adverse-      limitations on a Title VII claim is not tolled during the
employment-action element is a warranted judicial                  pendency of an internal grievance process. See, e.g., Int’l
interpretation of Title VII intended to deter discrimination       Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S.
lawsuits based on trivial employment actions, such as those        229, 236 (1976). According to the Supreme Court, a Title VII
that cause a “mere inconvenience” or a “bruised ego.”              claim arises on the date the alleged discriminatory decision
Kocsis, 97 F.3d at 886. But as an exception to the strictly        occurs, even though an employee has challenged the decision
literal reading of the statute, the adverse-employment-action      via an internal grievance process. Id. at 234. The Supreme
element of a Title VII lawsuit must not be interpreted too         Court has rejected the argument that the pendency of an
broadly. Taking away an employee’s paycheck for over a             internal grievance process renders the employment decision
month is not trivial, and if motivated by discriminatory intent,   “tentative” or “non-final” for purposes of Title VII. Id. The
it violates Title VII. See Lovejoy-Wilson v. NOCO Motor            Supreme Court has also rejected the argument that “the
Fuel, Inc., 263 F.3d 208, 223-24 (2d Cir. 2001) (holding that      danger of possible conflict between the concurrent pursuit of
a suspension without pay for one week was an adverse               both collective-bargaining and Title VII remedies should
employment action even though the employee was later               result in tolling the limitations period for the latter while the
reimbursed for lost wages because the employee “suffered the       former proceeds to conclusion.” Id. at 239. The alleged
loss of the use of her wages for a time”).                         discriminatory decision in the present case was the suspension
                                                                   without pay. White’s election to challenge this decision
  Third, the “ultimate employment decision” standard               through an internal grievance process does not render the
contravenes “the purpose of Title VII to make persons whole        decision not actionable under Title VII.
for injuries suffered on account of unlawful employment
discrimination.” Albemarle Paper Co. v. Moody, 422 U.S.               The Equal Employment Advisory Council (the EEAC)
405, 418 (1975). While the standard ensures that a                 argues in its amicus curiae brief on behalf of Burlington
wrongfully suspended employee eventually receives back             Northern that employers must maintain the prerogative to
pay, it allows an employer unilaterally to cut off the             suspend summarily employees suspected of wrongdoing
employee’s claims for other damages, which have been               pending an investigation without facing the risk of Title VII
explicitly authorized by Title VII since the Civil Rights Act      liability. Otherwise, according to the EEAC, employers will
of 1991, such as interest on the back pay, attorney’s fees,        be faced with the dilemma of either allowing potentially
emotional suffering, and punitive damages. 42 U.S.C.               dangerous or disruptive individuals to remain in the
§§ 1981a(b); 2000e-5(g), (k). Although Burlington Northern         workplace or suspending them pending an investigation,
argues that it made White whole when it granted her back           thereby risking Title VII liability.
pay, Congress has declared that part of making a Title VII
plaintiff whole is compensating her for interest on the back
Nos. 00-6780; 01-5024 White v. Burlington Northern                 25    26   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                            & Santa Fe Ry. Co.

  In response to the EEAC’s concerns, we initially note that             (finding that the plaintiff had failed to show an adverse
an employer taking an adverse employment action against an               employment action because, among other things, her job
employee, including a suspension without pay, only risks                 reassignment did not entail any loss in prestige). According
Title VII liability if there exists sufficient evidence to prove         to Burlington Northern’s own witnesses, the transfer occurred
that the employer took the action based upon illegal                     because the forklift operator position was objectively
discrimination. To the extent the EEAC’s concerns for an                 considered a better job and the male employees resented
employer’s risk of Title VII liability are valid, however, they          White for occupying it. In essence, as the district court found,
are allayed by Jackson v. City of Columbus, which holds that             the reassignment was a demotion evidenced by “indices . . .
a suspension with pay and full benefits pending a timely                 unique to [the] particular situation.” Kocsis, 97 F.3d at 886;
investigation into suspected wrongdoing is not an adverse                see also Burlington Indus., Inc., 524 U.S. at 761 (defining
employment action. 194 F.3d 737, 752 (6th Cir. 1999). In                 “tangible employment action” for purposes of Title VII
Jackson, we held that there was no adverse employment                    liability as including a job “reassignment with significantly
action when a mayor effectively suspended with pay a police              different responsibilities”); Mattei, 126 F.3d at 808 (stating
chief for four days pending an investigation of the police               that transferring an employee at the same salary to “some
chief’s alleged improper conduct in office. See id. at 744               wretched backwater” is “clearly” actionable in a retaliation
(noting that the mayor referred to the suspension with pay of            claim).
the police chief as a reassignment “to his residence”).8
                                                                         D. Evidence of Pretext
C. Job Transfer
                                                                           Having rejected Burlington Northern’s arguments that there
  Next we consider whether the job transfer at issue in the              was no adverse employment action taken against White, we
present case was an adverse employment action. Burlington                now address Burlington Northern’s alternative argument in
Northern appeals the district court’s decision that transferring         support of reversing the district court’s denial of its motion
White from her forklift operator job to a standard track                 for judgment as a matter of law. Burlington Northern appeals
laborer job was an adverse employment action. We agree                   the district court’s decision that there was sufficient evidence
with the district court.                                                 from which the jury reasonably concluded that Burlington
                                                                         Northern’s asserted legitimate, non-discriminatory reasons for
   While the standard track laborer job paid the same as the             removing White from the forklift position and then
forklift operator position, White’s new position was by all              suspending her were pretexts for unlawful retaliation. We
accounts more arduous and “dirtier.” Furthermore, the                    agree with the district court.
forklift operator position required more qualifications, which
is an indication of prestige. See Kocsis, 97 F.3d at 886-87                White presented to the jury substantial evidence to
                                                                         contradict Burlington Northern’s asserted legitimate reasons,
                                                                         including contradictory statements from Burlington
    8
      The National Employment Lawyers Association in its amicus curiae   Northern’s own officers. Burlington Northern asserted one
brief on behalf of White concedes that a suspension with pay pending a   reason for transferring White in its interrogatory response, but
timely, good-faith investigation does not constitute an adverse          then Brown, the official who made the decision to transfer
employment action and recommends this course to employers concerned
abo ut possible m isconduct.
                                                                         White, asserted a different, contradictory reason at trial.
Nos. 00-6780; 01-5024 White v. Burlington Northern             27    28    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                         & Santa Fe Ry. Co.

Furthermore, Brown testified that he transferred White in part                        III. ATTORNEY’S FEES
based upon complaints from Ellis, but at trial Ellis denied
complaining about White. Regarding the suspension, the                  Burlington Northern’s last issue on appeal is a challenge to
evidence was not even consistent regarding who made the              the amount the district court awarded White in attorney’s
decision, much less the motivation for the decision. Brown           fees. The district court awarded White eighty percent of her
testified that Sharkey made the decision to suspend White,           attorney’s fees based on her degree of success in the lawsuit.
while Sharkey testified that Brown made the decision.                Burlington Northern argues that White was not as successful
Burlington Northern asserts that Brown suspended White for           as the district court found and that her attorney’s fee award
insubordination, but another Burlington Northern official who        should be reduced.
served as a hearing officer for White’s internal grievance
concluded that White had not been insubordinate. White’s                We review a district court’s determination regarding the
second EEOC charge accused Brown of violating Title VII,             amount of an award of attorney’s fees under Title VII for an
and White was suspended three days after this charge was             abuse of discretion. Scales v. J.C. Bradford and Co., 925
mailed to Brown.                                                     F.2d 901, 909 (6th Cir. 1991). “This deference, ‘is
                                                                     appropriate in view of the district court’s superior
   Based upon all the evidence, including the contradictory          understanding of the litigation and the desirability of avoiding
evidence from Burlington Northern’s own officers, the jury           frequent appellate review of what essentially are factual
was entitled to find that Burlington Northern’s asserted             matters.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424,
legitimate reasons were false and were pretext for unlawful          437 (1983)). Under Title VII, a district court has discretion
retaliation. See Reeves, 530 U.S. at 147 (holding that a jury        to award a prevailing party “a reasonable attorney’s fee.” 42
is entitled to treat a party’s dishonesty about a material fact as   U.S.C. § 2000e-5(k). In determining what constitutes a
evidence of culpability).                                            reasonable attorney’s fee, the degree of success achieved in
                                                                     the lawsuit is a crucial factor. Scales, 925 F.2d at 910.
                                                                        Although we may have awarded a different amount if we
                                                                     were considering the issue de novo, we do not find that the
                                                                     district court abused its discretion in awarding White eighty
                                                                     percent of her attorney’s fees. White brought two claims in
                                                                     this lawsuit (sex discrimination and retaliation) but only
                                                                     prevailed on one (retaliation). As the district court correctly
                                                                     stated in its written decision, however, both of these claims
                                                                     arose from a common set of facts, and it would be difficult to
                                                                     divorce work done on one claim from work done on the other.
                                                                     In light of this consideration and others addressed by the
                                                                     district court in its decision, we find that the district court did
                                                                     not abuse its discretion in awarding White eighty percent of
                                                                     her attorney’s fees.
Nos. 00-6780; 01-5024 White v. Burlington Northern           29    30   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                      & Santa Fe Ry. Co.

               IV. PUNITIVE DAMAGES                                1990) (declining to apply a higher standard of proof than
                                                                   preponderance of the evidence for punitive damages award in
  In her cross-appeal, White asserts that the district court       products liability case because “such a change is best left for
erred in charging the jury on punitive damages. The district       Congress or for higher judicial authority”); In re Exxon
court instructed the jury that punitive damages may be             Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001) (applying
considered if White showed by “clear and convincing”               preponderance standard to award of punitive damages in
evidence that Burlington Northern acted “either intentionally,     maritime case because Congress has not legislated a higher
recklessly, maliciously, or fraudulently.” The jury did not        standard), and with respect to punitive damages in Title VII
award White punitive damages. White contends that the              suits, see Karnes v. SCI Colorado Funeral Servs., Inc., 162
appropriate burden of proof on a claim for punitive damages        F.3d 1077, 1080-82 (10th Cir. 1998) (concluding that a
under Title VII is a preponderance of the evidence, not clear      preponderance of the evidence standard is applicable to
and convincing evidence. White is correct.                         claims for punitive damages under Title VII); Notter v.
                                                                   N. Hand Prot., No. 95-1087, 1996 WL 342008, at *10-11 (4th
   According to Title VII, “[a] complaining party may recover      Cir. June 21, 1996) (rejecting argument that the standard of
punitive damages under this section against a respondent . . .     proof for punitive damages in Title VII case is clear and
if the complaining party demonstrates that the respondent          convincing evidence because “[i]n discrimination cases
engaged in a discriminatory practice or discriminatory             brought under federal law, punitive damages need be proven
practices with malice or with reckless indifference to the         only by a preponderance of the evidence”).
federally protected rights of an aggrieved individual.” 42
U.S.C. § 1981a(b)(1); see also Kolstad v. Am. Dental Ass’n,           The dissenting opinion states that punitive damages are an
527 U.S. 526 (1998) (discussing what a plaintiff must prove        unconventional form of relief and therefore deserve a
to recover punitive damages under Title VII). Title VII is         heightened standard of proof. Unquestionably, punitive
silent concerning the evidentiary standard for demonstrating       damages serve a different purpose than compensatory
malice or reckless indifference for purposes of a punitive         damages. The requirement that punitive damages be awarded
damages claim. In the absence of more specific guidance,           only when a defendant acts maliciously or recklessly
“[c]onventional rules of civil litigation generally apply in       recognizes this difference in purpose and ensures that punitive
Title VII cases, and one of these rules is that parties to civil   damages will be awarded only in the most egregious cases.
litigation need only prove their case by a preponderance of        Punitive damages are not, however, unconventional in the
the evidence.” Price Waterhouse v. Hopkins, 490 U.S. 228,          sense that they are a new or nontraditional form of relief. In
253 (1989) (plurality decision) (internal citation omitted); see   fact, punitive damages have a long history in American civil
also Desert Palace, Inc. v. Costa, 123 S.Ct. 2148, 2154            litigation, where the traditional standard of proof has been
(2003) (holding that Title VII’s silence with respect to an        “preponderance of the evidence.” See generally Jury
evidentiary standard suggests that a conventional                  Determination of Punitive Damages, 110 Harv. L. Rev. 1513,
preponderance of the evidence standard applies).                   1531-32 (1997) (recognizing that preponderance of the
                                                                   evidence is the traditional civil standard of proof). Cf. Smith
  Other circuits have reached this same conclusion with            v. Wade, 461 U.S. 30, 53-56 (1983) (noting that “[t]here has
respect to punitive damages claims generally, see Simpson v.       never been any general common-law rule that the threshold
Pittsburgh Corning Corp., 901 F.2d 277, 282-83 (2d Cir.            for punitive damages must always be higher than that for
Nos. 00-6780; 01-5024 White v. Burlington Northern                 31    32    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                             & Santa Fe Ry. Co.

compensatory liability” and rejecting actual malicious intent            restrictions on punitive damage awards guard against
requirement for punitive damage award in § 1983 cases, even              excessive awards.
when underlying standard of liability for compensatory
damages is recklessness).                                                   Besides identifying trends at the state level, the dissent also
                                                                         cites cases that involve due process challenges to the
   The dissent, unable to point to any precedent imposing a              application of a preponderance of the evidence standard of
higher standard of proof for Title VII punitive damages                  proof. Some of these cases concern situations wholly
claims than preponderance of the evidence, also relies on                unrelated to punitive damages claims. See Addington v.
authority not directly germane to the issue at hand. For                 Texas, 441 U.S. 418, 431-33 (1979) (resolving, in the face of
instance, the dissent notes that, in recent years, public policy         a due process challenge, the standard of proof required in a
concerns, primarily about excessive punitive damage awards,              civil commitment hearing); Santosky v. Kramer, 455 U.S.
have prompted many states to adopt a “clear and convincing”              745, 747-48 (1982) (determining the standard of proof that
standard of proof for punitive damages. Trends at the state              due process demands in the context of a parental rights
level, however, do not inform our consideration of punitive              termination proceeding). Other cases cited by the dissent
damages claims under the federal Title VII statute. In fact,             implicate a due process challenge to large punitive damage
the dissent’s statistics indicate that, while many states applied        awards. See State Farm Mut. Auto. Ins. Co. v. Campbell, 123
a heightened standard of proof to state punitive damage                  S. Ct. 1513, 1519-20 (2003); Pacific Mut. Life Ins. Co. v.
claims at the time that Title VII was amended to permit such             Haslip, 499 U.S. 1, 19 (1991). While the Supreme Court has
claims in 1991, a majority of states at that time chose not              found excessive punitive damages awards to be violative of
apply a heightened standard.                                             due process, State Farm, 123 S. Ct. at 1526, the Court has
                                                                         specifically rejected the notion that the Due Process Clause
   Moreover, to the extent that concerns about excessive                 requires a higher standard of proof for punitive damages
punitive damage awards prompted the adoption of heightened               claims than preponderance of the evidence. Pacific Mut. Life
standards of proof before or after 1991, those concerns do not           Ins., 499 U.S. at 23 n.11. The sole bit of assistance derived
exist under the Title VII statutory scheme. Under Title VII,             from any of these cases is the Court’s direct rejection in
damage awards – both compensatory and punitive – are                     Pacific Mutual of the notion that the Constitution requires a
capped, with $300,000 being the largest sum that can be                  standard of proof any higher than preponderance of the
awarded to a claimant against the largest employers, those               evidence for punitive damages claims.
with 500 or more employees.9 42 U.S.C. § 1981a(b)(3)(D).
The $300,000 limit is imposed on the sum of the                             The only case relied on by the dissent that could be
compensatory and punitive damage awards; there is no                     instructive is Woodby v. INS, 385 U.S. 276 (1966), where the
separate limit for each type of damages. 42 U.S.C.                       Supreme Court considered the standard of proof for a
§ 1981a(b)(3). Thus, Title VII’s own quite substantial                   deportation hearing. As in the instant case, the Court in
                                                                         Woodby was confronted with determining the standard of
                                                                         proof when “Congress has not addressed itself to the question
    9                                                                    of what degree of proof is required . . . .” Id. at 284. In
     The limits are lower for smaller employers, with the lowest limit
being $50,000 for employers with 15-100 employees. 42 U.S .C.
                                                                         Woodby, the Court held that for deportation proceedings, the
§ 1981 a(b)(3)(A)-(D).                                                   standard of proof was “clear, unequivocal, and convincing
Nos. 00-6780; 01-5024 White v. Burlington Northern           33    34    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

evidence,” id. at 286, which the dissent apparently references     generally apply in Title VII cases.” Price Waterhouse, 490
for the proposition that we should apply the same standard of      U.S. at 253.
proof here. While Woodby is helpful in its reminder that the
judiciary has traditionally resolved the question of the proper      Therefore, the district court erred when it instructed the jury
standard of proof under a federal statute when Congress has        that White must prove her case for punitive damages by clear
not addressed the issue, id. at 284, it gives us no direction in   and convincing evidence. The district court, however, also
this case. Its reasoning is based on the immediate hardship of     erred when it instructed the jury that White only needed to
deportation. Deportation, as an outcome of an administrative       prove that Burlington Northern acted “either intentionally,
and judicial proceeding, bears little similarity to an award of    recklessly, maliciously, or fraudulently.” As noted above, a
damages, particularly an award under Title VII, which              plaintiff seeking punitive damages under Title VII must prove
Congress has carefully restricted to limit its potential harm to   that the defendant acted “with malice or with reckless
employers.                                                         indifference to the federally protected rights of an aggrieved
                                                                   individual.” This standard requires a plaintiff to prove more
   Accordingly, in determining the proper standard of proof        than merely intentional discrimination. Kolstad, 527 U.S. at
for a punitive damage claim under Title VII, we receive no         536-37 (explaining standard). In addition, the Supreme Court
specific guidance from the statutory language of the Act.          has stated that only under certain conditions may an employer
Supreme Court precedent offers some assistance, however.           be vicariously liable for punitive damages under Title VII.
Deriving that guidance from Price Waterhouse and Desert            Id. at 545 (specifying conditions).
Palace – both of which specifically discuss standards of proof
in Title VII cases – is more appropriate than looking to the          Finally, the dissent questions whether plaintiff has
Supreme Court’s views on the standard of proof in dissimilar       presented sufficient evidence to submit the punitive damages
contexts or its stray comments about state or federal standards    issue to a jury under either standard and would resolve the
of proof in the course of deciding other issues. While there       issue in defendant’s favor without remand. While defendant
have been developments concerning the standard of proof for        argues generally that plaintiff’s evidence was insufficient to
punitive damages claims at the state level, these trends do not    permit an award of punitive damages, the parties did not
support the conclusion that the “clear and convincing”             analyze the evidence with any specificity under either
standard applies to federal punitive damage claims under Title     potentially applicable standard of proof in their briefing to
VII, which has its own limitations on punitive damage              this court. Nor have we focused on the sufficiency of the
awards. Furthermore, as this case does not implicate a due         evidence to permit a punitive damage award, since this was
process challenge to the size of a punitive damages award, or      not the reason we granted an en banc hearing. We cannot
to the standard of proof used in civil commitment hearings,        find that the evidence is insufficient on a damage issue simply
hearings terminating parental rights, or in the context of         because judicial officers may disagree on an issue relating to
deportation, we do not find the dissent’s cited authority to be    liability, as the dissent suggests. Rather, in order to decide
persuasive. Rather – in deciding the standard of proof to be       whether a trier of fact could award punitive damages in this
applied to plaintiff’s claim for punitive damages under Title      case, a careful examination of the entire record is required.
VII – we choose to follow the guidance provided by the             This exercise is most appropriately undertaken in the first
Supreme Court that “[c]onventional rules of civil litigation       instance by the district court. If the district court determines
                                                                   on remand that the evidence is sufficient to support a claim
Nos. 00-6780; 01-5024 White v. Burlington Northern            35    36   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

for punitive damages under the standard announced by the                             _____________________
Supreme Court in Kolstad, then the district court should
conduct a new trial on the issue of punitive damages only.                              CONCURRENCE
                                                                                     _____________________
                     V. CONCLUSION
                                                                       CLAY, Circuit Judge, concurring. I join Parts I, III, and IV
  For all these reasons, we affirm the district court’s denial of   of the majority opinion. I also agree with Part II insofar as it
Burlington Northern’s motion for judgment as a matter of law        rejects the untenable “ultimate employment action” doctrine,
and the district court’s award of attorney’s fees to White. We      concludes that Sheila White’s removal from her forklift
conclude, however, that the district court erred in instructing     position and her thirty-seven-day suspension constitute
the jury on the issue of punitive damages, and therefore we         adverse employment actions within the meaning of Title VII,
remand the case for further proceedings consistent with this        and affirms the district court’s denial of Burlington’s Rule 50
opinion.                                                            motion. Although the majority properly rejected the
                                                                    “ultimate employment action” doctrine this court embraced in
                                                                    Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545-46
                                                                    (6th Cir. 1999), I would be remiss if I failed to point out that
                                                                    such an express rejection of the “ultimate employment action”
                                                                    doctrine effectively overrules Dobbs-Weinstein. I write
                                                                    separately, however, because I disagree with the rule the
                                                                    majority today embraces with respect to what constitutes an
                                                                    adverse employment action within the meaning of Title VII’s
                                                                    anti-retaliation provision, 42 U.S.C. 2000e-3(a). Instead, I
                                                                    believe that the appropriate standard is the one articulated in
                                                                    the Ninth Circuit and advocated by the EEOC; i.e., an
                                                                    employer’s retaliatory action is sufficiently adverse for
                                                                    § 704(a) purposes if it would be “reasonably likely to deter
                                                                    [employees] from engaging in protected activity.” Ray v.
                                                                    Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). The
                                                                    “reasonably likely to deter” standard is more consistent with
                                                                    § 704(a)’s statutory language and congressional intent, as well
                                                                    as Supreme Court case law.
Nos. 00-6780; 01-5024 White v. Burlington Northern           37    38   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                      & Santa Fe Ry. Co.

A. Why the “Reasonably Likely to Deter” Rule is the                a decision to undertake retaliatory action must materially
   Appropriate Standard for a Retaliation Case                     affect the terms and conditions of employment in order to
                                                                   violate its proscriptions. Indeed, the most natural reading of
  1.   Statutory and Case Law Support                              this language is that it prohibits any form of discrimination
                                                                   against an individual for opposing discrimination or filing a
   The Supreme Court has repeatedly instructed courts, as a        charge, regardless of whether that discrimination takes the
first step in interpreting a statute, “to determine whether the    form of, for example, termination, suspension, lateral transfer,
language at issue has a plain and unambiguous meaning with         harassment, or discipline. At least some of the circuits have
regard to the particular dispute in the case.” Robinson v. Shell   expressly agreed. Smith v. Sec’y of Navy, 659 F.2d 1113,
Oil Co., 519 U.S. 337, 340, (1997). The inquiry is at an end       1119 n.56 (D.C. Cir. 1981) (noting that the language of the
“if the statutory language is unambiguous and ‘the statutory       anti-retaliation provision “speaks unconditionally” and is not
scheme is coherent and consistent.’” Id. (quoting United           “limit[ed] to acts causing particular harms such as the loss of
States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).       a particular job or promotion”); Ray, 217 F.3d at 1243 (noting
It is readily apparent from a reading of § 704(a) that Congress    that language of the anti-retaliation provision “does not limit
placed no limitations on the reach of the anti-retaliation         what type of discrimination is covered, nor does it prescribe
provision.                                                         a minimum level of severity for actionable discrimination”);
                                                                   Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996)
  Section 704(a) states that “[i]t shall be an unlawful            (“There is nothing in the law of retaliation that restricts the
employment practice for an employer to discriminate against        type of retaliatory acts that might be visited upon an
any of his employees . . . because [the employee] has opposed      employee . . . .”).
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge . . . under this          Incorporating by reference the limitations placed on
subchapter.”      42 U.S.C. § 2000e-3(a).            The word      “discriminate” in § 703(a) into “discriminate” in § 704(a) is
“discriminate,” in turn, is not defined in Title VII, but the      altogether inappropriate. Such incorporation by reference is
scope is impliedly quite broad. A review of other Title VII        appropriate only when it is consistent with Congress’
provisions is revealing, inasmuch as § 703(a) prohibits            expressed intent. Section 704(a)’s legislative history is scant,
employers from “fail[ing] or refus[ing] to hire or to discharge    and therefore we are left to look to its plain legislative text.
any individual, or otherwise to discriminate against any           Congress could quite easily have placed the same limitation
individual with respect to his compensation, terms,                on § 704(a) as it did on § 703(a), yet it chose not to do so.
conditions, or privileges of employment, because of such           Congress’ legislative intent, by all indications, was to remove
individual's race, color, religion, sex, or national origin.” 42   all obstacles from an employee’s ability to defend his or her
U.S.C. § 2000e-2(a)(1) (emphasis added). Thus, both                Title VII rights by filing EEOC charges.
§§ 703(a) and 704(a) use the term “discriminate,” but only the
general discrimination provision (§703(a)) places limitations         The Supreme Court, in Russello v. United States, confirmed
on the word “discriminate.” Congress chose not to place any        its view against narrowly construing the meaning of a statute
limitations on “discriminate” within the meaning of § 704(a).      when the plain language unambiguously expressed its
Thus, a straightforward reading of the § 704(a)’s plain text       legislative purpose and intent. 464 U.S. 16, 23 (1983). In
makes clear that there is no statutory support for the idea that   determining the proper applicability of the word “interest” as
Nos. 00-6780; 01-5024 White v. Burlington Northern             39    40   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                        & Santa Fe Ry. Co.

used in 18 U.S.C. §1963(a)(1) in the context of a RICO case,         him a negative employment reference to a potential employer.
the Supreme Court held that ‘“[w]here Congress includes              Id. There was no allegation that the former employer itself
particular language in one section of a statute but omits it in      had made an ultimate employment decision, or that it took
another section of the same Act, it is generally presumed that       any adverse action that materially altered the plaintiff’s job
Congress acts intentionally and purposely in the disparate           responsibilities. (Indeed, it could not have done so, given that
inclusion or exclusion.”’ Russello, 464 U.S. at 23 (quoting          the plaintiff was no longer working for the employer at the
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.            time.) Nevertheless, a unanimous Court allowed the
1972). Specifically, in discussing the particular statutory          plaintiff’s claim to proceed after holding that former
provision at issue, the Court noted that “[t]he argument for a       employees may challenge retaliatory actions. Id. at 346.
narrow construction of § 1963(a)(1) is refuted by the language       Although Robinson dealt specifically with the issue of
of the succeeding subsection (a)(2). The former speaks               determining who is an “employee” for purposes of Title VII’s
broadly of ‘any interest . . . acquired,’ while the latter reaches   anti-retaliation provision (as opposed to what constitutes an
only ‘any interest in . . . any enterprise which [the defendant]     adverse employment action), its reasoning is pertinent: a
has established[,] operated, controlled, conducted or                former employee counts as an employee within the meaning
participated in the conduct of in violation of section 1962.’”       of § 2000e-3(a), because otherwise an employee could be
Id. (quoting 18 U.S.C. § 1962). The Court went on to express         fired in retaliation and not be able to sue. In so holding, the
its belief that if Congress had intended to restrict § 1963          Court noted that an alternative statutory interpretation would
(a)(1), it presumably would have done so expressly as it did         have undermined or vitiated one of Title VII’s most important
in the immediately following subsection. Id.                         purposes–maintaining “unfettered access to statutory remedial
                                                                     mechanisms.” Id.
  Contrary to the majority opinion, this Court has already
embraced this logic. In Lynch v. Johns-Manville Sales Corp.,            In line with the teachings of Robinson and the Supreme
we held that when looking to stay proceedings in a                   Court’s view that § 704(a) should not be limited in its
Chapter 11 bankruptcy context, a solvent co-defendant may            construction, this Court, in EEOC v. Ohio Edison, also
not use the automatic stay provision in 11 U.S.C. § 362(a),          interpreted § 704(a) to be a broad anti-retaliation provision
when the said provision facially stays proceedings “against          that should reach as far as its intended protections allow.
the debtor,” and fails to suggest that these rights may be           7 F.3d 541, 545-46 (6th Cir. 1993) (holding that Title VII’s
invoked by any one other than the defendant. 710 F.2d 1194,          protections against retaliation extended to situations where an
1198 (6th Cir. 1983). The Court noted “[it] is a fundamental         employee was discriminated against because his
rule of statutory construction that inclusion in one part of a       representative opposed an unlawful employment practice). In
congressional scheme of that which is excluded in another            reaching this result, we stated that “[i]n enacting section
part reflects a congressional intent that the exclusion was not      2000e-3, Congress unmistakably intended to ensure that no
inadvertent.” Id. at 1197.                                           person would be deterred from exercising his rights under
                                                                     Title VII by the threat of discriminatory retaliation.” Id. at
  The Supreme Court case, Robinson v. Shell Oil Co., 519             543. We relied, in part, on the Supreme Court’s analysis of
U.S. 337, 340 (1997), views § 704(a)’s legislative intent in         statutory interpretation in NLRB v. Scrivener, which held that
this manner. In Robinson, the plaintiff sued his former              “the language of a statute should not be read strictly, but
employer, alleging that it had retaliated against him by giving      should ‘be read more broadly’ if such a reading was also
Nos. 00-6780; 01-5024 White v. Burlington Northern               41    42     White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                            & Santa Fe Ry. Co.

consistent with the ‘purpose and objective’ of the prohibition         ‘demonstrat[e]’ that an employer used a forbidden
made illegal by the statute.” Id. at 545 (quoting NLRB v.              consideration with respect to ‘any employment practice.’” Id.
Scrivener, 405 U.S. 117, 122 (1972)).                                  On its face, “the statute does not mention, much less require,
                                                                       that a plaintiff make a heightened showing through direct
   Additionally in Mattei v. Mattei, this Court once again             evidence.” Id. The Court was further persuaded by a review
chose to interpret the Title VII’s anti-retaliation provision          of the term “demonstrates,” which Title VII, as amended in
broadly, as to prohibit any kind of adverse action. 126 F.3d           the 1991 Civil Rights Act, defined as “to ‘mee[t] the burdens
794, 798 (6th Cir. 1997). There, we were asked to give                 of production and persuasion.’” Id. at 2154 (citing 42 U.S.C.
meaning to the concept of discrimination as it is used in the          § 2000e(m)). The Court added, “If Congress intended the
Employee Retirement Income Security Act (“ERISA”). Id.                 term‘demonstrates’ to require that the ‘burdens of production
The ERISA provision at issue was § 510 which made it                   and persuasion’ be met by direct evidence or some other
unlawful, under certain circumstances, to “discriminate                heightened showing, it could have made that intent clear by
against” a participant or beneficiary. Id. at 797 (quoting 29          including language to that effect in § 2000e(m). Its failure to
U.S.C § 1140). The majority found guidance in Title VII’s              do so is significant, for Congress has been unequivocal when
and the ADEA’s interpretive use of the phrase “discriminate            imposing heightened proof requirements in other
against,” noting that neither of these Acts defined this phrase,       circumstances, including in other provisions of Title 42.” Id.
but rather their respective provisions “are consistently               at 2154. Desert Palace is instructive, inasmuch as it
interpreted . . . to forbid an employer to take any kind of            cautioned courts not to read limitations into statutory
adverse action against an individual because he has engaged            language, particularly where Congress expressly limited such
in [] protected activity . . . .” Id. at 806 (emphasis in original).   terms in other provisions of the same title yet declined to do
We concluded that because the ERISA anti-retaliation                   so in the presently reviewed statutory provision. We are
provision at issue used the same phrase (“discriminate                 faced with precisely the same situation. Section 703(a)
against”) as the Title VII and ADEA provisions, and was                expressly limited the scope of “discriminate” to actions
enacted after them, it was proper to assume that Congress              relating to the employee’s “compensation, terms, conditions,
intended for the ERISA provision “to have the same basic               or privileges of employment.” Section 704(a) could just as
meaning.” Id. at 806.                                                  easily have limited its scope of “discriminate,” yet chose not
                                                                       to do so. It is abundantly clear that the lessons of Desert
   Even more recently, the Supreme Court has cautioned                 Palace dictate that we not read such limitations into § 704(a)
courts against unwarranted limitations on otherwise                    now.
unambiguous statutory text. In Desert Palace, Inc. v. Costa,
the Supreme Court rejected the approach of many circuits to              2.    Administrative Agency Support
limit a Title VII plaintiff’s ability to receive a mixed-motive
jury instruction in cases where direct evidence of                        In addition to support from the statutory text and Supreme
discrimination had not been submitted at trial, determining            Court case law, there is administrative agency support for the
that a “direct evidence” requirement “is inconsistent with the         “reasonably likely to deter” view, inasmuch as the EEOC has
text of [42 U.S.C. § 2000e-2(m)].” 123 S.Ct. 2148, 2153                interpreted 42 U.S.C. § 2000e-3 in this manner. While it is
(2003). The Court reasoned, in pertinent part, that the                true that the EEOC Compliance Manual on Retaliation is not
§ 2000e-2(m) “unambiguously states that a plaintiff need only          binding authority, the guidelines nevertheless “constitute a
Nos. 00-6780; 01-5024 White v. Burlington Northern           43    44       White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                          & Santa Fe Ry. Co.

body of experience and informed judgment to which courts           Title VII by the threat of discriminatory retaliation.’” EEOC
and litigants may properly resort for guidance.” Meritor Sav.      v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993).
Bank v. Vinson, 477 U.S. 57, 65 (1986) (quoting Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)). It is persuasive             Indeed, the “materially adverse” rule would allow many
authority. According to the EEOC, an “adverse employment           types of retaliatory actions to go completely unaddressed and
action” means “any adverse treatment that is based on a            unpunished. For instance, the D.C. Circuit has held that
retaliatory motive and is reasonably likely to deter the           negative job references to prospective employers and
charging party or others from engaging in protected activity.”     cancelling public events honoring an employee constitute
EEOC Compliance Manual Section 8, “Retaliation,” ¶ 8008            retaliatory behavior, even though such retaliatory actions do
(1998). Under this approach, a number of retaliatory actions       not affect the terms and conditions of one’s employment.
which are not expressly encompassed in a “materially               Passer v. Am. Chem. Soc’y, 935 F.2d 322, 331 (D.C. Cir.
adverse” standard would fall into the ambit of a § 704(a)          1991). The “materially adverse” rule does not make clear
violation, so long as they are reasonably likely to deter          whether such adverse behavior on an employer’s part would
employees from engaging in protected activity. The EEOC’s          fall within the ambit of § 704(a). It also seems to leave open
test is not unlimited however, for instance, “petty slights and    the issue of retaliatory harassment. See Causey v. Balog, 162
trivial annoyances are not actionable, as they are not likely to   F.3d 795, 803 (4th Cir. 1998) (recognizing the validity of a
deter protected activity.” EEOC Compliance Manual Section          § 704(a) retaliatory harassment claim).
8, “Retaliation,” 8-14. As the Ninth Circuit observed, the
focus is not on the “ultimate effects of each employment              Contrary to the majority’s position, the Ninth Circuit’s
action,” but rather on the “deterrent effects.” Ray, 217 F.3d      “reasonably like to deter” standard adequately addresses the
at 1243. Given the primary purposes of Title VII’s anti-           many varied forms of retaliation while safeguarding against
retaliation provision, this is where the emphasis properly lies.   a slippery slope effect by disallowing employees from
                                                                   litigating trivial annoyances. The inquiry would not be
  3.   Policy Considerations                                       whether any adverse action has been taken but whether, as a
                                                                   matter of law, the adverse action would deter a reasonable
  From a policy (and logical) perspective, many factors            employee from engaging in protected activity. This ferrets
support an interpretation of adverse employment action that        out suits alleging frivolous harms, while maintaining suits for
extends beyond the boundaries of an employment decision            very deleterious actions such as supervisor harassment.
that materially affects the terms and conditions of                Moreover, there are no indications that the broad rules still
employment.                                                        employed in the Ninth, Tenth, and Eleventh Circuits1 have
  As noted above, a “materially adverse” standard would
undermine the driving force behind § 704(a), which is to                1
                                                                         See Hashimoto v. Dalton, 118 F.3d 6 71 (9th Cir. 1997) (holding that
maintain “unfettered access to statutory remedial                  negative job references are actionable under § 704(a)); Ray, 217 F.3d at
mechanisms.” Robinson, 519 U.S. at 346. This Court has             1243; Jeffries v. Kansa s, 147 F.3d 122 0, 12 31-3 2 (10th Cir. 1998)
similarly observed that Congress, in enacting Title VII’s anti-    (holding that, “[i]n recognition of the remedial nature of Title VII, the law
retaliation provision, “‘unmistakably intended to ensure that      in this circuit liberally defines adverse emp loyment action” and “takes a
                                                                   case-by-case approach to determining whether a given employment action
no person would be deterred from exercising his rights under       is ‘adverse’”); Berry v. Stevinso n Chevrolet, 74 F .3d 9 80, 9 84-8 6 (10th
Nos. 00-6780; 01-5024 White v. Burlington Northern                      45     46    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                   & Santa Fe Ry. Co.

opened unmanageable floodgates to aggrieved Title VII                             In fact, this Court, in Thaddeus-X v. Blatter, previously
plaintiffs.                                                                    embraced such an objective standard which the majority now
                                                                               claims to be unreasonable. 175 F.3d 378, 396 (6th Cir. 1999)
B. Why the Majority Opinion Incorrectly Rejected the                           (en banc). In Thaddeus-X, a case involving a § 1983 action
   “Reasonably Likely to Deter” Rule                                           brought by the state inmates against prison officials based on
                                                                               alleged retaliation, we adopted an objective standard in
   Notwithstanding legislative, Supreme Court, and                             determining what constitutes an “adverse action.” Id. at 396.
administrative support for a broad rule, the majority rejects                  In determining “whether actions of lesser severity merit being
the “reasonably likely to deter” standard, citing reasons that                 deemed ‘adverse’ for purposes of a retaliation claim, we
are less than persuasive. The majority suggests that the                       adopt[ed] the standard suggested by Judge Posner in Bart v.
“reasonably likely to deter” standard is too broad. Yet the                    Telford, 677 F.2d 622, 625 (7th Cir. 1982), that an adverse
rule is no broader than the statutory language requires; nor is                action is one that would ‘deter a person of ordinary firmness’
it any broader than that which is utilized in tort cases, which                from the exercise of the right at stake.” Id. We reasoned that
often involves a “case-by-case” analysis when compelling                       “[t]he benefits of such a standard are that it is an objective
courts to employ a “reasonable person” standard in                             inquiry, capable of being tailored to the different
determining what constitutes a duty of care. The reasonable                    circumstances in which retaliation claims arise, and capable
person standard is readily understandable, is not burdensome                   of screening [out] the most trivial of actions from
and is commonly used in legal discourse.2                                      constitutional cognizance.” Id. at 398.
                                                                                 Moreover, The Ninth, Tenth, and Eleventh Circuits all
                                                                               employ such an objective standard, specifically in the Title
                                                                               VII context, and by so doing, none of the Circuits appear to
Cir. 1996) (construing Title VII’s anti-retaliation provision to protect an    have had any difficulty in determining what is adverse and
employee from a malicious prosec ution action brought by a former              what is frivolous. See, e.g., Doe v. Dekalb County School
employer); Wideman v. Wal-Mart Sto res, Inc ., 141 F.3d 145 3, 14 56 (11th
Cir. 1998) (holding that negative job ev aluations, demo tions, suspensions,   Dist., 145 F.3d 1441, 1449 (11th Cir. 1998) (taking an
disadvantageous transfer and toleration of harassmen t may be actionable       “objective approach” to its case-by-case standard).
as a retaliation claim).
                                                                                  Furthermore, retaliation requires a broad rule because
    2
      Cf. Mo rris v. Wa l-ma rt Stores, Inc., 330 F.3d 854 (6th C ir. 2003)    retaliation can take many forms, perhaps more than Congress
(holding, under Tennessee law, that the reasonable person standard is          at the time of its drafting could think of or reasonably
utilized to determine whether or not sufficient evidence exists when           anticipate. Nevertheless, it is not the function of this Court to
contemplating a directed verdict motion in a res ipsa loquitur negligence
case); U.S. v. Jones, 335 F.3d 52 7 (6th Cir. 2003) (employing a
                                                                               graft its own policy values onto a statute; rather, it is this
reaso nable person standard when adjudicating the presence of apparent         Court’s responsibility to discern Congress’ legislative intent
authority to determine whether entry was consensual in a Fourth                in enacting the statute. In other words, we must determine
Amendm ent context); Five Cap, Inc., v. National Labor Relations Boa rd,       whether Congress, not this Court, would envision a plaintiff
294 F.3d 768, 786 (6th Cir. 2002) (emp loying the objective “reasonable        like Sheila White receiving relief from the retaliatory actions
person” standard when determining whether or not work conditions are
so “unbe arable” as to violate § 8(a)(3) of the National Labor Relations
                                                                               allegedly perpetrated against her by Burlington Northern.
Act).                                                                          Congress’ intent is manifest: to provide employees who have
Nos. 00-6780; 01-5024 White v. Burlington Northern           47    48   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                      & Santa Fe Ry. Co.

been victimized by discrimination with access to appropriate       situation.” Accordingly, if the goal is to provide guidance
statutory remedies under Title VII. Robinson, 519 U.S. at          while making individual review obsolete, it would be more
346.                                                               advantageous to utilize a better defined inquiry than that of
                                                                   Kocsis’ “indices unique to a particular situation.” This is
   The majority’s approach would utilize the same standard         particularly so when there is an alternative approach available
for §§ 703 and 704 so that it would not be necessary to            which would also advance Title VII’s goal of equal access to
undertake individual reviews under the separate sections of        its protections under the law. In the present case, the majority
the statute when cases arise. This approach similarly is           opinion concluded that the forklift transfer constituted an
unavailing since Title VII’s statutory language indicates that     adverse employment action by classifying Burlington
Congress intended for courts to treat general discrimination       Northern’s action as an example of “indices unique to a
differently than retaliatory discrimination. Indeed, the recent    particular situation.” While that may satisfactorily dispose of
Supreme Court case of Desert Palace emphasized the                 the present case, the majority opinion leaves unclear what
importance of statutory construction and the significance of       other types of adverse actions would fall within the ambit of
statutory language as the starting point for a court’s analysis.   this category, absent a better delineation of the category. As
123 S.Ct. at 2153. Moreover, different purposes are involved       a result, employers like Burlington Northern could continue
here and it is logical that the two sections would be treated      to hide behind mere technicalities and claim that other
differently. Section 703(a) of Title VII never expected to         deleterious harms not encompassed in today’s ruling, such as
shield protected groups from every little slight they              employer-sanctioned retaliatory harassment, do not qualify as
encounter; its purpose was to assist in getting discriminated-     adverse employment actions when the employee does not
against plaintiffs into the American workforce and to keep         experience a demotion or a material change of duties.
them there. As far as retaliation is concerned, congressional
intent was clear: to provide “unfettered access to statutory         The majority suggests that the EEOC’s position, in
remedial mechanisms.” Robinson, 519 U.S. at 346.                   advocating the “reasonably likely to deter” standard, is
                                                                   inconsistent with its concession that legally cognizable
   Contrary to the majority’s suggestion, the rule on adverse      adverse action should not encompass trivial slights. Yet no
employment actions to which the majority opinion adheres is        inconsistency is apparent. It is logical that a person pursuing
quite ambiguous. In an attempt to obviate the need for a           solutions prescribed by EEOC standards would reasonably
court’s case-by-case determination of what actions by an           expect some backlash, in the form of a limited number of
employer would be “reasonably likely to deter” an employee         negative consequences, some unhappy colleagues and perhaps
from engaging in protected activity, the majority points to this   even some ostracism. The EEOC’s recommendation,
Court’s case law regarding what constitutes a “material            however, allows redress only for those plaintiffs who can
adverse employment action.” The majority relies on Kocsis          show that such retaliatory actions would reasonably deter the
v. Multi-Care Management, Inc., which requires courts to           charging party from engaging in protected activity. EEOC
look to “indices unique to a particular situation,” when           Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998). The
considering whether or not an employment action is                 majority essentially seeks to dismiss the EEOC’s approach
materially adverse. 97 F.3d 876, 886 (6th Cir.1996). This          because it supposedly lacks safeguards against trivial and
approach ultimately requires a case-by-case review to              petty allegations; however, by purporting to exclude trivial
determine what is “unique” and what is not in each “particular     and unsubstantiated allegations in order to define the
Nos. 00-6780; 01-5024 White v. Burlington Northern           49    50       White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                          & Santa Fe Ry. Co.

“adverse-employment-action element” narrowly so as not to          misplaced. In Burlington, the Supreme Court, in devising an
frustrate the purpose of Title VII, the majority actually          agency principle to govern employer liability for a
impedes Title VII’s effectiveness.                                 supervisor’s harassment of an employee, observed that an
                                                                   employer is always liable for a discriminatory “tangible
   Moreover, the majority suggests that the “materially            employment action.” The Court distinguished tangible
adverse” requirement, “properly interpreted . . . accomplishes     employment actions from actions not obviously attributable
[§ 704(a)’s purposes] while appropriately counterbalancing         to the employer, defining tangible employment actions as “the
the need to prevent lawsuits based upon trivialities” and that     means by which the supervisor brings the official power of
the “indices . . . unique to a particular situation” standard      the enterprise to bear on subordinates.” Id. at 762. A tangible
accurately captures all other non-trivial actions taken against    employment action “requires an official act of the enterprise,
the employee. Yet Hollins v. Atlantic Co., 188 F.3d 652, 662       a company act,” and would include such acts “as discharge,
(6th Cir. 1999), which utilized the “materially adverse”           demotion, or undesirable reassignment.” Id. at 765.
standard, rejected the employee’s argument that her                Elsewhere in the opinion the Court observed that “[a] tangible
unwarranted negative job evaluation constituted an adverse         employment action constitutes a significant change in
employment action simply because it was not accompanied            employment status, such as hiring, firing, failing to promote,
by monetary loss or anything else falling into the penumbra        reassignment with significantly different responsibilities, or
of adverse actions listed in Kocsis, 97 F.3d at 886. In other      a decision causing a significant change in benefits.”
words, the “materially adverse” standard was ineffective in        Burlington, 524 U.S. at 761. However, Burlington addressed
Hollins, because a negative job evaluation is not trivial; it is   Title VII’s § 703(a), not § 704(a) and, as discussed earlier, the
tangible. It is a black mark on one’s record that can have         respective scopes of § 703(a) and 704(a) necessarily differ.3
severe future consequences for an employee, inasmuch as an
employer can use the unwarranted negative job evaluation to        C. Conclusion
deny the employee future promotions. Similarly, it leaves
unaddressed such other deleterious harms such as employer-           In 1999, a panel of this Court held that an adverse
sanctioned retaliatory harassment. The Hollins court made no       employment action, for purposes of a Title VII retaliation
attempt to utilize the “unique indices” category in order to       claim, must materially affect the terms and conditions of the
afford the plaintiff relief. 188 F.3d at 662.                      plaintiff’s employment. Hollins, 188 F.3d at 662. Our grant
                                                                   of the petition for rehearing en banc provided this Court with
  What the majority evidently intends (but fails to state          an opportunity to reconsider the validity of Hollins’
expressly) is that it is unwilling to consider actionable a wide   unreasoned importation of § 703(a)’s definition of an
variety of non-trivial, tangible adverse employment actions in     “adverse employment action” into § 704(a) and to clarify
order to limit the number of legitimate, legally cognizable
claims that can be filed by aggrieved employees. There is no
                                                                        3
other apparent reason for its analysis.                                   The Ninth Circuit in Ray v. Henderson found defendant’s reliance
                                                                   on Burlington similarly misplaced when advocating that Title VII
  Finally, the majority also attempts to rely in part on the       qualifies the type of employment actions that would constitute an
Supreme Court decision, Burlington Indus., Inc. v. Ellerth,        “adverse” action. 217 F.3d at 1242, n.5. The Co urt stated that Burlington
                                                                   did not set forth a standard for adverse emplo yment actions in the anti-
524 U.S. 742 (1998). However, such reliance is also                retaliation context. Id.
Nos. 00-6780; 01-5024 White v. Burlington Northern           51    52    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

what actions are sufficiently adverse with respect to               ______________________________________________
retaliation claims. A traditional statutory analysis and
recognition of Title VII’s legislative intent does not dictate       CONCURRING IN PART, DISSENTING IN PART
the majority’s continuing adherence to the “materially              ______________________________________________
adverse” standard, and the rule set forth by the majority fails
to provide the clarity desperately needed in this pervasive area     SUTTON, Circuit Judge, concurring in part and dissenting
of litigation. The lack of clarity in the majority’s approach      in part. I agree with the majority’s treatment of “adverse
could result in more court decisions against true victims of       employment actions” under Title VII, and accordingly join
§ 704(a) retaliation because the employer’s retaliatory actions    Parts I–III of its opinion in full. I respectfully dissent,
conveniently manage to elude the confines of the “materially       however, from the majority’s resolution of the punitive
adverse” definition. Instead of following the majority             damages issues, and accordingly write separately to explain
approach, I would hold that the retaliatory actions Burlington     my disagreement with Parts IV–V of the Court’s opinion.
Northern took against White constituted adverse employment
actions because such actions are reasonably likely to deter an       At the trial in this case, the district court instructed the jury
employee from engaging in protected activity.                      that it may award punitive damages under Title VII only if the
                                                                   plaintiff proved that she was entitled to them by “clear and
                                                                   convincing” proof. In arguing that the district court erred in
                                                                   this respect and in contending that a punitive damages claim
                                                                   may be proved by a “preponderance” of the evidence under
                                                                   Title VII, the plaintiff relies on two United States Supreme
                                                                   Court decisions and one court of appeals decision. Whether
                                                                   considered together or singly, however, these cases do not
                                                                   support the plaintiff’s position.
                                                                      The first case, Desert Palace, Inc. v. Costa, 123 S. Ct. 2148
                                                                   (2003), holds that “circumstantial” evidence, in addition to
                                                                   “direct” evidence, may be used to prove discrimination in a
                                                                   Title VII mixed-motive case. That holding, however, does
                                                                   not answer today’s question since circumstantial evidence
                                                                   may be used to prove facts in cases that require a
                                                                   preponderance of the evidence and cases that require proof
                                                                   beyond a reasonable doubt, including criminal cases. See id.
                                                                   at 2154 (“[W]e have never questioned the sufficiency of
                                                                   circumstantial evidence in support of a criminal conviction,
                                                                   even though proof beyond a reasonable doubt is required.”).
                                                                   In reaching its circumstantial-evidence conclusion, it is true,
                                                                   Desert Palace noted that Congress’s “failure” to specify that
                                                                   only “direct” evidence could be used to prove discrimination
Nos. 00-6780; 01-5024 White v. Burlington Northern            53    54    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                        & Santa Fe Ry. Co.

was “significant, for Congress has been unequivocal when            Title VII cases,” id., the plurality of course did not establish
imposing heightened proof requirements in other                     that these conventional rules apply to requests for
circumstances, including in other provisions of Title 42.” Id.      unconventional relief, and if anything suggested just the
But that mode of analysis bears on our inquiry only if              opposite.
punitive damages represent a form of conventional relief in
the same way that circumstantial evidence represents a form           Karnes v. SCI Colorado Funeral Services, Inc., 162 F.3d
of conventional proof. In my view, that is not the case and         1077 (10th Cir. 1998), is even less helpful. In that case, the
accordingly Desert Palace does not advance the point. If            defendant argued that the higher burden of proof for punitive
punitive damages are not a conventional remedy, Congress’s          damages claims under Colorado law should apply to Title VII
“failure” to speak to the question would suggest that the           claims. The court disagreed, concluding that state law does
burden of proof traditionally applied to unconventional             not control the answer to the question, then summarily (and
remedies in general or punitive damages in particular should        mistakenly) relied on Price Waterhouse to say that a
be used.                                                            preponderance standard applies. Id. at 1080–81.

   Two months before the Court decided Desert Palace, it               It is one thing, I recognize, to say that the cited cases do not
made clear that punitive damages are not a conventional             answer the question; it is another to determine the answer. In
remedy. In State Farm Mutual Automobile Insurance Co. v.            the plaintiff’s defense, the statute does not give us a lot to
Campbell, 123 S. Ct. 1513, 1519–20 (2003), the Court                work with in determining what Congress meant. As an initial
explained that punitive damages and compensatory damages            matter, the statute itself fails to specify a burden of proof,
“serve different purposes,” that punitive damages “are aimed        stating only that a plaintiff may recover punitive damages if
at deterrence and retribution” and “serve the same purposes         she “demonstrates” that the defendant intentionally engaged
as criminal penalties,” and that special constitutional rules of    in discriminatory practices. 42 U.S.C. § 1981a(b)(1). In a
review apply to such awards. If there is a lesson to be drawn       later subchapter, Congress defines “demonstrates”
from Desert Palace and State Farm, it would seem to be that         unhelpfully to mean “meets the burdens of production and
a punitive damages claim represents an unconventional form          persuasion,” id. § 2000e(m), a definition that chases the tail
of relief, which deserves a heightened rather than a run-of-        of the initial inquiry. Nor does the context in which the
the-mill standard of proof.                                         relevant words appear or the legislative history to the Civil
                                                                    Rights Act of 1991 offer any other insights into the
   The two other cases upon which the plaintiff relies are no       appropriate burden of proof. Pub. L. No. 102-166, § 102, 105
more helpful in establishing that a preponderance standard          Stat. 1072.
applies to punitive damages claims. Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989) (plurality opinion), also                Under these circumstances, it is appropriate to consider
concerned an issue of conventional relief (namely, the              other indicators of statutory meaning, analogous Supreme
quantum of proof in Title VII mixed-motive cases), not an           Court precedents and relevant state laws predating the
issue related to punitive damages. Id. at 253 (“Only rarely         legislation. See Steadman v. SEC, 450 U.S. 91, 95 (1981)
have we required clear and convincing proof where the action        (“Where Congress has not prescribed the degree of proof
defended against seeks only conventional relief.”). In saying       which must be adduced . . . this Court has felt at liberty to
that “[c]onventional rules of civil litigation generally apply in   prescribe the standard, for ‘[i]t is the kind of question which
Nos. 00-6780; 01-5024 White v. Burlington Northern           55    56    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

has traditionally been left to the judiciary to resolve.’”)        Waterhouse, 490 U.S. at 253 (plurality opinion) (emphasis
(quoting Woodby v. INS, 385 U.S. 276, 284 (1966)); see also        added).
North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (“[I]t
is not only appropriate but also realistic to presume that            In analogous settings before 1991, the Supreme Court also
Congress was thoroughly familiar with [our] precedents . . .       had adopted a clear and convincing evidence standard for
and that it expect[s] its enactment[s] to be interpreted in        civil cases involving unconventional relief—in the face of
conformity with them.”) (citations and quotations omitted);        congressional silence about the appropriate burden of proof.
Nishikawa v. Dulles, 356 U.S. 129, 135 (1958) (requiring a         In Woodby v. INS, 385 U.S. 276 (1966), the Supreme Court
clear and convincing standard of proof for voluntary               observed that “Congress ha[d] not addressed itself [in the
expatriation in the absence of congressional guidance and in       Immigration and Nationality Act] to the question of what
the light of analogous Supreme Court precedents); cf.              degree of proof is required in deportation proceedings,” then
Santosky v. Kramer, 455 U.S. 745, 769 (1982) (“A majority          observed that this is “the kind of question which has
of the States have concluded that a ‘clear and convincing          traditionally been left to the judiciary to resolve.” Id. at 284.
evidence’ standard of proof strikes a fair balance [in parental-   Reasoning that deportation proceedings fall somewhere
rights termination cases]. We hold that such a standard            between ordinary civil litigation and criminal litigation, the
adequately conveys to the factfinder the level of subjective       Court held that “clear, unequivocal, and convincing evidence”
certainty about his factual conclusions necessary to satisfy       must support a deportation order—the same burden used in
due process.”); Addington v. Texas, 441 U.S. 418, 431–32           analogous cases involving civil fraud, expatriation, adultery,
(1979) (“We note that 20 states, most by statute, employ the       illegitimacy, lost wills and oral contracts. Id. at 285 & n.18.
standard of ‘clear and convincing’ evidence; 3 states use          Compare Nishikawa, 356 U.S. at 135 (holding that, in the
‘clear, cogent, and convincing’ evidence; and 2 states require     face of congressional silence on the question, proof of an act
‘clear, unequivocal and convincing’ evidence.”) (footnotes         of expatriation must be by clear and convincing evidence),
and emphasis omitted).                                             with Vance v. Terrazas, 444 U.S. 252, 265 (1980) (upholding
                                                                   a preponderance of the evidence standard specified by
   By 1991, when Congress authorized punitive damages in           Congress after Nishikawa).
Title VII claims, two Supreme Court cases had intimated that
a clear and convincing standard ought to apply to punitive           Supreme Court decisions analogizing punitive damages to
damages claims. In Pacific Mutual Life Insurance Co. v.            criminal penalties also suggest that a higher burden of proof
Haslip, 499 U.S. 1 (1991), decided before Congress amended         ought to apply here. See State Farm, 123 S. Ct. at 1519–20
Title VII, the Court noted that “[t]here is much to be said in     (“[P]unitive damages . . . are aimed at deterrence and
favor of a State’s requiring, as many do, a standard of ‘clear     retribution,” and “serve the same purposes as criminal
and convincing evidence’ or, even, ‘beyond a reasonable            penalties.”); id. at 1521 (“It should be presumed that a
doubt’” for punitive damages. Id. at 23 n.11 (citations            plaintiff has been made whole for his injuries by
omitted). Two years earlier, Justice Brennan noted that            compensatory damages, so punitive damages should only be
exceptions exist to the preponderance of the evidence              awarded if the defendant’s culpability . . . is so reprehensible
standard “when the government seeks to take unusual                as to warrant the imposition of further sanctions to achieve
coercive action—action more dramatic than entering an award        punishment or deterrence.”); City of Newport v. Fact
of money damages or other conventional relief.” Price              Concerts, Inc., 453 U.S. 247, 266 (1981) (“Punitive damages
Nos. 00-6780; 01-5024 White v. Burlington Northern          57    58   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                     & Santa Fe Ry. Co.

by definition are not intended to compensate the injured party,   1269, 1278 n.63 (1993) (identifying States with a clear and
but rather to punish the tortfeasor.”).                           convincing standard in 1993).
   For like reasons, the factual predicate for a punitive            When Congress addressed this issue in 1991, it also was
damages award—that the defendant acted with “malice” or           doing so in the context of a modern trend in favor of the
“reckless indifference,” see 42 U.S.C. § 1981a(b)(1)—has a        higher standard—a trend that was well underway before the
stigmatizing effect that deserves more evidentiary certainty      1991 amendments to Title VII. The American Bar
than the preponderance standard provides. See State Farm,         Association recommended the higher standard in 1986. See
123 S. Ct. at 1521 (“[P]unitive damages should only be            Special Committee on Punitive Damages, Punitive Damages:
awarded if the defendant’s culpability is [] reprehensible.”)     A Constructive Examination, 1986 A.B.A. Sec. Litig. 33
(emphasis added); Addington, 441 U.S. at 424 (“One typical        (“Because one of the purposes of punitive damages is
use of the [clear and convincing] standard is in civil cases      punishment . . . [t]he committee concludes [] that the ‘clear
involving allegations of fraud or some other quasi-criminal       and convincing’ burden of proof is appropriate for an award
wrongdoing by the defendant . . . [to] reduce the risk to the     of punitive damages. This is the standard often used in fraud
defendant of having his reputation tarnished erroneously.”);      cases, to which there is some analogy.”). The American Law
see also Haslip, 499 U.S. at 54 (O’Connor, J., dissenting)        Institute did the same in 1991. See 2 American Law Institute,
(“[P]unitive damages are quasi-criminal punishment. Unlike        Reporters’ Study: Enterprise Responsibility for Personal
compensatory damages . . . punitive damages are specifically      Injury 264 (1991) (“An enterprise should be liable for
designed to exact punishment in excess of actual harm to          punitive damages only when there is clear and convincing
make clear that the defendant’s misconduct was especially         evidence of reckless disregard for the safety of others in the
reprehensible. Hence, there is a stigma attached to an award      decisions made by management officials or other senior
of punitive damages that does not accompany a purely              personnel.”). As of today, the supreme courts or legislatures
compensatory award.”).                                            from 34 States have addressed the burden of proof issue, with
                                                                  31 now requiring a heightened burden of proof. See App. B
   By 1991, the supreme courts or legislatures of 29 States had   (identifying the burden of proof for punitive damages in each
directly addressed the issue whether punitive damage claims       State as of 2004).
required a heightened burden of proof. Of those States, 20 of
them chose the clear and convincing standard for all punitive        The States within the Sixth Circuit, moreover, are nearly
damages claims, one State (Colorado) applied the beyond a         uniform in applying a clear and convincing standard. By
reasonable doubt standard to these claims and two States          1991, Ohio and Kentucky had established the standard by
(Florida and Oklahoma) applied the clear and convincing           statute, and Tennessee did so by court decision in 1992. See
standard when the punitive award was a specific multiple of       App. A. Although the Michigan courts have not directly
the actual damages in the case. See App. A (identifying the       addressed the issue, at least one state appeals court has
burden of proof in each State with respect to punitive            approved, without discussion, a jury instruction requiring
damages in 1991). See also Michael Rustad & Thomas                proof by a preponderance of the evidence for an award of
Koenig, The Historical Continuity of Punitive Damages             exemplary damages. Green v. Evans, 401 N.W.2d 250, 252
Awards: Reforming the Tort Reformers, 42 Am. U. L. Rev.           (Mich. Ct. App. 1985). But see Kewin v. Mass. Mut. Life Ins.
                                                                  Co., 295 N.W.2d 50, 55 (Mich. 1980) (noting that exemplary
Nos. 00-6780; 01-5024 White v. Burlington Northern             59    60    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                         & Santa Fe Ry. Co.

damages serve only to compensate plaintiffs for “humiliation,        Moreover, if like the Ninth Circuit we applied an abuse of
sense of outrage, and indignity”—and may not serve as                discretion to this issue (which we do not), it no doubt would
punishment to the defendant).                                        be a very different question whether the district court in this
                                                                     case abused its discretion in imposing the higher standard of
   While there may not be a Rosetta Stone to guide us here,          proof. The Fourth Circuit’s decision in Notter v. North Hand
Supreme Court precedents concerning punitive damages and             Protection, No. 95-1087, 1996 WL 342008 (4th Cir. June 21,
comparable forms of relief, as well as relevant state-law            1996), besides being unpublished, rejects only one argument
practices, suggest that a clear and convincing standard of           by the employer in that case—that the higher burden of proof
proof ought to govern these claims. A claim for punitive             for punitive damages claims under state law should control
damages, in a nutshell, is more akin to claims concerning            the Title VII inquiry. Id. at *10. And the Harvard Law
fraud, deportation and expatriation, oral contracts and              Review piece supports the employer’s position in this case.
illegitimacy than it is to more conventional civil claims.           In addition to approving “measures that guide and direct
Accordingly, the heightened burden of proof associated with          juries toward appropriate [] determinations,” it notes that “the
these claims and traditionally associated with punitive              widespread acceptance of the clear and convincing evidence
damages claims in general ought to apply.                            standard demonstrates [the] states’ acknowledgment of the
                                                                     retributive function of punitive damages.”                 Jury
  The additional citations identified by the majority in             Determination of Punitive Damages, 110 Harv. L. Rev. 1513,
support of the plaintiff’s position do not alter this analysis.      1532–33, 1536 (1997).
Smith v. Wade, 461 U.S. 30 (1983), deals with whether actual
malice is required to obtain punitive damages under § 1983,            Nor does the cap on punitive damages claims under Title
not with the preponderance/clear and convincing debate               VII advance plaintiff’s argument. While a cap on punitive
raised here. Simpson v. Pittsburgh Corning Corp., 901 F.2d           damages addresses one issue in this area (the outer limits of
277 (2d Cir. 1990), involved a products liability claim under        awards), it does not account for the other issues in this
New York law, in which the defendant argued that the Due             area—the appropriate quantum of proof required (1) before a
Process Clause of the United States Constitution requires a          jury may attach a “reprehensibility” label to another’s
clear and convincing standard. In rejecting that argument, the       conduct, State Farm, 123 S. Ct. at 1521, or (2) before a jury
court “acknowledg[ed] the force of the argument that since           may award punitive damages that have a significant ratio to
punitive damages are awarded primarily to punish a defendant         the underlying compensatory award. In ascertaining the
for past conduct and to deter it and others from similar             constitutional limits of punitive damages, it is the ratio of the
conduct in the future, a standard of proof appropriate for           two awards, not the size of the punitive damages award, that
‘quasi-criminal wrongdoing’ should be required.” Id. at 282.         the Supreme Court considers in measuring the award’s
                                                                     compliance with Due Process—which is why awards under
   In re Exxon Valdez, 270 F.3d 1215 (9th Cir. 2001), is an          $300,000 may still violate the Constitution and why they still
admiralty-law decision in which the Ninth Circuit concluded          deserve the prevailing burden of proof for punitive damages
that the district court did not “abuse its discretion” in applying   claims in this country, namely clear and convincing evidence.
a preponderance standard to a punitive damages claim. Id. at         See id. at 1524 (ratios involving “[s]ingle-digit multipliers are
1232–33. Again, the primary debate in the case was whether           more likely to comport with due process, while still achieving
the Due Process Clause required a higher standard.                   the State’s goals of deterrence and retribution, than awards
Nos. 00-6780; 01-5024 White v. Burlington Northern            61    62   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                       & Santa Fe Ry. Co.

with ratios in range of 500 to 1, or, in this case, of 145 to 1”)   persuasion is. Because we required an en banc hearing to
(citation omitted); see also Ross v. Kansas City Power &            decide whether White suffered an adverse employment action
Light Co., 293 F.3d 1041, 1049 (8th Cir. 2002) (reducing            and, notably, to determine whether this Circuit embraced the
punitive damages award from $120,000 to $60,000 to correct          ultimate-employment-decision test, it would not seem
constitutional deficiency); Tyson Foods, Inc. v. Stevens, 783       possible for a jury to conclude that Burlington Northern acted
So. 2d 804, 810 (Ala. 2000) (“In this case, the punitive-           with reckless disregard for White’s federally-protected rights
damages award of $75,000 is 30 times the compensatory-              in imposing the suspension. See 42 U.S.C. § 1981a(b)(1)
damages award of $2,500. Considering the facts before us,           (requiring proof that the employer “engaged in a
we find the ratio of 30:1 to be unreasonable.”); Employees’         discriminatory practice or discriminatory practices with
Benefit Ass’n v. Grissett, 732 So. 2d 968, 979 (Ala. 1998)          malice or with reckless indifference to the federally protected
(“The punitive award of $150,000 is 170 times the                   rights of an aggrieved individual”); Kolstad v. Am. Dental
compensatory award of $880. That 170:1 ratio is                     Ass’n, 527 U.S. 526, 535 (1999) (“The terms ‘malice’ or
unacceptable.”).                                                    ‘reckless indifference’ pertain to the employer’s knowledge
                                                                    that it may be acting in violation of federal law, not its
   But that is not the most significant problem with invoking       awareness that it is engaging in discrimination.”) (emphasis
the damages cap in this instance. All agree that Congress did       added); id. at 537 (recognizing that imposing punitive
not give the courts particularly helpful guidance here,             damages would be inappropriate when “[t]he underlying
requiring us to answer what the burden of proof for a federal       theory of discrimination [is] novel or otherwise poorly
punitive damages claim should be in the face of congressional       recognized”).
silence. An answer that says punitive damages claims receive
a preponderance standard when the award is under $300,000              A punitive damages claim with respect to the transfer count
but receive a clear and convincing standard when the award          is even harder to imagine. Until now, no Sixth Circuit case
is some higher amount to be named later does not seem very          (to my knowledge) has found a cognizable Title VII claim
helpful. Neither do I understand how the damages cap could          arising from a lateral transfer, let alone a transfer within an
make a difference in the outcome of this case. If, in this          employee classification and without a loss in pay. See Kocsis
instance, the Court had concluded that a clear and convincing       v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)
standard generally applies to punitive damages claims in the        (“[R]eassignments without salary or work hour changes do
face of congressional silence, the existence of a cap of this       not ordinarily constitute adverse employment decisions in
sort by itself could not alter the presumption. If instead the      employment discrimination claims.”) (citing Yates v. Avco
Court had concluded that a preponderance standard generally         Corp., 819 F.2d 630, 638 (6th Cir. 1987)). While the opinion
applies in this setting, the existence of a damages cap would       concludes that this transfer count is cognizable under Title
make no difference at all. Either way, in other words, the          VII, its reasons for doing so could not support a finding that
outcome would be unaffected by the existence of the cap.            Burlington Northern acted with “malice” or “reckless
                                                                    indifference” to White’s rights.
  I have one other qualm with the majority’s decision on this
point—which is reaching the burden of proof issue at all. I do
not understand how White could prevail on remand in a
punitive-damages-only trial, no matter what the burden of
Nos. 00-6780; 01-5024 White v. Burlington Northern        63    64     White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                     & Santa Fe Ry. Co.

  For these reasons, I respectfully dissent from Parts IV and                            APPENDIX A
V of the Court’s opinion.
                                                                     State Burdens of Proof for Punitive Damages in 1991
                                                                  By 1991, the supreme courts or legislatures of the following
                                                                States had adopted a higher burden of proof for awarding
                                                                punitive damages:

                                                                 Alabama      Ala. Code § 6-11-20(a) (1991 ) (clear and convincing
                                                                              evidence).

                                                                 Alaska       Alaska Stat. § 09.17.020 (1991 ) (clear and convincing
                                                                              evidence).

                                                                 Arizona      Linthicum v. Nationw ide Life Ins. C o., 723 P.2d 675,
                                                                              680–81 (Ariz. 1 986) (“[W]hile a plaintiff may collect
                                                                              compensatory dam ages upon proof by a preponderance
                                                                              of the evidence of his injuries due to the tort of another,
                                                                              we conc lude that reco very of punitive dam ages should
                                                                              be awardable only upon clear and convincing evidence
                                                                              of the defendant’s evil mind.”).

                                                                 California   Cal. Civ. Code § 3294(a) (1991) (clear and convincing
                                                                              evidence).

                                                                 Colorado     Colo. Rev. Stat. § 13-25-127(2) (1991 ) (beyond a
                                                                              reasonable doubt).

                                                                 Florida      Fla. Stat. Ann. § 768.73(1)(b) (1991) (punitive damages
                                                                              exceeding three times actual dam ages must be proved
                                                                              by clear and convincing evidence).

                                                                 Georgia      Ga. Code Ann. § 51-12 -5.1(b) (1991) (clear and
                                                                              convincing evidence).

                                                                 Hawaii       Masaki v. Gen. M otors Corp., 780 P.2d 566, 575 (Haw.
                                                                              1989) (“[F]or all punitive damage claims we adopt the
                                                                              clear and convincing standard of proof.”).
Nos. 00-6780; 01-5024 White v. Burlington Northern                  65   66      White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                               & Santa Fe Ry. Co.

 Indiana      Ind. Code § 34-4 -34-2 (1991) (clear and convincing         South         S.C. Code A nn. § 15-33-135 (19 91) (clear and
              evidence).                                                  Carolina      convincing evidence).

 Iowa         Iowa Code § 668A .1(1)(a) (1991) (clear and convincing      Utah          Utah Code Ann. § 78-18-1(1)(a) (1991) (clear and
              evidence).                                                                convincing evidence).

 Kansas       Kan. Stat. Ann. § 60-3702(c) (199 1) (clear and             W isconsin    Wangen v. Ford Motor Co., 294 N.W.2d 437, 458 (W is.
              convincing evidence).                                                     1980) (“W e hold that the [clear, satisfactory and
                                                                                        convincing evidence] b urden of pro of shall apply to
 Kentucky     Ky. Rev. Stat. Ann. § 411.184 (2) (1991) (clear and                       punitive damages claims hereafter.”).
              convincing evidence).
                                                                           By 1991, the supreme courts or legislatures of the following
 Maine        Tuttle v. Raymond, 494 A.2d 1353, 1363 (Me. 1985)
              (“[W]e hold that a plaintiff may recover exemplary
                                                                         States had rejected a higher burden of proof for awarding
              damages based upon tortious conduct only if he can         punitive damages:
              prove by clear and convincing evidence that the
              defendant acted with malice.”).                             Connecticut   Freeman v. Alamo Mgm t. Co., 607 A.2d 370, 375
                                                                                        (Conn. 1992) (“W e disag ree . . . with the . . . conclusion
 Minneso ta   Minn. Stat. § 549.20(1)(a) (1991) (clear and convincing                   . . . that clear and convincing proof is an app ropriate
              evidence).                                                                standard of proof whenever claims of tortious conduct
                                                                                        [such as those involving punitive damage s] have serious
 Mo ntana     Mont. Code A nn. § 27-1-221(5) (199 1) (clear and                         consequences or harsh or far-reaching effects on
              convincing evidence).                                                     individuals or require the proof of willful, wrongful and
                                                                                        unlawful acts.”).
 Nevada       Nev. Rev. Stat. 42.005(1) (1991) (clear and convincing
              evidence).                                                  Idaho         Idaho Cod e § 6-1604 (1) (1991) (prepo nderance of the
                                                                                        evidence).
 No rth       N.D . Cent. Code § 32-03.2-11 (1991) (clear and
 Dakota       convincing evidence).                                       Mississippi   Gaylord’s of Meridian, Inc. v. Sicard, 384 So. 2d 1042,
                                                                                        1045 (Miss. 1980) (“Although the damages are by way
 Ohio         Ohio Rev. Code Ann. § 2315.21(C)(3) (1991) (clear                         of pena lizing the defendant against whom they are
              and convincing evidence).                                                 sought, the proof is by a preponderance of the evidence
                                                                                        rather than beyond a reasonable doubt.”) overruled on
 Oklahoma     Okla. Stat. tit. 23 § 9.1.A (1991) (punitive damages                      other grounds by C & C Trucking Co. v. Smith, 612 So.
              exceeding the amount of actual damages must be                            2d 1092 , 110 5–0 6 (M iss. 199 2); Andrew Jackson Life
              proved by clear and convincing evidence).                                 Ins. Co. v. Williams, 566 So. 2d 117 2, 1188 (M iss.
                                                                                        1990) ( “[ T]he law requires a finding of ‘bad faith-
 Oregon       Or. Rev. Stat. § 41.315(1) (1991 ) (clear and convincing                  plus’—based upon a preponderanc e of the
              evidence).                                                                evidence— before punitive damages may be awarded.”).
Nos. 00-6780; 01-5024 White v. Burlington Northern                67   68     White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                            & Santa Fe Ry. Co.

 Missouri   Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 75        Arkansas        Nat’l Bank of Comm erce v. McNeill Trucking Co.,
            (Mo. 1990) (“The defendant argues that punitive                             Inc., 828 S.W.2d 584, 591 (Ark. 1 992 ) (Du dley, J.,
            damage submissions should require ‘clear and                                concurring) (“I wou ld hope that the possible
            convincing’ evidence. T his requirement is contrary to                      changes discussed in this opinion [i.e. the adoption
            our norm al requirements in the subm ission of civil                        of a clear and convincing standard for punitive
            cases. W e are not disp osed so to hold, o r to follow                      dama ges] might be brought before this court in an
            cases from other jurisdictions so holding.”).                               adversarial manner . . . . It is a matter which we
                                                                                        have never addressed .”).
 New        United Nuclear Corp. v. A llendale M ut. Ins. Co ., 709
 Mexico     P.2d 649, 654 (N.M. 1985) (“It is the general rule . . .    Delaware        Cloroben Chem. Corp . v. Comegys, 464 A.2d 887,
            that issues of fact in civil cases are to be determined                     891–92 (Del. 198 3) (“W e now turn to C loroben’s
            according to the preponderance of the evidence . . . .                      contention that the jury improperly awarded
            W e are not convinced that the degree of proof should be                    punitive damages in that they were not supported
            changed [to require clear and convincing evidence] in                       by a preponderance of the evidence . . . . Our
            punitive damage areas.”).                                                   review of the record indicates that there is
                                                                                        sufficient evidence to support a finding . . . [and]
 South      Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991)                         we must reject the argument that there was
 Dakota     (“[S.D. Codified Laws § 2 1-1-4.1] d oes not establish a                    insufficient evidence to support an award of
            clear and convincing evid ence standa rd but merely                         punitive dam ages.”); Gu thridge v. Pen-Mod, Inc.,
            requires clear and convincing evidence to show a                            239 A.2d 709, 715 (Del. Super. Ct. 1967)
            reaso nab le basis [to believe the defendants committed                     (instructing the jury that “[p]unitive damages may
            acts warranting punitive damages]. The clear and                            be awarded only if the jury find s by a
            convincing language merely mo difies the ‘reasonable                        preponderance of the evidence that the defendants’
            basis’ language to make a prima facie showing that                          actions were motivated by some form of malice.”).
            punitive dam ages may be in order.”).
                                                                        Illinois        Illinois Terminal R.R. Co. v. Thompson, 71 N.E.
  By 1991, the supreme courts and legislatures of the                                   328, 333 (Ill. 1904) (approving a jury instruction
                                                                                        that “left it to the discretion o f the jury to impose
following States had yet to address the question whether                                whatever damages they might choose, even to the
claims for punitive damages require a heightened burden of                              extent of allowing punitive da mages” by a
proof, though (as noted below) some lower courts had                                    preponderance o f the evidence).
addressed the issue and some supreme courts had mentioned,
without discussing, jury instructions requiring a
preponderance of the evidence:
Nos. 00-6780; 01-5024 White v. Burlington Northern                  69   70   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                            & Santa Fe Ry. Co.

 Louisiana     Galjour v. Ge n. Am. Tank Car Corp., 764 F. Supp.          Massachusetts   Santos v. Chrysler C orp., No. 921039, 1996 W L
               1093, 1100–01 (E.D. La. 1991) (“In fact, there are                         1186818, at *3 (Mass. Super. Ct. Sept. 18, 1996)
               no Louisiana ca ses which specifically discuss the                         (“Chrysler contends that the court erred beca use it
               app ropriate burden of proof for exemplary                                 failed to instruct the jury that they must find by
               damages . . . . The defendants’ argument that a                            clear and convincing evidence that Chrysler was
               heightened burd en of p roof should apply to                               grossly negligent before they could award punitive
               exemplary damages is not without merit, as shown                           dama ges. The contention is meritless. Under
               by recent legislative enactments in other                                  Massachusetts law the burden of pro of in civil
               jurisdictions, but it is not the law in Louisiana.                         proceedings of this kind is satisfied ‘by a fair
               Until the Louisiana legislature takes action to raise                      preponderance of the evidence.’”) (citation
               the burden, the law is that the burden of proof for                        omitted), aff’d in part a nd re ma nde d on other
               exemplary damages is by a preponderance of the                             grounds, 715 N.E.2d 47 (M ass. 1999).
               evidence.”) (footnote omitted); see also Int’l
               Harvester Credit Corp. v. Seale, 518 So. 2d 1039,          Michigan        Green v. Evans, 401 N.W.2d 250, 252 (M ich. Ct.
               1041 (La. 1988) (“U nder Louisiana law, punitive                           App. 198 5) (ap proving, without discussing the
               or other ‘penalty’ dama ges are not allowable unless                       burden of proof, a jury instruction stating: “Such
               expressly authorized by statute.”).                                        exemplary damages only are recoverable if the
                                                                                          Plaintiff has proven by a p repo nderance of the
 Maryland      Gorman v. Sabo, 122 A.2d 475, 479 (Md. 1956)                               evidence, malice, willful and wanton misconduct
               (“There is no doubt that punitive damages may be                           or negligence so great as to indicate reckless
               recovered in [this] case . . . . The applicable law                        disregard of the rights of another.”). But see Kew in
               was correctly put to the jury by the trial court in his                    v. Ma ss. Mut. Life Ins. Co., 295 N.W.2d 50, 55
               charge. He told them the Sab os must prove their                           (Mich. 1980) (noting that exemplary dam ages o nly
               case ‘by a fair prepo nderance of the evidenc e.’”)                        serve to compensate plaintiffs for “humiliation,
               (citation omitted ); Thorne v. Contee, 565 A.2d 102,                       sense of outrage, and indignity”—exemp lary
               108 (Md. Ct. Spec. App. 1989 ) (“In order for the                          damages may not serve as punishment to the
               issue of pun itive dam ages to go to the jury, Thorne                      defendant).
               must have produced sufficient evidence of
               Contee’s wanton or reckless conduct to meet the            Nebraska        Distinctive Printing & Packaging Co. v. Cox, 443
               preponderance of the evidence test.”), cert. denied,                       N .W .2d 566, 574 (Neb. 1989) (“[P]unitive,
               569 A.2d 643 (Md. 1990); 569 A.2d 1242 (Md.                                vindictive, or exemplary damages contravene Neb.
               1990).                                                                     Const. art. VII, § 5, and thus are not allow ed in this
                                                                                          jurisdiction.”).

                                                                          New             New Hampshire has not addressed the burden of
                                                                          Hamp shire      proof for punitive da mages. See N.H. Rev. Stat.
                                                                                          Ann. § 507:16 (2004) (“No punitive dam ages shall
                                                                                          be awarded in any action, unless otherwise
                                                                                          provided by statute.”).
Nos. 00-6780; 01-5024 White v. Burlington Northern                    71   72    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                               & Santa Fe Ry. Co.

 New Jersey        Fischer v. Joh ns-M anv ille Corp., 512 A.2d 466,        Pen nsylvania   Ma rtin v. John s-Ma nville Corp ., 494 A.2d 1088,
                   482 (N.J. 1986) (refusing to address the burden of                       1098 n.14 (Pa. 1985) (Hutchinson, J., delivering
                   proof in punitive damages cases because “the                             the judgment of the court and an opinion joined by
                   parties have not briefed or argued the issue, nor                        only one o f the five remaining justices)
                   have the courts belo w addressed it”); see also                          (recognizing that many jurisdictions have adopted
                   Jackson v. Consol. Rail C orp., 538 A.2d 1310,                           a clear and convincing standard and concluding:
                   1321 n.5 (N .J. Sup er. Ct. App. Div. 1988)                              “W e believe the goal of limiting punitive damage
                   (“Defendant also attacks the punitive damage                             awards in the context of products liability litigation
                   verdict because the court in its charge did not place                    is best served by focusing on the nature of the
                   the burden on plaintiff to prove same by ‘clear and                      defendant’s conduct instead of increasing the
                   convincing’ evidence. However, that is not the                           plaintiff’s burden of persuasion.”); Rizzo v.
                   present standard applicable in New Jersey.”).                            Michener, 584 A.2d 973, 979 (Pa. Super. Ct. 1990)
                                                                                            (“The trial judge must determine in the first
 New Y ork         Greenbaum v. Handelsbanken, 979 F.Supp. 973,                             instance whether the plaintiff has presented
                   982 (S.D.N.Y. 199 7) (“[T ]he Court determines that                      sufficient evidence to support a punitive damage
                   until . . . higher authorities elect[] to address the                    claim, which requires evidence on which the jury
                   question, the preponderance of the evidence                              might reasonably conclude that outrageous conduct
                   standard should apply to punitive damages                                has been established by a preponderance of the
                   deliberations.”).                                                        evidence.”), appeal denied, 596 A.2d 159 (Pa.
                                                                                            1991).
 No rth Carolina   Caudle v. Benbow, 45 S.E.2d 361, 362 (N.C. 1947)
                   (approving, without discussing, a jury instruction       Rhode Island    Rhode Island has not addressed the burden of proof
                   requiring the jury to “first find by the                                 for recovering punitive dam ages.
                   preponderance of the evidence the presence of
                   actual malice”).                                         Tennessee       Tennessee first addressed the burden of proof for
                                                                                            punitive damages in 1992 in Hodges v. S.C. T oof &
                                                                                            Co., 833 S.W.2d 896, 900–0 1 (Tenn. 199 2), and
                                                                                            held that the clear and convincing standard applies
                                                                                            to all claims for punitive dam ages.

                                                                            Texas           Law son-Avila Con st., Inc. v. Stoutam ire, 791
                                                                                            S.W.2d 584, 594 (Te x. Ct. App . 199 0) (“W e . . .
                                                                                            continue to follow the Texas precedent established
                                                                                            by the Co urts of this State and hold that the burden
                                                                                            of proof in cases involving . . . exemplary damages
                                                                                            is by a preponderance of the evidence [and not
                                                                                            clear and convincing evidence].”) (internal
                                                                                            quotations omitted ), writ of error denied (Dec. 12,
                                                                                            1990).
Nos. 00-6780; 01-5024 White v. Burlington Northern                     73   74   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                               & Santa Fe Ry. Co.

 Vermo nt         Vermo nt has not addressed the burden of proof for         W yoming      Campen v. Stone, 635 P.2d 1121, 1127 (Wyo.
                  recovering punitive damages.                                             1981) (approving, without discussing the burden of
                                                                                           proof, a jury instruction stating: “Punitive damages
 Virginia         Peacock Buick, Inc . v. Du rkin, 277 S.E.2d 225, 227                     can properly b e awarded . . . only if, one of the
                  n.3 (Va. 1981 ) (approving, without discussing the                       following [acts] ha s bee n pro ven b y a
                  burden of pro of, a jury instruction stating: “[I]f you                  preponderance of the evidence.”) (internal
                  believe from a preponderance of the evidence that                        quotations omitted).
                  the defendant acted wantonly, opp ressively, or with
                  such recklessness as evinced a conscious disregard
                  of the rights of others, or with such malice as
                  implied a spirit of mischief, or criminal
                  indifference to civil obligations, you may award
                  the plaintiff such additional sum as punitive
                  damages.”).

 Washington       Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566
                  (W ash. 1997) (holding, without addressing the
                  burden of proof, that the trial court pro perly
                  instructed the jury that it could award punitive
                  damages on the 42 U .S.C. § 1 983 claim ‘only if
                  you find [by a preponderance of the evidence] that
                  the cond uct of an individual defendant was
                  malicious or taken in reckle ss disregard of
                  plaintiffs’ rights’”) (alteration in original). But see
                  Dailey v. North Coa st Life Ins. Co., 919 P.2d 589,
                  590 (Wa sh. 1996) (“Since its earliest decisio ns, this
                  court has consistently disapproved of punitive
                  damages as contrary to public policy.”).

 W est Virginia   Go odw in v. Thomas, 403 S.E.2d 13, 16 (W . Va.
                  1991) (reinstating an award of punitive dam ages,
                  without discussing the burden of proof, based on
                  the following jury instruction: “[I]f you find from
                  a preponderance of all the evidence in this case,
                  that the actions of the Defendants in evicting the
                  Plaintiff were in total disre gard of the P laintiff’s
                  rights as a lessee in the leased premises and that
                  such actions were willful and wanton then you may
                  award the Plaintiff punitive damages.”).
Nos. 00-6780; 01-5024 White v. Burlington Northern                   75   76      White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                & Santa Fe Ry. Co.

                        APPENDIX B                                         Georgia        Ga. Code A nn. § 51-12-5.1(b) (2004) (clear and
                                                                                          convincing evidence).
   State Burdens of Proof for Punitive Damages in 2004
                                                                           Hawaii         Schefke v. Reliable Collection Agency, Ltd., 32 P.3d
  As of today, the supreme courts or legislatures from the                                52, 71 (Haw. 2001) (“Clear and convincing evidence
following States have adopted the higher burden of proof for                              of ‘some wilful misconduct or . . . entire want of care
awarding punitive damages:                                                                which would raise presum ption of a conscious
                                                                                          indifference to conseq uences’ supports an award of
                                                                                          punitive damages.”) (internal quotations omitted).
 Alabama       Ala. Code § 6-11-20(a) (2004) (clear and convincing
               evidence).                                                  Idaho          Idaho Code § 6-1604(1) (2004) (clear and convincing
                                                                                          evidence).
 Alaska        Alaska Stat. § 09.17.020(b) (2004) (clear and
               convincing evidence).                                       Indiana        Ind. Code § 34-51-3-2 (2004 ) (clear and convincing
                                                                                          evidence).
 Arizona       Linthicum v. Nationw ide Life Ins. Co., 723 P.2d 675,
               680–82 (Ariz. 1986) (“[W]hile a plaintiff may collect       Iowa           Iowa Code § 668A.1(1 )–(2) (2004) (clear and
               compensatory dama ges upon p roo f by a                                    convincing evidence).
               preponderance of the evidence of his injuries due to
               the tort of another, we conclude that recovery of           Kansas         Kan. Stat. Ann. § 60-3702(c) (20 04) (clear and
               punitive damages should be awardable only upon                             convincing evidence).
               clear and convincing evidence of the defendant’s evil
               mind.”); Saucedo ex rel. Sinaloa v. Salvation Army,         Kentucky       Ky. Rev. Stat. Ann. § 411.18 4(2) (2004 ) (clear and
               24 P.3d 12 74, 1277 (Ariz. Ct. App. 2001) (“In                             convincing evidence).
               Arizona, to recover punitive dam ages, a plaintiff
               must prove by clear and convincing evidence that a          Maine          St. Francis De Sales Fed. Credit Union v. Sun In s.
               ‘defendant’s wrongful conduct was guided by evil                           Co. of N.Y., 818 A.2d 995 , 1001 (M e. 2002) (“‘[I]n
               motives or wilful or wanto n disregard of the interests                    order to recover punitive dam ages, a plaintiff must
               of others.’”) (citation omitted), review denied (Oct. 3,                   prove by clear and convincing evidence that the
               2001).                                                                     defendant acted with malice.’”) (quoting Tuttle v.
                                                                                          Raymond, 494 A.2d 13 53, 1354 (Me. 198 5)).
 California    Cal. Civ. Code § 329 4(a) (2004) (clear and
               convincing evidence).                                       Maryland       Ow ens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 657
                                                                                          (Md. 1992) (“[I]n any tort case a plaintiff must
 Colorado      Colo. Rev. Stat. § 13-25-127(2) (2004) (beyond a                           establish by clear and convincing evidence the basis
               reasonable doubt).                                                         for an award of p unitive damages.”); Carter v.
                                                                                          Aram ark Spo rts and Entm’t Servs., Inc., 835 A.2d
 Florida       Fla. Stat. Ann. § 768.725 (2004) (clear and                                262, 287 (Md. Ct. Spec. App. 2003) (“T he ‘clear and
               convincing evidence).                                                      convincing’ standard of proof applies to make o ut a
                                                                                          claim fo r punitive dam ages.”).
Nos. 00-6780; 01-5024 White v. Burlington Northern                       77   78      White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                    & Santa Fe Ry. Co.

 Minneso ta      Minn. Stat. § 549.20(1)(a) (2004) (clear and                  Oregon         Or. Rev. Stat. § 18.537(1) (2004 ) (clear and
                 convincing evidence).                                                        convincing evidence).

 Mississippi     Miss. Code A nn. § 11-1-65(1)(a) (2004) (clear and            South          S.C . Code A nn. § 15-33-135 (20 04) (clear and
                 convincing evidence).                                         Carolina       convincing evidence).

 Missouri        Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104,              Tennessee      Hodges v. S.C. Too f & Co., 833 S.W.2d 896, 901
                 111 (Mo. 1996) (“For commo n law punitive damage                             (Tenn. 1992) (“[A] plaintiff must prove the
                 claims, the evid ence must meet the clear and                                defendant’s intentional, fraudulent, malicious, or
                 convincing standa rd of proo f.”); Hoskins v. Bus.                           reckless conduct by clear and convincing evidence.”);
                 Men ’s Assurance, 116 S.W .3d 5 57, 5 64 (Mo. Ct.                            Barnett v. Lane, 44 S.W.3d 924, 928 (Tenn. Ct. App.
                 App. 200 3) (“P unitive damages are properly                                 2000) (“[A]n award [of punitive damages] is only
                 submitted in a negligence [or strict liab ility] case only                   app ropriate when the necessary conduct has been
                 if there is clear and convincing evidence that ‘at the                       shown ‘by clear and convincing evidence.’”).
                 time of the negligent act, the defendant[s] knew or
                 had reason to know that there was a high degree of            Texas          Tex. Civ. Prac. & Rem. Code Ann. § 41.003(b)
                 probab ility that the action would result in injury.’”)                      (2004) (clear and convincing evidence).
                 (citation omitted).
                                                                               Utah           Utah Code Ann. § 78-18-1(1)(a) (2004) (clear and
 Mo ntana        Mont. Code Ann. § 27-1-221(5) (2004) (clear and                              convincing evidence).
                 convincing evidence).
                                                                               W isconsin     Wangen v. Ford Motor Co., 294 N.W.2d 437, 458
 Nevada          Nev. Rev. Stat. 42.005(1) (2004) (clear and                                  (W is. 1980) (“W e hold that the [clear, satisfactory
                 convincing evidence).                                                        and convincing evidence] burden of proof shall apply
                                                                                              to punitive damages claims hereafter.”); City of West
 New Jersey      N.J. Stat. Ann. § 2A:15-5.12(a) (2004) (clear and                            Allis v. Wis. Elec. Power Co., 635 N.W.2d 873, 881
                 convincing evidence).                                                        (W is. Ct. Ap p. 2001) (“The evidence [supporting a
                                                                                              punitive damages award] must also be ‘clear and
 No rth          N.C. Gen. Stat. § 1D-15(b) (200 4) (clear and                                convincing.’”), pet. for review denied, 643 N.W.2d
 Carolina        convincing evidence).                                                        93 (W is. 2002).

 No rth Dakota   N.D. Cent. Code § 32-03.2-11(1) (2004) (clear and
                 convincing evidence).

 Ohio            Ohio Rev. Code A nn. § 2315.21(C)(2) (2004) (clear
                 and convincing evidence).

 Oklahoma        Okla. Stat. tit. 23, § 9.1.B–.D (2004) (clear and
                 convincing evidence).
Nos. 00-6780; 01-5024 White v. Burlington Northern                    79   80     White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                & Santa Fe Ry. Co.

  As of today, the supreme courts or legislatures from the                   As of today, the supreme courts and legislatures from the
following States have rejected a higher burden of proof for                following States have yet to address the question whether
awarding punitive damages:                                                 claims for punitive damages require a heightened burden of
                                                                           proof, though (as noted below) some lower courts have
 Connecticut   Freeman v. Alamo M gm t. Co., 607 A.2d 370, 375             addressed the issue and some supreme courts had mentioned,
               (Conn. 1992) (“We disagree . . . with the . . .             without discussing, jury instructions requiring a
               conclusion . . . that clear and convincing proof is an      preponderance of the evidence:
               app ropriate standard of proof whenever claims of
               tortious conduct [such as those involving punitive
               dama ges] have serious consequences or harsh or far-         Arkansas      Nat’l Bank of Commerce v. M cNeill Truck ing C o.,
               reach ing effects on individuals or require the proof of                   Inc., 828 S.W .2d 58 4, 590 (Ark. 1 992 ) (Du dley, J.,
               willful, wrongful and unlawful acts.”).                                    concurring) (“I would hope that the possible changes
                                                                                          discussed in this opinion [i.e. the adoptio n of a clear
 New           United Nuclear Corp. v. A llendale Mu t. Ins., 709 P.2d                    and convincing standard for punitive damages] might
 Mexico        649, 654 (N.M. 1985) (“It is the general rule . . . that                   be brought before this court in an adversarial manner
               issues of fact in civil cases are to be determined                         . . . . It is a matter which we have never addressed.”).
               according to the prep onderanc e of the e vidence . . . .
               W e are not convinced that the degree o f proo f should      Delaware      Cloroben Chem . Corp. v. Comegys, 464 A.2d 887,
               be changed [to require clear and convincing evidence]                      891–92 (Del. 1983) (“W e now turn to Cloroben’s
               in punitive damages areas.”).                                              contention that the jury imp roperly awarded punitive
                                                                                          damages in that they were not supp orted by a
 South         Flockhart v. Wya nt, 467 N.W.2d 473, 475 (S.D. 1991)                       preponderance of the evidenc e . . . . Our review of
 Dakota        (“[S.D. Codified Laws § 21-1-4.1] does not establish                       the record indicates that there is sufficient evidence
               a clear and co nvincing evidence standard but merely                       to support a finding . . . [and] we must reject the
               requires clear and convincing evidence to show a                           argument that there was insufficient evidence to
               reaso nab le basis [to believe the defendants committed                    support an award of punitive damages.”); Guthridge
               acts warranting punitive damages]. The clear and                           v. Pen-Mod, Inc., 239 A.2d 709 , 715 (Del. Supe r. Ct.
               convincing language merely mod ifies the ‘reasonable                       1967) (instructing the jury that “[p]unitive damages
               basis’ language to make a prima facie showing that                         may be awarded only if the jury finds by a
               punitive dam ages may be in order.”).                                      preponderance of the evidence that the defendants’
                                                                                          actions were motivated b y some form of malice.”).

                                                                            Illinois      Illinois Terminal R.R. Co. v. Thompson, 71 N.E. 328,
                                                                                          333 (Ill. 1904) (app roving a jury instruction that “left
                                                                                          it to the discretion of the jury to impose whatever
                                                                                          damages they might choose, even to the extent of
                                                                                          allowing punitive damages” by a preponderance of
                                                                                          the evidence).
Nos. 00-6780; 01-5024 White v. Burlington Northern                     81   82   White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                               & Santa Fe Ry. Co.

 Louisiana       Hill v. Sampson, 628 So. 2d 81, 84 (La. Ct. App.            Michigan     Green v. Evans, 401 N.W.2d 250, 252 (Mich. Ct.
                 1993) (“W hile this argument has theo retical ap peal,                   App. 198 5) (ap proving, witho ut discussing the
                 we are not inclined by these judicial means to                           burden of proof, a jury instruction stating: “Such
                 establish ‘clear an d convincing evidence’ as the                        exemplary damages only are recoverable if the
                 standard of proof for exemplary damages under                            Plaintiff has proven by a prepond erance of the
                 [Louisiana’s DU I law]. In our view, had the                             evidence, malice, willful and wanton misconduct or
                 legislature intended a higher standard of proo f than                    negligence so great as to indicate reckless disregard
                 that of a preponderance of the evidence, it would                        of the rights of another”). But see Kew in v. Ma ss.
                 have clearly so indica ted.”); Rivera v. United Gas                      Mut. Life Ins. Co., 295 N.W.2d 50, 55 (M ich. 1980)
                 Pipeline Co., 697 So. 2d 327, 335 (La. Ct. App.                          (noting that exemplary damages only serve to
                 1997) (holding that earlier interpretation of                            com pensate plaintiffs for “humiliation, sense of
                 Louisiana’s hazardous substance handling statute                         outrage, and indignity”—exemplary damages may
                 “says nothing of creating a ‘clear and convincing’                       not serve as punishment to the defendant).
                 burden of proof, and this Court is not prep ared to
                 create one . . . . Ergo, until the Louisiana legislature    Nebraska     Distinctive Printing & Packaging Co. v. Cox, 443
                 takes direct action, the burden of proof for exemplary                   N.W.2d 566, 574 (Neb. 1989) (“[P]unitive,
                 damages is by a preponderance o f the evidence.”),                       vindictive, or exemplary damages contravene Neb.
                 cert. denied, 704 So. 2d 1 196, 119 7 (La. 1997).                        Const. art. VII, § 5, and thus are not allowed in this
                                                                                          jurisdiction.”).
 Massachusetts   Santos v. Chrysler C orp., N o. 92 10 39 , 19 96 W L
                 1186818, at *3 (M ass. Sup er. Ct. Sept. 18, 1996)          New          New Hamp shire has not addressed the burden of
                 (“Chrysler contends that the court erred because it         Hamp shire   proof for punitive da mages. See N.H. Rev. Stat. Ann.
                 failed to instruct the jury that they must find by clear                 § 507:16 (2004) (“No punitive damages shall be
                 and convincing evidence that Ch rysler was grossly                       awarded in any action, unless otherwise provided by
                 negligent before they could awa rd punitive damages.                     statute.”).
                 The contention is meritless. Under Massachusetts law
                 the burden of proof in civil proceedings of this kind
                 is satisfied ‘by a fair preponderance of the
                 evidence.’”), affirmed in part and remanded on other
                 grounds, 715 N.E.2d 47 (M ass. 1999).
Nos. 00-6780; 01-5024 White v. Burlington Northern                     83   84    White v. Burlington Northern Nos. 00-6780; 01-5024
                                & Santa Fe Ry. Co.                                & Santa Fe Ry. Co.

 New York       Greenbaum v. Svenska Handelsbanken, 979 F. Supp.             Vermo nt     Vermo nt has no t addressed the burden of proof for
                973, 978 –82 (S.D .N.Y. 1997 ) (“[T]he Court                              recovering punitive dam ages.
                determines that until . . . higher authorities elect[] to
                address the question, the preponderance of the               Virginia     Peacock Buick, Inc . v. Du rkin, 277 S.E.2d 225, 227
                evidence standard should apply to punitive damages                        n.3 (Va. 1981 ) (approving, without discussing the
                deliberations.”). Com pare M unoz v. Puretz, 753                          burden of pro of, a jury instruction stating: “[I]f you
                N.Y.S.2d 463, 466 (N.Y. App. Div. 2003) (“In order                        believe from a preponderance o f the evidence that the
                to recover p unitive damages, a plaintiff must show                       defendant acted wantonly, oppressively, or with such
                [certain cond uct] by ‘clear, unequivocal and                             recklessness as evinc ed a c onscious disregard of the
                convincing evidence.’”) (citation omitted ), with In re                   rights of others, or with such malice as implied a
                Seventh Judicial Dist. Asbesto s Litig., 593 N.Y.S.2d                     spirit of mischief, or criminal indifference to civil
                685, 686–87 (N.Y. App. Div. 1993) (“The trial court                       obligations, you may award the plaintiff such
                properly instructed the jury that the evidentiary                         additional sum as punitive damages.”); RF & P Corp.
                standard for proving entitlement to punitive damages                      v. Little, 40 S.E.2d 908, 914 (Va. 1994) (holding that
                is preponderance of the evidence, not clear and                           a prep ond eranc e of the e vidence standard applies to
                convincing evidence.”).                                                   a knowing and willful violation of a statute resulting
                                                                                          in a civil fine, and the clear and convincing evidence
 Pennsylvania   Ma rtin v. Johns-Manville Co rp., 494 A.2d 1088,                          standard applies only “to certain cases that are
                1098 n.14 (Pa. 1985 ) (Hutchinson, J. delivering the                      equitable in nature, such as suits involving fraud and
                judgment of the court and an opinion jo ined b y only                     misrepresentation, undue influence, [or] estoppel.”).
                one of the five remaining justices) (recognizing that
                many jurisdictions have adopted a clear and                  Washington   Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566
                convincing standard an d conc luding: “W e believe the                    (W ash. 1997) (stating, without addressing the burden
                goal of limiting punitive damage awards in the                            of proof, that the trial court properly instructed the
                context of products liability litigation is best served                   jury that it could awa rd punitive damages on a 42
                by focusing on the nature of the defendant’s conduct                      U.S.C. § 19 83 claim “only if you find [by a
                instead of increasing the plaintiff’s burden of                           preponderance of the evidence] that the conduct of an
                persuasion.”); Rizzo v. Michener, 584 A.2d 973, 979                       individual defendant was malicious or taken in
                (Pa. Super. Ct. 1990 ) (“The trial judge must                             reckless disregard of plaintiffs’ rights.”) (quotation
                determine in the first instanc e whether the p laintiff                   omitted and alteration in origina l). But see Dailey v.
                has presented sufficient evid ence to sup port a                          North Coast Life Ins. Co., 919 P.2d 5 89, 590 (W ash.
                punitive damage claim, which requires evidence on                         1996) (“Since its earliest decisions, this court has
                which the jury might reasonably conclude that                             consistently disapproved of punitive damages as
                outrageous conduct has been established by a                              contrary to public policy.”).
                preponderance of the evidence.”), appeal denied, 596
                A.2d 159 (Pa. 1991).

 Rhode Island   Rhode Island has not addressed the burden of proof
                for recovering punitive dam ages.
Nos. 00-6780; 01-5024 White v. Burlington Northern                   85
                                & Santa Fe Ry. Co.

 W est        Goodwin v. Thomas, 403 S.E.2d 13, 16 (W. Va.
 Virginia     1991) (finding sufficient evidence to support an
              award of punitive damages, without discussing the
              burden of pro of, based o n the follo wing jury
              instruction: “[I]f you find from a prep onderanc e of all
              the evidence in this case, that the actions of the
              Defendants in evicting the Plaintiff were in total
              disregard of the Plaintiff’s rights as a lessee in the
              leased prem ises and that such actions were willful
              and wanton.”).

 W yoming     Campen v. Stone, 635 P.2d 1121, 1127 (Wyo. 1981)
              (approving, without discussing the burden of proof,
              a proposed jury instruction stating: “Punitive
              damages can properly be award ed . . . only if, one of
              the following [acts] has been proven by a
              preponderance o f the evidence.”).
