EEOC v. Heartway Corp., 10th Cir. Brief as appellant June 10, 2005 ORAL ARGUMENT REQUESTED Case Nos. 05-7011 & 05-7016 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. HEARTWAY CORPORATION d/b/a York Manor Nursing Center, Defendant-Appellee/Cross-Appellant. ________________________________________________________ On Appeal from the United States District Court For the Eastern District of Oklahoma, No. 03-534-WH, The Honorable Ronald A. White, Presiding _________________________________________________________ OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ ERIC S. DREIBAND JOSEPH A. SEINER General Counsel Attorney U.S. EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, N.W., Room 7018 CAROLYN L. WHEELER Washington, D.C. 20507 Assistant General Counsel (202) 663-4772 FOUR ATTACHMENTS TO BRIEF; THREE IN WRITING ONLY; ONE ATTACHMENT SUBMITTED BOTH DIGITALLY AND IN WRITING TABLE OF CONTENTS Page TABLE OF CONTENTS .................................................. i TABLE OF AUTHORITIES ............................................... iii PRIOR OR RELATED APPEALS ........................................... vi STATEMENT OF JURISDICTION .......................................... 1 STATEMENT OF THE ISSUE ............................................ 2 STATEMENT OF THE CASE .............................................. 2 STATEMENT OF THE FACTS ............................................. 4 DECISION BELOW...................................................... 7 STANDARD OF REVIEW ................................................. 8 SUMMARY OF ARGUMENT ................................................ 9 ARGUMENT ........................................................... 11 THE DISTRICT COURT ERRED IN FAILING TO GIVE A PUNITIVE DAMAGE INSTRUCTION TO THE JURY...................... 11 A. The Company Knew that its Actions were in Violation of the ADA................................. 14 B. Heartway Should be Held Liable for Townsend's Actions.............................................. 18 C. Heartway Has Not Satisfied Its Burden of Showing that the Company Acted in Good Faith................. 21 CONCLUSION ......................................................... 26 STATEMENT REGARDING ORAL ARGUMENT................................... 26 CERTIFICATE OF COMPLIANCE ADDENDUM EEOC v. Wal-Mart Stores, Inc., 35 Fed.Appx. 543, 2002 WL 1003133, No. 00-16887 at *3 (9th Cir. May 16, 2002) (unpublished) (submitted digitally) Plaintiff's Proposed Jury Instructions and Verdict Form (filed July 8, 2004) (submitted in writing only) Trial Transcript on Punitive Damage Issue (pp. 270-71, 274-79) (submitted in writing only) December 10, 2004 District Court Order (submitted in writing only) CERTIFICATE OF SERVICE CERTIFICATE OF DIGITAL SUBMISSION TABLE OF AUTHORITIES FEDERAL CASES Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002)....................................... 19 Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101 (7th Cir. 1990)...................................... 26 Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001).................................... 17, 22 Cadena v. The Pacesetter Corp., 224 F.3d 1203 (10th Cir. 2000).................................. 23-24 Che v. Mass. Bay Transport Authority, 342 F.3d 3 (1st Cir. 2003)...................................... 16-17 Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424 (2001)................................................. 12 Davey v. Lockheed Martin Corp., 301 F.3d 1204 (10th Cir. 2002).............................. 14, 21, 23 Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278 (5th Cir. 1999)................................ 19, 22, 24 Dilley v. Supervalu, Inc., 296 F.3d 958 (10th Cir. 2002)................................... 8, 14 EEOC v. Wal-Mart Stores, Inc., 35 Fed.Appx. 543, 2002 WL 1003133, No. 00-16887 (9th Cir. May 16, 2002) (unpublished)......................................................... 24 EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999)....................... 12-14, 17, 19-21 Faragher v. Boca Raton, 524 U.S. 775, 802 n.3, 806 (1998)................................ 22 Gloria v. Valley Grain Products, 72 F.3d 497 (5th Cir. 1996)...................................... 25 Gore v. BMW, 517 U.S. 559 (1996).............................................. 12 Hardeman v. City of Albuquerque, 377 F.3d 1106 (10th Cir. 2004)................................... 8 Hertzberg v. SRAM Corp., 261 F.3d 651 (7th Cir. 2001)..................................... 24 Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1187-88 (10th Cir. 1999) ........................ 25 Kolstad v. American Dental Association, 527 U.S. 526 (1999)............................................ passim Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000)..................................... 23 MacGregor v. Mallinckrodt, Inc., 373 F.3d 923 (8th Cir. 2004)..................................... 22 Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999).................................... 9 Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000)..................................... 23 Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 (9th Cir. 2000)...................................... 22 Praseuth v. Rubbermaid, Inc., 406 F.3d 1245 (10th Cir. 2005) ............................... 8, 14 Robertson Oil Co., Inc. v. Phillips Petroleum Co., 930 F.2d 1342 (8th Cir. 1991).................................... 25 Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000)................................... 9 Smith v. Wade, 461 U.S. 30 (1983) .............................................. 17 State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003).............................................. 12 Wheeler v. John Deere Co., 986 F.2d 413 (10th Cir. 1993).................................... 25 Zimmermann v. Associates First Capital Corp., 251 F.3d 376 (2d Cir. 2001)................................... 17, 22 FEDERAL STATUTES 28 U.S.C. §§ 451, 1291, 1331, 1337, 1343, and 1345 ................ 1, 2 28 U.S.C.A. § 1961(a)................................................. 25 42 U.S.C. § 1981a.................................................. 11, 13 The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq..... passim OTHER AUTHORITY Restatement (Second) of Agency....................................... 18 Restatement (Second) of Torts........................................ 19 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a) ............................ 18-19 Tenth Circuit Rule 36.3 ............................................. 24 PRIOR OR RELATED APPEALS PRIOR APPEALS There are no prior appeals. RELATED APPEALS There are no related appeals. Case Nos. 05-7011 & 05-7016 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. HEARTWAY CORPORATION d/b/a York Manor Nursing Center, Defendant-Appellee/Cross-Appellant. ________________________________________________________ On Appeal from the United States District Court For the Eastern District of Oklahoma, No. 03-534-WH, The Honorable Ronald A. White, Presiding _________________________________________________________ OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction over this case pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. This action was authorized and instituted pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. The district court's final judgment entered on December 11, 2004 (Joint Appendix of the Equal Employment Opportunity Commission and Heartway Corporation ("JA") at 79-83) constitutes a final decision that this Court has jurisdiction to review pursuant to 28 U.S.C. § 1291. Plaintiff-Appellant Equal Employment Opportunity Commission ("EEOC" or "Commission") filed a timely notice of appeal on February 7, 2005. JA at 84. The defendant filed a timely cross-appeal on February 18, 2005. JA at 86. STATEMENT OF THE ISSUE Whether the district court erred in failing to instruct the jury on punitive damages where there was sufficient evidence at trial that the defendant terminated Edwards because of her Hepatitis C with the knowledge that it was violating federal law. The EEOC raised this issue below in its proposed jury instructions, and it was addressed orally at the close of the Commission's case. JA at 28, 330, 334-39 (The Plaintiff's Proposed Jury Instructions and Verdict Form at 6; Trial Transcript (Tr.) at 270, 274-79). STATEMENT OF THE CASE On September 29, 2003, the Commission filed this lawsuit against Heartway Corporation d/b/a York Manor Nursing Center (Heartway) in the U.S. District Court for the Eastern District of Oklahoma alleging that the company violated the ADA when it terminated Janet Edwards because of a perceived disability. JA at 17 (Complaint). The case was tried to a jury on August 16 and 17, 2004. The jury returned a verdict in favor of the Commission and awarded Edwards $30,000.00 in back pay and $20,000.00 in compensatory damages. JA at 63-64 (Verdict Form). The district court declined to give the jury an instruction on punitive damages, however, maintaining that the evidence was insufficient to support such an instruction in light of Supreme Court precedent. JA at 334-39 (Tr. at 274-79). On October 19, 2004, the district court entered judgment for the EEOC. JA at 65-76. The court awarded the $20,000 given by the jury but reduced the amount of back pay to $1,240.00, maintaining that the record did not support the jury's award. Id. The court also declined to award any interest on the judgment, stating that "[i]nsufficient evidence exists to justify" such an award. JA at 73 n.8. On October 29, 2004, the Commission moved to amend the judgment. On November 2, 2004, Heartway moved for judgment notwithstanding the verdict, maintaining that the Commission had failed to show that Heartway regarded Edwards as being disabled. On November 29, 2004, the court denied the defendant's JNOV motion, and on December 10, 2004, the court also denied the Commission's motion to amend the judgment (entered on December 11, 2004). JA at 78-83. The Commission filed a timely notice of appeal on February 7, 2005. JA at 84. On February 18, 2005, Heartway filed a timely cross-appeal. JA at 86. STATEMENT OF THE FACTS Janet Edwards was diagnosed with Hepatitis C. JA at 94-96 (Tr. at 26-28). By January, 2001, after completing twenty-four weeks of treatment, Edwards' condition improved and there was no longer a detectable virus in her blood. JA at 96-97 (Tr. at 28-29). Based on her successful response, Edwards' physician prescribed an additional twenty-four weeks of treatment. JA at 97-98 (Tr. at 29- 30). Edwards continued to respond to this treatment, and on July 9, 2001, there was still no detectable Hepatitis C virus in Edwards' blood. JA at 102 (Tr. at 34). Edwards testified that her Hepatitis C was in remission. JA at 127-28, 157 (Tr. at 59-60, 89). On August 13, 2001, Edwards applied for a position at the York Manor Nursing Center in Muskogee, Oklahoma (Heartway). JA at 125, 128 (Tr. at 57, 60). As part of the application process, Edwards completed a physical requirements questionnaire which asked "[i]n order that we may protect our residents from disease, please indicate if you are under a doctor's care or taking medications now." JA at 128-29, 356 (Tr. at 60-61, EEOC's Trial Ex. 8). Edwards checked "no" in response to this question and testified that she was not taking any medication at that time or under a doctor's care. JA at 129-130, 356 (Tr. at 61-62, EEOC's Trial Ex. 8). Edwards was offered a position as a dietary aide at Heartway on August 15, 2001. JA at 132 (Tr. at 64). After working in this job, Edwards was eventually moved to the cook's position. JA at 133 (Tr. at 65). As a cook, Edwards prepared food for the residents and employees. Id. While working at Heartway, Edwards was never reprimanded or written up and on one occasion was voted employee of the month. JA at 134 (Tr. at 66). While employed at Heartway, Edwards had a conversation with the director of nursing, Theresa Rains, in which Edwards revealed that she had been diagnosed with Hepatitis C. JA at 134-35 (Tr. at 66-67). Two days later, Edwards received a call from Rains informing her that she would need a doctor's note before she could return to work. JA at 136 (Tr. at 68). Edwards' doctor testified that there would be no problem with her working around residents in a nursing home or in preparing food. JA at 106-07 (Tr. at 38-39). Her physician saw no danger that she would transmit Hepatitis C to others. Id. He testified that "[i]t was my opinion she could return to work without restrictions, that she could resume her employment duties at that time." Id. Thus, on April 4, 2002, Edwards' physician prepared a letter releasing her to return to work, which was sent to Edwards. JA at 106-07, 137, 354-55 (Tr. at 38- 39, 69, EEOC Trial Ex. 7). After Edwards received the letter, she also received a call from her supervisor at the kitchen, who fired her. JA at 138 (Tr. at 70). Edwards' employment was officially terminated by Mitchell Townsend, the facility administrator, on April 5, 2002. JA at 126 (Tr. at 58). Edwards and her sister (another Heartway employee) met with Townsend. JA at 138-39 (Tr. at 70-71). Edwards asked if she could have her job back, to which Townsend replied "you having Hepatitis C, you will not work in our kitchen." JA at 139 (Tr. at 71). When Edwards asked if she was being terminated because of her medical condition, Townsend replied that he was firing her because she "falsified information" on her application. Id. Edwards' sister asked if they could see her application, to which Townsend responded by opening his door and stating "[y]ou're dismissed." JA at 139-40 (Tr. at 71-72). Rains later responded to Edwards' application for unemployment benefits by indicating that "Edwards failed to give the facility adequate information regarding her health status of having a communicable disease." JA at 269-70, 359 (Tr. at 201-02, EEOC Trial Ex. 27). Edwards filed a timely charge of discrimination on June 13, 2002, alleging that Heartway had terminated her employment in violation of the ADA. JA at 126, 357 (Tr. at 58, EEOC Trial Ex. 13). During an investigation of the charge, the EEOC investigator discussed Edwards' employment with Townsend. JA at 226, 358 (Tr. at 158, EEOC Trial Ex. 19). Townsend asked the investigator if the call was "about the Hepatitis C case," to which the investigator responded that it was. JA at 226 (Tr. at 158). Townsend then asked "[w]ould you like to eat some food with her blood on it?" Id. Townsend further stated that "[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus." JA at 226-27, 255 (Tr. at 158-59, 187). And, at trial, Townsend conceded that based on training he had received in prior jobs he was aware in April, 2002 that it was illegal to terminate an employee because that individual had been diagnosed with Hepatitis C. JA at 253 (Tr. at 185). DECISION BELOW On August 17, 2004, at the close of the EEOC's case, the district court held a hearing on whether a punitive damage instruction should be given to the jury. JA at 330, 334-39 (Tr. at 270, 274-79). The EEOC had submitted a proposed jury instruction setting forth the relevant standard for awarding punitive damages and citing the Supreme Court's decision in Kolstad v. American Dental Association, 527 U.S. 526 (1999). JA at 28 (Plaintiff's Proposed Jury Instructions and Verdict Form at 6). In refusing to give the instruction, the district court saw "no basis under the trilogy of Supreme Court cases I have mentioned or under the ADA or under the evidence to send the issue of punitive damages to the jury." JA at 338 (Tr. at 278). In support of its decision, the court cited to three Supreme Court decisions that all arose outside the employment context and addressed the constitutionality of punitive damage awards. Id. The district court did not address the standards for a punitive damage award in an employment discrimination case that are set forth in Kolstad, thereby disregarding the Commission's citation to this case in its proposed jury instruction. STANDARD OF REVIEW The district court's decision that there was insufficient evidence to instruct the jury on a punitive damage award is reviewed by this Court de novo. See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1254 (10th Cir. 2005) ("Whether sufficient evidence exists to support punitive damages in an ADA case is a question of law which is reviewed de novo."); Dilley v. Supervalu, Inc., 296 F.3d 958, 966 (10th Cir. 2002) ("[Plaintiff] asserts that he was entitled to a jury determination of his punitive damages claim. . . . Whether sufficient evidence exists to support punitive damages is a question of law reviewed de novo.") (quotation omitted); Hardeman v. City of Albuquerque, 377 F.3d 1106, 1120 (10th Cir. 2004) ("The district court's determination of whether sufficient evidence exists to support punitive damages is a question of law that we review de novo") (quotation omitted). This Court should therefore "consider [the] jury instructions in their entirety, applying de novo review to determine whether the jury was misled on the applicable law." Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1250 (10th Cir. 2000). See also Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999) ("To determine whether the jury was adequately instructed on the applicable law, we review the instructions in their entirety de novo to determine whether the jury was misled in any way."). SUMMARY OF ARGUMENT The district court erred in not instructing the jury on punitive damages where it submitted to the jury the issues of whether Edwards was a covered individual under the ADA and whether the company terminated her because of her Hepatitis C, and there was sufficient evidence at trial that the company took that action with the knowledge that it was violating federal law. In failing to provide this instruction, the district court cited to three Supreme Court decisions that all arose outside the employment context and addressed the constitutionality of punitive damage awards. These decisions are inapposite to this case. The district court ignored the most relevant Supreme Court decision, Kolstad v. American Dental Association, 527 U.S. 526 (1999), which established the standards for punitive damage awards in employment discrimination cases. Under Kolstad and its progeny, the jury should have been permitted to consider a punitive damage award if: (1) Townsend, the facility administrator, knew that it was a violation of the ADA to terminate an employee because that individual had Hepatitis C; (2) Townsend's actions can be imputed to the company; and (3) there is a question of fact whether Heartway acted in good faith. The EEOC's evidence meets these requirements. Townsend testified that he knew at the time of Edwards' termination that it was a violation of the ADA to fire an employee because that employee had Hepatitis C. The jury concluded that Townsend terminated Edwards because of her perceived disability. Thus, the jury believed that Townsend disregarded his knowledge of the ADA when he terminated Edwards. Townsend also demonstrated that he recklessly disregarded Edwards' ADA rights when he asked an EEOC investigator whether he would "like to eat some food with her blood on it" and noted that there would be a "mass exodus" if the customers knew that Edwards had Hepatitis C. Townsend's actions should be imputed to the company under the principles of agency because Townsend was the administrator of the entire York Manor Nursing Center, made sure that the facility was making money, oversaw all budget issues, and had the authority to terminate an employee. Moreover, the company has the burden of showing that it acted in good faith if it is to avoid liability for punitive damages, and the evidence presented at trial does not satisfy that burden. The district court therefore erred in failing to give the jury a punitive damage instruction, and this case should be remanded for a new trial on this issue. ARGUMENT THE DISTRICT COURT ERRED IN FAILING TO GIVE A PUNITIVE DAMAGE INSTRUCTION TO THE JURY The Civil Rights Act of 1991 provides that a covered individual such as Edwards who proves intentional discrimination in violation of the ADA may recover compensatory and punitive damages in addition to equitable relief. See 42 U.S.C. § 1981a(a)-(b). The statute provides that punitive damages may be awarded "if the [plaintiff] demonstrates that the [defendant] engaged in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The district court's decision to refuse to instruct the jury on punitive damages fails to address either this statutory standard or the relevant Supreme Court or Tenth Circuit case law. In refusing to give this instruction, the district court saw "no basis under the trilogy of Supreme Court cases I have mentioned or under the ADA or under the evidence to send the issue of punitive damages to the jury." JA at 338 (Tr. at 278). In support of its decision, the court cited to three Supreme Court cases – none of which arise in the employment context or set forth the standard of punitive damages for a victim of employment discrimination. Rather, these cases all address the constitutionality of punitive damage awards. See Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424 (2001) (addressing standard of review to be applied when considering the constitutionality of punitive damage award of 4.5 million dollars where jury awarded other damages of only fifty thousand dollars on plaintiff's false advertising, unfair competition and "passing off" claims); Gore v. BMW, 517 U.S. 559 (1996) (two million dollar punitive damage award violated Due Process Clause where jury awarded other damages of only four thousand dollars to automobile purchaser to compensate for undisclosed damage to vehicle); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ($145 million dollar punitive damage award violated Due Process Clause where insureds were awarded one million dollars in compensatory damages in claim brought for bad-faith failure to settle, fraud, and intentional infliction of emotional distress). In reaching its decision, the district court failed even to address Kolstad v. American Dental Association, 527 U.S. 526 (1999), the seminal Supreme Court decision on this issue that was cited in the Commission's proposed jury instructions. JA at 334-39 (Tr. at 274-79). See EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999) ("[w]e thus apply the Kolstad standard to the facts before us to determine whether there was sufficient evidence to justify an award of punitive damages against" the defendant). In Kolstad, the Supreme Court set forth the standard for punitive damages in cases arising under Title VII.<1> The Court in Kolstad held that liability for punitive damages turns on the defendant's state of mind, not on the nature of the defendant's discriminatory conduct. 527 U.S. at 535. All that a plaintiff need prove to be eligible for punitive damages, the Court held, is that the employer "discriminate[d] in the face of a perceived risk that its actions [would] violate federal law." Id. at 536. In meeting this threshold, the "plaintiff must impute liability" to the employer. Id. at 539-40. Additionally, the Court carved out a defense for employers where they "engage in good faith efforts to comply with Title VII." Id. at 544. Interpreting Kolstad, this Court has succinctly set forth a three-step analysis for determining when punitive damages are appropriate: First, the plaintiff must establish that the employer acted with knowledge that its actions violated federal law. . . . If able to do so, the plaintiff must then demonstrate that the . . . employee who discriminated against the plaintiff is a managerial agent who acted within the scope of employment. . . . The Court in Kolstad also provided employers with a defense to punitive damages. The Court stated that even if the plaintiff establishes that the employer's managerial employees recklessly disregarded federally-protected rights while acting within the scope of employment, punitive damages will not be awarded if the employer shows that it engaged in good faith efforts to comply with Title VII. Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208-09 (10th Cir. 2002); see also Praseuth, 406 F.3d at 1254 ("To satisfy this standard [for punitive damages], the employer must engage in prohibited conduct with knowledge that it may be acting in violation of federal law, not mere awareness that it is engaging in discrimination"); Wal-Mart, 187 F.3d at 1245-49 (setting forth intent, agency, and good faith factors from Kolstad); Dilley v. Supervalu, Inc., 296 F.3d 958, 966-67 (10th Cir. 2002) (discussing intent requirement of Kolstad). Applying this analysis to the facts of this case makes clear that the district court should have instructed the jury on punitive damages. A. The Company Knew that its Actions were in Violation of the ADA In this case, the record is replete with evidence that the company knew that by terminating Edwards on the basis of her perceived disability, it was violating federal law. Townsend, the administrator of the nursing center, testified that he terminated Edwards. JA at 252 (Tr. at 184). Townsend further acknowledged that in prior jobs he had received some training on the ADA, was aware that it is against the law to fire someone because of her disability, and believed that it was unlawful to terminate an employee because of her diagnosis with Hepatitis C. JA at 253 (Tr. at 185). Specifically, Townsend testified: Q. And you were aware, based on your training that you received, that it was against the law to fire someone because they had a disability; is that right? A. That's right. Q. And you knew, based on your training about the Americans with Disabilities Act, in April of 2002, that it was against the law simply because someone had been diagnosed with Hepatitis C; right? A. Correct. JA at 253 (Tr. at 185). The jury concluded that Townsend terminated Edwards because of her perceived disability. Thus, the jury believed that Townsend disregarded his understanding of federal disability law when he decided to terminate Edwards. Townsend further demonstrated reckless disregard for Edwards' rights in his comments to Edwards and an EEOC investigator: • When Edwards asked if she could return to the York facility, Townsend replied "you having Hepatitis C, you will not work in our kitchen." JA at 139 (Tr. at 71). • When an EEOC investigator contacted Townsend about the matter, Townsend asked "[w]ould you like to eat some food with her blood on it?" JA at 226-27 (Tr. at 158-59). • Townsend further told the EEOC Investigator that "[i]f the clients found out about the employee having Hepatitis C, they would have a mass exodus." JA at 226-27, 255 (Tr. at 158-59, 187). This evidence clearly supports the jury's finding that Townsend terminated Edwards because of her disability – an illegal action that Townsend knew violated federal law. Since Heartway (through Townsend) was admittedly aware that it was illegal to terminate an employee on the basis of her disability, proof that the company engaged in such intentional discrimination was sufficient to establish Edwards' eligibility for punitive damages, unless the company offered evidence that it reasonably believed the conduct was legal, or was justifiably unclear about whether the conduct was legal or not. Kolstad, 527 U.S. at 536-37. Heartway offered no such evidence here. In reversing a district court's refusal to give a punitive damage instruction in a Title VII case, the First Circuit recently emphasized the importance of leaving the punitive damage issue for the jury where intentional discrimination is present: The [Supreme] Court has described situations where an employer may intend to discriminate, but does not intend to violate the law. [Citing Kolstad]. These include situations when the employer is unaware of the federal law prohibiting discrimination, when the employer believes he can lawfully discriminate, when the underlying theory of discrimination is novel or poorly recognized, or when the employer believes its discrimination falls within a statutory exception. See id. None of these situations, or others like them, are present in this case. Nor do we see any other compelling reason why a jury should be prevented from exercising its "discretionary moral judgment" as to punitive damages in this case. Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 42 (1st Cir. 2003), citing Smith v. Wade, 461 U.S. 30, 52 (1983). For the same reasons, there is no basis for preventing the jury from considering the punitive damage issue in this case, where the facility administrator conceded that he had knowledge in April, 2002, that terminating an employee because of Hepatitis C would violate the ADA. JA at 253 (Tr. at 185). See Wal-Mart, 187 F.3d at 1246 ("reasonable jury could have concluded that [defendant] intentionally discriminated against [plaintiff] in the face of a perceived risk that its action would violate federal law" where manager who was responsible for employee's improper suspension "testified that he was familiar with the accommodation requirements of the ADA and its prohibition against discrimination and retaliation in the workplace"); Bruso v. United Airlines, Inc., 239 F.3d 848, 858 (7th Cir. 2001) ("A plaintiff may satisfy this [first] element by demonstrating that the relevant individuals knew of or were familiar with the antidiscrimination laws and the employer's policies for implementing those laws"); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 385 (2d Cir. 2001) ("[W]e agree with [the district court] that [the manager's] acknowledgment of training in ‘equal opportunity' permits an inference of the requisite mental state."). B. Heartway Should Be Held Liable for Townsend's Actions In Kolstad, the Supreme Court clarified when, under the rules of agency, an employer is liable for punitive damages based on the malice or reckless indifference of one of its agents. Kolstad, 527 U.S. at 540-45. In clarifying this standard, the Court applied the general common law of agency, using the Restatement (Second) of Agency as its "starting point." Id. at 542. In particular, the Court focused on section 217 C(c) of the Restatement (Second) of Agency, which (as one of four circumstances where "an agent's misconduct may be imputed to the principal for purposes of awarding punitive damages") allows for "liability for punitive awards where an employee serving in a ‘managerial capacity' committed the wrong while ‘acting in the scope of employment.'" Id. at 542-43 (quoting Restatement (Second) of Agency § 217 C(c)). In analyzing § 217 C(c), the Supreme Court defined the meaning of the term "managerial capacity." Id. at 543. The Court explained that, although no satisfactory definition of the term was available, courts assessing whether an employee met the definition should make a fact-intensive inquiry, reviewing "‘the type of authority that the employer has given to the employee, [and] the amount of discretion that the employee has in what is done and how it is accomplished.'" Id. (quoting 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), p. 181 (3d ed. 1995)). The Court noted that the examples provided in the Restatement (Second) of Torts § 909 suggested that an employee must be "important," but rejected the notion that the employee must be "the employer's ‘top management, officers or directors,' to be acting ‘in a managerial capacity.'" 527 U.S. at 543 (quoting 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), p. 181). In this case, Townsend's willful termination of Edwards should be imputed to the company under the agency principles set forth in Kolstad and applied by this Court. See Wal-Mart, 187 F.3d at 1247 ("Under the common law, one means by which a plaintiff can prevail in a vicarious liability claim against an employer is to establish that the employer's agent committed a wrong while (1) serving in a managerial capacity; and (2) acting in the scope of employment.") (citation and quotation omitted); see also Anderson v. G.D.C., Inc., 281 F.3d 452, 461 (4th Cir. 2002) (holding that general manager/dispatcher was "unquestionably a managerial employee [for purposes of imputing liability under Kolstad]. The evidence at trial established that he possessed authority to hire and fire drivers and to impose lesser forms of discipline, including docking a driver's wages."); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 285 (5th Cir. 1999) ("sufficient evidence to survive JMOL exists that [district manager] was a requisite ‘managerial agent'" for purposes of imputing liability under Kolstad). Here, Townsend, as the administrator of the entire York Manor Nursing Center, made sure that the facility was making money, oversaw all budget issues, and had obvious authority over Edwards' employment. JA at 252-54 (Tr. at 184- 86). Indeed, Townsend is the individual who decided to discharge Edwards. JA at 252, 263 (Tr. at 184, 195). In Wal-Mart, this Court held that an assistant manager who had "independent authority to suspend her subordinates" and could "make hiring and firing recommendations" was a manager "for purposes of vicarious liability." Wal-Mart, 187 F.3d at 1247 (emphasis added). Thus, there can be no question that Townsend's authority as facility administrator was sufficient for purposes of vicarious liability. Townsend was acting as an agent of the company within the scope of his employment when he terminated Edwards, and the company should not escape liability for his actions. Where there is sufficient evidence for a reasonable jury to conclude that defendant's conduct constituted intentional discrimination and showed malice or reckless disregard for plaintiff's federally protected rights, the district court should instruct the jury on punitive damages. See generally Kolstad, 527 U.S. at 534-546 (establishing standard for punitive damages and stating that the "employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages"); Wal-Mart, 187 F.3d at 1244-48 (applying analysis set forth in Kolstad and concluding that two managers engaged in "recklessly indifferent intentional discrimination against [plaintiff] so as to warrant an award of punitive damages"); Kolstad, 527 U.S. at 551 ("so long as a Title VII plaintiff proffers sufficient evidence from which a jury could conclude that an employer acted willfully, judges have no place making their own value judgments regarding whether the conduct was ‘egregious' or otherwise presents an inappropriate candidate for punitive damages; the issue must go to the jury.") (Stevens, J., concurring and dissenting). The district court erred in not submitting the issue here. C. Heartway Has Not Satisfied Its Burden of Showing that the Company Acted in Good Faith. In Kolstad, the Supreme Court held that an employer could avoid vicarious liability for punitive damages by showing good-faith efforts to comply with Title VII because, "[w]here an employer has undertaken such good faith efforts . . . it demonstrates that it never acted in reckless disregard of federally protected rights." 527 U.S. at 544 (quotation and internal brackets omitted). This Court has not taken a position on whether it is the employer's burden to establish the good-faith defense, but it has acknowledged that numerous other appellate courts have taken this approach. See Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1209 n.4 (10th Cir. 2002). Because the Supreme Court in Kolstad based its rationale for the good faith defense on the same agency principles it had discussed in creating an affirmative defense to liability for supervisors in the sexual harassment of employees,<2> the lower courts have appropriately treated the punitive damage limitation as an affirmative defense where the employer has the burden of establishing that it acted in good faith to comply with the statute. See MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 931 (8th Cir. 2004) ("A corporation may avoid punitive damages by showing that it made good faith efforts to comply with Title VII after the discriminatory conduct."); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 385 (2d Cir. 2001) (the Kolstad defense "requires an employer to establish both that it had an antidiscrimination policy and made good faith effort to enforce it"); Bruso v. United Airlines, 239 F.3d 848, 858 (7th Cir. 2001) ("the employer may avoid liability for punitive damages if it can show that it engaged in good faith efforts to implement an antidiscrimination policy"); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000) ("Kolstad extends the [affirmative defense] by allowing defendants to assert it in response to punitive damages claims, even in cases involving tangible employment action"); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir. 1999) (the evidence elicited by defendant "does not suffice to establish, as a matter of law, [defendant's] good faith in requiring its managers to obey Title VII"); see also Ogden v. Wax Works, Inc., 214 F.3d 999, 1009 (8th Cir. 2000) (describing good faith defense as an exception to vicarious liability); Lowery v. Circuit City Stores, Inc., 206 F.3d 431-446 (4th Cir. 2000) (same). Based on the evidence at trial, the district court could not properly conclude that Heartway satisfied its burden of establishing the good-faith defense as a matter of law, and thus the issue should have gone to the jury. The company presented no evidence at trial that it enforced an anti-discrimination policy or attempted to educate its employees regarding disability discrimination in any way. See Davey, 301 F.3d at 1209 ("at a minimum, an employer must at least adopt anti-discrimination policies and make a good faith effort to educate its employees about these policies and [the statute's] prohibitions"); Cadena v. The Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000) ("Kolstad itself suggests that the good-faith-compliance standard requires the employer to make good faith efforts to enforce an antidiscrimination policy") (quotation omitted) (emphasis in original). Indeed, Theresa Rains, the director of nursing at the York Manor nursing facility, testified that she had never received ADA training while employed by Heartway. See JA at 268 (Tr. at 200). Because a reasonable jury could conclude under the controlling Kolstad standard that Heartway had not made good faith efforts to comply with the ADA when it terminated Edwards because of her hepatitis C, a jury should have been permitted to decide the factual issue of whether Heartway is entitled to this defense. See Cadena, 224 F.3d at 1210 ("Because sufficient evidence was presented on which a jury could have found [defendant] did not make good faith efforts to comply with Title VII, this court will not enter judgment as a matter of law in favor of [defendant] on the question of punitive damages"); Deffenbaugh-Williams, 188 F.3d at 286 ("the evidence of [defendant's] antidiscrimination good faith was certainly not so overwhelming that reasonable jurors could not conclude otherwise"); Hertzberg v. SRAM Corp., 261 F.3d 651, 664 (7th Cir. 2001) ("Given the constant nature of the harassment and [defendant's] lack of managerial response to the problem, we believe a jury was entitled to conclude that [defendant] did not make good faith efforts to implement its sexual harassment policy"). The case should therefore be remanded to the district court for a new trial on punitive damages. See, e.g., EEOC v. Wal-Mart Stores, Inc., 35 Fed.Appx. 543, 2002 WL 1003133, No. 00-16887 at *3 (9th Cir. May 16, 2002) (unpublished)<3> (attached) (remanding for separate trial on punitive damage issue and stating that "the EEOC is entitled to present the finding of facts implicit in the first jury's finding that Wal-Mart intentionally discriminated against [plaintiff] on the basis of her pregnancy. . . . [the defendant] is prohibited from making any argument or eliciting any testimony that would contradict any of these findings"); Robertson Oil Co., Inc. v. Phillips Petroleum Co., 930 F.2d 1342, 1344-45 (8th Cir. 1991) (discussing district court's handling of punitive damage trial on remand). See also Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1187-88 (10th Cir. 1999) (remanding "for the specific purpose of submitting to a jury the issue of punitive damages" where "the district court erred when it ruled that there was no evidence from which a jury could make a reasonable inference that [the defendant] acted recklessly and with disregard for [plaintiff's] federally protected civil rights"). This Court's order should also instruct that on remand any award should include postjudgment interest <4>. CONCLUSION The district court erred by not instructing the jury on punitive damages. The evidence at trial clearly demonstrated that the administrator of the Heartway facility knew that by terminating Edwards because of her Hepatitis C, he was violating the ADA. The administrator's actions should be imputed to the company. The company has the burden of showing that it acted in good faith if it is to avoid liability for punitive damages, and the evidence presented at trial does not satisfy that burden. This case should therefore be remanded for a new trial on punitive damages. STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT The Commission believes that oral argument would materially assist this Court in resolving the complex legal and factual issues presented by this employment discrimination case. In addition, the question of when a punitive damage instruction can be submitted to the jury is important to the Commission's statutory obligation of enforcing the ADA. The Commission therefore believes that a discussion of this and related issues at oral argument would be beneficial to the Court. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ____________________________ JOSEPH A. SEINER Attorney Illinois State Bar No. 6257474 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 6129 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed R. App. P. 32(a)(5). _____________________ Joseph A. Seiner June 10, 2005 ADDENDUM © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 35 Fed.Appx. 543, 2002 WL 1003133 (9th Cir.(Ariz.)) (Cite as: 35 Fed.Appx. 543, 2002 WL 1003133 (9th Cir.(Ariz.))) Briefs and Other Related Documents This case was not selected for publication in the Federal Reporter. Please use FIND to look at the applicable circuit court rule before citing this opinion. (FIND CTA9 Rule 36-3.) United States Court of Appeals, Ninth Circuit. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff--Appellant, v. WAL-MART STORES, INC, a Delaware corporation, Defendant--Appellee. No. 00-16887. D.C. No. CV-94-00465-WDB. Argued and Submitted Feb. 13, 2002. Decided May 16, 2002. Equal Employment Opportunity Commission (EEOC) brought Title VII action alleging that employer discriminated against job applicant on basis of pregnancy. Following jury verdict for EEOC on liability issue, EEOC appealed district court's refusal to instruct jury on punitive damages issue. The Court of Appeals, 156 F.3d 989, reversed and remanded for punitive damages trial. After jury rendered verdict for employer on punitive damages issue, the United States District Court for the District of Arizona, William D. Browning, J., entered judgment for employer, and EEOC appealed. The Court of Appeals held that: (1) evidence that employer attempted to cover-up its discriminatory conduct towards pregnant employee was admissible during punitive damages trial in Title VII pregnancy discrimination case; (2) district court's abuse of discretion in excluding such evidence was prejudicial and warranted remand for new punitive damages trial; (3) district court abused its discretion when it allowed employer's managers to testify during trial to their version of events surrounding pregnant employee's application for employment; (4) on remand for new punitive damages trial, EEOC was entitled to present to jury, and have jury instructed on, the finding of facts that were implicit in first jury's finding that employer intentionally discriminated against employee on basis of her pregnancy, and employer was. The EEOC appealed to this court. On September 24, 1998, we held that the EEOC had presented sufficient evidence of Wal- Mart's malice or reckless indifference to support an award of punitive damages and therefo prohibited from making any argument or eliciting any testimony that would contradict any of those findings; and (5) EEOC could present evidence on remand during punitive damages trial of any cover-up conducted by employer after employee's application was rejected. Reversed and remanded. West Headnotes [1] Civil Rights k1542 78k1542 (Formerly 78k381) Evidence that employer attempted to cover-up its discriminatory conduct towards pregnant employee was admissible during punitive damages trial in Title VII pregnancy discrimination case; such evidence was relevant to determination of whether punitive damages were warranted, under Title VII, for employer's pregnancy discrimination, and to the question of whether employer had good-faith defense. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. [2] Federal Courts k901.1 170Bk901.1 District court's abuse of discretion in excluding evidence, during punitive damages trial in Title VII pregnancy discrimination case, that employer attempted to cover-up its discriminatory conduct towards pregnant employee, was prejudicial, and warranted remand for new punitive damages trial; evidence would have made a difference on issue of punitive damages and would have directly contradicted employer's evidence of good faith defense. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. [3] Civil Rights k1542 78k1542 (Formerly 78k389) District court abused its discretion when it allowed employer's managers to testify, at punitive damages trial in Title VII pregnancy discrimination action, to their version of events surrounding pregnant employee's application for employment, since jury, in finding that employer was liable for intentional discrimination against employee during liability phase of case, necessarily rejected employer's version of events. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. [4] Federal Courts k951.1 170Bk951.1 On remand for punitive damages trial in Title VII pregnancy discrimination action, Equal Employment Opportunity Commission (EEOC) was entitled to present to jury, and have jury instructed on, the finding of facts that were implicit in first jury's finding that employer intentionally discriminated against employee on basis of her pregnancy, and employer was prohibited from making any argument or eliciting any testimony that would contradict any of those findings. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. [5] Civil Rights k1542 78k1542 (Formerly 78k381) Equal Employment Opportunity Commission (EEOC) could present evidence on remand, during punitive damages trial in Title VII pregnancy discrimination action, of any cover-up conducted by employer after pregnant employee's application was rejected. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. *544 Appeal from the United States District Court for the District of Arizona, William D. Browning, District Judge, Presiding. Before REINHARDT, FISHER, Circuit Judges, and MOLLOY, [FN*] District Judge. FN* The Honorable Donald Molloy, Chief United States District Judge for the District of Montana, sitting by designation. MEMORANDUM [FN**] FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. **1 In 1992, the Equal Employment Opportunity Commission ("EEOC") sued the defendant, Wal- Mart Stores, Inc. ("Wal-Mart"), alleging that it wrongfully discriminated against Jamey Stern in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., when it refused to rehire her on the basis of her pregnancy. A jury subsequently found that Wal-Mart intentionally discriminated against Stern and awarded her approximately $1700 in back pay and interest. The district court, however, ruled that the EEOC failed to present sufficient evidence to support an award of punitive damages and therefore refused to submit the issue of punitive damages to the jury re remanded for the district court to conduct a trial solely on the issue of punitive damages. See EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989, 992-93 (9th Cir.1998) [hereinafter EEOC I ]. In February 1999, the first punitive damages trial ended with a deadlocked jury and the district court declared a mistrial. Before the second punitive damages trial began, the Supreme Court issued its opinion in Kolstad v. American Dental Assoc., 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). The Court held that in order to hold an employer liable for *545 punitive damages, the plaintiff must demonstrate that the employer discriminated "in the face of a perceived risk that its actions will violate federal law." Id. at 536, 119 S.Ct. 2118. The Court also held that a claim for punitive damages could be defeated by a showing that the managerial agents' discriminatory acts were "contrary to the employer's good-faith efforts to comply with Title VII." Id. at 545, 119 S.Ct. 2118 (internal quotation omitted). Following that decision, the parties conducted discovery based on the issues raised by Kolstad and then proceeded to trial. The second punitive damages trial began on May 23, 2000. Prior to trial, the district court ruled that the EEOC was prohibited from presenting any evidence of Wal-Mart's alleged "cover-up" of its discriminatory acts--that is, the district court excluded all evidence related to events after Wal- Mart made its decision not to hire Stern in 1991. On May 25, 2000, the jury deadlocked and the district court again declared a mistrial. The third punitive damages trial commenced on August 2, 2000. Despite the earlier jury verdict that Wal-Mart intentionally discriminated against Stern, and over the EEOC's objection, the district court allowed Wal-Mart's personnel manager and assistant manager to testify about their version of their interview with Stern and their treatment of Stern's application for employment. Additionally, evidence about Wal-Mart's cover-up was again excluded by the district court. At the conclusion of the evidence, the jury found for Wal-Mart. The EEOC again appealed to this court. **2 [1] On appeal, the EEOC first contends that the district court erred in excluding all evidence on matters that were "after the critical events" and "post-1991"--namely, all evidence of Wal-Mart's attempts to cover-up its discriminatory acts in refusing to hire Stern on the basis of her pregnancy. We agree. The following are examples of the excluded evidence: . During the EEOC investigation in 1992-- approximately one year after Stern's application for employment was rejected--Wal-Mart claimed that Stern was not hired because she indicated on her job application that due to her pregnancy, she could only work limited hours. However, Stern never made such a request on her application or elsewhere. . At the very first trial on the claim of intentional discrimination, an assistant manager of Wal-Mart testified that she conducted a face-to-face interview with Stern and filled out a corresponding "Interview Comment Sheet." Wal-Mart was unable to produce this comment sheet, although it had this sheet for every one of the other fifty applicants interviewed approximately at the same time. It is self-evident that this evidence is highly probative for a determination of punitive damages. In EEOC I, we explicitly stated that "the evidence regarding the attempts by Wal-Mart managers to cover up their discriminatory conduct supports the EEOC's claim of reckless indifference to Stern's federally protected rights." EEOC I, 156 F.3d at 993. There is no question that the evidence of Wal- Mart's attempts to cover-up its discriminatory conduct after 1991 is relevant to a determination of punitive damages and to the question of whether Wal-Mart has a good-faith defense. See Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 516 (9th Cir.2000) (stating that relevant evidence sufficient for allowing award of punitive damages included fact that "the jury could have found that defense witnesses lied ... about their *546 actions, as part of a continuing effort to cover up their campaign against her"). [2] Wal-Mart argues that the exclusion of this cover- up evidence was harmless because the jury heard similar evidence. It is incorrect. [FN1] Although the jury was informed that a previous jury found Wal-Mart guilty of intentional discrimination, the jury also heard two Wal-Mart employees testify to their version of the events surrounding Stern's application. The EEOC was not able to introduce any direct or specific evidence that Wal-Mart employees lied. This evidence would have made a difference, and its exclusion was prejudicial. [FN2] We said as much in EEOC I and it is unfortunate that we have to say it again here. [FN3] So we will state it as plainly as possible: the district court abused its discretion in excluding this evidence and upon retrial this evidence must be allowed. FN1. Wal-Mart also argues that the EEOC waived its right to object to the exclusion of this evidence because it failed to object at trial. Again, it is incorrect. The EEOC objected to the exclusion of this evidence after the district court ruled prior to trial that the body of such evidence was excluded. The EEOC did not need to renew its objection or make a new offer of proof later at trial. See Heyne v. Caruso, 69 F.3d 1475, 1481 (9th Cir.1995); Fed.R.Evid. 103(a)(2). FN2. We also reject Wal-Mart's argument that the jury could have found that Wal- Mart presented a satisfactory good-faith defense. The verdict form simply stated that the jury found in favor of Wal-Mart. There is no evidence that the jury's verdict was on the basis of accepting Wal-Mart's good-faith defense. Moreover, the wrongfully excluded cover-up evidence directly contradicts evidence of Wal-Mart's alleged good-faith. Therefore, we cannot uphold the jury verdict on any supposed acceptance of Wal-Mart's defense. FN3. In EEOC I, we stated: In sum, the jury was presented with evidence that an assistant manager at Wal- Mart's Green Valley store intentionally discriminated against Stern based on her pregnancy and that the assistant manager and other Wal-Mart officials attempted to cover up their discriminatory conduct. Under these circumstances, we hold that the district court, as a matter of law, should have allowed the jury to determine whether punitive damages were warranted. EEOC I, 156 F.3d at 993. [3] The EEOC also argues that the district court erred in allowing Wal-Mart managers to testify to their version of the events surrounding Stern's application for employment. The EEOC is correct. When the first jury found that Wal-Mart intentionally discriminated against Stern, the jury necessarily rejected Wal-Mart's version of the events and credited the EEOC's. For example, it is highly likely that the jury credited the EEOC's evidence that Wal-Mart lied when stating that Stern requested limited hours, as there was no evidence that Stern made such a request. Therefore, the district court abused its discretion when it allowed Wal-Mart employees to testify to their version of events--a version which directly contradicts the first jury's finding of intentional discrimination. [FN4] See Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1473 (9th Cir.1993). FN4. We reject Wal-Mart's argument that the EEOC waived any objection to this error because it did not object at trial. The EEOC did object to the relevance of the evidence Wal-Mart presented on this issue. This objection is sufficient to preserve this issue on appeal. **3 In sum, we reverse the jury's verdict and remand for trial. The district court abused its discretion by excluding the cover-up evidence. Additionally, it abused its discretion when it allowed Wal-Mart employees to testify to their version of the events surrounding Stern's application for employment. *547 [4][5] In light of the fact that the forthcoming trial will be the fourth trial on the issue of punitive damages, we state a few guidelines to the district court. First, the EEOC is entitled to present the finding of facts implicit in the first jury's finding that Wal-Mart intentionally discriminated against Stern on the basis of her pregnancy. See Robertson Oil Co. v. Phillips Petroleum Co., 930 F.2d 1342, 1344- 45 (8th Cir.1991). To that end, it may present the EEOC's Proposed Statement of Established Facts or a similar document to the jury. The factual findings of which the jury are to be informed include, among others, the following: 1. Wal-Mart intentionally discriminated against Stern. 2. Wal-Mart refused to hire Stern because of her pregnancy and not for any other reason. 3. Stern at no time expressed doubts about her desire or ability to perform the job. 4. Stern did not withdraw her employment application at any time. 5. Wal-Mart fabricated the story that Stern withdrew her application. 6. Wal-Mart fabricated the story that Stern expressed doubts about her desire or ability to perform the job. 7. Wal-Mart fabricated the story that Stern requested limited hours on her job application. Wal-Mart is prohibited from making any argument or eliciting any testimony that would contradict any of these findings. Moreover, the EEOC is entitled to have the jury instructed on any of these findings (or others that, based on the arguments that may be made to the district court on remand, the court finds were necessarily found by the first jury). Second, the EEOC may present evidence of any cover-up conducted by Wal-Mart after Stern's application was rejected. With these mandates, we remand for a fourth, and, we hope, final, punitive damages trial. REVERSED AND REMANDED. 35 Fed.Appx. 543, 2002 WL 1003133 (9th Cir.(Ariz.)) Briefs and Other Related Documents (Back to top) . 2001 WL 34097626 (Appellate Brief) Reply Brief of the Equal Employment Opportunity Commission (Jun. 12, 2001) . 2001 WL 34097627 (Appellate Brief) Brief of Appellee, Wal-Mart Stores, Inc. (May. 23, 2001) . 00-16997 (Docket) (Oct. 24, 2000) . 2000 WL 33985662 (Appellate Brief) Brief of the Equal Employment Opportunity Commission as Plaintiff-Appellant (2000) END OF DOCUMENT CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 10th day of June, 2005, I caused copies of the attached Opening Brief of the Equal Employment Opportunity Commission as Appellant to be sent via first class U.S. mail to: JEFFREY C. TASKER NEAL TOMLINS KANE, RUSSELL, RONALD E. GOINS COLEMAN & LOGAN, P.C. TOMLINS AND GOINS 3700 Thanksgiving Tower Utica Plaza Building 1601 Elm Street 2100 South Utica, Suite 300 Dallas, Texas 75201 Tulsa, Oklahoma 74114 ATTORNEYS FOR DEFENDANT AND Clerk of Court U.S. Court of Appeals for the 10th Circuit 1823 Stout Street Byron White U.S. Courthouse Denver, CO 80257 (sent original and seven copies of brief) ______________________ JOSEPH A. SEINER Attorney Illinois State Bar No. 6257474 Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov Certificate of Digital Submission I, Joseph A. Seiner, hereby certify that: 1. All required privacy redactions have been made (NONE); 2. On June 10, 2005, I will send an email containing the attached brief in digital form to the Tenth Circuit clerk's office at esubmission@ca10.uscourts.gov, and to counsel for the defendant. The document submitted in digital form will be an exact copy of the written document filed with the Court, but for the signature which appears in accordance with the Amended Emergency Order governing digital filings in the 10th Circuit Court of Appeals (Amended Emergency Order). Additionally, in accordance with the Amended Emergency Order and my discussions with a court clerk (Carol), three documents in the addendum (not available in digital format) and all of the documents in the joint appendix (not available in digital format) are being submitted in writing only. 3. The digital submissions have been scanned for viruses by the EEOC's virus scanning software, and, according to this program, are free of viruses. The EEOC utilizes Symantec AntiVirus Corporate Edition. The software was most recently updated in June, 2005. _______________________ JOSEPH A. SEINER Attorney Illinois State Bar No. 6257474 U.S. EEOC Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov June 10, 2005 ************************ <1> The damages provision in the statute itself, 42 U.S.C. § 1981a, explicitly applies to both Title VII and the ADA. The Supreme Court implicitly acknowledged that its analysis of the punitive damages standard would also apply to ADA claims, Kolstad, 527 U.S. at 529, 534, and this Court has explicitly so held. See EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1245 n.2 (10th Cir. 1999) (“The punitive damages analysis is the same for Title VII and ADA claims”). <2> Kolstad, 472 U.S. at 545-46 (citing and discussing Faragher v. Boca Raton, 524 U.S. 775, 802 n.3, 806 (1998)). <3> An unpublished decision may be cited to this Court where “it has persuasive value with respect to a material issue that has not been addressed in a published opinion” and “it would assist the court in its disposition.” 10th Cir. R. 36.3. The EEOC believes that this case satisfies these criteria. <4> The district court declined to award any interest on the judgment, stating that “[i]nsufficient evidence exists to justify” such an award. JA at 73 n.8. This language is ambiguous as to whether it is referring to prejudgment or postjudgment interest. While a district court may have very limited discretion to deny prejudgment interest, postjudgment interest is mandatory. See 28 U.S.C. § 1961(a) (“Interest shall be allowed on any money judgment in a civil case recovered in a district court”) (emphasis added); Wheeler v. John Deere Co., 986 F.2d 413, 415 (10th Cir. 1993) (discussing mandatory nature of statute as it relates to interest on damage awards); Gloria v. Valley Grain Products, 72 F.3d 497, 500 (5th Cir. 1996) (“we agree that prejudgment interest ‘should’ normally be included” in a backpay award). Though we presume that the district court’s statement is limited only to prejudgment interest, this Court’s instructions should clarify this issue. To the extent that the district court intended to restrict the recovery of postjudgment interest, it erred as a matter of law. See, e.g., Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1104 (7th Cir. 1990) (“section 1961(a) allows the judge no discretion to deny the interest authorized by that section”) (emphasis added).