                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 19 2000
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MURIEL D. BURCH, as parent
    and next best friend of her children
    DARA JONES, a minor; DANA
    JONES, a minor; DESEREE JONES,
    a minor; and LAYTHATCHER
    JONES, a minor,

                Plaintiffs-Appellees,

    v.                                                 No. 99-5057
                                                 (D.C. No. 97-CV-898-K)
    LA PETITE ACADEMY INC.,                            (N.D. Okla.)
    a Delaware corporation,

                Defendant-Appellant,

    and

    OKLAHOMA COMMISSION FOR
    HUMAN SERVICES; OKLAHOMA
    DEPARTMENT OF HUMAN
    SERVICES,

                Defendants.


                              ORDER AND JUDGMENT        *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

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

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

ordered submitted without oral argument.

       Plaintiffs, minor children by and through their mother, Muriel Burch,

brought suit against defendants, alleging claims of racial discrimination,

intentional infliction of emotional distress, invasion of privacy, and negligent

supervision. A jury found for plaintiffs and against defendant La Petite Academy

Inc. 2 on claims of racial discrimination pursuant to 42 U.S.C. § 1981, and

negligent supervision, and awarded both compensatory and punitive damages.

La Petite’s appeal is limited to a challenge of the    district court ’s submission of

punitive damages to the jury. We have jurisdiction over this appeal pursuant to

28 U.S.C. § 1291.

       La Petite contends that there is insufficient evidence supporting liability for

punitive damages due to the acts of its employees, citing     Fitzgerald v. Mountain

States Tel. & Tel. Co. , 68 F.3d 1257 (10th Cir. 1995). “Whether sufficient

evidence exists to support punitive damages is a question of law reviewed



2
       The remaining defendants were dismissed on summary judgment before
trial. See Appellant’s App., Vol. I at 90.

                                             -2-
de novo.” Id. at 1262. After a careful review of the record on appeal, we

disagree with defendant’s argument.       Fitzgerald sets out a disjunctive test that

can be satisfied upon a showing of any one of four factors, one of which is that

“the agent was employed in a managerial capacity and was acting in the scope of

employment.” See id. at 1263. There is sufficient evidence in the record to

satisfy this prong.

       La Petite also argues, based on recent Supreme Court and Tenth Circuit

authority, that it should not be found liable for discriminatory acts of its

employees due to its nondiscrimination policy and testimony from its employees

that they were aware of such policy. Because we conclude that this evidence does

not demonstrate good faith efforts by defendant to educate its employees and

enforce a policy prohibiting discrimination, we need not decide whether such

efforts would preclude vicarious liability for an employee’s discrimination in

violation of § 1981, see EEOC v. Wal-Mart Stores, Inc.       , 187 F.3d 1241, 1248-49

(10th Cir. 1999) (discussing   Kolstad v. American Dental Ass’n      , 119 S. Ct. 2118,

2128-29 (1999)).

       La Petite also contends that Oklahoma law does not recognize actions for

negligent supervision. We agree with plaintiffs that, because defendant failed to

present this legal argument to the    district court at any time, it has also failed to

preserve it for appeal.   See Walker v. Mather (In re Walker)     , 959 F.2d 894, 896


                                             -3-
(10th Cir. 1992).   3
                        La Petite further argues that there was no evidence that it acted

maliciously and wantonly. Again, we disagree; the record contains sufficient

evidence from which a jury could conclude otherwise.

       In connection with its challenges to both issues, La Petite also asserts error

in the district court ’s admission of rebuttal testimony from witness Aneatria

Whitley. We review this ruling only for abuse of discretion.        See Koch v. Koch

Indus., Inc. , 203 F.3d 1202, 1224 (10th Cir. 2000). “This court in fact endows the

district court with ‘broad discretion’ in deciding whether to admit or exclude

rebuttal evidence.”      Id. (further quotation omitted). Our review convinces us that

the district court did not abuse its discretion in allowing Ms. Whitley’s testimony.




3
       La Petite contends that it did object, but a review of the record indicates
that these objections were sufficiency of the evidence objections, not the
argument based on Oklahoma law that it now presents on appeal.

                                             -4-
      We conclude that the district court did not err in submitting the issue of

punitive damages to the jury in this case. The judgment of the United States

District Court for the Northern District of Oklahoma is AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




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