_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _______________________________________________________ Nos. 07-2419, 07-2420, 08-1819, 08-2048 _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, and RICHELLE DOOLEY AND ANGIE GACKE, Plaintiffs-Intervenors-Appellees, v. SIOUXLAND ORAL MAXILLOFACIAL SURGERY ASSOCIATES, L.L.P., Defendant-Appellee/Cross-Appellant. _______________________________________________________ On Appeal from the United States District Court for the District of South Dakota Hon. Lawrence L. Piersol, Presiding _______________________________________________________ OPENING BRIEF OF THE PLAINTIFF-APPELLANT/CROSS-APPELLEE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT These consolidated appeals involve a case the U.S. Equal Employment Opportunity Commission (the EEOC or the Commission) brought against Siouxland Oral Maxillofacial Surgery Associates, L.L.P. (Siouxland), alleging that Siouxland violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discharging Richelle Dooley and refusing to hire Angie Gacke due to pregnancy. During and after the trial, the Commission requested that the district court instruct the jury on punitive damages. The district court denied this request, and granted a directed verdict on this issue in favor of Siouxland instead. A jury ultimately found that Siouxland had discriminated against Dooley and Gacke because of pregnancy. The jury awarded back pay to Dooley and Gacke. After trial, the EEOC filed a motion requesting injunctive relief. The district court declined the request. On appeal, the EEOC is challenging the district court's refusal to instruct the jury on punitive damages and its refusal to award injunctive relief. The Commission believes that further exploration of these issues at oral argument would assist this Court in properly resolving this appeal. The EEOC thus requests an oral argument lasting thirty minutes. See Fed. R. App. P. 34(a)(1); 8th Cir. R. 28A(f)(1). TABLE OF CONTENTS SUMMARY OF THE CASE AND STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Richelle Dooley . . . . . . . . . . . . . . . . . . . . . . . . 6 B. Angie Gacke . . . . . . . . . . . . . . . . . . . . . . . . . . .13 C. Siouxland's Knowledge of the Federal Prohibition on Pregnancy Discrimination . . . . . . . . . . . . . . . . . . . . 16 II. District Court Rulings . . . . . . . . . . . . . . . . . . . . . 19 A. Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . 19 B. Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . .20 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .21 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 I. The District Court Committed Reversible Error in Granting Judgment as a Matter of Law to Siouxland on the Issue of Punitive Damages . . . . . . 23 II. The District Court Abused Its Discretion in Refusing to Order Any Injunctive Relief to Prevent Siouxland from Committing Pregnancy Discrimination in the Future . . . . . . . . . . . . . . . . . . . . . 30 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 TABLE OF CONTENTS (con't) ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1 District Court's Ruling on Punitive Damages . . . . . . . . . . . . . . .A2 District Court's Decision Denying Injunctive Relief . . . . . . . . . . A3 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . .C1 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . C2 TABLE OF AUTHORITIES Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . . . . .1, 31, 32 Allen v. Tobacco Superstore, Inc., 475 F.3d 931 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . . 24 Battle v. United Parcel Serv., Inc., 438 F.3d 856 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . .23 Briscoe v. Fred's Dollar Store, Inc., 24 F.3d 1026 (8th Cir. 1994) . . . . . . . . . . . . . . . 21, 30, 34 Bundy v. Jackson, 641 F.2d 934 (8th Cir. 1981) . . . . . . . . . . . . . . . . . .35, 36 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . . . . . . . . . . . . . . . . 30 Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559 (8th Cir. 1992) . . . . . . . . . . . . . . . . . . . .30 Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . 29 Chalfant v. Titan Distrib., Inc., 475 F.3d 982 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . . .27 Christensen v. Titan Distrib., Inc., 481 F.3d 1085 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . 27 Cowan v. Strafford R-VI Sch. Dist., 140 F.3d 1153 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . 31 Dominic v. Devilbiss Air Power Co., 493 F.3d 968 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . 25 EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . 36 EEOC v. Rath Packing Co., 787 F.2d 318 (8th Cir. 1986) . . . . . . . . . . . . . . . . . . 32 Easley v. Anheuser-Busch, Inc., 758 F.2d 251 (8th Cir. 1985) . . . . . . . . . . . . . . . . . . . 34 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . . . 30, 31 Foster v. Time Warner Entm't Co., 250 F.3d 1189 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . 25 Gen. Tel. Co. of N.W. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 32 Heaton v. Weitz Co., ____ F.3d ____ (8th Cir. 2008), 2008 WL 2831852 . . . . . . . . . 24 Johnson v. Brock, 810 F.2d 219 (8th Cir. 1987) . . . . . . . . . . . . 31, 32, 35-36 Jones v. Am. State Bank, 857 F.2d 494 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . 32 Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999) . . . . . . . . . . . . . . . . . . . . . passim MacGregor v. Mallinckrodt, Inc., 373 F.3d 923 (8th Cir. 2004) . . . . . . . . . . . . . . . . . .25, 29 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 32 Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . .28 Ross v. Kan. City Power & Light Co., 293 F.3d 1041 (8th Cir. 2002) . . . . . . . . . . . . . . . . . . 24 Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024 (8th Cir. 2008) . . . . . . . . . . . . . . . . . . 25 Swipies v. Kofka, 419 F.3d 709 (8th Cir. 2005) . . . . . . . . . . . . . . . 27-28 Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981) . . . . . . . . . . . . . . . . . . 33 Taylor v. Teletype Corp., 648 F.2d 1129 (8th Cir. 1981) . . . . . . . . . . . . . . . 21, 34, 35 Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . 28 Webner v. Titan Distrib., Inc., 267 F.3d 828 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . 24 Wedow v. City of Kan. City, Mo., 442 F.3d 661 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . 30 Statutes 28 U.S.C. § 451 . . . . . . . . . . . . 1 28 U.S.C. § 1291 . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . 1 TABLE OF AUTHORITIES (con't) Statutes 28 U.S.C. § 1337 . . . . . . . . . . . . . 1 28 U.S.C. § 1343 . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . 1 42 U.S.C. § 1981a(b)(1) . . . . . . . . . 24 42. U.S.C. § 2000e . . . . . . . . . . . . i 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . 1 42 U.S.C. § 2000e-5(g)(1) . . . . . . . . . 31 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . 1 Fed. R. App. P. 28.1(e)(2)(A)(i) . . . . . .C1 Fed. R. App. P. 32(a)(5) . . . . . . . . . C1 Fed. R. App. P. 32(a)(6) . . . . . . . . . C1 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . .C1 Fed. R. App. P. 34(a)(1) . . . . . . . . . i 8th Cir. R. 28A(d)(2) . . . . . . . . . . . C1 8th Cir. R. 28A(f)(1) . . . . . . . . . . . .i STATEMENT OF JURISDICTION The Commission filed this Title VII action under the authority granted in 42 U.S.C. §§ 2000e-5(f)(1) and 2000e-5(f)(3). (R.1)<1> The district court had jurisdiction over the EEOC's suit under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. On April 11, 2007, the district court entered judgments in favor of the EEOC and charging parties Dooley and Gacke. (R.136; R.137) The EEOC filed a timely notice of appeal of these judgments on June 7, 2007. (R.162) See Fed. R. App. P. 4(a)(1)(B). The district court entered amended judgments in favor of the EEOC, Dooley, and Gacke on March 7, 2008. (R.196; R.197) The EEOC filed a timely notice of appeal of these amended judgments on May 5, 2008. (R.211) See Fed. R. App. P. 4(a)(1)(B). This Court has appellate jurisdiction of the Commission's appeals under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court committed reversible legal error in refusing to instruct the jury on the issue of punitive damages. See Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999). 2. Whether the district court abused its discretion in refusing to order any injunctive relief. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). STATEMENT OF THE CASE The EEOC filed this suit on December 28, 2004, alleging that Siouxland violated Title VII by discharging Dooley and refusing to hire Gacke because they were pregnant. (R.1) In its complaint, the Commission requested, among other forms of relief, back pay for Dooley and Gacke, compensatory damages, punitive damages, a permanent injunction enjoining Siouxland from refusing to hire and discharging female employees based on pregnancy, and any other affirmative and equitable relief necessary to eradicate the effects of Siouxland's unlawful employment practices. (R.1 ¶¶ A-F) Dooley and Gacke intervened in the EEOC's case. (R.4; R.9; R.16) On April 6, 2007, the jury rendered verdicts in favor of Dooley, Gacke, and the EEOC. (R.131; R.132) The jury determined that Dooley was entitled to $15,341.00 in back pay and that Gacke was entitled to $5757.00 in back pay. (R.131; R.132) On April 10, 2007, the district court entered judgments in favor of the EEOC and Dooley and Gacke, ordering Siouxland to pay back pay in the amounts the jury recommended. (R.136; R.137) On May 10, 2007, the EEOC filed a motion for equitable relief, requesting additional back pay for Dooley and Gacke, prejudgment interest on the awards of back pay, and various forms of injunctive relief. (R.151)<2> On June 7, 2007, while the EEOC's motion for equitable relief was still pending before the district court, the EEOC filed a notice of appeal. (R.162) On June 18, 2007, Siouxland filed a conditional cross-appeal. (R.169)<3> This Court docketed the EEOC's appeal as Appeal No. 07-2419 and docketed Siouxland's cross-appeal as Appeal No. 07-2420. (R.175) On August 10, 2007, the district court ruled on the EEOC's motion for equitable relief, denying the Commission's request for additional back pay and injunctive relief, but granting its request for prejudgment interest. (R.177) On March 7, 2008, after a limited remand from this Court, the district court entered amended judgments, awarding Dooley $17,174.79 and Gacke $6550.85 (including prejudgment interest). (R.195; R.196; R.197) The district court awarded taxable costs in the amount of $905.88. (R.194) The district court also awarded attorney's fees and expenses to Dooley and Gacke totaling $49,102.96. (R.195; R.138; R.142; R.156; R.165) Siouxland appealed this award of attorney's fees. (R.199; R.201) On April 10, 2008, this Court docketed Siouxland's appeal as Appeal No. 08-1819, and consolidated it with Appeal No. 07-2419 and Appeal No. 07-2420. (R.204) On May 5, 2008, the EEOC filed a notice of appeal from the amended judgments. (R.211) This Court docketed the EEOC's second appeal as Appeal No. 08-2048, and consolidated it with Appeal No. 07-2419, Appeal No. 07-2420, and Appeal No. 08-1819. (R.215) Siouxland filed a motion to dismiss the EEOC's second appeal, which the EEOC opposed. On May 29, 2008, this Court denied Siouxland's motion. STATEMENT OF FACTS I. Relevant Facts<4> Siouxland is a medical partnership in Sioux Falls, South Dakota specializing in oral and maxillofacial surgery. At all relevant times, the practice consisted of four oral surgeons and a staff of approximately twenty-five to thirty employees. (S.A. 174-75, 235, 523, 637-38)<5> Dr. Balaban was one of the partners in the practice. (S.A. 144) Dr. Akerson, one of Siouxland's owners, was the managing partner. (S.A. 194, 389, 522) Kathleen Fjellestad was Siouxland's business manager. (S.A. 110) In this position, Fjellestad was responsible for (among other things) interviewing employees and recommending them for hire. (S.A. 112, 120) Shelley Hofer supervised Siouxland's administrative staff, including its receptionists and schedulers. (S.A. 115, 116, 191-92) Sherena Kost supervised the clinic's surgical staff. (S.A. 115, 116, 388) Kost testified that she did not have the ultimate power to hire surgical staff, but did conduct interviews of candidates and make recommendations to the doctors on whom to hire. (S.A. 389-90, 393) She also said that after she conducted the initial interview of a candidate, she alone could make the decision about whether to screen them out without talking to the doctors. (S.A. 427, 438) Hofer and Kost reported to Fjellestad. (S.A. 193-94, 119-20, 389) Fjellestad reported to Dr. Akerson. (S.A. 193-94, 119-20, 389) Dr. Akerson had the ultimate hiring and firing authority at the clinic. (S.A. 142, 194, 239, 389, 523, 524-25, 645) In October 2001, Siouxland needed to hire a receptionist/scheduler. (S.A. 83, 646) Dr. Akerson told Fjellestad and Hofer to find someone to fill this position and that the candidate would have to be available during the summer months. (S.A. 646) According to Siouxland, the clinic is the busiest during the summer months. (S.A. 173) A. Richelle Dooley In response to a newspaper advertisement describing the open position, intervenor Richelle Dooley sent Siouxland her resume. Siouxland asked her to come in for an interview. (S.A. 35, 37-38, 83) Fjellestad and Hofer interviewed Dooley, and told her about the job's duties (which included answering the phones, greeting and checking-in patients, scheduling appointments, filing, etc.). (S.A. 39, 83, 113, 244) Fjellestad testified that Siouxland trains new receptionists/schedulers by having them rotate through various facets of the job every two to four weeks. (S.A. 118-19) Fjellestad stated that new employees rotate through each area more than once so they can "pick up things they may have forgotten after the first time through." (S.A. 131, 171-72) According to Fjellestad, the training could take anywhere from six to nine months. (S.A. 135) Hofer similarly testified that the training occurred in multiple phases which were repeated, and could take months to complete. (S.A. 246-252, 269, 271-72) However, Hofer admitted that the qualifications for the job were minimal, and that nothing beyond a GED was required. (S.A. 263-64) Hofer acknowledged it was possible for someone to complete the entire training in less than four months. (S.A. 272) Siouxland interviewed a total of five applicants (including Dooley) for the job. (S.A. 125, 240) Siouxland did not hire Dooley or any of the others at that time. (S.A. 40-41, 42, 134, 235) Siouxland maintained that two of the five were not hired because they would be unavailable to work during part of Siouxland's "busy season" in the summer. (S.A. 150) One of these two was unavailable because she would be acting as a counselor at a summer soccer camp. (S.A. 150, 175, 242) The other was going to be making costumes for a summer theater production. (S.A. 150, 175, 242-43) Hofer informed Dooley that she did not get the job, but that Siouxland would keep her resume on file for future reference. (S.A. 205) In November 2001, Dooley discovered she was pregnant. (S.A. 42) About a month later, Dr. Akerson and Fjellestad decided to restart the hiring process. (S.A. 135, 137) Dr. Akerson told Fjellestad and Hofer to "find somebody immediately" to get them trained and "fully capable by the middle of May, first part of June." (S.A. 648, 671-72) Fjellestad and Hofer told Dr. Akerson that they still had a resume of someone from the October interviews that they thought was qualified, and Dr. Akerson said that would be fine. (S.A. 650) At the end of December 2001, Hofer sent Dooley a letter asking her if she was still interested in a position with Siouxland. (S.A. 42, 43, 87, 89, 138-39, 206- 07, 208, 239, 523) Dooley called Hofer at Siouxland and told Hofer that she was available. (S.A. 45, 46, 87-88,208) Hofer hired her immediately, over the phone, for a receptionist/scheduler position. (S.A. 45, 209-10, 243) Hofer never mentioned anything about Siouxland's "busy season" before offering her the job. (S.A. 46, 88, 211, 243, 273) Dooley started at Siouxland on January 2, 2002. (S.A. 142) That day, Siouxland gave Dooley some health benefit forms to fill out. (S.A. 47) Because Dooley was not sure whether to list her baby or her pregnancy on the forms, she told Hofer she was pregnant and asked about this insurance issue. (S.A. 48, 215) Hofer congratulated Dooley and asked her when her baby was due. (S.A. 48, 215) Dooley told her her due date was in July. (S.A. 48, 215) Hofer asked her how long of a maternity leave she planned to take, and Dooley told her possibly six to eight weeks. (S.A. 48) Dooley asked Hofer if that would present any problem. (S.A. 49) According to Dooley, Hofer replied "oh, no, no" and said "we can hire a temp to come in and cover you during that time." (S.A. 49, 270) Hofer never told Dooley that she would not be allowed to take leave during the "busy time." (S.A. 273) Hofer then informed Dr. Balaban that Dooley was pregnant. (S.A. 216-17) Dr. Balaban asked Hofer if "we knew that, if I knew that when I hired her." (S.A. 217) Hofer replied "no, I did not know that." (S.A. 217) Dr. Balaban then told Hofer that Siouxland could hire a temp to cover for Dooley when she was out on maternity leave. (S.A. 217-18, 270) Hofer specifically told Dr. Balaban that "we can't not hire her because she is pregnant." (S.A. 218) Hofer memorialized this conversation with Dr. Balaban in a typed note. (S.A. 218-19) According to this note, Hofer also "later informed Dr. Akerson of this." (S.A. 220; Exh. 23) Fjellestad testified that when she arrived at work on Dooley's second day, Hofer told her that Dooley was pregnant and would not be available for the summer and that Dr. Akerson wanted to talk to her. (S.A. 143-44) When Fjellestad then went to see Dr. Akerson, Dr. Balaban was in Dr. Akerson's office. Dr. Akerson told Fjellestad that Hofer had informed him that "the young lady we just hired is going to have a baby this summer, she isn't going to be available to work." (S.A. 145) According to Fjellestad, Dr. Akerson said that "[i]t doesn't make any sense to begin training her . . . when she won't be able to work the summer" and therefore "we are going to have to let her go." (S.A. 145) Fjellestad said Dr. Akerson "is the ultimate person as far as making the decisions, and it was pretty clear from his tone of voice that he had made his decision." (S.A. 146) Fjellestad testified that Dr. Balaban said "We can't" or "we shouldn't do that" (i.e., terminate Dooley). (S.A. 147) The testimony also indicates that Dr. Balaban said that "that is wrong" or "this is wrong." (S.A. 147) Dr. Balaban then left Dr. Akerson's office. (S.A. 147) Fjellestad testified that she "had some concerns" about this decision to discharge Dooley because "I thought that probably it may cause a problem." (S.A. 146) She was then asked whether she thought it would be "a problem because you knew pregnancy discrimination was illegal." (S.A. 146) She replied "Yes." (S.A. 146) Fjellestad stated "I thought it would be a problem because of the fact that she was going to have a baby, that she would probably make a claim against us even though the reason we couldn't keep her was because of the fact that she wasn't going to be available to work when we needed her." (S.A. 178) Dr. Akerson testified that Hofer told him what had happened, and that he then told Hofer "if she is not going to be available in the summer time, we have already passed on two people, we can not keep her on." (S.A. 651) Dr. Akerson said he discussed his decision to discharge Dooley with "my partner" but ultimately made the decision himself. (S.A. 651) Dr. Akerson testified that Fjellestad told him the day Dooley was fired that she could not make an employment decision based on the fact that Dooley was pregnant. (S.A. 529) Dr. Akerson said "but I already was aware of that." (S.A. 529) Dr. Akerson testified that his decision to fire Dooley had nothing to do with Dooley being pregnant. (S.A. 652) He said the basis for the decision was "[l]ack of availability during the summer" - i.e., his assumption that she would not be available when Siouxland needed her. (S.A. 529-30, 531, 652) Dr. Akerson acknowledged that he assumed "as with all pregnancies there would be some time off from work" but said he never talked to Dooley directly to find out how much time off she intended to take. (S.A. 532) Later the same morning, Fjellestad called Dooley into her office. (S.A. 49) Hofer also was there. (S.A. 57, 85) According to Dooley, Fjellestad said "Dr. Akerson said that we are just going to have to let you go." (S.A. 50) Dooley asked why, and Fjellestad said "your baby is going to be due doing our busy season." (S.A. 50, 86) Dooley said she was then told that their busy season "was summer time, Christmas break or whatever, any time that the children are not in school is their busy time" - that it was "summer and all holidays, any time the children have a break from school." (S.A. 50) Dooley told her she thought she was being discriminated against, and Fjellestad replied by telling her that "we had another employee that we had to turn down because they wanted to go to camp during the summer." (S.A. 50) Dooley told her that that's different, as they can choose whether to go to summer camp, but she could not choose when to deliver her baby. (S.A. 50, 91) Fjellestad then told her that "they never would have hired me if they had known I was pregnant." (S.A. 50) Dooley asked her about hiring a temp. Fjellestad replied "we won't be able to have a temp during the busy time" because "it is too busy for a temp." (S.A. 51, 57, 186) According to Dooley, Fjellestad also told Dooley that "after I had the baby if they had a position open they would love to have me back." (S.A. 57) Hofer testified that during this meeting, Dooley offered to take only a week of maternity leave. (S.A. 221) Hofer said that Fjellestad told Dooley that "that wouldn't be fair to her or the baby." (S.A. 223) Dr. Akerson testified that even if Dooley had only taken one week off, that would not have made a difference and he still would have discharged her. (S.A. 668) Dr. Akerson said that "[w]e would have to invest a significant amount of time in training her and she would not be available." (S.A. 668) Dr. Akerson testified that he would have done the same thing if he had hired the summer camp counselor or the costume designer and they had told him on their second day that they would not be available to work over the summer. (S.A. 651, 652) However, later, Dr. Akerson was asked "if either of those [other] women was only going to be gone for one week during the summer" whether "they would have been terminated immediately." (S.A. 675) Dr. Akerson said "I think the answer is no." (S.A. 675) Dooley said that when Fjellestad communicated Dr. Akerson's decision to fire her, she sat there "feeling like I am begging for my job" but "realizing that they are not going to let me keep [it], because I am pregnant." (S.A. 51) She eventually left Fjellestad's office, went back to her desk, and grabbed her belongings. (S.A. 51) Dooley said that she "walked through the building trying not to cry or show[] emotions, because I did not want anybody to stop me and ask me where are you going, what happened or anything, and I just went out the side door." (S.A. 51) Dooley actually gave birth in early May 2002. (S.A. 62) It appeared that Siouxland had no one to fill Dooley's position from February 2002 through July 2002, during part of Siouxland's "busy time." (S.A. 265-66) Hofer was asked if they "didn't have anybody because you rejected Richelle Dooley." (S.A. 265-66) Hofer responded "Yes." (S.A. 266) B. Angie Gacke In March 2002, intervenor Angie Gacke saw an advertisement in the newspaper for a position Siouxland was seeking to fill in its central sterilization and post-op recovery area. (S.A. 283, 284, 357, 393) Kost, in her capacity as supervisor of the surgical staff, was looking for individuals with "[p]rimarily invasive" experience - that is, experience dealing with procedures that involved handling blood and preventing the spread of blood-borne infectious diseases, such as AIDS and Hepatitis. (S.A. 431) Gacke, who had been trained to be a cardiac ultrasound technician, decided to "inquire to see if I would fit the description of what they needed." (S.A. 279, 284, 318) On March 11, 2002, Gacke called Kost and asked whether her schooling and background "at least minimally qualified" her for the job. (S.A. 284-86, 362) Gacke testified that Kost told her it did, and the two set up an interview to be held at Siouxland the next day. (S.A. 286, 362) Kost admitted that she had indicated that a cardiovascular tech like Gacke could qualify for the position. (S.A. 406) Kost and two other Siouxland employees, including Jenney DeVries (who worked in Siouxland's central sterilization and recovery room), interviewed Gacke. (S.A. 316, 321-22, 325, 364, 443) During the interview, Kost and Gacke talked about Gacke's qualifications, education, and experience. (S.A. 317, 368-69, 386, 434) Kost also gave Gacke a packet that contained information on the job's wages and benefits. (S.A. 322, 324) According to Gacke, at some point during or right after the interview, Gacke told Kost "I don't know if this is a problem or not, but I do want to let you know I am four months pregnant." (S.A. 323, 414) Gacke said Kost then looked at her and said "yes, it's a problem." (S.A. 323, 325, 367) Kost said "[y]ou are just going to end up causing more work for everybody else than you will be helping them." (S.A. 323) Gacke perceived that Kost was "[t]elling me . . . I couldn't do a job, and I would not be able to work just because I am pregnant." (S.A. 323) Gacke said they talked about her due date - which was at the end of August 2002 - and Kost told her "your due date is in the middle of our busy season, and we don't grant any vacation or anything to anybody during the busy season." (S.A. 324) However, Kost later admitted that even she had in the past been allowed to take time off during Siouxland's "busy time" in the summer. (S.A. 424) Kost told Gacke that "they did have to let another lady go because of pregnancy." (S.A. 325) Before Gacke left, DeVries took back the packet of information about the job's wages and benefits Kost had given Gacke. (S.A. 325) At that point, it appeared to Gacke that she "was not getting the job." (S.A. 367) Later that day, Kost called Gacke and left a message telling her that she did not get the job. (S.A. 334, 414) Gacke testified "I believe she did not hire me because she told me my pregnancy was a problem, and I would cause more work for everybody else than I would be of help." (S.A. 387) She testified that no one ever told her she was not qualified for the job. (S.A. 385) Gacke indicated that the only thing she was told was that her pregnancy was a problem. (S.A. 386) Kost testified she did not hire Gacke for the job because Gacke lacked "invasive education which included infection control." (S.A. 415, 427-28, 437) Kost said she did not know that Gacke lacked invasive experience until she interviewed her at Siouxland. (S.A. 434) She said once she found that out, she concluded that Gacke was not qualified for the job. (S.A. 435) DeVries testified that there was no suggestion made during the interview that Gacke was not qualified for the job. (S.A. 457-58) DeVries stated that during the interview, Kost told Gacke that "she was not going to be hired at that specific time because of her pregnancy." (S.A. 459) According to DeVries, Kost said "because of her pregnancy occurring at the time it was going to be occurring, that it would be best if she just continue her pregnancy, have the baby, have her maternity leave, and then we would talk." (S.A. 473 478) DeVries testified that she did not remember Kost talking about Siouxland's "busy time" before Gacke disclosed that she was pregnant. (S.A. 456) DeVries said that nothing occurred in the interview that led DeVries to believe Gacke did not have the job until Gacke told Kost she was pregnant. (S.A. 478) At trial, plaintiffs introduced a copy of Gacke's resume which Gacke had submitted to Kost. (S.A. 406-07; Exh. 80) On the resume, Kost had written "over qualified for job." (S.A. 407, 439) Kost also wrote "four months pregnant!" across Gacke's resume. (S.A. 408, 438-39) C. Siouxland's Knowledge of the Federal Prohibition on Pregnancy Discrimination At the time of the relevant events, Siouxland's employee handbook stated that Siouxland "is an equal opportunity employer" and that employment at Siouxland "is based entirely upon qualifications, competence and effort without regard to race, creed, color, sex, age, national origin, handicap[,] disability, or veteran status." (S.A. 151-52, 177) Dr. Akerson said that he required that the policy be followed, and that it has been consistently followed over the years. (S.A. 638) Fjellestad also testified that Siouxland "has conformed to and followed [the EEO statement] rigorously." (S.A. 177) Hofer similarly stated that it has always been followed. (S.A. 236) However, Hofer also testified that she was not aware as a supervisor whether Siouxland "has any policies relating to the issue of discrimination on the basis of pregnancy" specifically. (S.A. 197-98) She was asked if she was ever instructed or ever understood that Siouxland's EEO statement includes an obligation to provide equal employment opportunities to persons who are pregnant. She replied "I don't think so." (S.A. 198-99) Hofer also said that as of the fall of 2001, she had been given no training as a supervisor with respect to "whether [she] could make decisions based on pregnancy." (S.A. 195-96) At the same time, Hofer testified that she knew in October 2001 that she could not make an employment decision based on pregnancy. (S.A. 199-200) She said as of January 3, 2002, when she told Dr. Balaban that Siouxland could not refuse to hire someone because of their pregnancy, she was aware about not discriminating against someone based upon pregnancy. (S.A. 237-38) Hofer also testified that she knew that there was a federal law prohibiting discrimination against women and pregnant women. (S.A. 599-600) She said she has "always just . . . known" about this law. (S.A. 600) Hofer said she was "sure" she knew that federal law prohibited pregnancy discrimination as of 2000. (S.A. 600) Fjellestad was asked whether she was knew "it was illegal to discriminate against employees because they are pregnant." (S.A. 124) Fjellestad replied "I probably knew that simply because I am a voracious reader . . . ." (S.A. 124) Kost likewise understood "you can't discriminate" against women who were pregnant. (S.A. 390) She knew that "making employment decisions on the basis of pregnancy violates federal law." (S.A. 390, 591) She testified that she agreed it was "important to follow the federal laws to prohibit discrimination based on employment related to pregnancy." (S.A. 438) Dr. Akerson testified that "according to federal law it is illegal to discriminate against pregnant employees and applicants for employment." (S.A. 669) Dr. Akerson was asked whether, as managing partner of Siouxland, he was aware it is illegal to fire someone because they are pregnant. (S.A. 525) He answered "Yes." (S.A. 525) He also testified that he was aware it is illegal not to hire someone because they are pregnant. (S.A. 525) He said he "[a]bsolutely" was aware of that in 2001 and 2002. (S.A. 525) II. District Court Rulings A. Punitive Damages Prior to the close of plaintiffs' case, the EEOC moved to be permitted to question Siouxland officials about Siouxland's net worth, as this was relevant to the Commission's claim for punitive damages. (S.A. 535) The Commission argued that "the evidence and the law support[ed] a punitive damage[s] claim based on the evidence so far." (S.A. 535) EEOC trial counsel asked the court to "issue a ruling that this is a case where a punitive damages instruction is appropriate" and to then "allow us to have a time that can be set by the [c]ourt to put on that evidence." (S.A. 536) The district court announced it would treat the question as if Siouxland had moved for a directed verdict on punitive damages (though Siouxland never officially made such a motion). (S.A. 558-59, 581) The court acknowledged that the Supreme Court decision in Kolstad v. American Dental Association, 527 U.S. 526 (1999), provided the governing standard on this issue. (S.A. 376) The court at one point also acknowledged that all the relevant decision makers "said they knew they couldn't discriminate on the basis of pregnancy anyway." (S.A. 554) The court specifically noted that there was "[n]o doubt about it" that Dr. Akerson "knew that pregnancy was protected under the law." (S.A. 568-69) Nevertheless, the Court then determined that "it has not been shown, giving the plaintiff every reasonable effort, every reasonable inference from the evidence, . . . that there was a perceived risk that the actions would violate federal law to be liable on punitive damages." (S.A. 586) Thus, the court ruled, "punitive damages are not going to be submitted to the jury." (S.A. 586) At the close of all the evidence, the Commission renewed its motion for an instruction on punitive damages, asking the court to reconsider its ruling granting a directed verdict on the issue in favor of Siouxland. (S.A. 681) The court took no action on this renewed motion. Later, the Commission raised a general objection to the jury instructions and verdict forms to the extent they excluded the issue of punitive damages. (S.A. 701) After the jury retired to deliberate (without having been instructed on punitive damages) the EEOC again renewed its request to have the court reconsider the question. (S.A. 704-05) The court denied this request. (S.A. 707-08) B. Injunctive Relief After the jury returned verdicts finding Siouxland liable for pregnancy discrimination, the district court ruled that it "[did] not believe the imposition of any injunctive relief is warranted in this case." (R.177 at 4) The district court reasoned that this case did not "present a situation where an employer has engaged in a consistent pattern of discrimination[,]" and that Dooley and Gacke "were the only employees who presented evidence of having been discriminated against by Siouxland." (R.177 at 4 (citing Briscoe v. Fred's Dollar Store, Inc., 24 F.3d 1026, 1028 (8th Cir. 1994))) In addition, the district court found, "more than five years have elapsed since the last discriminatory action occurred." (R.177 at 5 (citing Taylor v. Teletype Corp., 648 F.2d 1129, 1135 (8th Cir. 1981))) In short, the district court concluded, "the goals of Title VII can be met without ordering the affirmative relief requested by the EEOC." (R.177 at 6) SUMMARY OF ARGUMENT The district court committed reversible legal error in refusing to instruct the jury on punitive damages. To be eligible for an award of punitive damages, a plaintiff has to show that the defendant intentionally discriminated with malice or reckless indifference to the federally protected rights of the victim(s). A defendant acts with such malice or reckless indifference if it acts in the face of a perceived risk that it may be violating federal law. Here, the jury found (and, given the evidence adduced at trial, any reasonable jury could have found) that these decision makers did in fact intentionally discriminate against both Dooley and Gacke because of their pregnancies. All the relevant decision makers at Siouxland testified that they knew it was a violation of federal law to commit pregnancy discrimination. On this record, there was at least a jury question as to whether Siouxland officials perceived that firing Dooley and refusing to hire Gacke "may" violate federal law. The district court thus committed reversible error ruling otherwise as a matter of law, and in refusing to submit this issue to the jury. The district court also abused its discretion by refusing to order any injunctive relief to prevent Siouxland from committing additional acts of pregnancy discrimination. Once a violation of Title VII is established, such injunctive relief is a quintessential, and typical, remedy (indeed, the primary purpose of Title VII is to prevent discrimination from occurring in the first place). In this case, the district court rejected the Commission's request for an injunction because it found that Siouxland had not engaged in a "consistent practice" of pregnancy discrimination, because Dooley and Gacke were the only victims, and because no new acts of discrimination at Siouxland had been reported since this litigation started. However, none of these reasons for refusing injunctive relief is sustainable. Here, a jury found that Siouxland decision makers intentionally discriminated against two separate individuals because of their pregnancies. There is thus great cause for concern that a culture exists at Siouxland condoning such discriminatory adverse actions (at least in the hiring context). In any event, nothing in the law requires a "consistent practice" of discrimination, or sets a minimum threshold number of victims, before injunctive relief is required. Further, the fact that no additional acts of discrimination at Siouxland have come to light during the course of litigation is hardly dispositive. This Court has specifically rejected this as a basis for refusing to enjoin a defendant from discriminating in the future. Here, Siouxland officials displayed a reckless indifference to federal laws prohibiting pregnancy discrimination. Perhaps most importantly, most or all of the discriminating decision makers remain in managerial positions at Siouxland. One of them, Dr. Akerson, is even a clinic owner. There is thus every reason to suspect that Siouxland could commit pregnancy discrimination again. Accordingly, the district court's decision refusing to order any and all forms of injunctive relief requested by the EEOC was an abuse of discretion and should be reversed. ARGUMENT I. The District Court Committed Reversible Error in Granting Judgment as a Matter of Law to Siouxland on the Issue of Punitive Damages. The issue of whether the district court erred in granting a directed verdict to Siouxland and in refusing to instruct the jury on punitive damages is reviewed de novo. See, e.g., Battle v. United Parcel Serv., Inc., 438 F.3d 856, 865 (8th Cir. 2006) ("This court reviews a grant of judgment as a matter of law de novo, employing the same standards as the district court in determining whether there is a legally sufficient basis for a jury to award punitive damages."). Here, the evidence adduced at trial established a genuine issue as to whether Siouxland should be subject to punitive damages for its actions. The district court committed reversible error in ruling otherwise as a matter of law. Under the Civil Rights Act of 1991, a complaining party is entitled to punitive damages if the plaintiff can demonstrate that the defendant engaged in intentional discrimination "with malice or with reckless indifference to the federally protected rights" of the victim(s). See 42 U.S.C. § 1981a(b)(1); see also Heaton v. Weitz Co., F.3d (8th Cir. 2008), 2008 WL 2831852, at * 5 (same). In Kolstad, the Supreme Court interpreted and applied this statutory language, noting that to meet the requisite standard, a plaintiff need not show "egregious or outrageous discrimination independent of the employer's state of mind." Kolstad, 527 U.S. at 535; see also Ross v. Kan. City Power & Light Co., 293 F.3d 1041, 1048 (8th Cir. 2002) ("[A] plaintiff does not have to establish egregious misconduct on the part of an employer in order to have punitive damages submitted to the jury."). Rather, the Supreme Court explained, the operative statutory phrases "malice" and "reckless indifference" pertain "to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Kolstad, 527 U.S. at 535 (emphases added); see also Allen v. Tobacco Superstore, Inc., 475 F.3d 931, 942 (8th Cir. 2007) (same); Webner v. Titan Distrib., Inc., 267 F.3d 828, 837 (8th Cir. 2001) (same). Thus, to be eligible for punitive damages, a plaintiff need only show that the employer "discriminate[d] in the face of a perceived risk that its actions [will] violate federal law." Kolstad, 527 U.S. at 536; see also Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1035 (8th Cir. 2008) (same); Dominic v. Devilbiss Air Power Co., 493 F.3d 968, 974 (8th Cir. 2007) (same).<6> The evidence adduced at trial in this case was sufficient to allow the jury to conclude that this standard had been met. This evidence established that all the decision makers (and all those who had anything to do with the adverse employment actions at issue) - Dr. Akerson, Dr. Balaban, Fjellestad, Hofer, and Kost - knew it was a violation of federal law to fire or refuse to hire someone because of pregnancy. Hofer testified she was "sure" that federal law prohibited pregnancy discrimination. She told Dr. Balaban that they could not discharge Dooley because she was pregnant. Hofer informed Dr. Akerson of this, as well. Dr. Balaban also told Dr. Akerson "we can't" or "we shouldn't do that" and it "was wrong." Fjellestad testified that she was aware that pregnancy discrimination was illegal. Fjellestad was concerned that firing Dooley while she was pregnant could "cause a problem" because it was illegal to discriminate based on pregnancy. Dr. Akerson admitted Fjellestad told him on the day he decided to fire Dooley that Siouxland could not make an employment decision based on the fact that Dooley was pregnant. Dr. Akerson also stated that he "already knew that" at the time. He said that as managing partner of Siouxland he "absolutely" knew in 2001 and 2002 that it was illegal to fire and/or not to hire someone because of pregnancy. Dr. Akerson testified that according to federal law it is illegal to discriminate against pregnant employees and applicants for employment. Yet the jury rejected the non-discriminatory excuse Dr. Akerson gave for discharging Dooley (i.e., that she would be unavailable during Siouxland's "busy season") and found that he actually fired Dooley because - and only because - she was pregnant. Kost testified that she knew that "making employment decisions on the basis of pregnancy violates federal law." She also said that "it was important to follow the federal laws [prohibiting] discrimination based on employment related to pregnancy." Nevertheless, Kost told Gacke during her interview that Gacke's pregnancy was a "problem" and wrote "Four Months Pregnant!" across her resume. The jury found that she refused to hire Gacke solely because of pregnancy. This evidence demonstrates that Siouxland's owners and managers discriminated on the basis of pregnancy even though they all were well aware of the possibility that they may be violating federal law in doing so. In fact, at trial the district court acknowledged that "they all said they knew they couldn't discriminate on the basis of pregnancy anyway" and that there was "[n]o doubt" that Dr. Akerson, specifically, "knew that pregnancy was protected under the law." (S.A. 554, 568-69) Accordingly, there was at least a genuine issue as to whether Siouxland acted with malice or reckless indifference to Dooley's and Gacke's federally protected right to be free from pregnancy discrimination. See, e.g., Kolstad, 527 U.S. at 535 (issue is whether the discriminator knows they "may be acting in violation of federal law"). Under this Court's precedent, the case for at least instructing the jury on this question is a particularly strong one. For example, in Christensen v. Titan Distribution, Inc., 481 F.3d 1085 (8th Cir. 2007), this Court ruled that a reasonable jury could find that an employer had the requisite state of mind to support a finding of punitive damages where the decision maker testified he knew the type of discrimination at issue violated federal law. Id. at 1096 (citing Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 991 (8th Cir. 2007)). That is precisely the testimony adduced at trial in this case. This Court has ruled that the "reckless indifference" standard is met if the discriminator "knew that [s]he was violating [the victim's] federal rights or recognized that [s]he might be doing so." Swipies v. Kofka, 419 F.3d 709, 718 (8th Cir. 2005) (emphasis added); cf. Otting v. J.C. Penney Co., 223 F.3d 704, 711-12 (8th Cir. 2000) (reckless indifference shown where decision maker testified he knew federal law required him to make reasonable accommodations to a disabled worker, but he failed to do so anyway). Here, Kost was well aware that pregnancy discrimination violated federal law. Nevertheless, she refused to hire Gacke, telling her that her pregnancy was a "problem" for other workers at Siouxland. This Court has also held that an employer acts with reckless indifference where it has "deliberately turned a deaf ear to discriminatory conduct." Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150, 1161 (8th Cir. 2003). In this case, that is exactly what Dr. Akerson did by brushing aside warnings from Hofer, Fjellestad, and Dr. Balaban that it would be illegal to discharge Dooley, and firing her anyway. To be sure, as the Supreme Court explained in Kolstad, "[t]here will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard." Kolstad, 527 U.S. at 537. According to the Court, the discriminating employer may simply be unaware of the relevant federal prohibition. See id. Moreover, there will be cases in which the employer discriminates "with the distinct belief that its discrimination is lawful" - i.e., "[t]he underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability." Id.; see also Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 903 (8th Cir. 2006) (same). The district court did not rely on any such extenuating circumstances, and none applies in this case. There is no basis in the record upon which to conclude that the decision makers at Siouxland were unaware of the federal prohibition on pregnancy discrimination; indeed, as just described, the evidence adduced at trial establishes just the opposite. The "theory" of pregnancy discrimination in this case was hardly novel or otherwise poorly recognized. Siouxland never asserted that its decision to fire Dooley and its refusal to hire Gacke could be categorized as a statutory BFOQ exception to liability, either. Under Kolstad, an employer can still avoid liability for punitive damages if it proves that it took good faith efforts to comply with Title VII despite its agents' malice or reckless indifference. See Kolstad, 527 U.S. at 544 (establishing this affirmative defense); see also MacGregor, 373 F.3d at 931 (discussing it). The district court never addressed whether Siouxland could establish this affirmative defense. If this Court reverses the district court's grant of judgment as a matter of law and remands for a trial on punitive damages, Siouxland will of course be free to attempt to prove this affirmative defense.<7> However, this Court should decline to address this good-faith question at this premature juncture. II. The District Court Abused Its Discretion in Refusing to Order Any Injunctive Relief to Prevent Siouxland from Committing Pregnancy Discrimination in the Future. The district court's decision to deny injunctive relief is reviewed for abuse of discretion. See Wedow v. City of Kan. City, Mo., 442 F.3d 661, 676 (8th Cir. 2006). This Court has recognized that "[d]istrict courts have broad discretion to issue an injunction once discrimination has been established in a Title VII action." Briscoe, 24 F.3d at 1028. At the same time, however, this Court has explained that this discretion "must be exercised in light of the purposes of Title VII." Johnson v. Brock, 810 F.2d 219, 225 (8th Cir. 1987). Title VII is, of course, concerned with ensuring that victims of discrimination are "made whole" from the injuries suffered as a result of an employer's illegal acts. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 419 (1975) (explaining Title VII's "make whole" purpose); Cowan v. Strafford R- VI Sch. Dist., 140 F.3d 1153, 1160 (8th Cir. 1998) ("After a finding of discrimination, the court has an obligation to fulfill the make-whole purposes of Title VII."). However, the Supreme Court has noted repeatedly that Title VII's "primary objective" is "a prophylactic one" - to prevent discrimination from occurring or recurring in the future. Albemarle Paper Co., 422 U.S. at 417; see also Faragher, 524 U.S. at 806 (1998) (the chief aim of Title VII is "to avoid harm" in the first place); Kolstad, 527 U.S. at 545 (Title VII embodies "an effort to promote prevention as well as remediation"). Consistent with this goal, Title VII lists injunctive relief as a quintessential remedy for discrimination. See 42 U.S.C. § 2000e-5(g)(1) (providing that "[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate"). Interpreting this statutory provision, the Supreme Court has declared that courts in these cases "have not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albemarle Paper Co., 422 U.S. at 418 (internal quotation marks omitted) (emphases added); Jones v. Am. State Bank, 857 F.2d 494, 497 (8th Cir. 1988) (same). This Court has recognized that while it is not mandatory, "enjoining a defendant from further acts of discrimination is a typical remedy in Title VII cases." Brock, 810 F.2d at 225 (emphasis added). The EEOC brought this enforcement action in the public interest, both to secure appropriate "make whole" relief for Dooley and Gacke, and to obtain injunctive relief to prevent Siouxland from committing similar acts of discrimination in the future.<8> (R.1 ¶¶ A-F; R.151 at 6) The Commission also requested that Siouxland be required to conduct employee training on Title VII and retaliation, to post a notice regarding sex and pregnancy discrimination at the clinic, to review and/or revise its employment discrimination policy, and to report to the EEOC on its compliance with the relief ordered by the court. (R. 151 at 7) The district court did "not believe the imposition of any injunctive relief is warranted" and ruled that "the goals of Title VII can be met without" it. (R.177 at 5-6) However, none of the reasons the district court gave for refusing to order any injunctive relief in this case is sustainable. The court found that this case "does not present a situation where an employer has engaged in a consistent practice of discrimination" and that Dooley and Gacke were "the only employees who presented evidence of having been discriminated against by Siouxland." (R.177 at 5) To the contrary, the fact that Siouxland discriminated against two separate individuals on the basis of pregnancy does suggest that Siouxland condones a culture in which pregnancy discrimination (at least in the hiring context) is acceptable - and thus that injunctive relief is warranted. See, e.g., Taylor v. Jones, 653 F.2d 1193, 1203-04 (8th Cir. 1981) ("In cases in which a discriminatory atmosphere has been shown, the more common forms of relief, such as reinstatement and back pay, may not be appropriate or adequate, and the district court should fashion injunctive relief to alleviate the unlawful practice before it." (emphasis added)). But in any event, nothing in applicable case law requires a "consistent practice" (whatever that may mean) of discrimination, or a minimum threshold of victims, to make injunctive relief appropriate. See, e.g. Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 262-64 (8th Cir. 1985) (finding that general injunction prohibiting employer from engaging in discrimination in the future was appropriate in a non-class action case involving only three plaintiffs). Indeed, in requiring a "consistent practice" of discrimination here, the district court relied on this Court's decision in Briscoe - a case involving only one plaintiff and a "consistent practice" of discrimination that apparently affected a total of only two employees. See Briscoe, 24 F.3d at 1028-29. In denying injunctive relief, the district court also emphasized that "more than five years have elapsed" since the last discriminatory decision at Siouxland was made. (R.177 at 5) It cited this Court's opinion in Taylor to support this proposition. (R.177 at 5) But this Court in Taylor did not rule categorically that injunctive relief was inappropriate per se; it merely vacated the entry of a permanent injunction because the district court had entered it prematurely, before it had resolved all outstanding claims for relief. See Taylor, 648 F.2d at 1136 ("This incomplete record will not justify permanent injunctive relief at this time." (emphasis added)). And while this Court in Taylor did express "serious doubt" as to whether injunctive relief ultimately would prove appropriate given that plaintiffs had not proven (as they had tried to) that the defendant had discriminated during the three-year period immediately preceding the injunction, this Court also clarified that a district court retains wide discretion to enjoin future discrimination "even if the employer has begun to comply with the law in good faith." Id. at 1135 (emphasis added); see also id. at 1135 ("In considering the grant of an injunction, the district court, of course, must consider voluntary efforts at correcting past discrimination, but such efforts do not preclude injunctive relief."). Moreover, on other occasions, this Court has explicitly stated that the fact that there have been no additional incidents of discrimination is not dispositive as to whether injunctive relief currently is appropriate. See, e.g., Bundy v. Jackson, 641 F.2d 934, 946 n.13 (8th Cir. 1981) (rejecting the contention that an injunction is unnecessary simply because there have been no further acts of discrimination - even for years - as "[c]ommon sense tells us that [discriminators] may well have ceased their actions solely because of the pendency of . . . [a] lawsuit" and "the offending party might be free otherwise to renew that conduct once the court denied the [injunctive] relief" requested). In this case, a jury found that Siouxland intentionally discriminated against two separate individuals on the basis of pregnancy. For the reasons discussed above, the jury also could have found that Siouxland acted with malice or reckless indifference to the federally protected rights of both Dooley and Gacke. This alone should be sufficient to warrant the entry of an injunction. See, e.g., Brock, 810 F.2d at 226 (looking to whether an employer's "past practices . . . suggest a callous disregard for the goals of Title VII" to determine whether injunctive relief is necessary). Further, most or all of the decision makers who discriminated in this case continue to work as managers at Siouxland. See id. (the fact that "the same persons who committed the discriminatory acts remain in supervisory positions" is relevant, if not dispositive, to the issue of whether the district court abused its discretion in refusing to order injunctive relief); Bundy, 641 F.2d at 946 n.13 (finding injunctive relief necessary in part because "all the harassing employees still work for the agency"). In fact, one of the discriminating officials, Dr. Akerson, remains an actual owner of the business. Accordingly, there was, and is, ample cause for concern that Siouxland could or will violate Title VII's prohibition on pregnancy discrimination again. This also is adequate to demonstrate the clear need for injunctive relief. See, e.g., EEOC v. HBE Corp., 135 F.3d 543, 557-58 (8th Cir. 1998) (recognizing that an "injunction against continued discrimination is designed to prevent similar misconduct" and affirming the order of injunctive relief, such as training and reporting to the EEOC, similar to the kind the Commission requested here); Bundy, 641 F.2d at 946 n.13 (explaining that a request for injunctive relief is moot "only where there is no reasonable expectation that the conduct will recur" or "where interim events have completely and irrevocably eradicated the effects of the alleged violation"). CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's grant of a directed verdict in favor of Siouxland on the issue of punitive damages, reverse the district court's denial of injunctive relief, and remand this case for a trial on the issue of punitive damages and for the entry of an order by the district court granting the injunctive relief the Commission requested. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov ADDENDUM District Court's Ruling on Punitive Damages District Court's Decision Denying Injunctive Relief CERTIFICATE OF COMPLIANCE I certify that this opening brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2)(A)(i) because it contains 8961 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this opening brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. I further certify that the digital version of this opening brief (i.e., the PDF file) copied to the CD-ROM included with the paper copies of this brief being filed with the U.S. Court of Appeals for the Eighth Circuit, as well as the PDF file copied to the CD-ROM included with the paper copies being served to the parties separately represented by counsel, has been scanned for viruses and is virus-free. See 8th Cir. R. 28A(d)(2). ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on August 11, 2008, I served the requisite number of paper and digital copies of this opening brief by sending them via Federal Express for overnight delivery, to the following: Susan Brunick Simons Davenport, Evans, Hurwitz & Smith, L.L.P. 206 W. 14th Street P.O. Box 1030 Sioux Falls, SD 57101-1030 John R. Pekas 3101 West 41st Street Suite 214 Sioux Falls, SD 57105 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov *********************************************************************** <> <1> All references to "R." are to the corresponding Docket Entry on the district court's docket sheet. <2> Specifically, the Commission again requested a permanent injunction barring Siouxland from discriminating on the basis of sex or pregnancy (and from retaliating), and requested that Siouxland be required to conduct employee training on Title VII and retaliation, to post a notice regarding sex and pregnancy discrimination, to review and/or revise its employment discrimination policy, and to report to the EEOC on its compliance with this injunctive and equitable relief. (R. 151 at 6-7) <3> In its Appellant's Form A, Siouxland stated: "Condition Cross-Appeal Issue (requiring discussion only if the Court should reverse the District Court on any ground asserted by the Appellant EEOC and remand this matter for trial): The District Court erred in denying Siouxland's Motion for Separate Trials." (R.172) <4> All facts recounted below are taken from the trial transcript (unless otherwise indicated). <5> All references to "S.A." are to the corresponding page in the EEOC's separate appendix. <6> A plaintiff also has to show that there is a basis for imputing liability for punitive damages to the defendant, and agency principles limit vicarious liability of employers in this context. See Kolstad, 527 U.S. at 539, 541. Nevertheless, "[a]n employer can be held responsible for the reckless indifference of discriminatory actions taken by those serving in a managerial capacity." MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 931 (8th Cir. 2004); see also Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1196 (8th Cir. 2001) (same). Here, there can be no dispute that the decision makers in this case - Dr. Akerson, Fjellestad, and Kost - were all acting in a managerial capacity for Siouxland. Siouxland did not suggest otherwise, and the district court did not hold to the contrary. <7> The evidence adduced at trial strongly suggests that Siouxland would have considerable difficulty proving this affirmative defense, as its EEO policy nowhere specifically prohibited pregnancy discrimination, Siouxland managers were confused as to whether pregnancy was covered by the policy, and not a single witness testified that Siouxland had trained its managers on identifying and preventing pregnancy discrimination as of the time of the relevant events. Further, since Dr. Akerson, the main discriminator, was one of the owners of Siouxland, the good-faith defense arguably is not available to Siouxland as a matter of law. See Kolstad, 527 U.S. at 544 (the reason the good-faith defense is necessary is that it would be improper to award punitive damages "against one who himself is personally innocent and therefore liable only vicariously"); cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758 (1998) (under agency principles an employer is liable "where the agent's high rank in the company makes him or her the employer's alter ego"); Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998) (suggesting affirmative defense to supervisory harassment unavailable where the harasser "was indisputably within that class of an employer organization's officials who may be treated as the organization's proxy" (citing Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992) (employer-company liable where harassment was perpetrated by its owner))). Indeed, the district court expressed the view several times that Siouxland should be directly liable for Dr. Akerson's actions. (S.A. 376, 568-69, 708) <8> This Court has recognized that "'EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes.'" EEOC v. Rath Packing Co., 787 F.2d 318, 325 (8th Cir. 1986) (quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368, (1977)). Thus, "[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." Rath Packing Co., 787 F.2d at 325 (quoting General Tel. Co. of N.W. v. EEOC, 446 U.S. 318, 326 (1980)). When the EEOC sues to enforce Title VII, "it seeks to stop a harm to the public - invidious employment discrimination which is . . . detrimental to the welfare of the country . . . ." Rath Packing Co., 787 F.2d at 325.