No. 11-10262 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. SERVICE TEMPS, INC. d/b/a SMITH PERSONNEL SOLUTION Defendant-Appellant. _________________________________________________________ On Appeal from the United States District Court for the Northern District of Texas Hon. Sidney A. Fitzwater, District Judge _________________________________________________________ RESPONSE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ P. DAVID LOPEZ CHRISTINE BACK General Counsel Attorney EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE, Room 5NW14G CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4734 christine.back@eeoc.gov STATEMENT CONCERNING ORAL ARGUMENT The Equal Employment Opportunity Commission does not believe oral argument is necessary to resolve this appeal. In light of the Supreme Court's formulation of vicarious liability and punitive damages standard in Kolstad v. American Dental Association, and controlling precedent from this Circuit, the district court correctly applied well-established law in instructing the jury and upholding its award of punitive damages where the jury found that Service Temps d/b/a/ Smith Personnel Solution - through its long-time manager Carl Ray - intentionally discriminated against Jacquelyn Moncada by refusing to hire her because she was deaf, in violation of the Americans with Disabilities Act. The district court's proper exercise of its discretion in its orders, well within the parameters of this Circuit's binding precedent, similarly renders oral argument addressing Smith's numerous other procedural challenges on appeal unnecessary. TABLE OF CONTENTS STATEMENT CONCERNING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. Nature of the Case and Course of Proceedings. . . . . . . . . . . . . . . 4 II. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 I. The district court properly rejected Smith's belated challenge to the adequacy of EEOC's conciliation efforts. . . . . . . . . . . . . . . . . . . . . 15 A. The district court acted in accordance with this Court's precedent applying Rule 16(b)(4) requiring a showing of good cause for leave to amend and did not abuse its discretion in denying Smith's motion for leave. . . . . . . . . 15 B. The district court's order precluding Smith from asserting conciliation failure because it did not plead that defense with particularity in its answer under Rule 9(c) is consistent with this Court's holding in Klingler. . . . . . 20 C. This Court may affirm the district court's order granting summary judgment to the EEOC on the alternative ground that the Commission satisfied its statutory obligation to conciliate in good faith. . . . . . . . . . . . . . .24 II. The district court properly disposed of Smith's objections to the jury's damages award. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 A. The district court's jury instruction on punitive damages was clear and legally accurate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 B. The jury, based on more than sufficient evidence, reasonably concluded that Carl Ray acted with managerial authority, in the scope of his employment, and with the requisite intent, for an award of punitive damages. . . . . . . . . 32 C. Given that the original punitive damages award was reasonable under this Court's view in Abner, and has already been significantly reduced, this Court should decline to remit punitive damages further. . . . . . . . . . . . . . . 37 D. The district court properly rejected Smith's arguments urging the Commission's complete preclusion from seeking any damages based on Federal Rule of Civil Procedure 37(c). . . . . . . . . . . . . . . . . . . . . 39 i. The district court ordered an appropriately narrow curative measure when ruling that the EEOC could not argue a specific damages amount to the jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 ii. Smith was neither prejudiced nor precluded from pleading the mitigation of damages by not receiving specific computations of compensatory or punitive damages. . . . . . . . . . . . . . . . . . . . . . . . 42 III. The district court awarded appropriate injunctive relief and properly rejected Smith's challenge to the court's jurisdiction. . . . . . . . . . . . . .43 A. The injunctive relief ordered by the district court was reasonable, justified by the evidence, and consistent with controlling authority. . . . . . . . . . . .44 i. This Court should affirm the district court's order of injunctive relief, which was narrowly tailored to evidence presented at trial of Smith's deficient anti-discrimination efforts and policy. . . . . . . . . . . . . . . . . . . . . 44 ii. The district court did not err in relying on James to state that injunctive relief was mandatory absent clear and convincing proof of no reasonable probability of the defendant's further noncompliance. . . . . . . . . . . . . . .45 B. Consistent with this Circuit's recent holdings and supported by the evidence, the district court properly found that it had subject matter jurisdiction over this action. . . . . . . . . . . . . . . . . . . . . . . . . . 48 i. The district court did not err in holding that the "affecting interstate commerce" requirement in the definitions section of the ADA was not jurisdictional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 ii. Even if a jurisdictional issue, there was more than sufficient evidence to satisfy the "very low" threshold for establishing that Smith affected interstate commerce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . . . . . . . 53 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . 54 TABLE OF AUTHORITIES CASES Abner v. Kansas City Southern R.R. Co., 513 F.3d 154 (5th Cir.2008). .3, 14, 38, 39 Al-Amin v. Smith, 637 F.3d 1192 (5th Cir.2011). . . . . . . . . . . . . . . . . .42 America Bankers Ins. Co. of Fla. V. Irricon, 200 F.3d 815 (5th Cir.1999). . . 22 Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). . . . . . . . . . . . . . . . . . 49 Batson v. Neal Spelce Associates, Inc., 765 F.2d 511 (5th Cir.1985). . . . . . . 41 Bayle v. Allstate Ins. Co., 615 F.3d 350 (5th Cir.2010). . . . . . . . . . . . 25 BMW of North Am., Inc. v. Gore, 517 U.S. 559 (1996). . . . . . . . . . . . . . . 38 Brown v. Bryan, OK, 219 F.3d 450 (5th Cir.2000). . . . . . . . . . . . . . . 33 Consol. Co. Inc. v. Lexington Ins. Co., 616 F.3d 422 (5th Cir.2010). . . . . . 37 Dahlen v. Gulf Crews, Inc., 281 F.3d 487 (5th Cir.2002). . . . . . . . . . . . 30 Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278 (5th Cir.1999). .33, 34 In re Dyke, 943 F.2d 1435 (5th Cir.1991). . . . . . . . . . . . . . . . . . . . 48 EEOC v. Agro Distribution, 555 F.3d 462 (5th Cir. 2009). . . . . . . . . 21, 25, 28 EEOC v. Bd. of Supervisors for the Univ. of Louisiana Sys., 559 F.3d 270 (5th Cir.2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 EEOC v. Fenyves & Nerenberg, M.D.P.A., No. 97-2322, 1999 WL 134279 (N.D.Tex. Mar. 9, 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 46 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir.1987). . . . . . . . . 47 EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975). . . . . . . . . 27 EEOC v. Ilona of Hungary, 108 F.3d 1569 (7th Cir.1997). . . . . . . . . . . . 46 EEOC v. Klingler, 636 F.2d 104 (5th Cir.1981). . . . . . . . . . . . 20, 22, 23, 24 EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244 (11th Cir.1997). . . 46 EEOC v. Pet Inc., 612 F.2d 1001 (5th Cir.1980). . . . . . . . . . . . . . . . . 28 EEOC v. Ratliff, 906 F.2d 1314 (9th Cir. 1990). . . . . . . . . . . . . . . . . .50 EEOC v. Rogers Bros., Inc., 470 F.2d 965 (5th Cir.1972). . . . . . . . . . . . 46 EEOC v. Standard Forge & Axle Co., 496 F.2d 1392 (5th Cir.1974). . . . . . 21, 22 EEOC v. Stocks, No. 06-10871, 2007 WL 1119186 (5th Cir. Apr. 16, 2007). . . . . .36 EEOC v. Waffle House, 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . 26, 27 Fahim v. Marriot Hotel Services, Inc., 551 F.3d 344 (5th Cir.2008). . . . . .16, 19 Ferguson v. Extraco Mortgage Co., No. 06-51453, 2007 WL 2493537 (5th Cir. Sept. 4, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35 Hardin v. Caterpillar, 227 F.3d 268 (5th Cir. 2000). . . . . . . . . . . . . . . 40 Harris v. Amoco Production Co., 768 F.2d 669 (5th Cir.1985). . . . . . . . . 23, 24 James v. Stockham Valves and Fittings Co., 559 F.2d 310 (5th Cir.1977). . . . . . . . . . . . . . . . . 45, 46, 47, 48 Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990). . . . . . . . . 31 Jones v. Robinson Property Group, 427 F.3d 987 (5th Cir.2005). . . . . . 15, 17, 19 Kane v. National Union Fire Insurance Co., 535 F.3d 380 (5th Cir.2008). . . 20, 39 Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999). . . . . . . . . . . . 31, 35 Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003). . . . . . . . . . . . . . . . . . 36 Local 189, United Papermakers v. United States, 416 F.2d 980 (5th Cir.1969). . . 47 MCI Telecomms. Corp. v. United Showcase, Inc., 847 F. Supp. 510 (N.D.Tex. 1994). 48 McClain v. Lufkin Industries, Inc., 519 F.3d 264 (5th Cir.2008). . . . . . . . . 44 McClure v. Ashcroft, 335 F.3d 404 (5th Cir.2003). . . . . . . . . . . . . . . 15 Meyer v. Brown & Root Construction, Co., 661 F.2d 369 (5th Cir. 1981). . . 47, 48 Migis v. Pearle Vision, Inc., 135 F.3d 1041(5th Cir.1998). . . . . . . . . . . . 43 Minard v. ITC Deltacom Committee, Inc., 447 F.3d 352 (5th Cir.2006). . . . . . 49 Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316 (5th Cir. 1994). . . . . . . . .33 Palasota v. Haggar Clothing Co., 499 F.3d 474 (5th Cir.2007). . . . . . . . . . 43 Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847 (5th Cir.2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Premier Network Services, Inc. v. SBC Commc'n, Inc., 440 F.3d 683 (5th Cir.2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Rizzo v. Children's World Learning Centers, Inc., 173 F.3d 254 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Rogers v. Dorman, 521 F.3d 381 (5th Cir. 2008). . . . . . . . . . . . . . . . . 33 Rubenstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34 Ruiz v. Gonzalez Caraballo, 929 F.2d 31 (1st Cir.1991). . . . . . . . . . . . . .37 Russell v. Piano Bank and Trust, 130 F.3d 715 (5th Cir.1997). . . . . . . . .30, 31 S & W Enterprises, L.L.C. v. Southtrust Bank of Alabama, 315 F.3d 533 (5th Cir.2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17 Sellers v. Delgado Community College, 839 F.2d 1132 (5th Cir.1988,. . . . . . 43 Smith v. EMC Corp., 393 F.3d 590 (5th Cir.2004). . . . . . . . . . . . . . . . . 17 Southwestern Bell Telegraph Co. v. City of El Paso, 346 F.3d 541 (5th Cir.2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F.3d 533 (5th Cir.2009). . . . . 43 Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571 (5th Cir.1979). . . 37 Startran, Inc. v. Occupational Safety and Health Review Comm'n, No. 06- 61032, 2008 WL 3342714 (5th Cir. Aug. 11, 2008). . . . . . . . . . . . . . . . . 49 Stiles v. GTE Southwest, Inc., 128 F.3d 904 (5th Cir.1997). . . . . . . . . . . 48 Vanhoy v. USA, 514 F.3d 447 (5th Cir 2008). . . . . . . . . . . . . . . . . . 43 In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir.2008). . . . . . . . . 15 Wagenmann v. Adams, 829 F.2d 196 (1st Cir.1987). . . . . . . . . . . . . . . 37 In re Williams, 298 F.3d 458 (5th Cir.2002)) . . . . . . . . . . . . . . . . . . 25 Williams v. Trader Publishing Co., 218 F.3d 481 (5th Cir.2000). . . . . . . . . 40 Women's Medical Ctr. of NW Houston v. E. Bell, 248 F.3d 411 (5th Cir.2001). . . 46 STATUTES AND RULES 28 U.S.C. §1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. §1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. §1343(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. §1981a(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 39 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 23 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 9(c). . . . . . . . . . . . . . . 2, 5, 13, 20, 21, 22, 23, 24, 51 Fed. R. Civ. P. 16(b)(4). . . . . . . . . . . . . . . 5, 11, 13, 15, 16, 23, 24 Fed. R. Civ. P. 26(a). . . . . . . . . . . . . . . . . . . . . . . . 14, 40, 41 Fed. R. Civ. P. 37(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40 Fed. R. Civ. P. Rule 51(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 29 Fed. R. Civ. P. Rule 51(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . 30 STATEMENT OF JURISDICTION This action was authorized and initiated 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 had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1345, and specifically enunciated the basis of its jurisdiction as being §1331 in its order denying Smith Personnel's motion to dismiss on jurisdictional grounds. R 1594.<1> The court entered its final judgment on January 11, 2011. R 1631. On March 11, 2011, Smith filed a timely notice of appeal. R 1664. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES I. Conciliation Issues 1. Whether the district court abused its discretion in denying Smith's second motion for leave to amend its answer to add failure to conciliate as a defense, where Smith sought amendment to its answer nearly three months after the court's scheduling order deadline and the district court found "no plausible explanation" for the delay. 2. Whether the district court acted in accordance with controlling precedent when requiring that Smith plead conciliation failure with particularity in its answer under Federal Rule of Civil Procedure 9(c) in order to later challenge the EEOC's conciliation efforts. 3. Whether this Court can affirm partial summary judgment on the sufficiency of the EEOC's conciliation efforts, where the Commission explained the basis for its belief that Smith had violated the Americans with Disabilities Act, offered two separate conciliation proposals, and responded to Smith's offers despite Smith's repeated failure to address any component of the injunctive relief sought by the Commission. II. Damages Issues 1. Whether the instruction on punitive damages requiring that the jury find malice or reckless indifference on the part of Carl Ray - Smith's agent - to impute liability to the company was so unclear as to confuse the jury and require this Court's reversal of the punitive damages award. 2. Whether the jury award of punitive damages is supported by sufficient evidence to establish that Carl Ray - Smith's agent - acted with managerial authority, during the scope of his employment, and with reckless indifference when he refused to hire Jacquelyn Moncada because she was deaf. 3. In light of this Court's holding in Abner v. Kansas City Southern R.R. Co., 513 F.3d 154 (5th Cir. 2008), that any punitive damages award beneath the statutory cap is reasonable, whether the remittitur of punitive damages ordered by the district court and below the applicable statutory cap can be said to remain excessive. 4. Whether Smith has offered sufficiently compelling authority and facts to move this Court to preclude the Commission from seeking any monetary relief awarded by the jury on the basis that the Commission did not include specific computations for compensatory and punitive damages, though informing Smith that it was seeking both categories of damages. III. Injunctive Relief and Jurisdiction Issues 1. Whether the injunctive relief ordering one hour of training for Smith's managers on the ADA, a posting in its locations informing employees about the ADA, and requiring Smith to report complaints of disability discrimination to the Commission for a two-year span, was an abuse of discretion in light of evidence presented at trial establishing the absence of any training at Smith on the ADA, and its policy's omission of any procedure or contact information for reporting discrimination. 2. Whether the district court's holding that "affecting interstate commerce" was not jurisdictional, consistent with this Court's recent holdings concerning subject matter jurisdiction, was erroneous; alternatively, if "affecting interstate commerce" is jurisdictional, whether Smith's own stipulation attesting that all parties were properly before the court, and evidence that Smith hired employees for a shipping and packing department and for a stock clerk packaging cosmetics for a nationwide company, were sufficient to establish the low threshold for satisfying "affecting interstate commerce." STATEMENT OF THE CASE I. Nature of the Case and Course of Proceedings The Equal Employment Opportunity Commission ("Commission" or "EEOC") filed suit on September 3, 2008, alleging that Smith Personnel ("Smith") violated the Americans with Disabilities Act ("ADA") by refusing to hire Jacquelyn Moncada because she was deaf. R 16-20. Smith filed its answer on November 14, 2008, which included a general denial that all conditions precedent had been fulfilled. R 25-26. Smith filed its first motion for leave to amend its answer to add failure to conciliate as a defense on June 17, 2009. R 166-70. The court denied this motion without prejudice for Smith's failure to address the appropriate legal standard in its opening brief. R 249. Smith filed its second motion for leave to amend its answer on August 3, 2009. R 251-56. The court denied Smith's second motion, holding that Smith had failed to demonstrate good cause as required under Federal Rule of Civil Procedure 16(b)(4). R 566-574. The Commission filed a motion for partial summary judgment on November 3, 2009, arguing that all conditions precedent to suit had been met, including conciliation between the parties. R 576-80. In support thereof, the EEOC described its negotiation efforts and cited to conciliation proposals it offered to Smith. R 578-79. Smith filed a motion for summary judgment arguing that the Commission had failed to conciliate in good faith and opposed the EEOC's motion for partial summary judgment on the same basis. R 648-52; 688-89. The district court granted the Commission's motion, holding that Smith could not assert conciliation failure because it did not specifically include that defense in its answer to the EEOC's complaint, as required by Fed. R. Civ. P. 9(c). R 894-905. Smith moved for reconsideration, arguing that failure to conciliate is not a condition precedent, which the court denied. R 1130-36; 1149-58. A jury trial began on September 20, 2010. R 1250. Smith moved for judgment as a matter of law at the close of the EEOC's case, and at the close of its case, which the court denied. R 1604. After judgment had been entered, Smith again renewed its motion, additionally raising for the first time that the Commission had failed to establish that Smith's agent acted with malice or reckless indifference. R 1241-42. The court denied the motion, holding that because Smith had failed to raise the issue of malice in its Rule 50(a) motion at trial, it had waived it. R 1604-11. Upon a hearing of all the evidence, the jury found that Smith had violated the ADA by refusing to hire Moncada based on her disability, and awarded $14,400 in backpay, $20,000 in compensatory damages, and $150,000 in punitive damages. R 1199; 1202; 1204. The EEOC then moved for injunctive relief, which included a two-year period during which Smith would be required to report all disability discrimination complaints received from its employees. R 1208-9; 1216. Smith moved for dismissal based on lack of subject matter jurisdiction, and separately, for a new trial or a remittitur. R 1234; 1240. The court granted EEOC's motion for injunctive relief and denied Smith's motion for dismissal based on lack of subject matter jurisdiction, but conditioned its denial of Smith's motion for a new trial on the Commission's acceptance of a remittitur reducing the punitive damages award to $68,000. R 1601; 1620. The Commission accepted the remittitur. R 1627. The court entered its amended judgment January 11, 2011, which included the injunctive relief sought by the Commission. R 1631. II. Statement of Facts Smith is a staffing company with four branches, and its sole function is hiring employees for corporate clients. R 1416; 1446. Its corporate clients include Tuesday Morning, which has retained Smith for staffing needs such as hiring for its shipping and receiving department. R 1443-45. At the time Jacquelyn Moncada sought employment in 2006, the company had approximately 650 of its own employees. R 1295; 1446. Joe Roberts, Smith's highest ranking employee, has managed the company since 1997 and is responsible for enforcing the company's workplace discrimination policy. R 1416; 1424; 1451. Smith stipulated to the company's knowledge of the ADA's prohibition against discrimination in hiring and employment based on disability. R 1289. Roberts is also aware of the ADA's prohibition against discrimination based on disability. R 1425. Roberts has never received any training on employment discrimination while at the company. R 1451. Smith has not trained any of its employees on the ADA since Roberts has been manager. R 1426. Nor has the company ever considered training as an option for preventing discrimination in hiring. R 1434. Rather, Smith holds approximately two manager meetings a year to discuss various matters, including workplace discrimination. R 1432-33. Smith's workplace discrimination policy does not include any procedure or contact information for reporting discrimination. R 1451-53. The company does not distribute a copy of the policy for its employees to retain. R 1452. Acknowledging these facts, Roberts would not change that policy. R 1453. Jacquelyn Moncada has been deaf since birth and communicates through sign language and writing. R 1290-91. She has previously worked as a stock clerk, a production worker on an assembly line, and as a housekeeper. R 1292-95. Her deafness had never interfered with her ability to perform her work. Id. While searching for a job in June 2006, Moncada found an online posting on the Texas Workforce website. R 1295-96. The posting indicated that Smith was hiring for a stock clerk to package cosmetics for one of its clients. R 1300. At this time, Smith was hiring for its client Tuesday Morning. R 1444-45; 1454. The posting also indicated that no experience was required ("zero years, zero months") and that Smith would be "hiring on the spot." R 1307. She arranged to have a sign language interpreter, Glenda Miles, meet her at the job site to provide translation. R 1301-02. When Moncada arrived at the job site, she met Carl Ray, an account manager for Smith, who - through Miles' translation - told her that she could not apply for the position because she was deaf. R 1303-04; 1424. ("He said I can't - couldn't apply for that job because I was deaf"). When she explained that she had worked in warehouses before and never had a problem communicating, he interrupted and told her, "no, you're not going to take an application." R 1304-06. He did not grant her an interview or ask her to put her name on the sign-in sheet. R 1306. Moncada was shocked and deeply upset by the encounter. R 1308-09. Account managers are in charge of hiring employees and overseeing Smith's field employees. R 1422. Before that, Ray was a branch manager. R 1422; 1435. Moncada filed a charge with the EEOC on July 13, 2006. R 118. In its initial August 2006 letter to the EEOC responding to the charge, Smith denied any knowledge of an encounter between Moncada and Ray, and was "unsure as to why Ms. Moncada feels that she was discriminated against." R 664. In the same letter, Smith also implied that Moncada may not have physically come to the job site at all. Id. Based on its investigation, the EEOC determined that Smith had discriminated against Moncada in violation of the ADA, and issued a Notice of Determination on December 18, 2007. R 596-98. In its Notice, the EEOC explained that Smith was a covered employer under the ADA, that timeliness and other coverage requirements had been met, and that Smith's denial of an application for employment - and its statement to Moncada that she would not be able to work because of her deafness - violated the law. Id. On December 18, 2007, the Commission initiated conciliation by sending Smith a proposal that included, inter alia, a request for $65,000 to settle all claims for back pay, compensatory, and other damages. R 598-605. On January 8, 2008, Smith countered with a proposed $5,000 offer for all damages, did not address any aspect of injunctive relief proposed by EEOC, and referenced its August 2006 letter to "renew its offer" contained therein. R 606-7. The August 2006 letter stated that Smith was willing to "assist Ms. Moncada in her job search, assuming that we can in fact communicate." R 664. On January 18, 2008, the EEOC responded with a revised conciliation proposal that included a reduction to $55,000 in damages sought, specifically seeking $16,000 in back pay and $39,000 for all other damages. R 608-615. Smith replied on January 31, 2008, stating that "the amount of damages...seems calculated to lead to the absence of a resolution," and conditioned further conciliation on the Commission's presentation of "calculations and justifications for the amount sought." R 615-16. Smith did not propose any counteroffer for monetary relief and did not address any aspect of the EEOC's proposed injunctive relief. Id. On February 22, 2008, the EEOC sent a Notice of Conciliation Failure. R 682. On April 17, 2009, the EEOC entered into voluntary mediation with Smith, but the mediation proved unsuccessful. R 156-160. The parties agreed that mediation would not prevent either party from seeking written discovery prior to mediation. R 260. In response to the Commission's complaint, Smith filed an answer on November 14, 2008. R 25-26. Smith's answer included a general denial "that all conditions precedent have been fulfilled." Id. The district court filed a scheduling order on December 16, 2008, setting a March 1, 2009, deadline for the parties to amend their respective pleadings. R 100-01. Smith filed its first motion for leave to amend its answer on June 17, 2009. R 166-70. The court denied this motion without prejudice for Smith's failure to address the appropriate legal standard in its opening brief. R 249. Smith filed its second motion for leave to amend its answer on August 3, 2009. R 251-56. The court denied Smith's second motion, holding that Smith had failed to demonstrate good cause as required under Fed. R. Civ. P. 16(b)(4). R 566 -574. The Commission served written discovery on Smith in early February 2009. R 570. Smith served written discovery on the EEOC on May 5, 2009. R 567. During discovery, and through its interrogatory responses, the Commission stated that it was seeking up to the statutory cap under the ADA for compensatory and punitive damages and provided the factual bases on which it was seeking both categories of relief. R 847-49. Smith was able to calculate back pay based on information available to it: the hourly rate of the position Moncada was denied from the point of Smith's refusal to hire her. R 1266-67. The EEOC also produced evidence that Moncada had sought other work after Smith's refusal to hire her. R 842-43. Before trial, the EEOC timely submitted proposed jury instructions on May 3, 2009, and objections to the district court's proposed jury instructions on September 21, 2010. R 1018-36; R 1185-89. The district court provided all counsel with a copy of the jury charge the week preceding trial, and at trial, invited counsel to articulate objections. R 1461. At trial, Smith objected that the jury charge did not sufficiently relay the "heightened showing" required for punitive damages or the subjective component of recklessness, and also urged the court to remove the instruction on corporate agency. R 1470-74. After objections were heard, the following instruction on punitive damages was submitted to the jury: "In order for Smith to be liable for punitive damages, the EEOC must prove that the agent of Smith of whose conduct EEOC complains (1) was employed in a position of managerial capacity, (2) acted within the scope of employment, and (3) acted with malice or reckless indifference to Moncada's right not to be discriminated against based on disability." R 1203. After a verdict was entered in favor of the Commission, the district court conditioned denial of Smith's motion for a new trial on the EEOC's acceptance of a remittitur. R 1631. The court also ordered the following injunctive relief: that 1) Smith be enjoined from discriminating against disabled employees; 2) Smith post in each of its locations and provide current employees with a notice explaining protections under the ADA; 3) Smith provide one hour of training to all managers, branch managers, and account managers on hiring persons under the ADA; and 4) Smith notify the Commission when an employee makes a complaint of disability discrimination. R 1601; 1631-32. The Commission accepted the remittitur in light of several considerations, including sensitivity to Moncada and the injunctive relief that had been secured. R 1627-28. SUMMARY OF ARGUMENT Smith argues that it was erroneously precluded from challenging the Commission's conciliation efforts as a result of the district court's application of Federal Rules of Civil Procedure 16(b)(4) and 9(c). The court's rulings, however, are consistent with this Court's precedent interpreting and applying those Rules and should accordingly be affirmed. Moreover, as the Commission will establish, even if Smith had been permitted to pursue the defense, the EEOC fulfilled its statutory obligations to conciliate in good faith. Smith also raises several challenges to the punitive damages awarded by the jury, none of which warrant this Court's reversal of the award or further remittitur. The district court's clear and accurate statement of the law in its jury charge on punitive damages defeats Smith's challenge on grounds of jury confusion, an objection it failed to properly preserve below. The jury's finding that Smith's agent - Carl Ray - acted within his managerial capacity, in the scope of his employment, and with the requisite intent when he denied Moncada employment, was the result of a rational assessment of legally sufficient evidence to establish those elements. Moreover, the district court did not abuse its discretion in declining to further remit punitive damages, as even the original award was reasonable under this Court's standard in Abner v. Kansas City Southern R.R. Co., 513 F.3d 154, 164-165 (5th Cir. 2008). The district court also properly rejected Smith's contentions that the EEOC's failure to specify damages in its Rule 26(a) Initial Disclosures justified preclusion of all monetary relief. The court's ruling that the EEOC could not argue for a specific amount of damages appropriately cured the deficiency in the disclosures. Finally, the district court awarded appropriate injunctive relief and properly dismissed Smith's challenge to subject matter jurisdiction. This Court, reviewing for abuse of discretion, should affirm the injunctive relief ordered by the district court, which was narrowly tailored to the evidence presented at trial of the absence of any training on the ADA and serious deficiencies in the company's anti- discrimination policy. This Court should also affirm the determination that the court had jurisdiction over this case because proof that an employer is engaged in interstate commerce is not a jurisdictional requirement, and in any event, was provided in this case. ARGUMENT I. The district court properly rejected Smith's belated challenge to the adequacy of EEOC's conciliation efforts. A. The district court acted in accordance with this Court's precedent applying Rule 16(b)(4) requiring a showing of good cause for leave to amend and did not abuse its discretion in denying Smith's motion for leave. This Court reviews a trial court's denial of leave to amend pleadings for abuse of discretion. Jones v. Robinson Property Grp., 427 F.3d 987, 992 (5th Cir. 2005). An abuse of discretion is found where the district court "relies on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to the facts." Id. (quoting McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003) (internal citation omitted). A district court properly exercises its discretion, however, when acting "within the bounds set by relevant statutes and relevant, binding precedents." In re: Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (discussing appellate review of a trial court's exercise of discretion and citing cases). In considering motions for leave to amend after the deadline of a scheduling order, this Court has observed that it "owe[s] the trial court 'broad discretion to preserve the integrity and purpose of the pretrial order'" and that district judges have "power to control their dockets by refusing to give ineffective litigants a second chance to develop their case." S & W Enters., L.L.C. v. Southtrust Bank of Ala., 315 F.3d 533, 535, 537 (5th Cir. 2003) (internal citations omitted). Rule 16(b) governs the amendment of pleadings after a scheduling order deadline has passed. Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008) (citing S & W Enters., 315 F.3d at 535). Under Rule 16(b)(4), the party seeking the amendment must demonstrate good cause, a standard that requires the party to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension. Id. (internal citation omitted). Only upon such a showing will the court then apply the more liberal standard of Rule 15(a) to grant or deny leave. Id. (citing S.W. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (internal citation omitted). The district court acted well within the ambit of relevant, binding precedent to conclude that Smith had failed to demonstrate good cause to modify the scheduling order because of its "failure to provide a plausible explanation for its delay." R 573. Indeed, this Court, under both the Rule 16(b)(4) good cause analysis and the more liberal Rule 15(a) analysis, places particular weight on facts of the moving party's delay in seeking the amendment and its lack of good reason for such delay, to affirm denials of motions for leave to amend.<2> Thus, the court's specific rejection of the argument that the basis for its failure to amend in a timely fashion was due to the discovery of new information obtained through a request for admission was not an abuse of discretion. Accordingly, this Court should likewise reject this argument, which Smith argues on appeal. See Def. Br. 11-12. The Commission sent Smith its Notice of Conciliation Failure on February 22, 2008. Defendant did not plead this defense in its original answer filed on November 14, 2008, and thereafter neglected to seek a timely amendment before the March 1, 2009, deadline set by the court's scheduling order. Smith was well aware that conciliation had failed long before it filed its original answer, and as a direct participant in the conciliation process, was also aware of the nature of the Commission's conciliation efforts, thereby enabling it to include failure to conciliate as a defense. It was not until June 17, 2009, three months after the March 1, 2009, deadline, that Smith first sought to amend its answer. On August 3, 2009, Smith filed its second motion for leave to amend. Meanwhile, discovery had commenced before the March 1, 2009, deadline, and the Commission had accordingly served Smith with written discovery in early February 2009. Though the parties engaged in mediation in April 2009, the parties agreed that mediation would not prevent either party from seeking written discovery prior to the mediation. Smith served written discovery on the EEOC on May 5, 2009. In light of these facts, the district court found that "Smith could likewise have served requests for admissions on the EEOC...within a time frame that would have enabled it to move for leave to amend before the deadline expired," noting that its explanation for delay was additionally "undermined by the fact that Smith...at least had enough knowledge of the facts to" pursue its previous motion for Rule 11 sanctions against the EEOC on similar grounds, and in light of its specifically worded request for admission that clearly anticipated EEOC's response. R 570. Applying this Circuit's four factor test for assessing good cause, the district court held that Smith's failure to account for the delay outweighed the other factors, as the primary focus of the good cause inquiry is "on the diligence of the party seeking to modify the scheduling order." R 573. This holding conforms with this Court's view that the good cause standard requires an overall showing that "the deadlines cannot reasonably be met despite the diligence of the party needing the extension." See Fahim, 551 F.3d at 348 (internal citations omitted). Even under the more liberal Rule 15(a) standard, this Court has affirmed denials of motions for leave on facts where the moving party, similar to Smith, has attributed its failure to seek timely amendment to learning information through discovery that was previously unavailable. In Jones, the moving party argued that its failure resulted from obtaining information supporting a retaliation claim only after hearing witness testimony from a deposition during discovery. 427 F.3d at 994-995. This Court rejected that argument, finding that there was sufficient evidence long before the deposition to be able to assert and meet a prima facie showing of retaliation, noting that the moving party had waited one year after the suit was filed and months after the amendment deadline to file its motion. Id. Here, Smith likewise was fully aware that conciliation had failed well before litigation - indeed, it is a condition precedent to the Commission's ability to litigate - and knew that the EEOC did not accept its vague overture to assist Moncada with her job search. It cannot be said that the district court abused its discretion in denying Smith's motion for leave to amend under the more stringent Rule 16(b) good cause standard, when even under the Rule 15(a) standard, this Court has affirmed denials on similar facts. The district court's order - consistent with relevant precedent - should be affirmed. B. The district court's order precluding Smith from asserting conciliation failure because it did not plead that defense with particularity in its answer under Rule 9(c) is consistent with this Court's holding in Klingler. Smith argues, for the first time on appeal and in reliance on EEOC v. Klingler, 636 F.2d 104 (5th Cir. 1981), that the failure to conciliate defense can be raised through other motions and that the district court thus erred in requiring it to plead that defense with particularity in its answer pursuant to Rule 9(c). Def Br. 8- 11. Under de novo review,<3> this Court should affirm the district court's grant of summary judgment for the Commission because it accurately applied Rule 9(c) to preclude Smith from asserting conciliation failure, Smith having failed to "do so with particularity," as the rule and this Court in Klingler, require. The Commission sought partial summary judgment arguing that all conditions precedent to suit had been met, specifically citing the adequacy of its conciliation efforts. Smith, in its motion for summary judgment and its response to the EEOC's motion, argued that the Commission had failed to satisfy its statutory obligation to conciliate in good faith. The district court, without ruling on the merits, held that all conditions precedent to suit had been met, also holding that Smith was precluded from "relying on lack of conciliation as a basis for summary judgment" because it failed to assert failure to conciliate in its pleading, as required by Rule 9(c). R 900-05. Rule 9(c) requires that "when denying a condition precedent has occurred or been performed, a party must do so with particularity." Fed. R. Civ. P. 9(c). As the district court methodically explained in both its order granting summary judgment for the Commission, and its order denying Smith's motion for reconsideration of that order, conciliation is a condition precedent<4> and Smith was required to specifically raise the issue of its non-performance in its answer. R 901- 05; 1151-54. The district court's holding is in clear accord with this Court's precedent. E.g., EEOC v. Agro Distribution, 555 F.3d 462, 469 (5th Cir. 2009) ("[W]e conclude that the EEOC's conciliation requirement is a precondition to suit"); EEOC v. Standard Forge & Axle Co., 496 F.2d 1392, 1395 (5th Cir. 1974) (discussing Rule 9(c), holding that "[s]hould a defendant desire to join issue on the existence or satisfaction of conditions precedent, his burden is clearly specified by the second sentence of the same rule: 'A denial of performance or occurrence shall be made specifically and with particularity'")[quoting Rule 9(c)]. In further support, the district court then cited and quoted a volume of decisions from this Court and other circuits that precluded defendants from asserting that a condition precedent had not been met after having failed to deny with specificity the fulfillment of that condition precedent in its pleadings. R 903-5 (citing, among other cases, Am. Bankers Ins. Co. of Fla. v. Irricon, 200 F.3d 815, at *1 (5th Cir. 1999) (per curiam) (unpublished opinion)). The court's analysis is further supported by this Court's holding in Klingler. Smith mistakenly relies on Klingler for the proposition that a motion to dismiss, and by extension - any motion - is an appropriate procedural mechanism by which to raise the issue of conciliation failure. Def. Br. 10. The defendant in Klingler, however, filed a motion to dismiss for lack of subject matter jurisdiction and failure to conciliate in lieu of an answer. 636 F.2d at 106. Thus, the defendant's motion in Klingler, in response to the Commission's complaint in that case, functioned as its operative pleading. In that context, this Court in Klingler, citing Standard Forge, held that the defendant's "specific and particular denial" of conciliation failure made therein had sufficiently raised the issue of conciliation failure.<5> Id. at 107 (citing Standard Forge, 496 F.2d at 1395). The district court's holding requiring a particularized denial of conciliation failure in Smith's answer is consistent with, and certainly not undermined by, this Court's holding in Klingler. Finally, the district court's denial of Smith's second motion for leave to amend its answer based on Fed. R. Civ. P. 16(b)(4), and its analysis requiring conciliation failure to be pled in Smith's answer under Rule 9(c), were not only premised on sound legal authority, but also reflect the wisdom that conciliation failure is properly adjudicated early in the proceedings. Discussing the procedural scheme of Title VII, this Court has observed that "[t]he steps of the statute are steps of economy. It would defy reason to require compliance with procedural prerequisites whose raison d'etre - namely, the desire to avoid premature litigation - is absent. Where the parties are already in court pursuant the statutory scheme, the day for complying with the calisthentics of an alternative route has come and gone." Harris v. Amoco Prod. Co., 768 F.2d 669, 678 (5th Cir. 1985) (emphasis added). This is especially true of the conciliation process, which occurs after the EEOC has issued a notice of determination to the employer and before it has commenced litigation. See 42 U.S.C. § 2000e-5(b) and 5(f)(1). Conciliation is based on the scope of the statutory violation that the EEOC has found cause to believe has occurred, and its purpose is for the EEOC to obtain voluntary compliance from the employer before it files suit. See Harris, 768 F.2d at 677 ("Conciliation clearly remains the preferred method of obtaining compliance with the Act"). By logical extension, the remedy for inadequate conciliation efforts is a stay in the litigation to re-open the possibility of voluntary resolution, and only in cases involving "grossly arbitrary" conduct, a dismissal of the complaint. Klingler, 636 F.2d at 107; 42 U.S.C. § 2000e-5(f)(1). By asserting conciliation failure at this late stage, Smith requests relief that makes little intuitive or legal sense: a remand to the district court for a hearing on conciliation, and vacating of the jury verdict and dismissal of the case should the court find the EEOC had failed. Def. Br. 11. The district court's denial of Smith's belated motions for leave to amend and its grant of summary judgment based on failure to comply with Rule 9(c) should not be then construed as mere chastisements for technical failure, but necessary for the orderly adjudication of an issue involving a condition precedent such as conciliation. C. This Court may affirm the district court's order granting summary judgment to the EEOC on the alternative ground that the Commission satisfied its statutory obligation to conciliate in good faith. While this Court should affirm the district court's proper denial of Smith's second motion for leave to amend its answer based on Rule 16(b)(4), and its analysis requiring conciliation failure to be pled in Smith's answer under Rule 9(c), this Court may also affirm summary judgment for the EEOC on the alternative ground that its conciliation efforts were sufficient under the law. Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010)(This Court "may affirm a grant of summary judgment 'on any legal ground raised below, even if it was not the basis for the district court's decision'") (quoting Performance Autoplex II Ltd. v. Mid- Continent Cas. Co., 322 F.3d 847, 853 (5th Cir.2003) (citing In re Williams, 298 F.3d 458, 462 n.5 (5th Cir. 2002))). As this Court stated in Agro Distribution, the Commission satisfies its conciliation requirement where it outlines to the employer the basis for its belief that the law was violated, offers an opportunity for voluntary compliance, and responds in a flexible manner to the attitudes of the employer. Agro Distribution, 555 F.3d at 468. As detailed below, the Commission met its obligations under Agro Distribution and this Court may affirm summary judgment for the Commission on that basis. After investigating Moncada's charge, the Commission issued a Notice of Determination on December 18, 2007, explaining its belief that Smith's denial of an application for employment because of Moncada's deafness violated the law. The same day, the EEOC initiated conciliation by sending Smith a proposal that included, inter alia, a monetary offer of $65,000 to settle all claims for damages. On January 8, 2008, Smith countered with an offer of $5,000, did not address any other provision of the proposal submitted by EEOC, and referenced its August 2006 letter to reiterate an offer - made prior to conciliation<6> - "to assist Ms. Moncada in her job search." It is at this point that Smith argues that the EEOC failed its statutory obligation by not communicating this offer to Moncada - an argument that both misunderstands EEOC's relationship to Moncada and misstates the nature of the "offer" itself. The Supreme Court and this Court have acknowledged the distinctive function of the Commission in enforcing antidiscrimination laws on behalf of the public interest as opposed to representing the limited interests of the charging party. EEOC v. Waffle House, 534 U.S. 279, 295-96 (2002) ("[W]e are persuaded that, pursuant to Title VII and the ADA . . . the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim-specific relief."); EEOC v. Bd. of Supervisors for the Univ. of La. Sys., 559 F.3d 270, 273 (5th Cir.2009) ("The Supreme Court . . . has recognized that the EEOC plays an independent public interest role" (citing Waffle House, 534 U.S. at 291-92)). The Commission - in seeking an outcome beyond make-whole relief for Moncada - was under no obligation to convey the offer in Smith's letter that related specifically to the charging party and in EEOC's view, did not address its larger concern with unlawful conduct. See Waffle House, 534 U.S. at 280 ("If the EEOC could prosecute its claim only with [the charging party's] consent, or if its prayer for relief could be dictated by [the charging party], the lower court's analysis might be persuasive. But once a charge is filed, the exact opposite is true under the ADA, which clearly makes the EEOC the master of its own case."); EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455-56 (5th Cir. 1975) (holding that EEOC's investigation and litigation of discriminatory practices are not limited by a charging party's settlement). Moreover, the "offer" contained in Smith's August 2006 letter amounted to no more than a vague and noncommittal statement that Smith was "happy to assist Ms. Moncada in her job search," not an offer of employment. In the same letter, Smith denied any knowledge of the refusal to hire Moncada, stated that it was "unsure as to why Ms. Moncada feels that she was discriminated against," and implied that she had not even been physically present at the job site. EEOC acted reasonably in declining the "assistance" and declining to communicate it to Moncada. Nonetheless, EEOC did not close conciliation at that point, but sent Smith a revised proposal that included a $10,000 reduction in the damages requested. Smith, in its January 31, 2008, response, did not propose any counteroffer for monetary relief or to the Commission's proposed injunctive relief. It further emphasized that "the amount of damages . . . seems calculated to lead to the absence of a resolution." On February 22, 2008, EEOC sent a Notice of Conciliation Failure. Smith was afforded several opportunities to voluntarily comply, during which time the EEOC acted with reasonableness and flexibility. It was only after Smith had repeatedly failed to address any component of injunctive relief, and in its last communication, failed to offer any specific damages amount at all, that the EEOC issued its Notice of Conciliation Failure. Its conduct certainly does not rise to the level of "bad faith" required for dismissing the case, let alone vacating a jury verdict. EEOC v. Pet Inc., 612 F.2d 1001, 1002-03 (5th Cir.1980) (finding that where EEOC had withdrawn prematurely from negotiations, acting in good faith but not adequately conciliating, the Court reversed the lower court's dismissal of the case and instituted a stay in the proceedings, calling the lower court's actions "sweeping" and "a sanction far too harsh"). In addition, the EEOC's conduct in this case stands in contrast to the deficient efforts this Court discussed in Agro Distribution, 555 F.3d at 467-68. The Agro Court noted that during conciliation, the EEOC had failed to act reasonably based on the following conduct: proposing $120,000 in compensatory damages for a charging party who later testified at his deposition that he did not suffer any emotional harm from the job loss at issue; sending a letter announcing that conciliation had failed before ever meeting with or speaking to defense counsel concerning EEOC's conciliation proposal; re-opening conciliation at defendant's request, but then refusing to negotiate any of its terms; and filing suit seeking $250,000 in damages, then offering to settle for $42,000 after the charging party's deposition. Id. While not bearing directly on the merits of conciliation, the EEOC also attempted mediation with Smith during litigation in a further effort to resolve the case before trial. As the evidence establishes, and as the EEOC argued below, it fulfilled its statutory conciliation obligations and this Court may affirm summary judgment on that alternative ground. II. The district court properly disposed of Smith's objections to the jury's damages award. A. The district court's jury instruction on punitive damages was clear and legally accurate. Despite multiple opportunities before and during trial, Smith failed to properly preserve an objection on the basis on which it now predicates its challenge to the jury instruction. Smith argues that the jury instruction on punitive damages was so confusing as to cause jurors to mistakenly substitute the company's knowledge of the ADA for its agent's knowledge of the ADA when analyzing the requisite intent for punitive damages. Def. Br. 20-21. Rule 51 of the Federal Rules of Civil Procedure requires that the party making an objection to an instruction "do so on the record, stating distinctly the matter objected to and the grounds for the objection." Fed. R. Civ. P. 51(c)(1). In addition to providing opportunities for counsel to submit proposed jury instructions before trial, the district court provided all counsel with a copy of its jury charge the week preceding trial, and at trial, invited counsel to articulate objections. Smith lodged only generalized objections concerning intent and at no time specifically objected on the basis that the jury, in confusion, would substitute the company's knowledge of the ADA for the knowledge of its agent in analyzing intent. Consequently, Smith did not properly preserve the issue it now raises. Russell v. Piano Bank and Trust, 130 F.3d 715, 719 (5th Cir.1997) (finding that because appellant had "made no specific reference to the omission of the words 'with or without reasonable accommodation'" in its objection before the district court, the Court would apply plain error review to a jury charge challenge on that basis; also observing that this Court has "repeatedly held that a general objection to the district court's jury instructions is insufficient to satisfy Rule 51") (citing cases). Rule 51 grants this Court the discretion to decline to review a jury instruction challenge where an objection was not properly preserved. Fed. R. Civ. P. 51(d)(2). Should the Court elect to review this jury instruction challenge, this Court is "exceedingly deferential" to the trial court. Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir. 2002) (internal citation omitted). For an appellant to prevail, he must establish "(1) that an error occurred; (2) that the error was plain, which means clear or obvious; (3) the plain error must affect substantial rights; and (4) not correcting the error would 'seriously affect the fairness, integrity, or public reputation of judicial proceedings.'" Russell, 130 F.3d at 721 (internal citations omitted). Even where the court does commit error, "the requirements of plain error are exacting and the plain error exception is a narrow one that applies only where 'the error is so fundamental as to result in a miscarriage of justice.'" Id. (citing Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 424 (5th Cir. 1990)(quoting Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 262 (5th Cir. 1985)). The instruction at issue here includes the following statement: "In order for Smith to be liable for punitive damages, the EEOC must prove that the agent of Smith of whose conduct EEOC complains . . . acted with malice or reckless indifference to Moncada's right not to be discriminated against based on disability." (Emphasis added.) This language not only tracks this Court's most recent 2009 ADA jury charge pattern on punitive damages, but is also consistent with the Supreme Court's formulation of vicarious liability in Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999). Federal Pattern JI 5th Circuit - Civil 11.8, ¶9; Kolstad, 527 U.S. at 535, 539, 542-43, 546 (holding that for punitive damages to be applied to the company, the evidence must show that the company's agent acted with malice or reckless indifference - that is, a state of mind reflecting "knowledge that it may be acting in violation of federal law" - and managerial authority during the scope of employment, when committing the challenged conduct; also holding that egregiousness is not required for awarding punitive damages). The charge unambiguously outlines the necessity of finding intent on the part of Smith's agent in order to impute liability to the company. Meanwhile, references to Smith in this section simply function to identify it as the corporate defendant. R 1202-04. (For example, the charge states: "If the EEOC proves by a preponderance of the evidence that Smith discriminated against Moncada . . . the law allows you, but does not require you, to award punitive damages.") There was no error in the jury charge, and this Court should reject Smith's argument urging reversal of the award on that basis. B. The jury, based on more than sufficient evidence, reasonably concluded that Carl Ray acted with managerial authority, in the scope of his employment, and with the requisite intent, for an award of punitive damages. The jury finding on liability - that Smith discriminated against Moncada in violation of the ADA - is not challenged on appeal. The narrow issue that Smith raises for this Court's review concerns the sufficiency of evidence regarding whether Smith's agent Carl Ray acted with managerial capacity in the scope of his employment when he refused to hire Moncada. Def. Br. 22-27. The testimony of Smith's manager Joe Roberts provided more than sufficient evidence on which reasonable jurors so concluded. Under the applicable de novo standard,<7> this Court should affirm the district court's denial of Smith's motion for judgment as a matter of law. Flowers v. S. Regional Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001) (internal citations omitted). To determine whether managerial capacity and scope have been satisfied, this Court analyzes the two elements in tandem, examining the challenged conduct and asking whether it was committed by an individual whose job responsibilities encompassed that conduct. Rubenstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 406 (5th Cir. 2000) (in a Title VII action involving discriminatory denials of pay raises, considering whether the individual who refused to grant the pay-raises at issue to plaintiff was responsible for deciding pay-raise decisions as part of his job function in determining managerial capacity and scope); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 280, 285-86 (5th Cir. 1999) (in a Title VII action involving discriminatory disciplinary actions and termination, analyzing whether the individual acted upon his own authority in terminating her, had supervisory authority over the plaintiff, and had authority to make personnel decisions regarding plaintiff to determine both elements). Where evidence establishes that the agent's challenged conduct was within the purview of his job authority, this Court finds both elements satisfied. See Rubenstein, 218 F.3d at 406; Deffenbaugh-Williams, 188 F.3d at 280, 285-86. Smith concedes that Ray had the authority to hire employees. Def. Br. 39- 40. In fact, Smith manager Roberts testified that Ray was an account manager when Moncada was refused employment and that account managers are authorized to hire employees as part of their job function. Account managers also have supervisory authority over field employees. Thus, the jury had a clear basis on which to find managerial capacity and scope of employment satisfied and this Court has affirmed satisfaction of those elements on precisely such facts. See Rubenstein, 218 F.3d at 406 (affirming that managerial capacity and scope were both satisfied "[w]ithout question" where the agent - a dean of the Engineering department - had denied plaintiff a raise, and the deans of each department were responsible for ratifying pay-raise decisions); Deffenbaugh-Williams, 188 F.3d at 280, 285-86 (affirming that managerial capacity and scope were satisfied). Moreover, Smith argues that Ray's conduct in refusing to take Moncada's application was outside the scope of his employment, but this Court in Deffenbaugh-Williams rejected the defendant's contention that because an agent acted unlawfully, the agent's conduct was consequently outside the scope of employment. Id. at 286 (finding that the Supreme Court in Kolstad had "laid to rest" that notion) (citing Kolstad, 527 U.S. at 544). Furthermore, as the district court observed, even if Ray acted in contravention of a company policy mandating distribution of applications to all applicants, this did not preclude the jury from finding that because Ray had the authority to hire, and did not hire Moncada, managerial capacity and scope were satisfied. R 1609-11. Smith also argues that "no evidence" supports the jury finding that Ray acted with the requisite intent to justify punitive damages. Under the "highly deferential" plain error standard applicable here, this Court will uphold a verdict "if any evidence exists that supports the verdict." Flowers, 247 F.3d at 238-39 (holding that where a party has failed to raise issues in its Rule 50(a) motion, it has waived its right to file a Rule 50(b) motion, waived the right to challenge the sufficiency of the evidence on appeal, and is limited to review of those issues for plain error only) (internal citations omitted). A "demanding standard," a showing of "exceptional circumstances" is required for this Court to reverse. Rizzo v. Children's World Learning Ctrs., Inc., 173 F.3d 254, 262 (5th Cir. 1999). There are no such operative exceptional circumstances. Smith stipulated to its awareness that the ADA prohibits disability discrimination. Smith's manager Roberts not only testified as to his own knowledge of the ADA, but also confirmed that discussions with Smith managers about workplace discrimination, among other topics, occurred twice a year. Ray was, at all times during his employment, a managerial employee. This was more than enough evidence upon which a jury could rationally conclude that Ray also had knowledge of the ADA. Indeed, this Court has found intent satisfied based on reasonable inferences that the agent was aware of federal law prohibiting discrimination. See Lincoln v. Case, 340 F.3d 283, 291-92 (5th Cir. 2003) (in a race housing discrimination case, holding intent satisfied because the jury could have reasonably inferred knowledge of federal antidiscrimination law from the defendant landlord's years of experience). See also EEOC v. Stocks, No. 06-10871, 2007 WL 1119186, at *2 (5th Cir. Apr. 16, 2007) (finding intent satisfied based on defendant store owner's testimony that he did not discipline the plaintiff after her initial harassment complaints because she would have gone to the Commission, as this demonstrated his knowledge of anti- discrimination laws; also noting that other circuits have found "evidence that the employer has knowledge of the anti-discrimination laws alone is sufficient to demonstrate reckless indifference") (citations omitted). There are no exceptional circumstances counseling this Court's reversal of the jury finding that Ray acted within his managerial capacity, in the scope of his employment, and with the requisite intent to support the jury's punitive damages award. C. Given that the original punitive damages award was reasonable under this Court's view in Abner, and has already been significantly reduced, this Court should decline to remit punitive damages further. This Court reviews the grant of a remittitur for abuse of discretion. Consolidated Co. Inc. v. Lexington Ins. Co., 616 F.3d 422, 435 (5th Cir. 2010) (internal citation omitted). Where the trial court has already ordered a remittitur, this Court has emphasized the particularly narrow scope of its review. Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 574 n.7 (5th Cir. 1979) (internal citation omitted). The First Circuit, in Ruiz v. Gonzalez Caraballo, observed as settled law that "[o]nce a verdict has been trimmed and reshaped at the hands of the trial judge, an assault on the remaining amount calls upon [the court of appeals] not merely to grade the essay, but to grade the teacher's grading of the essay. The resultant constraints are not inconsiderable. We agree with the Fifth Circuit that '[w]here the trial court already has invoked its discretion in granting a remittitur, [the] scope of review is even narrower than usual.'" 929 F.2d 31, 34 (1st Cir. 1991) (quoting Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987) (in turn, quoting Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571, 574 n. 7 (5th Cir.1979)). At this stage, the appellant "must show, therefore, that the reduced sums remain so exorbitant, so disturbing to our collective conscience, as to entitle them to new trials." Ruiz, 929 F.2d at 35 (internal citation omitted). The district court conditioned denial of Smith's motion for a new trial on the Commission's acceptance of a remittitur, which reduced the punitive damages award from $150,000 to $68,000. The EEOC accepted the remittitur. The district court did not abuse its discretion in failing to remit further and Smith, in fact, presents the same facts and case law - nearly verbatim - to this Court that it presented before the trial judge. Compare Def Br. 28-30 with R 1245-47. The amount of $68,000 certainly does not "remain so exorbitant, so disturbing" as to entitle Smith to a new trial. Moreover, this Court has specifically found that awards within the statutory cap for punitive damages are de facto reasonable, as the cap reflects Congress's judgment that any amount within that range is not excessive. Abner, 513 F.3d at 164-65 (refusing to reduce the jury award as "it fell well below the cap," explaining, "[a]s we see it, the combination of the statutory cap and high threshold of culpability for any [punitive damages] award confines the amount of the award to a level tolerated by due process. Given that Congress has effectively set the tolerable proportion, the three-factor Gore [BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)] analysis is relevant only if the statutory cap itself offends due process. It does not and . . . a ratio-based inquiry becomes irrelevant") (internal citation omitted). Thus, Smith errs in emphasizing the ratio between punitive and compensatory damages and arguing the excessiveness of an award beneath the statutory cap, as this Court in Abner plainly rejected both contentions. Abner, 513 F.3d at 164-65. Because Smith employed approximately 650 of its own employees at the time of the discrimination, the applicable statutory cap for punitive damages is $300,000. 42 U.S.C. §§ 1981a(a)(2), (b)(3)(D) (for employers with over 500 employees, setting a maximum cap of $300,000). Here, while the original amount of $150,000 was already reasonable in light of Abner, the remitted amount of $68,000 has dropped the award by more than half. Given this Court's "exceedingly narrow" review, and the reasonableness of the original amount, the remitted amount is not excessive and should be left undisturbed by this Court. D. The district court properly rejected Smith's arguments urging the Commission's complete preclusion from seeking any damages based on Federal Rule of Civil Procedure 37(c). i. The district court ordered an appropriately narrow curative measure when ruling that the EEOC could not argue a specific damages amount to the jury. Smith argues on appeal that because the EEOC did not provide computations for compensatory or punitive damages under Federal Rule of Civil Procedure 26(a), a reversal of the jury verdict is warranted, or alternatively, that the Commission is precluded from seeking any damages at all. Def. Br. 13-19; 42. It offers no authority for either proposition. Under de novo review,<8> this Court should affirm the district court's denial of Smith's motion for summary judgment, wherein it properly held that Smith did not have a legally cognizable basis for seeking dismissal of the case or precluding the Commission from seeking monetary relief for a failure to comply with Rule 26(a) disclosures, by operation of Fed. R. Civ. P. 37(c). R 907-11. Rule 37(c)(1) states: "If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The Commission did not provide specific computations of the compensatory or punitive damages it sought in its Rule 26(a) disclosures.<9> Instead, in its interrogatory responses, the Commission informed Smith of its intention to seek up to the statutory cap available under the ADA for compensatory and punitive damages, and provided the factual bases on which it would seek both categories of relief. Smith moved for summary judgment on the basis of Rule 37(c), arguing that the Commission's failure to provide specific damages computations warranted dismissal of the case or, in the alternative, preclusion from any damages award at all. The district court - correcting Smith's erroneous legal understanding of Rule 37 and accordingly treating its summary judgment motion as a motion in limine - held that the EEOC would not be able to argue a specific damages amount in the presence of the jury. R 907-11; 914-16. This was an appropriately narrow curative measure, consistent with the actions of other district courts. R 909-12; 914-15 (discussing cases). The Commission, at no point during trial, argued a specific damages amount before the jury. Even if this curative measure were somehow insufficient, the remedy which Smith now seeks - reversal of the jury verdict or "tak[ing] nothing" in monetary damages awarded by a jury - is one that is not contemplated by Rule 37, let alone warranted here.<10> Def. Br. 42. ii. Smith was neither prejudiced nor precluded from pleading the mitigation of damages by not receiving specific computations of compensatory or punitive damages. To account for its own failure to assert mitigation of damages as an affirmative defense, Smith further argues that it would have asserted that defense had the EEOC's Initial Disclosures contained specific damages computations. Def. Br. 16-19. Smith alternatively argues that the mitigation of damages is not an affirmative defense at all, and the district court thereby abused its discretion in granting the Commission's motion in limine because Smith had failed to plead that defense. Id. Smith misstates facts and the law in support of both arguments. Reviewing for abuse of discretion,<11> this Court should accordingly affirm. Smith was able to calculate the back pay amount based on information readily available to it: the hourly rate of the position Moncada was denied from the point of Smith's refusal to hire her. Moreover, the EEOC informed Smith that it would be seeking compensatory and punitive damages up to the applicable statutory cap. It also provided Smith with evidence that Moncada had sought other work after Smith's refusal to hire her. Thus, Smith was fairly on notice of all the categories of damages that EEOC sought on behalf of Moncada and had received evidence concerning Moncada's mitigation efforts. Smith's contention that it neglected to pursue a mitigation of damages defense because the Commission did not provide it with specific computations is without merit. Neither did the district court abuse its discretion in granting the Commission's motion in limine on the ground that Smith had failed to plead mitigation of damages as a defense. It is well-settled law that the mitigation of damages is an affirmative defense. E.g., St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F. 3d 533, 537 (5th Cir. 2009) (referring to failure to mitigate as an affirmative defense); Palasota v. Haggar Clothing Co., 499 F.3d 474, (5th Cir. 2007) (defendant must prove that plaintiff failed to mitigate damages); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998) (same); Sellers v. Delgado Community College, 839 F.2d 1132, 1139 (5th Cir. 1988), cert. denied, 498 U.S. 987 (1990) (same). Accordingly, Smith was required to plead mitigation in its answer, which it did not. Vanhoy v. USA, 514 F.3d 447, 450 (5th Cir. 2008)("Federal Rule of Civil Procedure 8(c) requires an affirmative defense to be set forth in a defendant's responsive pleading, with the failure to comply usually resulting in waiver of the defense.") (citing Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986)). Thus, the district court acted in accordance with relevant precedent in granting the Commission's motion in limine. III. The district court awarded appropriate injunctive relief and properly rejected Smith's challenge to the court's jurisdiction. A. The injunctive relief ordered by the district court was reasonable, justified by the evidence, and consistent with controlling authority. i. This Court should affirm the district court's order of injunctive relief, which was narrowly tailored to evidence presented at trial of Smith's deficient anti-discrimination efforts and policy. The district court narrowly tailored injunctive relief by ordering that Smith 1) be enjoined from discriminating against disabled employees; 2) post in each of its locations and provide current employees with a notice explaining protections under the ADA; 3) provide one hour of training to all managers, branch managers, and account managers on hiring persons under the ADA; and 4) notify the Commission when an employee makes a complaint of disability discrimination. Reviewing for abuse of discretion,<12> and in light of the evidence, this Court should accordingly affirm. Smith argues that there was an "absence of any evidence" to support the Commission's request for injunctive relief. Def. Br. 40. However, testimony by Smith manager Joe Roberts established that despite being in the staffing industry for well over a decade, with four branches and hundreds of internal employees, Smith did not provide any training to its employees on the ADA. Roberts admitted that he himself had never received any training from Smith on employment discrimination despite being responsible for enforcing its workplace discrimination policy. He further testified that while training was an option for trying to prevent discrimination in hiring, the company had not considered it. The district court's modest injunctive relief ordering one hour of training for Smith managers on the ADA was justified in light of the evidence and cannot be said to be overbroad. Neither did the court abuse its discretion in ordering the posting and distribution of a notice explaining employers' responsibilities under the ADA, which also included contact information and a procedure for reporting discrimination. This was plainly reasonable, as Roberts testified that Smith's policy did not include any procedure or contact information for reporting discrimination, and testified that Smith does not distribute its antidiscrimination policy for employees to keep. Meanwhile, the court's order that Smith report complaints of disability discrimination is neither onerous nor one that would continue "in perpetuity," as Smith inaccurately states. While the court's order instituting injunctive relief does not specify - on its face - a date at which Smith's reporting obligations would conclude, the EEOC sought a reporting period in its proposed injunction of two years from the date of the court's order. To the extent the district court did not clearly reference the time period in its order, this Court need only clarify that a two-year period applies. ii. The district court did not err in relying on James to state that injunctive relief was mandatory absent clear and convincing proof of no reasonable probability of the defendant's further noncompliance. The district court's analysis of its own reliance on James v. Stockham Valves and Fittings Co., 559 F.2d 310, 354 (5th Cir. 1977) undermines Smith's challenge to the court's statement concerning the mandatory nature of injunctive relief where liability has been established. Def. Br. 37-40; R 1598-99 n.6. Under de novo review,<13> this Court should affirm. In the context of discussing courts' broad discretion in crafting injunctive relief, the district court stated that "[a]bsent clear and convincing proof of no reasonable probability of further noncompliance with the law, a grant of injunctive relief is mandatory." R 1598 (quoting EEOC v. Fenyves & Nerenberg, M.D.P.A., No. Civ.A.3:97-CV-2322, 1999 WL 134279, at *7 (N.D.Tex. Mar. 9, 1999) (citing James v. Stockham Valves & Fittings Co., 559 F.2d 310, 354 (5th Cir. 1977)). The court, acknowledging that "[t]he standard set out in James was first announced in EEOC v. Rogers Bros., Inc.," appropriately relied on James for the proposition that Smith challenges on appeal. There, this Court clearly stated that "absent clear and convincing proof of no reasonable probability of further noncompliance with the law a grant of injunctive relief is mandatory." James, 559 F.2d at 354 (citing Rogers Bros., 470 F.2d 965 (5th Cir. 1972), cert. denied, 434 U.S. 1034 (1978)). This position is in accord with other Circuits, particularly where the Commission is the plaintiff.<14> The district court further noted that this Court has articulated two views concerning the mandatory nature of injunctive relief, one in James and the other in Meyer v. Brown & Root Construction Co., 661 F.2d 369 (5th Cir. 1981). R 1598 n.6. In Meyer, observing that a "court trying a Title VII suit bears a special responsibility in the public interest" and that "[t]he language of the Act empowers the courts to grant a wide variety of relief to combat discriminatory practices," this Court then noted that "a court determination that an employer has intentionally engaged in an unlawful employment practice does not necessitate either injunctive relief or a back pay award." 661 F.2d at 373-74. In stating that a determination of intentional discrimination may not always demand injunctive or back pay relief, this Court clarified its meaning in the accompanying footnote: "Relief under Title VII is conditioned on a finding that the employer 'intentionally engaged' in the unlawful employment practice. We have interpreted that phrase to mean that the discrimination must be deliberate rather than accidental." Id. at 374 n.7 (citing Local 189, United Papermakers v. United States, 416 F.2d 980, 996 (5th Cir. 1969)). The district court, interpreting Meyer as conflicting with James, explained that because this Court treats earlier precedent as controlling, it was applying the standard set forth in James as opposed to the standard described in Meyer. R 1598 n.6 (citing MCI Telecomms. Corp. v. United Showcase, Inc., 847 F. Supp. 510, 512 (N.D. Tex. 1994) (citing In re Dyke, 943 F.2d 1435, 1442 (5th Cir. 1991)). Meyer, however, is harmonious with James - both require injunctive relief where the employer has engaged in intentional, or deliberate and non- accidental, discrimination. In light of both James and Meyer, the district court correctly applied this Court's precedent requiring injunctive relief for intentional, deliberate discrimination in its analysis. The district court "balance[d] the equities and arrive[d] at a fair result consistent with Title VII's goals of eliminating discrimination" in the injunctive relief it ordered in this case. Meyer, 661 F.2d at 373-74. B. Consistent with this Circuit's recent holdings and supported by the evidence, the district court properly found that it had subject matter jurisdiction over this action. i. The district court did not err in holding that the "affecting interstate commerce" requirement in the definitions section of the ADA is not jurisdictional. Motions to dismiss for lack of subject matter jurisdiction are reviewed de novo. Premier Network Servs., Inc. v. SBC Commc'n, Inc., 440 F.3d 683, 687 (5th Cir. 2006) (citing Stiles v. GTE SW, Inc., 128 F.3d 904, 906 (5th Cir. 1997)). The district court properly concluded - consistent with this Court's application of Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) - that the "affecting commerce" requirement in the ADA's definition section is not jurisdictional, and accordingly, that Smith's challenge to subject matter jurisdiction was unavailing. Smith, however, argues that "affecting interstate commerce" is jurisdictional. Def. Br. 35- 36. This Court should affirm the district court's denial of Smith's motion to dismiss for lack of subject matter jurisdiction. In Arbaugh, the Supreme Court enunciated a "bright-line rule" that "'when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.'" Minard v. ITC Deltacom Comm., Inc., 447 F.3d 352, 356 (5th Cir. 2006) (discussing and quoting Arbaugh, 546 U.S. at 515-16). Applying Arbaugh, this Court in Minard held that the definition section of the FMLA is not a limit on subject matter jurisdiction. Id. at 356-57. This Court, in Startran, Inc. v. Occupational Safety and Health Review Commission, No. 06-61032, 2008 WL 3342714, at *7 (5th Cir. Aug. 11, 2008), applied Arbaugh again to hold that an exception contained in the OHS Act's definitions section is similarly not jurisdictional. The district court, mirroring this Court's analyses in both Minard and Startran, and relying on the rationale in Arbaugh, held that the "affecting interstate commerce" requirement contained in the ADA's definition section is likewise not jurisdictional. R 1593-94. ii. Even if a jurisdictional issue, there was more than sufficient evidence to satisfy the "very low" threshold for establishing that Smith affected interstate commerce. Even if this Court were to treat "affecting interstate commerce" as jurisdictional, the district court buttressed its conclusion that subject matter jurisdiction is not at issue based on Smith's stipulation that all parties were properly before the court, holding that such a stipulation could form the basis of subject matter jurisdiction. R 1595-97 (citing cases). Moreover, evidence at trial also satisfied the low threshold for establishing that Smith's operations affected interstate commerce. Roberts testified that Smith hired employees for Tuesday Morning's shipping and receiving department. The job that Moncada was denied was a position packing cosmetics for Tuesday Morning. This is evidence sufficient to satisfy "affecting interstate commerce." EEOC v. Ratliff, 906 F.2d 1314, 1316 (9th Cir. 1990)(citing and discussing holdings from other circuits as demonstrative examples of the "very low" threshold for meeting this requirement, noting that an employer who simply "uses items that have moved through interstate commerce at some point in their lives" affects interstate commerce) (internal citations omitted) (emphasis added). To the extent the district court relied on the fact that Tuesday Morning is a nationwide company, it was entitled to take judicial notice of that fact, in accordance with Federal Rule of Evidence 201. Ferguson v. Extraco Mortgage Co., No. 06-51453, 2007 WL 2493537, at *1 (5th Cir. Sept. 4, 2007) (discussing Rule 201 and a court's ability to take judicial notice of an "adjudicative fact" generally known within the trial court's territorial jurisdiction or capable of accurate determination and confirmation to an authoritative source) (internal citations omitted). See Corporate Information, Tuesday Morning, http://www.tuesdaymorning.com/ci/ci.asp (last visited June 24, 2011) ("Tuesday Morning is a retailer specializing in upscale closeout merchandise, with more than 800 stores across the United States"). CONCLUSION Given Smith's failure to raise the issue of conciliation failure with specificity as required by Rule 9(c), and in light of the Commission's full compliance with its statutory obligation to conciliate in good faith, this Court should affirm summary judgment for the EEOC that all conditions precedent to suit have been met. This Court should likewise affirm the jury verdict on punitive damages, as there was more than sufficient evidence upon which a jury rationally concluded that Smith's agent acted within his managerial capacity, during the scope of his employment, and with the requisite intent to justify the award. The district court's remitted amount of $68,000, under Abner, is not excessive and should be left undisturbed, while the injunctive relief ordered by the district court is likewise reasonable in view of the evidence. For all the foregoing reasons, the district court's orders should be affirmed. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel S/Christine Back _____________________ CHRISTINE BACK Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4734 christine.back@eeoc.gov CERTIFICATE OF COMPLIANCE WITH RULE 32(a) I certify that this brief complies with the type-volume limitation, and typeface and type style requirements set forth in Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 32(a)(5) and (a)(6). I certify that this brief was prepared with Microsoft Office Word 2003 and uses Times New Roman type, size 14 point. I further certify that the entirety of this brief contains 13,469 words, as determined by the Microsoft Word 2003 word count function. S/Christine Back_____________________ CHRISTINE BACK Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5NW14G Washington, DC 20507 (202) 663-4734 christine.back@eeoc.gov CERTIFICATE OF SERVICE I, Christine J. Back, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 5th day of July, 2011. I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 5th day of July, 2011, to all counsel of record. S/Christine Back ____________________ CHRISTINE BACK Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5NW14G Washington, DC 20507 (202) 663-4734 ********************************************************************************* <> <1> christine.back@eeoc.gov <2>"R [#]" refers to the paginated, certified Record on Appeal. See Fahim, 551 F.3d at 347-348 (affirming district court's denial of motion for leave to amend under Rule 16(b), where the moving party filed her motion to amend "nearly two months after the deadline to amend pleadings had expired" and noting the district court's appropriate emphasis on her failure to provide an explanation); Jones, 427 F.3d at 994 (affirming denial of motion for leave to amend under Rule 15(a), relying on fact that the moving party sought amendment one year after the suit was filed, despite sufficient evidence long before then upon which to add that claim); Smith v. EMC Corp., 393 F.3d 590, 595-596 (5th Cir. 2004) (affirming denial under Rule 15(a), finding that the moving party's insufficient discovery was no excuse for its untimely amendment); S.W. Bell, 346 F.3d at 547 (affirming denial under Rule 16(b), citing the fact that the moving party was aware of the fact forming the basis of its amendment "months in advance of the deadline and [did] not offer a satisfactory explanation for its delay"; also considering the likely failure on the merits of the counterclaim sought to be added); S & W Enters., 315 F.3d at 536 (under Rule 16(b), approvingly discussing the lower court's reliance on facts that the moving party had sufficient information from the time of its original pleading to the time of its motion for leave to add the claim but failed to explain why it did not, and finding that even though a continuance could have been granted at that stage in the proceedings, it was within the district court's "sound discretion" not to grant a continuance because it would unnecessarily delay the trial). <3> Kane v. Nat'l Union Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (a grant of summary judgment is reviewed de novo, with all evidence viewed in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor). <4> Citing and quoting illustrative cases, the district court also addressed Smith's apparent failure to recognize - again reflected in its appeal - the interchangeability of the terms "condition precedent" and "precondition to suit." R 1152 n.3. <5> The Court's observation that conciliation was appropriately raised as an issue in Klingler was in the context of its reversal of the lower court's dismissal of the Commission's complaint on the basis that the Commission had failed to specifically plead that conciliation had been satisfied. Id. at 106-107. <6> The Commission generally does not entertain offers during the investigation of a charge, as the scope of the violation - if a violation is indeed found - must first be determined in order to contemplate appropriate resolutions. <7> Because de novo review of a district court's ruling on a motion for judgment as a matter of law necessarily challenges the sufficiency of evidence supporting a jury's verdict, this Court has said "[a]lthough our review is de novo, we recognize that 'our standard of review with respect to a jury verdict is especially deferential'" and granting judgment as a matter of law is only proper where evidence and factual inference overwhelmingly show that reasonable jurors could not have reached a conclusion in favor of the non-moving party. Flowers, 247 F.3d at 235 (quoting Brown v. Bryan, OK, 219 F.3d 450, 456 (5th Cir. 2000) and citing Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d 1316, 1322 (5th Cir. 1994)). In other words, reversal is warranted only if "'no reasonable jury could have arrived at the verdict.'" Rogers v. Dorman, 521 F.3d 381, 391 (5th Cir. 2008) (citing Miss. Chem. Corp. v. Dresser-Rand Co., 287 F.3d 359, 365 (5th Cir. 2002) and quoting Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998)). <8> Kane, 535 F.3d at 384 (5th Cir. 2008) (summary judgment is reviewed de novo). <9> This Court has explicitly commented on the difficulty of providing computations for emotional harm and has questioned whether that is even required under Rule 26(a). For example, this Court in Williams v. Trader Publishing Co. noted that because compensatory damages for emotional distress are "necessarily vague" and "generally considered a fact issue for the jury, they may not be amenable to the kind of calculation disclosure contemplated by Rule 26(a)(1)(C)." Williams, 218 F.3d 481, 486 n.3 (5th Cir. 2000). See also Hardin v. Caterpillar, 227 F.3d 268, 272 (5th Cir. 2000) ("The amount to be awarded for emotional injury [i]s not a sum of calculable costs.") Punitive damages similarly resist the kind of mathematical calculation envisioned by Rule 26(a)(1)(C), given that a punitive damages award reflects a jury response to the underlying acts forming the basis for liability. Id. ("A jury deciding whether to award punitive damages and their amount responds to the evidence of intentional acts essential here to the underlying finding of liability.") <10> This Court has repeatedly characterized a dismissal of a complaint on the basis of a violation of Rule 37 - let alone a jury verdict - as "draconian" and a "remedy of last resort," only to be applied where there is no less drastic means by which to cure the error. Batson v. Neal Spelce Associates, Inc., 765 F.2d 511, 515 (5th Cir. 1985) (citing and quoting cases). <11> Al-Amin v. Smith, 637 F.3d 1192, 1195 (5th Cir. 2011) ("This Court reviews the district court's grant of a motion in limine for abuse of discretion") (internal citation omitted). <12> McClain v. Lufkin Indus., Inc., 519 F.3d 264, 283 (5th Cir. 2008) ("We review a district court's fashioning of injunctive relief for abuse of discretion") (citing Peaches Entm't Corp. v. Entm't Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995)). <13> Because Smith challenges the court's legal analysis, this Court reviews under the de novo standard. Women's Med. Ctr. of NW Houston v. E. Bell, 248 F.3d 411, 419 (5th Cir. 2001). <14> EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244, 1254 (11th Cir. 1997) (reversing the district court's denial of injunctive relief, citing the defendant's failure to prove that a violation was unlikely to occur); EEOC v. Ilona of Hungary, 108 F.3d 1569, 1578-79 (7th Cir. 1997) (affirming the district court's permanent injunction, emphasizing that "injunctive relief is appropriate even where the Commission has produced no evidence of discrimination going beyond the particular claimant's case" and considering the fact that defendant had "offered no evidence to suggest that they no longer will discriminate" in its analysis) (internal citations omitted); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (reversing the district court's refusal to grant injunctive relief without a predicate finding that defendant was unlikely to repeat its actions, stating that "[g]enerally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, unless the employer proves it is unlikely to repeat the practice") (citing Nanty v. Barrows Co., 660 F.2d 1327, 1333 & n. 6 (9th Cir. 1981), James, 559 F.2d 310, 354-56 (5th Cir. 1977), and B. Schlei & P. Grossman, Employment Discrimination Law 1415-16 & n.61 (2d ed. 1983)).