No. 06-1724 ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellant. ______________________________________________________ On Appeal from the United States District Court of Maryland, Hon. William D. Quarles, Jr., District Judge ______________________________________________________ BRIEF OF PLAINTIFF-APPELLEE THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, N.W., Room 7014 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4736 DAVIS L. KIM davis.kim@eeoc.gov Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .3 I. Background. . . . . . . . . . . . . . . . . . . . . . . .3 II. District Court Proceedings. . . . . . . . . . . . . . . 10 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. Standard of Review. . . . . . . . . . . . . . . . . . . 13 II. The District Court Properly Denied the Appellant's Motion for Judgment as a Matter of Law Because the Evidence is Sufficient to Support the Verdict Awarding Punitive Damages . . . . . . . . . . . . . . . 14 A. FedEx Committed Intentional Discrimination Under 42 U.S.C. § 1981a. . . . . . . . . . . . . . . . . . . . 15 B. The Evidence is Sufficient to Support the Jury's Determination that FedEx Discriminated with Malice or Reckless Indifference to Lockhart's Federally Protected Rights . . . . . . . . . . . . . . . . . . . . . . . 18 C. The Evidence is Sufficient to Support the Jury's Determination that FedEx Failed to Establish Good- Faith Efforts to Comply with the Law . . . . . . . . . . . . . 25 III. The Punitive Damages Award is not Grossly Excessive in Violation of Due Process . . . . . . . . . 30 A. The Punitive Damages Award is not Constitutionally Excessive Because it Falls Below the Statutory Cap Established by Congress31 B. The Punitive Damages Award is not Constitutionally Excessive under BMW34 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 40 REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Federal Cases Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002) . . . . . . . . 19, 23, 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . . . 13 Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587 (4th Cir.1996) . . . . . . . . . . . . . 38 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). . . . . . . . . . . .31, 34, 36-39 Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989). . . . . . . . . . . . . . . . . 39 Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536 (4th Cir. 2003) . . . . . . . . . . . . 29 Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998) . . . . . . .23, 30, 37-38 Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001). . . . . . . . . . . . . . . . . 14 Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir. 2001). . . . . . . . . . . .35-36 Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262 (10th Cir. 2000) . . . . . . . . . . . 37 Duke v. Uniroyal, Inc., 928 F.2d 1413 (4th Cir. 1991). . . . . . . . . . . . 13 EEOC v. E. I. Du Pont de Nemours & Co., No. 05-30712, slip op. (5th Cir. Mar. 1, 2007) . . . 35 EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999)22, 24-26, 28, 33, 37, 39 EEOC v. W & O, Inc., 213 F.3d 600 (11th Cir. 2000). . . . . . . . .36-37, 39 Gagliardo v. Connaught Labs, Inc., 311 F.3d 565 (3d Cir. 2002). . . . . . . . . . . .21-22 Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 123 F.App'x 558 (4th Cir. 2005) (unpublished)18-19, 21, 23 Golson v. Green Tree Fin. Serv. Corp., 26 F.App'x 209 (4th Cir. 2002) (unpublished)26, 28, 31-32, 36 Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999). . . . . . . . . . 14-16, 18, 22-25 Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000) . . . . . . . 18-19, 26-28 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) . . . . . . . . . . . . 13 Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) . . . . . . . . . . .21-22 Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). . . . . . . . . . . . . . . . 31, 36 Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617 (7th Cir. 2000) . . . . . . . . . . . . 33 Romano v. U-Haul Int'l, 233 F.3d 655 (1st Cir. 2000) . . . . . . . . .31-32, 36 Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000) . . . . . . . . . . . . 38 Scott v. U.S., 328 F.3d 132 (4th Cir. 2003) . . . . . . . . . . . . 40 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). . . . . . . . . . . .13, 31, 34-36 Tisdale v. Federal Express Corp., 415 F.3d 516 (6th Cir. 2005) . . . . . . . . .29-30, 39 TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443 (1993). . . . . . . . . . . . . . . .32-33 Federal Statutes 42 U.S.C. § 1981a. . . . . . . . . . . . . . . . 14-16, 18, 32-33 42 U.S.C. § 12112(b)(5)(A) . . . . . . . . . . . . . . . . . . 15 Federal Rules of Civil Procedure Fed.R.Civ.P. 50(a)(1). . . . . . . . . . . . . . . . . . . . . 13 STATEMENT OF JURISDICTION The district court had subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343(a)(4), and 1345. The action was authorized and instituted pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), which incorporates by reference 42 U.S.C. § 2000e-5 of Title VII of the Civil Rights Act of 1964 ("Title VII"). The district court entered judgment after a trial by jury on March 3, 2006. The district court denied Federal Express Corporation's ("FedEx") timely motion for judgment as a matter of law ("JMOL") or remittitur on April 25, 2006. FedEx filed a timely notice of appeal on June 16, 2006. This court has appellate jurisdiction under 28 U.S.C. § 1291, which provides the Circuit Courts of Appeals with jurisdiction over appeals from the final decisions of United States District Courts, including the United States District Court for the District of Maryland. STATEMENT OF THE ISSUES 1. Whether the evidence was sufficient to support the jury's punitive damages award. 2. Whether the punitive damages award was grossly excessive under the Constitution. STATEMENT OF THE CASE The United States Equal Employment Opportunity Commission ("EEOC") filed a complaint in the United States District Court for the District of Maryland on September 30, 2004 against FedEx. Joint Appendix ("JA") at 1. The complaint alleged that FedEx: (1) repeatedly refused to provide Ronald Lockhart ("Lockhart"), who is profoundly deaf, with a reasonable accommodation for his disability during the course of his employment; and (2) terminated Lockhart's employment in retaliation for opposing practices made unlawful by the ADA and filing a charge of discrimination with the EEOC. JA at 12. The case was tried to a jury in Baltimore, Maryland beginning on February 27, 2006. JA at 26. At the close of the EEOC's case, FedEx moved for JMOL on both claims and argued that punitive damages were not warranted in this case. JA at 426-27. The motion was denied. JA at 427. FedEx's renewed motion filed at the close of its case was also denied. JA at 502. The jury returned a verdict finding that the EEOC proved by a preponderance of the evidence that FedEx failed to provide Lockhart with a reasonable accommodation and that the company did so with malice or reckless indifference to his federally protected rights. JA at 600. The jury further found that the EEOC proved that FedEx did not act in a good-faith attempt to comply with its antidiscrimination policy. JA at 600. The jury awarded $8,000 in compensatory damages and $100,000 in punitive damages. JA at 600. The jury found in favor of FedEx on the EEOC's claim of retaliation. JA at 601. FedEx filed a motion for JMOL as to the punitive damages, or, in the alternative, for remittitur. JA at 605. The district court denied FedEx's motion for JMOL or remittitur on April 25, 2006. JA at 648-56. FedEx filed a timely appeal on June 16, 2006. JA at 657. STATEMENT OF FACTS I. Background Ronald Lockhart has been profoundly deaf since birth. JA at 136. He is unable to speak or read lips, but he is fluent in American Sign Language ("ASL"), which is his primary language. JA at 136-37. Lockhart has been married for twenty-two years, and his entire family communicates using ASL. JA at 138. Prior to his employment with FedEx, Lockhart worked in janitorial positions for approximately sixteen years at a Veterans Administration ("VA") Hospital in California and with Gallaudet University in Washington, D.C. JA at 141-44. During this period, Lockhart attended computer courses part-time at local community colleges. JA at 142-144. Both the VA hospital and Gallaudet University provided Lockhart with sign language interpreters for monthly meetings and workshops. JA at 141-144. The community colleges also provided Lockhart with sign language interpreters. JA at 142-144. Lockhart began working for FedEx in March 2000 as a package handler at the company's Baltimore-Washington International Airport facility ("BWI Ramp"). JA at 145, 148. He worked part-time, for twenty-five hours per week, which allowed him to be a full-time student at the University of Maryland, where he studied Information Technology. JA at 149. Lockhart's duties as a package handler at the BWI Ramp primarily involved sorting packages and letters as they were unloaded off airplanes or trucks; stacking and scanning the packages as necessary; and loading sorted packages onto other trucks or airplanes. JA at 151. Lockhart learned how to perform his job by observing and watching other employees at work. JA at 151. He considered his job "pretty easy," and he did not require, or put in a request for, a sign language interpreter to assist him when he was sorting the packages and envelopes. JA at 152. In July 2000, Victor Cofield, an Operations Manager at the BWI Ramp, became Mr. Lockhart's immediate supervisor. JA at 277. Cofield viewed Lockhart as one of his best employees. JA at 309. Cofield knew immediately that Lockhart was deaf, and he was aware that Lockhart's primary language was ASL. JA at 366, 380. Although Cofield received some training on the ADA from FedEx, he was unfamiliar with the exact requirements of the ADA regarding requests for reasonable accommodation. JA at 329, 369. Cofield spoke with someone in FedEx's legal department to obtain clarification on what constituted a reasonable accommodation for Lockhart. JA at 329. Cofield was never directed by FedEx's legal representatives to read FedEx's "People Manual," which discusses the ADA and its requirements, including reasonable accommodations. JA at 372. Pat Hanratty, the Senior Operations Manager at the BWI Ramp, was familiar with the ADA and its requirement that employers make reasonable accommodations for people with disabilities in the workplace. JA at 488. Hanratty knew that Lockhart was deaf when he was hired and that there were deaf employees at the company's Dulles Airport facility. JA at 490-91. However, like Cofield, Hanratty did not review the relevant portions of FedEx's "People Manual" after Lockhart was hired. JA at 490. Soon after Lockhart began working at the BWI Ramp, he learned that he would be required to attend a number of different meetings during his shifts. Cofield and Hanratty were both aware that Lockhart required an accommodation at these meetings. JA at 366, 490. Lockhart repeatedly requested that he be provided with complete notes from every meeting and with sign language interpreters when necessary throughout his employment with FedEx. JA at 161- 62. At the start of each morning shift, Lockhart was required to attend a brief, daily meeting where the managers would speak to the handlers, occasionally make presentations, and allow employees to ask questions or make comments. JA at 153. These meetings often included discussions on safety issues. JA at 379. Lockhart asked Cofield for complete notes from all of the daily meetings, but he was "almost never" given notes and was not provided with a sign language interpreter. JA at 154, 171. As a result, Lockhart did not understand what was being discussed at the daily meetings, and he felt that he "was missing a lot of information that [his] co-workers were hearing." JA at 154. Lockhart also attended mandatory monthly meetings. JA at 155. At these meetings, which lasted approximately one to two hours, there would be an oral presentation, a comment and question period for the employees, and a videotape presentation. JA at 155. The presentations often covered updates on changes in employee benefits and information on required training. JA at 320-21. Despite the fact that Cofield knew Lockhart had requested a sign language interpreter, Lockhart was neither provided with a sign language interpreter nor shown closed captioned videotapes at these meetings at any time during 2000 or 2001. JA at 156. The company did not provide Lockhart with captioned versions of the videotapes until sometime in 2002, well after Lockhart filed a charge against FedEx alleging unlawful failure to accommodate. JA at 156, 384, 670. Lockhart was also rarely given notes from the monthly meetings. JA at 157-58. On the few occasions Cofield gave Lockhart notes from the monthly meetings, Cofield only provided him with brief bulleted outlines. JA at 386. In addition to the daily meetings and the monthly meetings, Lockhart was also required to attend meetings held by Pat Hanratty several times a year, as well as occasional breakfast meetings. JA at 158-60. Like the monthly meetings, these meetings would start with a presentation, include an employee comment and question period, and occasionally include a videotape presentation. JA at 158-60. Cofield and Hanratty were aware Lockhart had an ongoing need for an accommodation, but they never provided him with a sign language interpreter or notes at these meetings. JA at 159-60. Lockhart sporadically received notes for some of the breakfast meetings from co-workers, but these were usually only brief summaries. JA at 160. Lockhart was also required to attend mandatory training sessions a few times a year. JA at 164. Although he never explicitly requested sign language interpreters for the training sessions, Cofield and Hanratty were aware that Lockhart needed an accommodation because these meetings included presentations, question and answer sessions, and videotape presentations. JA at 164. Employees were also occasionally required to take tests on computers as part of the training. JA at 165. Rather than provide a sign language interpreter for Lockhart, FedEx asked team leaders to sit with Lockhart and answer questions for him if he inputted answers incorrectly. JA at 165-66. At some point, Cofield learned that a driver at BWI named Rocky Puglisi was familiar with sign language and asked him to help provide sign language services for Lockhart. JA at 325. However, Puglisi was not versed in ASL, and Puglisi only assisted Lockhart approximately three times. JA at 402. Lockhart had trouble understanding Puglisi because he was not certified in ASL and had no training in ASL. JA at 402. Lockhart learned that a hearing impaired employee was regularly being provided with a sign language interpreter at a FedEx facility in Ohio. JA at 373- 74. When Lockhart told Cofield of this, Cofield responded by asking Lockhart to provide him with more information. JA at 373-74. Cofield contacted someone in Human Resources to determine what services were being provided to hearing impaired employees in Ohio, but the official he spoke with did not have any information. JA at 373-74. Cofield did not attempt to contact any other FedEx facilities or officials to determine what accommodations FedEx may have provided to hearing impaired employees in Ohio. JA at 375-77. After the events of September 11, 2001, FedEx officials held several meetings to discuss security issues, including information related to the anthrax threat and changes to Federal Aviation Administration rules and regulations. JA at 167. Lockhart was not provided with sign language interpreters or meeting notes at these meetings. JA at 167. In October 2001, Lockhart filed a charge with the EEOC alleging that FedEx had violated the ADA by failing to provide him with a qualified sign language interpreter. JA at 670. Sometime in late 2001, revised airport rules were instituted in response to September 11, requiring all employees to obtain new security badges. JA at 168, 328. Lockhart was unable to obtain a new badge without an interpreter. JA at 168. In January 2002, FedEx hired professional sign language interpreter Derwood O'Quinn to assist Lockhart; only then was he able to obtain a security badge. JA at 168-70. FedEx continued to retain O'Quinn to interpret for Lockhart at monthly meetings from January 2002 until the end of Lockhart's employment with FedEx in January 2003. JA at 169. Although management officials were aware that Lockhart had an ongoing need for an accommodation, O'Quinn's services were only provided at some of the monthly meetings, and he did not interpret at any of the daily meetings or training sessions Lockhart attended during that time span. JA at 170. In the summer of 2002, more than two years after Lockhart began working at FedEx, Cofield contacted Human Resources in an attempt to gain clarification on the definition of a reasonable accommodation. JA at 330. Cofield again contacted Human Resources to ask about his duty to provide Lockhart with a reasonable accommodation in December 2002. JA at 331. Cofield testified that he believed the company's response failed to provide him with any relevant additional information. JA at 331. II. District Court Proceedings The case was tried before a jury beginning on February 27, 2006. JA at 26. The jury was given a special verdict form, and, on March 2, 2006, the jury returned a verdict finding that the EEOC proved by a preponderance of the evidence that FedEx failed to provide Lockhart with a reasonable accommodation. JA at 600. The jury awarded $8,000 in compensatory damages. JA at 600. The jury also found that the EEOC proved by a preponderance of the evidence that a higher management official of FedEx acted with malice or reckless indifference to Lockhart's federally protected rights. JA at 600. The jury further found that FedEx did not act in a good-faith attempt to comply with the law by adopting policies and procedures designed to prevent discrimination in the workplace. JA at 600. The jury awarded $100,000 in punitive damages. JA at 600. Finally, the jury found in favor of FedEx on the EEOC's retaliation claim. JA at 601. FedEx filed a motion for JMOL as to the punitive damages, or, in the alternative, for remittitur. JA at 605. On April 25, 2006, the district court denied FedEx's motion for JMOL. JA at 656 (EEOC v. Federal Express Corp., No. 04- 3129, Memorandum Opinion and Order). The district court also granted in part and denied in part the EEOC's motion for equitable relief. JA at 655-66. The district court indicated that it could only grant FedEx's motion for JMOL under Federal Rule of Civil Procedure 50(b) if there was "no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party." JA at 653 (citation omitted). The court stated that it was required to draw all reasonable inferences in favor of the nonmoving party and further noted that "if reasonable minds could differ, the Court must deny the motion." JA at 653 (citation omitted). In support of its motion for JMOL on punitive damages, FedEx argued that there was no basis for the jury to find that FedEx "acted in disregard of Lockhart's needs." JA at 654. In denying the motion, the court found that the EEOC "produced sufficient evidence—accepted by the jury—contradicting FedEx's contentions." JA at 654. The court held that FedEx failed to prove that there was insufficient evidence for the jury's verdict. JA at 654. FedEx contended that remittitur was also appropriate because the jury's damage award was excessive. JA at 654. The court noted that "[u]pon properly finding that FedEx acted with malice or reckless indifference to Lockhart's federally protected rights, the jury awarded $100,000 in punitive damages." JA at 654. In light of the jury's decision, the court held that remittitur was inappropriate because "the award in this case falls within the range that Congress has determined to be reasonable." JA at 654-55. SUMMARY OF ARGUMENT The district court properly denied FedEx's motion for JMOL on the issue of punitive damages because there was sufficient evidence in the record for a reasonable jury to conclude that FedEx intentionally discriminated against Lockhart and that management officials acted with malice or reckless indifference to Lockhart's federally protected rights. The evidence reflects that FedEx officials knowingly and repeatedly failed to provide Lockhart with a reasonable accommodation in the face of the perceived risk that they were violating the ADA. FedEx has failed to establish that there is insufficient evidence to support the jury's determination that the company did not engage in good-faith efforts to comply with the ADA, particularly given the abundant evidence that the company failed to make a sincere effort to abide by its own anti-discrimination policy. The district court properly refused to remit the punitive damages award because the award was not excessive. The award is not constitutionally excessive because federal law provided FedEx with proper notice of the range of damages Congress deemed reasonable for a violation of the ADA. The award also properly satisfies the goals of punishment and deterrence because it addresses the reprehensibility of FedEx's conduct and is reasonable when examined in light of comparable cases and the applicable statutory cap. ARGUMENT I. Standard of Review This Court reviews the district court's denial of a motion for JMOL de novo, viewing the evidence in the light most favorable to the nonmovant, and "draw[ing] all reasonable inferences in [his] favor without weighing the evidence or assessing the witnesses' credibility." Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (citation omitted) (en banc), cert. denied, 540 U.S. 1177 (2004). In reviewing the district court's decision, this Court must apply the same standard the district court applied under Rule 50, which states that JMOL is appropriate only if a party has been fully heard on an issue during a trial by jury and "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a)(1). If the evidence is sufficient to support a reasonable jury's verdict, this Court "must defer to the judgment of the jury, even if the court's judgment on the evidence differs." Duke v. Uniroyal, Inc., 928 F.2d 1413, 1417 (4th Cir.1991). Judgment as a matter of law is proper only if "there can be but one reasonable conclusion as to the verdict." Ocheltree, 335 F.3d at 331 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Whether an award of punitive damages is excessive under the Due Process Clause is a constitutional question that this court reviews de novo. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001). I. The District Court Properly Denied the Appellant's Motion for Judgment as a Matter of Law Because the Evidence is Sufficient to Support the Verdict Awarding Punitive Damages The Civil Rights Act of 1991 provides that compensatory and punitive damages are available for an ADA violation in addition to equitable relief. See 42 U.S.C. §§ 1981a(a)-(b). The statute provides that punitive damages may be awarded in cases where an employer engages in intentional discrimination "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The terms "malice" and "reckless indifference" refer "to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999). Eligibility for punitive damages depends on the employer's state of mind, not on the "egregiousness" of the employer's misconduct. Id. Once malice or reckless indifference is established, an employer may still avoid vicarious liability for the acts of its employees or agents when those acts are contrary to the employer's good-faith efforts to comply with the law. See id. at 545-46. Therefore, in order for FedEx to succeed on its claim that the district court erred in upholding the punitive damage award, it would have to demonstrate that it did not commit intentional discrimination or that there was insufficient evidence to support the jury's determination that FedEx discriminated "with malice or reckless indifference" to Lockhart's federally protected rights and that FedEx did not engage in good-faith efforts to comply with the ADA. FedEx cannot meet this burden. A. FedEx Committed Intentional Discrimination Under 42 U.S.C. § 1981a Section 1981a limits the availability of compensatory and punitive damages to a subset of cases involving intentional discrimination, "that is, cases that do not rely on the ‘disparate impact' theory of discrimination." Kolstad, 527 U.S. at 534; 42 U.S.C. § 1981a(a)(1)-(2). Therefore, if an employer violates the ADA, in a non-disparate impact case, that employer has committed "intentional discrimination" as defined by § 1981a. An employer violates the ADA, in pertinent part, if the employer fails to make reasonable accommodations "to the known physical or mental limitations of an otherwise qualified individual with a disability," where providing such an accommodation does not impose an "undue hardship" on the operation of the employer's business. 42 U.S.C. § 12112(b)(5)(A). In the instant case, there is no question that FedEx committed intentional discrimination because the jury returned a verdict finding that FedEx failed to provide Lockhart with a reasonable accommodation. FedEx does not challenge on appeal the jury verdict finding it liable for failure to accommodate, stating that "[s]ome of the [efforts] were not as effective and, as the jury found, were not sufficient to satisfy the requirements under the Americans with Disabilities Act." Appellant's Brief ("App.") at 20. Furthermore, FedEx is not contesting the jury's compensatory damages award, which is only available "where the employer has engaged in ‘intentional discrimination.'" Kolstad, 527 U.S. at 535. FedEx attempts to cloud the issue of intentional discrimination by arguing that punitive damages are not available under § 1981a unless there is sufficient evidence for a reasonable jury to conclude that the company acted with "evil motive" or exhibited "animosity" towards Lockhart in its failure to provide him with a reasonable accommodation. See App. at 19, 23-24. FedEx argues that, because management officials provided some limited assistance to Lockhart, the inadequacy of their efforts did not rise to the level of "intentional" acts of discrimination. App. at 22. In so arguing, FedEx misinterprets the meaning of "intentional discrimination" for purposes of § 1981a. As discussed above, FedEx's failure to provide Lockhart with a reasonable accommodation is, by definition, an act of intentional discrimination under the meaning of § 1981a. See Kolstad, 527 U.S. at 534. Once FedEx failed to provide an accommodation in violation of the ADA (a non-disparate impact claim), which FedEx does not contest, the extent to which management officials possessed an "evil motive," "animosity," or "hostility" toward Lockhart became irrelevant to the question of whether FedEx committed intentional discrimination. Furthermore, FedEx is also mistaken in arguing that the company's limited efforts to provide Lockhart with some assistance cannot be viewed as "intentional." One problem with this argument, of course, is that having been found in this case to have failed to provide Lockhart with a reasonable accommodation, FedEx has by definition committed an act of intentional discrimination. It is no defense to liability for such an act of intentional discrimination that the company made inadequate efforts to assist Lockhart. Conversely, the fact that FedEx officials made "some effort" does not make their conduct any less intentional within the meaning of the statute. Moreover, the record evidence demonstrates that management officials did not make a good-faith effort to provide Lockhart with a reasonable accommodation. The evidence clearly shows that management officials failed to respond to Lockhart's repeated requests for a reasonable accommodation for nearly two years until January 2002. JA at 153-67. FedEx did not regularly provide Lockhart with accommodations, such as closed captioned videotapes at the monthly meetings until after January 2002, despite the fact that Cofield and Hanratty were aware that other facilities were providing hearing impaired employees with accommodations. JA at 156, 373, 490. When Lockhart informed Cofield that a facility in Ohio was providing a hearing impaired employee with accommodations, Cofield made little effort to investigate what accommodations were being provided there. JA at 373-77. Furthermore, FedEx rarely provided Lockhart with complete meeting notes, and, when FedEx finally provided Lockhart with a professional sign language interpreter in January 2002, the company only did so intermittently. JA at 154-60, 169-70. B. The Evidence is Sufficient to Support the Jury's Determination that FedEx Discriminated with Malice or Reckless Indifference to Lockhart's Federally Protected Rights Once intentional discrimination is established, punitive damages may be awarded in cases where an employer "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The terms "malice" and "reckless indifference" refer to the employer's knowledge that it may be violating federal anti-discrimination law. See Kolstad, 527 U.S. at 535; Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443 (4th Cir. 2000), cert. denied, 531 U.S. 822 (2000). This Court has acknowledged that malice or reckless indifference is established when the employer discriminated in the face of a perceived risk that its decision would violate federal law. See Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 123 F.App'x 558, 564 (4th Cir. 2005) (unpublished) (finding that a prominent law firm that was aware of an employee's gender discrimination complaints "perceived the risk of violating federal law" when it retaliated against the employee even though the firm had an employment law section); Anderson v. G.D.C. Inc., 281 F.3d 452, 460 (4th Cir. 2002) (finding that an employer perceived the risk of violating Title VII where the employer was aware of an EEO poster in the workplace but still engaged in harassing conduct); Lowery, 206 F.3d at 443 (holding that an employer perceived the risk of violating the ADA when it retaliated against an employee despite the fact that management officials were required to attend a mandatory training seminar which "included education on the federal anti-discrimination laws"). FedEx does not contest the fact that management officials at FedEx were aware of the ADA and its requirements. Victor Cofield, Lockhart's supervisor, testified at trial that he was given some information about the ADA when he was hired by FedEx, and he further acknowledged knowing that the ADA required FedEx to provide disabled employees with a reasonable accommodation. JA at 329-31, 369. Furthermore, Hanratty, the senior official at the BWI Ramp, also testified at trial that he was familiar with the ADA and its provisions regarding reasonable accommodation. JA at 488. Despite being aware of the ADA and its requirements, both Cofield and Hanratty repeatedly denied Lockhart's requests for a reasonable accommodation throughout the duration of his employment with FedEx. Indeed, the evidence reflects a persistent pattern of failure to provide Lockhart with the accommodations he needed to perform his job competently and safely. The record indicates that Lockhart was not provided with a sign language interpreter versed in ASL for numerous required meetings and training sessions until January 2002, nearly two years after he began working at FedEx in March 2000. See JA at 169. Lockhart was not provided with a sign language interpreter at mandatory daily morning meetings where training and safety issues were often discussed, and he was rarely given meeting notes by Cofield. JA at 153-54, 379. He was not provided with a sign language interpreter at one to two hour-long monthly meetings which he was required to attend and often covered safety and employee benefit information during 2000 or 2001. JA at 155, 320-21. FedEx did not obtain closed captioned videotapes for video presentations at the monthly meetings until sometime in early 2002. JA at 155, 384. Lockhart was not provided with a sign language interpreter or given meeting notes from management for required meetings occasionally held by Hanratty or occasional breakfast meetings. JA at 158-59. After the events of September 11, 2001, Lockhart was not provided with a sign language interpreter or notes from meetings which addressed regulatory changes and safety issues, including information regarding the anthrax threat. JA at 167. Despite knowing Lockhart needed an interpreter at training sessions, management officials failed to provide him with an interpreter at training and only intermittently provided Lockhart with closed captioned videotapes at the sessions. JA at 164. Additionally, when FedEx finally provided Lockhart with a sign language interpreter, it was only after he had filed a charge and only on a limited basis. JA at 169. Cofield asked an employee to help interpret for Lockhart on a few occasions prior to January 2002, but Cofield knew that the employee's services were not adequate because the employee was not versed in ASL. JA at 325-26, 402. Finally, the record shows that, although Cofield was aware that sign language interpreters were being provided for hearing impaired employees at a FedEx facility in Ohio and that Hanratty knew his counterpart at the company's Dulles facility had hearing impaired employees, neither management official made any serious effort to determine what services the other offices provided to their hearing impaired employees in order to discern what accommodations might be available for Lockhart. See JA at 373-77, 490-91. This evidence demonstrates that FedEx officials were, at best, indifferent to Lockhart's need for an accommodation and is more than adequate to support the jury's finding of reckless indifference. See Gallina, 123 F.App'x at 564. On appeal, FedEx argues that the courts' decisions in Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000), and Gagliardo v. Connaught Labs, Inc., 311 F.3d 565 (3d Cir. 2002), reflect the proposition that punitive damages are only available when management officials are shown to have "made no effort whatsoever" to comply with the ADA's requirements. App. at 20. Contrary to FedEx's assertion, these decisions do not state a such rule. The courts in these cases were merely referring to the particular facts of the cases before them. See Otting, 223 F.3d at 711-12; Gagliardo, 311 F.3d at 573-74. While evidence that an employer made no effort is, to be sure, one way of establishing reckless indifference, it is not the only way. See EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999) (finding that Wal-Mart acted with malice or reckless indifference when a hearing impaired employee's supervisor failed to provide him with a reasonable accommodation at a mandatory training session even though the facts reflected that the supervisor offered to have one of the employee's co- workers, who was not certified in ASL, interpret for him at the session). FedEx also contends that punitive damages are not available here because FedEx officials did not exhibit an "evil motive," or some degree of "egregrious conduct." App. at 24-25. This argument is contrary to the plain language of § 1981a's provisions and the Supreme Court's interpretation of that language in Kolstad. In defining the meaning of the terms "malice" and "reckless indifference," the Supreme Court specifically held that employers could be liable for punitive damages in the absence of conduct exhibiting "some independent, ‘egregious,' quality." Kolstad, 527 U.S. at 538. The Court indicated that the terms "malice" and "reckless indifference" do not necessitate "an independent, ‘egregiousness' requirement." Id. at 539; see Anderson, 281 F.3d at 459 (stating that Kolstad "rejected the rule that punitive damages are available when the discrimination is particularly egregious or severe"). The Court further held that "malice" and "reckless indifference" refer to "the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Id. at 535. Therefore, the Court's "state of mind" inquiry reflects the requirement that FedEx was aware that it was violating federal law.<1> While FedEx's conduct may properly be viewed as egregious, the law does not require that it be so in order to assess punitive damages. See Gallina, 123 F.App'x at 564. FedEx further argues that punitive damages are not available because the instant case falls into the "narrow class of cases" identified in Kolstad where an employer who commits intentional discrimination may be exempted from liability for punitive damages because: "the employer may simply be unaware of the relevant federal prohibition"; the employer "discriminates with the distinct belief that its discrimination is lawful"; the theory on which an employee bases his claim is "novel or otherwise poorly recognized"; or the employer reasonably believes that its discrimination "satisfies a bona fide occupational qualification defense or other statutory exception to liability." 527 U.S. at 537. However, none of these defenses to liability is applicable here. FedEx concedes that its management officials were aware of the ADA and its requirements, the ADA is now a matter of settled law, and FedEx has not argued that punitive damages are unavailable because of occupational qualifications or statutory exceptions. There is no merit to FedEx's argument that management officials believed that their conduct was lawful because they believed Lockhart was receiving sufficient accommodations. This argument belies the record evidence, which clearly shows that management officials were aware that Lockhart required an accommodation but repeatedly failed to respond to Lockhart's requests for an accommodation for nearly two full years. This failure came despite the fact that Cofield and Hanratty knew that other FedEx facilities were providing hearing impaired employees with accommodations. See JA at 373-77, 490-91; Wal-Mart, 187 F.3d at 1246 n.3 (finding that Wal-Mart did not qualify for one of the Kolstad defenses because it "had a company-wide policy designed to ensure compliance with the requirements of the ADA;" the ADA is now a matter of settled law; Wal- Mart did not assert that it was insulated from punitive damages because of occupational qualifications or statutory exceptions; and the Court's conclusion that Wal-Mart had discriminated "in the face of a perceived risk that it would violate federal law" precluded the argument that Wal-Mart "had a distinct belief that its discrimination was lawful").<2> C. The Evidence is Sufficient to Support the Jury's Determination that FedEx Failed to Establish Good-Faith Efforts to Comply with the Law In Kolstad, the Supreme Court held that "in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's ‘good-faith efforts to comply with [the ADA].'" 527 U.S. at 545. It is FedEx's burden "to establish that it has engaged in a good-faith effort to comply with [the ADA] such that it may avoid punitive damages for conduct by one of its managers or supervisors that might otherwise warrant submission of punitive damages to a jury." Golson v. Green Tree Fin. Serv. Corp., 26 F.App'x 209, 214 (4th Cir. 2002) (unpublished) (citations omitted). In order for the good-faith exception to apply, an employer must demonstrate both the existence of an antidiscrimination policy and evidence that the company was sincerely committed to abiding by the policy. See Lowery, 206 F.3d at 446. Whether an employer had a sincere commitment to abiding by its anti-discrimination policy can be determined by the extent to which the company trained and educated its employees about anti-discrimination laws. Anderson, 281 F.3d at 461; Wal-Mart, 187 F.3d at 1248. Additionally, good-faith may be evidenced by an employer's demonstrated effort to actively enforce its own anti- discrimination policy. See Golson, 26 F.App'x at 215 (finding the employer was not committed to enforcing its policy when management officials repeatedly ignored an employee's discrimination complaints). Here, there is sufficient evidence to support the jury's conclusion that FedEx failed to engage in good-faith efforts to comply with the ADA. The evidence indicates that FedEx had a written company-wide policy addressing the ADA and reasonable accommodations in the company "People Manual" and that FedEx has an internal grievance policy called the Guaranteed Fair Treatment Process, which allows employees to bring forward complaints alleging unfair treatment. JA at 339, 831-32. However, while FedEx places a great deal of emphasis on the existence of its company-wide anti-discrimination policy, it is not enough to simply have a non-discrimination policy in place. See Lowery, 206 F.3d at 446 ("[W]hile an employer's institution of a written policy against [discrimination] may go a long way toward dispelling any claim about the employer's reckless or malicious state of mind … such a policy is not automatically a bar to the imposition of punitive damages."). FedEx was also required to prove that the company sincerely abided by and implemented its own policies. The record supports a finding that FedEx failed to make this showing. The evidence reflects that FedEx failed to properly train its management officials on the company's ADA policy and that this failure led management officials repeatedly to fail to provide Lockhart with a reasonable accommodation throughout his employment with the company. Cofield testified at trial that FedEx gave him some training on the ADA, but he was unsure what providing a reasonable accommodation entailed. JA at 330. Despite that fact, Cofield did not review the applicable sections of the company's "People Manual" regarding the ADA when he became Lockhart's supervisor. JA at 372. When Cofield finally requested more information on the definition of a reasonable accommodation, he was neither provided with a specific answer nor directed to read the relevant portions of the "People Manual." See JA at 331, 372. Both Cofield and Hanratty testified that they were only given limited training on the ADA's requirements. See JA at 367-70, 488. Also, that Lockhart's repeated requests for specific accommodations, such as meeting notes, closed caption videos, or sign language interpreters, were ignored demonstrated that FedEx made an inadequate effort to enforce its own anti-discrimination policy. FedEx thus fell far short of establishing a good-faith effort so as to insulate it from liability for punitive damages under Kolstad. See Golson, 26 F.App'x. at 214-15 (finding that Green Tree did not engage in a good- faith effort to comply with Title VII when the company had an anti-discrimination policy and a mechanism for employees to lodge general complaints but failed to properly train its managers or address an employee's complaints that she was being mistreated in a discriminatory fashion); Wal-Mart, 187 F.3d at 1248-49 (finding the good-faith protection inapplicable even though Wal-Mart had a written policy against discrimination because of "a broad failure on the part of Wal-Mart to educate its employees, especially its supervisors, on the requirements of the ADA, and to prevent discrimination in the workplace").<3> FedEx argues that the good-faith exception should apply here because the facts of this case closely resemble the facts in Bryant v. Aiken Regional Medical Centers. Inc., 333 F.3d 536 (4th Cir. 2003), cert. denied, 540 U.S. 1106 (2004). In Bryant, this Court found that the employer was not liable for punitive damages because the company had "an extensively implemented organization-wide Equal Employment Opportunity Policy;" created a grievance policy "encouraging employees to bring forward claims of [discrimination];" developed a diversity training program; and "voluntarily monitored departmental demographics as part of an ongoing effort to keep the employee base reflective of the pool of potential employees in the area." Id. at 548. This case is easily distinguishable from Bryant because, while FedEx had an anti-discrimination policy and a grievance policy for its employees, FedEx failed to implement those policies. For example, FedEx failed to properly train its managers on the ADA and reasonable accommodation law and did not actively monitor for potential discrimination violations. FedEx simply did not demonstrate the same "widespread antidiscrimination efforts" that might warrant protection from an award of punitive damages under the good-faith exception. See Bryant, 333 F.3d at 549. The Sixth Circuit's decision in Tisdale v. Federal Express Corp., 415 F.3d 516 (6th Cir. 2005), is instructive here. FedEx asserted an argument in Tisdale similar to its contention here regarding the good-faith exception. Id. at 533-34. The Sixth Circuit stated in that case that FedEx "placed much evidence in the record in support of its anti-discrimination policies" but that the plaintiff "presented evidence of a number of inconsistent practices" which "calls into question FedEx's sincerity to abide by its own written policies." Id. As in Tisdale, FedEx is unable to show that the good-faith exception is applicable in this case because the company failed to demonstrate a sincere effort to abide by its anti-discrimination policy. The record evidence is sufficient to support the jury's conclusion that FedEx did not act in a good-faith attempt to comply with the ADA. II. The Punitive Damages Award is not Grossly Excessive in Violation of Due Process After a three-day trial, the jury awarded Lockhart with $8,000 in compensatory damages and $100,000 in punitive damages. JA at 652. FedEx argues on appeal that the jury's punitive damages award was constitutionally excessive and that the district court erred in refusing to remit the award. Remittitur should only be ordered when the jury award will "result in a miscarriage of justice." Cline, 144 F.3d at 306. The district court properly decided not to disturb the jury's decision because the jury's award fell "within the range that Congress has determined to be reasonable." JA at 654-55. A. The Punitive Damages Award is not Constitutionally Excessive Because it Falls Below the Statutory Cap Established by Congress In BMW of North America Inc. v. Gore, 517 U.S. 559 (1996), the Supreme Court indicated that punitive damages "may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition." Id. at 568. The Court held that a punitive damage award may violate the Due Process Clause of the Constitution if the award can be categorized as "grossly excessive" in relation to a state's interests in punishment and deterrence. Id. "Fundamental to the due process analysis is the whether [the employer] received fair notice that the conduct in question was prohibited and what the potential penalty for engaging in that conduct could be." Golson, 26 F.App'x at 215-16 (quoting Romano v. U-Haul Int'l, 233 F.3d 655, 672 (1st Cir. 2000)). Notice is the principle concern because "[e]lementary notions of fairness enshrined in [the Supreme Court's] constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of penalty that a State may impose." BMW, 517 U.S. at 574; see also State Farm, 538 U.S. at 418 ("[T]he point of due process—of the law in general—is to allow citizens to order their behavior. A State can have no legitimate interest in deliberately making the law so arbitrary that citizens will be unable to avoid punishment based solely upon bias or whim." (quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 59 (1991) (O'Connor, J., dissenting))). The jury's $100,000 punitive damages award in this case is not grossly excessive because federal law provided FedEx with proper notice of the punitive damages that could be imposed for a violation of the ADA. In Romano, the First Circuit held that the three-part BMW analysis is inapplicable in cases brought under Title VII because punitive damages are authorized and limited by § 1981a, which imposes a statutory cap on damages up to $300,000. Romano, 233 F.3d at 673; see also 42 U.S.C. § 1981a(b)(3)(D). The Court noted that the notice concern identified in BMW is resolved in such cases because "[a] congressionally- mandated, statutory scheme identifying the prohibited conduct as well as the potential range of financial penalties goes far in assuring that [the employer's] due process rights have not been violated." Romano, 233 F.3d at 673. In Golson, this Court echoed the First Circuit's holding, stating that the statutory cap provided an employer with notice of the range of damages that could be imposed "if a trier of fact concludes that the employer violated Title VII and that it did so ‘with malice or with reckless indifference to the federally protected rights'" of an individual. 26 F.App'x at 216. This Court held that the fact that a jury's punitive damages award is below the statutory maximum that Congress felt was reasonable "is a strong indicator that [the] award was not unconstitutional." Id.; see also TXO Prod. Corp, v. Alliance Res. Corp., 509 U.S. 443, 466 (1993) ("[T]he notice component of the Due Process Clause is satisfied if prior law fairly indicated that a punitive damages award might be imposed in response to egregiously tortuous conduct."); Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617, 625 (7th Cir. 2000), cert. denied, 531 U.S. 1153 (2001) ("[W]hen a plaintiff seeks punitive damages in a federal case, it is unnecessary to look for limits in the Constitution."). This case was brought under the ADA, and the punitive damages award was authorized and capped for employers the size of FedEx at $300,000 by § 1981a(b)(3)(D). As in cases involving Title VII, Congress provided FedEx with notice of the range of damages that Congress determined could reasonably be imposed for a violation of the ADA. Once the jury found that FedEx failed to provide Lockhart with a reasonable accommodation and that this failure was with malice or reckless indifference to his protected rights, the jury was free to award punitive damages up to $300,000 without violating FedEx's constitutional right to due process. See Wal-Mart, 187 F.3d at 1249 ("The award in this [ADA] case falls within the range that Congress has determined to be reasonable, thus undermining Wal-Mart's [excessiveness] argument."). FedEx was on notice of the range of damages it could incur for violating the ADA by virtue of the statutory cap, and any award granted under the statutory cap is therefore "per se reasonable." As a result, the district court properly found that the jury's $100,000 award was reasonable and not grossly excessive. B. The Punitive Damages Award is not Constitutionally Excessive under BMW Even if the punitive damages award is scrutinized under the BMW guideposts, the $100,000 award is still reasonable and constitutionally permissible. In cases where fair notice was not properly given, the Supreme Court identified three guideposts to use in determining whether due process was violated: (1) The degree of reprehensibility of the defendant's misconduct; (2) the disparity between harm or potential harm suffered by [Lockhart] and [his] punitive damage award; and (3) the difference between the punitive damage award and other civil and criminal penalties imposed in comparable cases. State Farm, 538 U.S. at 418 (citing BMW, 517 U.S. at 575). The Court stated that the "most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." Id. at 419 (quoting BMW, 517 U.S. at 575). The Court enumerated factors for evaluating the reprehensibility of a defendant's conduct: Whether "the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident." Id. (citing BMW, 517 U.S. at 576-77). The record supports the conclusion that FedEx's conduct was sufficiently reprehensible to warrant the jury's punitive damages award because management officials repeatedly failed to provide Lockhart with a reasonable accommodation. See JA at 153-67. During that two-year period, Lockhart was required to attend meetings where he was often unable to understand what was being discussed, including information related to employee benefits, safety issues, and post- September 11 security issues. JA at 153-67, 320-21. Furthermore, when FedEx finally provided Lockhart with a professional sign language interpreter versed in ASL in January 2002, after he filed his charge with the EEOC, the company only did so intermittently. JA at 169-70, 670. FedEx's indifference to Lockhart's federally protected rights included intentional non-economic harm, such as the violation of Lockhart's civil rights; occurred repeatedly over a three-year period; and exhibited indifference to the health and safety of Lockhart and his co-workers as Lockhart was often unable to understand important work-related safety and security information being discussed at meetings. Thus, the company's reprehensible conduct justified the $100,000 punitive damages award, which is only one-third of the statutory maximum of $300,000. See EEOC v. E. I. Du Pont de Nemours & Co., No. 05-30712, slip op. at 14-16 (5th Cir. Mar. 1, 2007) (upholding a $300,000 punitive damages award); Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001) (upholding the jury's $100,000 punitive damages award, the maximum allowed by statute). The jury's punitive damages award is also reasonable under the second BMW factor of proportionality. In BMW, the Supreme Court indicated that punitive damages must bear a "reasonable relationship" to the compensatory damages awarded. BMW, 517 U.S. at 580. The Court has repeatedly refused to draw a mathematical bright line between the constitutionally acceptable and unacceptable ratio. See State Farm, 538 U.S. at 425-26; BMW, 517 U.S. at 582- 83. It has, however, suggested that ratios of 145-to-1 and higher may be suspect. Id. FedEx argues that the $100,000 award should be remitted when compared to the $8,000 compensatory damages award because the 12.5-to-1 punitive to compensatory damages ratio is excessive under the BMW framework and should be no greater than 4-to-1. There is no support for FedEx's contention. Clearly 12.5-to-1 is much lower than the ratios discussed in State Farm and BMW, and it does not "cross the line into the area of constitutional impropriety." Haslip, 499 U.S. at 24; see Golson 26 F.App'x at 216 (finding that a 7-to-1 ratio is not unconstitutionally high); Romano, 233 F.3d at 673-74 (finding constitutionally acceptable a 19-to-1 ratio between a jury's punitive and compensatory damages awards); EEOC v. W & O, Inc., 213 F.3d 600, 616 (11th Cir. 2000) (upholding ratios of 26-to-1 and 16-to-1 in a pregnancy discrimination case); Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1272-73 (10th Cir. 2000). (upholding a 59-to-1 ratio in a Title VII sexual harassment case); Wal-Mart, 187 F.3d at 1249 (finding a ratio of over 20-to-1 reasonable). Moreover, FedEx misinterprets BMW in arguing that the decision requires a strict ratio. The BMW decision indicated that "[a] higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine." 517 U.S. at 582. "[F]irm ratios are most applicable to purely economic injury cases where injury is not hard to detect," and greater ratios may apply in cases involving primarily personal injuries. Deters, 202 F.3d at 1272-73. In support of its argument that the 12-to-1 ratio must be remitted, FedEx cites to two Fourth Circuit cases where punitive damage awards were remitted, but these cases are unpersuasive and easily distinguished from this case. FedEx argues that Cline, 144 F.3d at 306, addresses "the best standard for reviewing the size of a punitive damages award," which is "whether the jury's award will result in a miscarriage of justice." App. at 34. However, FedEx does not explain how this "miscarriage of justice" standard would apply or how the jury's award is constitutionally excessive under it. In any case, the discussion above demonstrates that the award did not constitute a "miscarriage of justice" because it is both constitutional and reasonable. FedEx's reliance on Cline is also misplaced because that decision was issued before Kolstad, applied a different analysis in determining when and how punitive damages were available, and remitted a punitive damages award as excessive without applying the BMW factors. 144 F.3d at 306. Significantly, Cline did not consider the ratio of punitive to compensatory damages in its excessiveness determination. Id. Similarly, in Atlas Food Systems & Services, Inc. v. Crane National Vendors, Inc., 99 F.3d 587 (4th Cir. 1996), the Court did not address whether the punitive damages award was constitutionally excessive in light of BMW and did not consider the ratio of punitive to compensatory damages in its decision. Id. at 594.<4> The jury's punitive damages award is also reasonable under the third BMW guidepost, which requires a comparison of the award with civil or criminal penalties that are imposed for comparable conduct. 517 U.S. at 583. A reviewing court must accord "‘substantial deference' to legislative judgments concerning appropriate sanctions for the conduct at issue." Id. (citing Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301 (1989)). Therefore, in applying BMW, courts must accord deference to the statutory caps and penalties imposed for comparable conduct when determining whether an award is grossly excessive. Here, the district court examined the jury's punitive damages award given the evidence of FedEx's actions in the record and determined that the $100,000 award fell within the range Congress deemed reasonable. See JA at 654-55. In examining the award's reasonableness, the district court noted that the maximum statutory punitive damages award was $300,000 and that the Tenth Circuit refused to remit an award of $75,000, one-fourth the statutory maximum, in an ADA case. JA at 654-55 (citing Wal-Mart, 187 F.3d at 1249). Thus, the district court was correct in concluding that the $100,000 punitive damages award was reasonable in light of the statutory cap and comparable case law. See Tisdale, 415 F.3d at 535 (awarding a $100,000 punitive damages award, one-third of the statutory maximum, for a Title VII violation); W&O, Inc., 213 F.3d at 617 (upholding a $100,000 punitive damages award, the applicable statutory maximum, in a pregnancy discrimination case).<5> FedEx correctly states that, under the BMW framework, "courts do not abdicate their duty to examine the award for proportionality and reprehensibility simply because the jury's award was below the statutory cap." App. at 36. In the instant case, the evidence shows that the district court did not err in refusing to remit the punitive damages award because the jury properly considered the evidence of FedEx's reprehensible conduct. In addition, in awarding Lockhart one-third of the maximum amount Congress determined to be reasonable for a company of FedEx's size, the damage award falls squarely within the range of proportion found by many courts to meet the constitutional test.<6> CONCLUSION For the aforementioned reasons, the EEOC respectfully requests that this Court affirm the district court's determination that the jury properly concluded that punitive damages were warranted in this case and that the punitive damages award was not constitutionally excessive. REQUEST FOR ORAL ARGUMENT The Commission requests oral argument in this appeal. This challenge to a punitive damages award presents a variety of factually intensive issues on appeal, in the context of addressing the question whether the district court properly denied FedEx's Motion for Judgment as a Matter of Law on the issue of punitive damages and whether the damage award is excessive. Due to the complexity and significance of the issues raised in this appeal, the Commission believes oral argument would assist the Court in its resolution of the matters presented. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ______________________ DAVIS L. KIM Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7014 Washington, D.C. 20507 (202) 663-4736 davis.kim@eeoc.gov CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Brief of Plaintiff-Appellee the U.S. Equal Employment Opportunity Commission complies with the type-volume limitations set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). The foregoing brief contains 9,453 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. _____________________________ DAVIS L. KIM Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., N.W., Rm. 7014 Washington, D.C. 20507 (202) 663-4736 davis.kim@eeoc.gov CERTIFICATE OF SERVICE I hereby certify that the original and seven copies of the foregoing brief were sent this 9th Day of March, 2007, by FedEx Next Day Air delivery, postage prepaid, to the United States Court of Appeals for the Fourth Circuit, 1100 East Main St., Suite 501, Richmond, VA 23219-3517. I further certify that two copies of the foregoing brief were sent this 9th Day of March, 2007, by FedEx Next Day Air delivery, postage prepaid, to counsel of record for Defendant-Appellant at the address below: Edward J. Efkeman, Esq. Bldg. B3, 3rd Floor Federal Express Corp. 3620 Hacks Cross Rd. Memphis, TN 38125 _____________________________ DAVIS L. KIM Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., N.W., Rm. 7014 Washington, D.C. 20507 (202) 663-4736 davis.kim@eeoc.gov *********************************************************************** <> <1> FedEx argues that this Court’s decision in Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998), demonstrates a need for employees to show some level of egregious conduct, or “callous indifference” to their rights under the ADA in order for employers to be liable for punitive damages. App. at 26. However, Cline’s application of the “callous indifference” standard is inapplicable to this case because it was decided prior to the Supreme Court’s decision in Kolstad and did not apply the Kolstad analysis in determining the availability of punitive damages. See 144 F.3d at 306. <2> FedEx argues that Wal-Mart can be distinguished from this case because Wal-Mart knew that their hearing impaired employee was not receiving “necessary information,” and Lockhart was occasionally given meeting notes and a sign language interpreter after January 2002. App. at 21-22. However, the record reflects that Lockhart repeatedly missed information at meetings where he was not provided an accommodation, including information about employee benefits, safety issues, and post-September 11 information regarding the anthrax scare. JA at 153-67, 320-21. The fact that Lockhart was able to pass his training courses, take advantage of company benefits, and work as a model employee serves as a testament to his ability to overcome obstacles rather than as proof that he was provided with a sufficient reasonable accommodation. <3> On appeal, FedEx argues that Lowery requires proof of discriminatory animus by top executives or evidence of systemic discrimination in order for punitive damages to be available when a corporate anti-discrimination policy exists. App. at 32. However, rather than requiring these “factors” to be present, the decision instead only noted that the factors were considered in determining whether the good-faith exception applied in that case. Lowery, 206 F.3d at 446. <4> On appeal, FedEx also cites Rubinstein v. Administrators of the Tulane Educational Fund, 218 F.3d 392 (5th Cir. 2000). In Rubinstein, the Fifth Circuit remitted a punitive damages award because the court found that the 30-to-1 ratio was excessive given the facts of the case, which involved one instance of retaliation involving a small percentage raise. 218 F.3d at 408. This case is easily distinguishable because, unlike the conduct addressed in Rubinstein, FedEx’s reprehensible conduct in this case involved repeated violations of the ADA over a three-year period and included multiple failures on the part of FedEx to remedy the company’s failure to provide Lockhart with a reasonable accommodation. <5> FedEx argues that the district court erred in refusing to remit the punitive damages award as excessive “based solely on the third [BMW] guidepost.” App. at 36. However, the record reflects that the district court never stated that its determination on the question of excessiveness was limited to an analysis of the third BMW guidepost. See JA at 654-55. <6> Even if this court determines that the district court did not analyze whether the punitive damages award was excessive under the BMW factors, this court should still affirm the finding that the award was reasonable under BMW for the aforementioned reasons. See Scott v. U.S., 328 F.3d 132, 137 (4th Cir. 2003) (stating that the court is “entitled to affirm on any ground appearing in the record, including theories not relied upon or rejected by the district court”).