TABLE OF AUTHORITIES........................................................................... ii

INTRODUCTION........................................................................................... 1

ARGUMENT.................................................................................................. 3

CONCLUSION............................................................................................. 16

CERTIFICATE OF COMPLIANCE............................................................ 18

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002)................................. 6

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...................................... 3

Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996)....................... 4

EEOC v. Fed. Express Corp., 513 F.3d 360 (4th Cir. 2008).............. 1, 6, 9, 14

EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999).................... 7

Golson v. Green Tree Fin. Serv. Corp., 26 F. App’x 209
(4th Cir. 2002)..................................................................................... 14, 16

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999)................................... 4

Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999)....................................... 6, 7

Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000)............. 6, 14

Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990).......................................... 4

Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003)........... 3, 13, 16

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235 (4th Cir. 2009)........ 3, 10

Tisdale v. Fed. Express Corp., 415 F.3d 516 (6th Cir. 2005).......................... 15

Statutes

42 U.S.C. § 1981a(b)(1)............................................................................. 6, 10

42 U.S.C. § 2000e-2(e)(1)................................................................................ 7

42 U.S.C. § 12113............................................................................................ 7

Rules & Other Authorities

Fed. R. App. P. 28.1(e)(2)(C)........................................................................ 18

Fed. R. App. P. 32(a)..................................................................................... 18

Fed. R. Civ. P. 41(b)........................................................................................ 3

Fed. R. Civ. P. 50...................................................................................... 9, 10

Fed. R. Civ. P. 50(a)............................................................................... passim

9B Charles Alan Wright et al., Federal Practice & Procedure § 2533 (3d ed., database updated Apr. 2016).................................................................... 4

INTRODUCTION

In its principal brief as cross-appellant, the EEOC argued that the district court erred in granting Consol’s R ule 50(a) motion for judgment as a matter of law (“JMOL”) as to punitive damages at the close of the EEOC’s evidence on the second day of trial. Observing that a grant of JMOL in this posture is only appropriate when there is “no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue,” the EEOC noted that the governing standard for awarding punitive damages is that articulated by this Court in EEOC v. Federal Express Corp., 513 F.3d 360, 372 (4th Cir. 2008). EEOC-Br.84-85.

The EEOC then explained that the district court was somewhat unclear in its oral ruling as to the precise basis for its grant of JMOL—whether it believed the EEOC’s evidentiary showing to have been deficient as to prong 1 (the employer’s perceived risk of violation of federal law) or prong 4 (the employer’s good-faith efforts to comply with the law) of the FedEx test. EEOC-Br.85-86. Regardless of the basis for the court’s ruling, the EEOC argued, the district court erred in taking the punitive damages issue away from the jury at this early stage of the trial because there was already sufficient evidence in the record to support a reasonable jury finding in the EEOC’s favor. EEOC-Br.86-88.

In its response brief, Consol maintains that it was entirely appropriate for the district court to take the issue of punitive damages away from the jury at the close of the EEOC’s evidence, without considering the relevant testimony of Consol’s own witnesses. Consol-Resp.41. Consol further insists that the EEOC adduced no evidence in its case-in-chief to support a jury finding that punitive damages were warranted, and that all relevant decisionmakers acted in good faith at all times. Id. at 43. Ultimately, Consol concludes, the EEOC simply “wishes this Court to adopt the proposition that in every case that a jury ultimately determines the defendant failed to offer a reasonable accommodation, then the issue of punitive damages is for the jury.” Id. at 44.

In so arguing, Consol grossly misrepresents the trial testimony, distorts the EEOC’s legal arguments, and makes multiple errors of law. The EEOC submits this reply brief to clarify both the factual record and the governing legal standards with respect to the cross-appeal.

ARGUMENT

1. “‘Pursuant to Fed. R. Civ. P. 50(a), a district court may grant a motion for judgment as a matter of law during a jury trial after a party has been fully heard on an issue only if there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue.’” EEOC-Br.84 (quoting Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 240 (4th Cir. 2009)) (emphasis added). “Judgment as a matter of law is proper only if ‘there can be but one reasonable conclusion as to the verdict.’” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

The Supreme Court has emphasized that, in considering such motions, the court “does not weigh the evidence, but draws all factual inferences in favor of the nonmoving party.… Thus, although a court might, after reviewing the evidence, decide in favor of the party moving for a dismissal under Rule 41(b), that court might not take the same case away from the jury because it might believe that the jury could reasonably find for the nonmoving party.” Lytle v. Household Mfg., Inc., 494 U.S. 545, 555 (1990). See also, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 657 (6th Cir. 1999) (“[T]he decision to grant judgment as a matter of law or to take the case away from the jury is appropriate whenever there is a complete absence of pleading or proof on an issue material to the cause of action or when no disputed issues of fact exist such that reasonable minds would not differ.” (internal citations and quotation marks omitted)).

The high legal standard for granting a Rule 50(a) motion at the close of plaintiff’s evidence is why, as Wright and Miller put it:

The court has power under the rule to grant judgment as a matter of law at the close of the plaintiff’s case. Nevertheless it has been said to be “the better and safer practice … to defer a ruling upon the motion … until both sides have finally rested.” That sentiment has been echoed in a number of cases. The exercise of restraint may prevent the entry of an erroneous judgment.

9B Charles Alan Wright et al., Federal Practice & Procedure § 2533 (3d ed., database updated Apr. 2016). See also, e.g., Buchanan v. City of San Antonio, 85 F.3d 196, 198 (5th Cir. 1996) (“While courts have the power to direct a verdict in plaintiff’s favor at the close of plaintiff’s case, [t]his power must nonetheless be exercised with great restraint in order to avoid the possibility that a party will be precluded from presenting facts which make out a question for the jury. Where there is any doubt at all as to the propriety of a directed verdict, district courts should not jump the gun but should wait until both sides have presented their evidence before ruling on motions for directed verdict.”) (internal citation and quotation marks omitted).

2. Consol does not appear to dispute—as indeed it cannot—that FedEx states this Court’s governing test for punitive damages. EEOC-Br.84-85; Consol-Resp.42. Consol insists, however, that the EEOC adduced insufficient evidence to support its claim that it met prong 1 of the FedEx test: “[t]hat the employer’s decision maker discriminated in the face of a perceived risk that the decision would violate federal law.” Consol-Resp.42-43. In so arguing, Consol mischaracterizes the trial record, which the EEOC will address below, but it also fundamentally misunderstands the Supreme Court’s and this Court’s holdings as to what prong 1 of the FedEx test actually means.

Title VII provides that a “complaining party may recover punitive damages … against a respondent … if [s/he] demonstrates that the respondent engaged in a discriminatory practice … with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). In Kolstad v. American Dental Association, 527 U.S. 526, 535 (1999), the Supreme Court clarified that “[t]he terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” (Emphasis added.) Thus, as the EEOC explained in its principal brief, this Court has repeatedly “found evidence sufficient to support a jury finding of a perceived risk in cases where the employer’s managerial agent had ‘at least a rudimentary knowledge’ of the import of a federal anti-discrimination statute.” FedEx, 513 F.3d at 372-73 (citing Anderson v. G.D.C., Inc., 281 F.3d 452, 460 (4th Cir. 2002); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443 (4th Cir. 2000); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999)).

Unwilling to accept the Supreme Court’s and this Court’s law for what it plainly is, Consol points to an excerpt from the following language in Kolstad as support for the notion that an employer must affirmatively believe it is engaging in discrimination in order to support a punitive damages award:

There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See, e.g., 42 U.S.C. § 2000e-2(e)(1) (setting out Title VII defense “where religion, sex, or national origin is a bona fide occupational qualification”); see also § 12113 (setting out defenses under ADA).

Kolstad, 527 U.S. at 536-37; see Consol-Resp.42-43.

Consol misunderstands this part of Kolstad. The Court is not reversing itself here as to what it said two pages earlier about awareness of federal law in contrast to deliberate discrimination; rather, it is explaining that some employers may actually be ignorant of the law, may be operating in a “novel” or “poorly recognized” area of the law, or may believe an affirmative defense applies. None of these scenarios applies to Consol: its management witnesses testified unequivocally that they were familiar with Title VII and its requirement of religious accommodation, which is neither novel nor poorly recognized, and Consol has not suggested that any affirmative defense applies to its conduct.

3. The EEOC explained in its principal brief that several of Consol’s management witnesses testified—during the EEOC’s case-in-chief—that they were well aware of Title VII’s prohibition on religious discrimination and its requirement that employees’ religious beliefs be accommodated under some circumstances. EEOC-Br.86 (citing III-JA-790-91 (Fazio testimony), IV-JA-869 (Johnson testimony), IV-JA-1271-72 (Hudson deposition testimony, read into record at trial)).[1] Nonetheless, the district court stated, “Certainly there’s evidence that the parties recognized that there was a Title VII statute.… I note the Fourth Circuit’s law on this, but even with whatever inference may be given to that, I don’t think under Rule 50 there is sufficient evidence of malice or reckless indifference to the rights of Mr. Butcher.” IV-JA-903.

As noted before, it is unclear exactly what the district court meant here. If indeed, as Consol argues (Consol-Resp.44), the court intended only to address prong 1 of FedEx—i.e., whether Consol discriminated in the face of a perceived risk that the decision would violate federal law—then the district court erred by choosing to ignore the Supreme Court’s and this Court’s settled law. Consol offers no case law or other support—apart from its misunderstanding of Kolstad—to suggest that this Court’s test for prong 1 of FedEx is anything other than what FedEx and its progeny say it is: whether “the employer’s managerial agent had at least a rudimentary knowledge of the import of a federal anti-discrimination statute.” FedEx, 513 F.3d at 372-73.

In light of this legal error and the testimony in the record, and given that Consol does not appear to disagree that prongs 2 and 3 of the FedEx test are not materially in dispute here (see EEOC-Br.86, Consol-Resp.43-44), this Court should reverse the district court’s grant of Consol’s Rule 50(a) motion as to punitive damages. It cannot be said, based on the evidence the EEOC adduced at trial, that there was “no legally sufficient basis for a reasonable jury to have found” in the EEOC’s favor as to prong 1 of FedEx. Robinson, 560 F.3d at 240.

4. One further point about the district court’s ruling on punitive damages warrants discussion. Although Consol insists (Consol-Resp.44) that the district court could not possibly have based its punitive damages ruling on prong 4 of the FedEx test, the court’s actual language does not support Consol’s black-and-white interpretation.

As the EEOC explained in its principal brief, what the court said was, “I don’t think under Rule 50 there is sufficient evidence of malice or reckless indifference to the rights of Mr. Butcher.” IV-JA-903; see also id. at 902. “[M]alice or … reckless indifference to the federally protected rights of an aggrieved individual” is the ultimate standard for punitive damages under 42 U.S.C. § 1981a(b)(1), not an intermediate prong of the FedEx test. Based on what the district court actually said, it is impossible to tell which it meant: that the EEOC failed to adduce sufficient evidence to meet prong 1 of FedEx, or that, even if the EEOC had adduced sufficient evidence in light of this Court’s governing law on prong 1, the EEOC had nonetheless failed to show that punitive damages ultimately were warranted.

If the district court meant the latter, that the EEOC failed to make a sufficient showing of “malice or reckless indifference” to survive a Rule 50(a) motion, that ruling was erroneous for several reasons. See EEOC-Br.87-88. The EEOC adduced evidence in its case-in-chief that, at the highest levels, the same Consol HR officials who testified they knew about T itle VII and its prohibition on religious discrimination decided as of July 2012 that they would not accommodate any religious objections to hand-scanning beyond scanning the left hand. III-JA-805-08 (Fazio testimony), IV-JA-1192 (EEOC Tr. Exh. 13), 1225-26 (Hudson deposition testimony). The EEOC also adduced evidence—again, in its case-in-chief—that these same HR officials singled Butcher out for this treatment because of his religious beliefs, in the same breath as they allowed individuals who could not scan their hands for physical reasons to bypass hand scanning entirely. IV-JA-1192 (EEOC Tr. Exh. 13) (“let’s make our religious objector use his left hand”), 1257-60 (Hudson deposition testimony). Moreover, the record reflects—still in the EEOC’s case-in-chief—that no one at Consol even suggested to Butcher that bypassing the scanner system was an option, even though allowing him to do so admittedly would have imposed no monetary or other burden on Consol. III-JA-700-01 (Butcher testimony); IV-JA-1257-60 (Hudson deposition testimony).

Consol’s only response is to assert—without any record citations—that there was “abundant evidence” of Consol’s good faith toward Butcher. Consol-Resp.43. That evidence purportedly includes “evidence that reflected that CONSOL had EEOC policy and training in place which was followed in regard to the consideration of Butcher’s claim” and “evidence … that multiple meetings occurred with Butcher and among management to try to understand Butcher’s concern and seek to find a reasonable accommodation[, which] included the top official at the Robinson Run Mine and Vice President of Human Resources for CONSOL Energy Inc.” Consol-Resp.43-44.

But, as the EEOC explained in its principal brief, for purposes of assessing the district court’s Rule 50(a) ruling, this is all beside the point. Even assuming, arguendo, that Consol’s self-serving characterization of the record is entirely correct, the standard for surviving a defendant’s Rule 50(a) motion is not whether the plaintiff’s evidence is so completely one-sided as to warrant immediate judgment in the plaintiff’s favor. Rather, as described above, this Court only grants such motions when “there can be but one reasonable conclusion as to the verdict,” and that conclusion is in favor of the defendant. Ocheltree, 335 F.3d at 331.

As the EEOC has just described, see supra at 11-12, the evidence in the EEOC’s case-in-chief was far from being so one-sided. The jury could have credited Butcher’s testimony, listened to the testimony of Fazio and Hudson, Consol’s own management witnesses, and concluded that Consol failed to make any real good-faith attempt to accommodate Butcher’s actual religious belief, instead attempting to dictate to him what it felt his belief should be and effectively telling him to “take it or leave it.”

Second, as the EEOC explained in its principal brief, in light of the evidence adduced at trial, Consol may not simply rest on the existence of its EEO policy to demonstrate its good faith vis-à-vis Butcher. EEOC-Br.87-88. As this Court has observed repeatedly, the fact that an employer may maintain and implement an EEO policy is no bar to the imposition of punitive damages where record evidence casts doubt on the sincerity of the employer’s commitment to that policy. See, e.g., FedEx, 513 F.3d at 374 (“[A] jury is not obliged to find that an employer has engaged in good-faith efforts to comply with the law if the sincerity of [the employer’s] commitment to a company-wide policy against … discrimination in the workplace is called into question by other evidence.” (internal citation and quotation marks omitted)); Golson v. Green Tree Fin. Serv. Corp., 26 F. App’x 209, 214 (4th Cir. 2002) (“Evidence that an employer is not sincerely committed to enforcing the policy may undermine the existence of a company-wide policy.”); Lowery, 206 F.3d at 446 (observing that “the sincerity of [defendant] Circuit City’s commitment to a company-wide policy against racial discrimination in the workplace is called into question when one considers the racially discriminatory attitudes of two top Circuit City executives and the implementation of a promotional system by one of those executives having the capacity to mask race discrimination in promotional decisions”). See also, e.g., Tisdale v. Fed. Express Corp., 415 F.3d 516, 532-33 (6th Cir. 2005) (citing Lowery, and holding: “Applying these principles to this case, we are not persuaded that a reasonable juror could only conclude that FedEx engaged in good-faith efforts to comply with Title VII. Though FedEx has placed much evidence in the record in support of its anti-discrimination policies, Tisdale also presented evidence of a number of inconsistent practices …, which calls into question FedEx’s sincerity to abide by its own written policies.”).

The bottom line here is this: To the extent the district court may have rested its ruling on the EEOC’s purported failure to make an adequate showing as to prong 4 of the FedEx test, or as to the overall question of “malice or reckless indifference” to Butcher’s federally protected rights, the court erred in ruling as it did, when it did. As explained before, see EEOC-Br.85, prong 4 of FedEx is an affirmative defense to punitive damages liability, and it is Consol, not the EEOC, who bears the burden of persuasion. See, e.g., Golson, 26 F. App’x at 214 (citing cases). The trial record at the close of the EEOC’s case-in-chief was nowhere near so one-sided as to support granting a Rule 50(a) motion against the EEOC on an issue where Consol bore that burden. See Ocheltree, 335 F.3d at 331 (“Judgment as a matter of law is proper only if ‘there can be but one reasonable conclusion as to the verdict.’”).

CONCLUSION

For the foregoing reasons and the reasons stated in the EEOC’s principal brief, this Court should vacate the district court’s grant of judgment as a matter of law with respect to punitive damages and remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2)(C) because it contains 3,026 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.