_______________________________________________________ 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 _______________________________________________________ RESPONSE AND REPLY BRIEF OF THE PLAINTIFF-APPELLANT/CROSS-APPELLEE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant 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 daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT AS APPELLANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. The District Court Committed Reversible Error In Refusing to Instruct the Jury on Punitive Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. The District Court Abused Its Discretion In Refusing to Order Injunctive Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. This Court Has Jurisdiction to Decide the EEOC's Appeal of the District Court's Denial of Injunctive Relief. . . . . . . . . . . . . . . . . . 16 B. The District Court Abused Its Discretion In Failing to Order Any Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ARGUMENT AS CROSS-APPELLEE. . . . . . . . . . . . . . . . . . . . . . . . . . . 28 The District Court Did Not Abuse Its Discretion In Refusing to Grant Siouxland's Request for Separate Trials. . . . . . . . . . . . . . . . . . . . 28 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . C1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . C2 TABLE OF AUTHORITIES Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . . . . . . . 25 Bailey v. Runyon, 39 F.3d 1184 (8th Cir. 1994). . . . . . . . . . . . 25 Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981). . . . . . . . . . . . 25, 26, 27 Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006). . . . . . . . . . . . . . . 13 Chalfant v. Titan Distrib., Inc., 475 F.3d 982 (8th Cir. 2007). . . . . . . . . . . . . . . 3, 4 Chambers v. City of Fordyce, Ark., 508 F.3d 878 (8th Cir. 2007). . . . . . . . . . . . . . . 21 Christensen v. Titan Distrib., Inc., 481 F.3d 1085 (8th Cir. 2007). . . . . . . . . . . . . . . 3, 4 EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998). . . . . . . . . . . . . . .30, 31 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . . . . . . . . 29 EPA v. City of Green Forest, Ark., 921 F.2d 1394 (8th Cir. 1990). . . . . . . . . . . . . . . 30 Flavel v. Svedala Indus., Inc., 875 F. Supp. 550 (E.D. Wis. 1994). . . . . . . . . . . . 29 Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494 (1931). . . . . . . . . . . . . . . . . . . . . 34 General Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . . . . . 28 Hallberg v. Brasher, 679 F.2d 751 (8th Cir. 1982). . . . . . . . . . . . . . . 34 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). . . . . . . . . . . . . . . . . . . . . 13 Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992). . . . . . . . . . . . . . . 23 Hunter v. Underwood, 362 F.3d 468 (8th Cir. 2004). . . . . . . . . . . . . . . . 18 Johnson v. Brock, 810 F.2d 219 (D.C. Cir. 1987). . . . . . . . . . . . 24, 25, 26 Jones v. Am. State Bank, 857 F.2d 494 (8th Cir. 1988). . . . . . . . . . . . . . . 25 Kolstad v. American Dental Association, 527 U.S. 526 (1999). . . . . . . . . . . . . . . . . . passim Liberty Mut. Ins. Co. v. Elgin Warehouse & Equip., 4. F.3d 567 (8th Cir. 1993). . . . . . . . . . . . 16 Madison v. IBP, Inc., 330 F.3d 1051 (8th Cir. 2003). . . . . . . . . . . . . . . 34 Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132 (8th Cir. 2007). . . . . . . . . . . . . . . 16 Morrissey v. Welsh Co., 821 F.2d 1294 (8th Cir. 1987). . . . . . . . . . . . . . . 34 Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974). . . . . . . . . . . . . . . 30 Nichols v. Am. Nat'l Ins. Co., 154 F.3d 875 (8th Cir. 1998). . . . . . . . . . . . . . . 32 Obin v. Dist. No. 9 of Int'l Ass'n of Machinists & Aerospace Workers, 651 F.2d 574 (8th Cir. 1981). . . . . . . . . . . . . . . 20 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . . . . . . . . . . . . 29 Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1997). . . . . . . . . . . . . . . 18 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . 13 Reyher v. Champion Int'l Corp., 975 F.2d 483 (8th Cir. 1992). . . . . . . . . . . . . . 20, 23 Robertson Oil Co. v. Phillips Petroleum Co., 930 F.2d 1342 (8th Cir. 1991). . . . . . . . . . . . . . 34-35 Smith v. Wade, 461 U.S. 30 (1983). . . . . . . . . . . . . . . . . . 8, 9 St. Mary's Health Ctr. of Jefferson City v. Bowen, 821 F.2d 493 (8th Cir. 1987). . . . . . . . . . . . . . . 21 Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981). . . . . . . . . . . . . . . 25 United States v. Lucas, 521 F.3d 861 (8th Cir. 2008). . . . . . . . . . . . . . . . .32 Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). . . . . . . . . . . . . . . . . . 12, 34 United States v. Johnson, 525 F.3d 648 (8th Cir. 2008). . . . . . . . . . . . . . . 23 Vanskike v. ACF Indus., Inc., 665 F.2d 188 (8th Cir. 1981). . . . . . . . . . . . . . . 34 Wilson v. Runyon, 981 F.2d 987 (8th Cir. 1992). . . . . . . . . . . . . . . 24 Zafiro v. United States, 506 U.S. 534 (1993). . . . . . . . . . . . . . . . . . . . . 32 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . .21, 23 42 U.S.C. § 1981a(b)(1). . . . . . . . . . . . . . . . . . 8 42 U.S.C. § 1981a(3). . . . . . . . . . . . . . . . . . . . .13 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . 28 Rules Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . .21 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 TABLE OF AUTHORITIES (con't) Rules Fed. R. Civ. P. 20. . . . . . . . . . . . . . . . . . . . . 28 Fed. R. Civ. P. 20(a). . . . . . . . . . . . . . . . . . . . 29 Fed. R. Civ. P. 42. . . . . . . . . . . . . . . . . . . . . 29 Fed. R. Civ. P. 42(b). . . . . . . . . . . . . . . . . . . . 30 Fed. R. Civ. P. 50(b). . . . . . . . . . . . . . . . . . 12, 34 Fed. R. Civ. P. 59(e). . . . . . . . . . . . . . . 22, 23, 24 Fed. R. Civ. P. 60(b). . . . . . . . . 17, 18, 21, 22, 23, 24 INTRODUCTION In our opening brief, the EEOC argued that the district court committed reversible legal error in refusing to instruct the jury on punitive damages. We explained that 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) - that is, that the defendant acted in the face of a perceived risk that it may be violating federal law. We contended that here, there was at least a jury question as to whether Siouxland decision makers recognized that firing Richelle Dooley and refusing to hire Angie Gacke could violate federal law. The Commission also argued that the district court abused its discretion by refusing to order any injunctive relief to prevent Siouxland from committing additional acts of pregnancy discrimination. The district court ruled that injunctive relief was unwarranted because Siouxland had not engaged in a "consistent practice" of pregnancy discrimination and no additional acts of discrimination at Siouxland had been reported since the inception of this litigation. However, we explained that there was ample grounds to conclude that a culture exists at Siouxland condoning pregnancy discrimination (at least in the hiring context), that the law does not require a minimum number of victims for injunctive relief to be necessary, and that the "no new discrimination yet" defense is not a valid basis for refusing to enjoin a defendant from discriminating in the future. In urging affirmance of the district court's directed verdict on punitive damages, Siouxland simply reargues its defense on the merits (even though it has not appealed, and now cannot appeal, the jury's verdicts on liability). Siouxland also misunderstands or misstates the nature of the evidence required to demonstrate malice or reckless indifference for purposes of punitive damages. Further, on the issue of injunctive relief, Siouxland rehashes a jurisdictional challenge this Court has already rejected, and offers an unpersuasive explanation as to why injunctive relief would be inappropriate here. Finally, Siouxland requests separate trials of the EEOC's claims for punitive damages on remand, despite common questions of law and fact between the two claims and considerations of judicial economy all counseling against such bifurcation. ARGUMENT AS APPELLANT I. The District Court Committed Reversible Error In Refusing to Instruct the Jury on Punitive Damages. On the issue of whether the district court committed reversible error in neglecting to instruct the jury on punitive damages, this really is an easy case. Under Kolstad v. American Dental Association, 527 U.S. 526, 535-36 (1999), district courts must submit the issue of punitive damages to the jury if the evidence shows that the defendant's decision makers discriminated with the knowledge that their actions could violate federal law. As the Commission explained at length in its opening brief, EEOC Br. at 16-18, the EEOC presented just this sort of evidence at the trial in this case. Accordingly, it was reversible error for the district court to grant a directed verdict in favor of Siouxland on this issue. Siouxland just gets it flat wrong in arguing that "the EEOC had the burden to show more than simply that this employer knew it could be acting in violation of federal law." Siouxland Br. at 22. The EEOC had to show - and only had to show - exactly that. Kolstad could not have been clearer on this point. In defining what precisely "malice" and/or "reckless indifference" meant in this context, the Supreme Court ruled that punitive damages are available if an employer "discriminate[s] in the face of a perceived risk that its actions will violate federal law." Kolstad, 527 U.S. at 536 (emphasis added). It held that "[t]he terms 'malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law." Id. at 535 (emphasis added). Siouxland misreads Kolstad in suggesting anything more is required.<1> Siouxland also insists "[t]here is simply no evidence of the type of malicious intent or reckless indifference required to support an award of punitive damages." Siouxland Br. at 35 (internal quotation marks omitted). Siouxland obviously misapprehends the type of evidence actually required by Kolstad. Here, all of the relevant decision makers testified unequivocally that they knew that firing or refusing to hire someone because of pregnancy would violate Title VII. Kathleen Fjellestad was asked whether she 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) Fjellestad "had some concerns" about the decision to discharge Dooley because "I thought that probably it may cause a problem" precisely because pregnancy discrimination is illegal. (S.A. 146, 178) Shelley Hofer also testified that she knew there was a federal law prohibiting discrimination against 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) 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 she is pregnant. (S.A. 525) He said he "[a]bsolutely" was aware of that in 2001 and 2002. (S.A. 525) Dr. Akerson testified that Fjellestad told him the day he decided to fire Dooley that they could not make an employment decision based on the fact that Dooley was pregnant, and that he "already was aware of that." (S.A. 529) Further, Dr. Balaban specifically warned Dr. Akerson that firing Dooley would be wrong, saying "We can't" or "we shouldn't do that" - that "this is wrong." (S.A. 147) Sherena 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) The district court specifically stated that there was "[n]o doubt about it" - Dr. Akerson "knew that pregnancy was protected under the law." (S.A. 568-69) Critically, Siouxland on appeal now concedes that "[b]oth Dr. Akerson and Ms. Kost . . . acknowledged their awareness of the prohibition against making decisions based upon the fact that the employee or applicant was pregnant." Siouxland Br. at 25; see id. at 29 ("Dr. Akerson and Ms. Kost both testified that they were aware that employment decisions could not be made on the basis of pregnancy.") Under Kolstad, this knowledge on the part of Siouxland decision makers compels reversal of the district court's directed verdict on punitive damages. Despite this abundant evidence of the requisite "malice or reckless indifference," Siouxland contends that it would have been "legally untenable" to submit the punitive damages issue to the jury because Siouxland should not be penalized for training its employees on federal anti-discrimination laws. Siouxland Br. at 19-20. Siouxland is sounding a false alarm. First, as a factual matter, there is absolutely no evidence that Siouxland had ever trained its employees on the federal prohibition on pregnancy discrimination as of the time the relevant events in this case took place. EEOC Br. at 30 n.7. Second, the Supreme Court in Kolstad established a "good faith" defense to punitive damages precisely to address the policy concern Siouxland raises here. See Kolstad, 527 U.S. at 545-46 (modifying common law agency principles in the punitive damages context to alleviate apprehension "among employers that §1981a's 'malice' and 'reckless indifference' standard penalizes those employers who educate themselves and their employees on Title VII's prohibitions").<2> Third, Siouxland is simply mistaken about (or is intentionally misrepresenting) the EEOC's position in this case. According to Siouxland, the Commission is attempting to convince this Court that if an employer provides decision makers with knowledge of federal anti-discrimination laws and a decision maker subsequently takes an adverse action against an employee, then the employer ipso facto "has just opened itself up to a claim for punitive damages" regardless of whether the employer "acted with malice or evil motive." Siouxland Br. at 19-20. That is not at all what the EEOC is arguing. The Commission contends, consistent with Kolstad, that if there is sufficient evidence for a reasonable jury to find that a decision maker intentionally discriminated on the basis of pregnancy and sufficient evidence for the jury to find that the decision maker did so in the face of a perceived risk that his or her actions might violate federal law, then the jury should be allowed to decide whether punitive damages are appropriate. EEOC Br. at 24-30. At this point, that is black letter law. Siouxland also misconstrues and misapplies Kolstad in suggesting over and over that "evil intent," specifically, is a prerequisite for punitive damages. To the contrary, the Civil Rights Act of 1991, which authorizes punitive damages in Title VII cases, provides that the presence of either malice or reckless indifference to federally protected rights can justify an award of punitive damages. 42 U.S.C. § 1981a(b)(1). "Malice" (i.e., "evil motive") per se is not a precondition. See Kolstad, 527 U.S. at 536 (it simply is "unnecessary to show actual malice to qualify for a punitive award" and "recklessness in its subjective form" is sufficient (citing Smith v. Wade, 461 U.S. 30 (1983))). Thus, Siouxland misstates the law by insisting repeatedly that "an award of punitive damages requires evidence of a defendant's evil motive or intent." Siouxland Br. at 22; id. at 17, 28. It simply does not. See Kolstad, 527 U.S. at 536 (explaining that "'a jury may be permitted to assess punitive damages . . . when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others'" (quoting Wade, 461 U.S. at 56) (emphasis added)).<3> Along the same lines, Siouxland misses the point in attempting to show factually that its decision makers here were not bad actors. Siouxland alleges, for instance, that at the time it hired Dooley it had just expanded its physical space and was "scrambling just to try and find people to fill all of the slots we had to cover . . . ." Siouxland Br. at 32. However, even if the discriminators at issue could be viewed as reasonable and rational, that would be irrelevant. As even Siouxland acknowledges, Siouxland Br. at 21, a plaintiff does not need to prove that the defendant perpetrated "egregious or outrageous acts" to establish an entitlement to a punitive damages award. Kolstad, 527 U.S. at 538, 539 (rejecting the notion "that employers must engage in conduct with some independent, 'egregious' quality before being subject to a punitive award" and finding that "the terms 'reckless indifference' and 'malice,' in the punitive damages context, have [never] taken on a consistent definition including an independent, 'egregiousness' requirement"). As Kolstad makes clear, the punitive damages inquiry does not center on whether the discrimination at issue was egregious or on whether the discriminator was a "bad actor." While the presence of particularly outrageous acts may suggest malice, the absence of such egregious behavior does not immunize an employer from liability for punitive damages. This is because the focus in punitive damages cases is on the discriminator's state of mind - on whether he or she recklessly disregarded the risk that his or her actions (however objectively "bad," "outrageous," or "egregious" they may or may not be) may violate federal law.<4> Siouxland similarly errs in arguing that the facts of this case fall into one of the "exceptions" to punitive damages recognized in Kolstad. Siouxland Br. at 22- 23, 25. Kolstad notes that a finding of malice or reckless indifference may be inappropriate if "the employer discriminates with the distinct belief that its discrimination is lawful." Kolstad, 527 U.S. at 537. Siouxland contends that this is a "clear cut example" of just such a case. Siouxland Br. at 25. In urging affirmance of the district court's directed verdict on the issue of punitive damages, Siouxland argues at length that its decision makers were innocent of any wrongdoing and insists that they had legitimate reasons for firing Dooley and refusing to hire Gacke. Siouxland Br. at 23-25, 27-29, 30-31.<5> The Kolstad exception Siouxland cites covers situations where the employer may have some basis in the law to think its discrimination is permitted (that is, where the employer acknowledges that it is discriminating on the basis of a protected characteristic like pregnancy, but is convinced it is legally allowed to do so). Here, however, Siouxland has never asserted that it was deliberately taking pregnancy into account and that Title VII permitted its actions. It has never alleged it could lawfully fire Dooley or not hire Gacke because they were pregnant. To the contrary, all the relevant decision makers have testified that they knew such conduct would be unlawful. Instead, Siouxland has consistently maintained that it had legitimate, non- discriminatory reasons for taking the adverse employment actions it did. In fact, Siouxland persists even at this late date on appeal in pressing its version of the facts of this case - that its decision makers honestly believed that they were firing Dooley because she would be unavailable during Siouxland's busy season and that they failed to hire Gacke because she was unqualified. The fatal flaw in Siouxland's approach, however, is that the jury here has already roundly rejected it. The jury did not just find, as Siouxland alleges, that "Siouxland's reasons for the actions taken against Dooley and Gacke were not enough to escape liability." Siouxland Br. at 26. Rather, the jury found - and any reasonable jury could have found - that Siouxland's allegedly non-discriminatory justifications were a post hoc cover-up for deliberate pregnancy discrimination. Siouxland has not challenged, and now cannot challenge, the jury's verdicts that it intentionally and unlawfully discriminated against Dooley and Gacke on the basis of pregnancy.<6> Thus, the jury's verdicts categorically preclude any assertion now that Dr. Ackerson actually fired Dooley because she would not be available during Siouxland's busy season and/or that Kost really rejected Gacke because she was not qualified for the job for which she applied. Siouxland's suggestion on appeal that its managers believed their actions were lawful, Siouxland Br at 25, 30-31, simply cannot be squared with the jury verdicts in this case.<7> Cf. Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993) ("It would be a wholly circular and self- defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages."). The relevant inquiry for purposes of the punitive damages issue is not whether the reasons Siouxland gave seemed malicious or recklessly indifferent. Rather, the pertinent question is whether Siouxland decision makers knew that their actions might violate federal law. The Supreme Court in Kolstad explained that "[t]he terms 'malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Kolstad, 527 U.S. at 535 (emphasis added). Thus, even if it could be true (and the jury's findings here suggest that it was not) that Siouxland officials did not think they were discriminating against Dooley and Gacke, such a belief would not be dispositive, as a jury could find the officials were reckless in believing their actions were permissible. Siouxland decision makers knew or clearly should have known that there was a risk their conduct would violate Title VII and they proceeded anyway. Under Kolstad, this is precisely the sort of scenario which would permit a jury finding of at least reckless indifference. Kolstad emphasizes that the focus in these punitive damages cases should be on the discriminator's mental state at the time of the decision. See Kolstad, 527 U.S. at 535 ("The terms 'malice' and 'reckless' ultimately focus on the actor's state of mind."). As a general proposition, courts should be reluctant to engage in judicial mind-reading by granting judgment as a matter of law on this inherently fact-intensive "malice or reckless indifference" determination. In this particular case, whether Dr. Ackerson and/or Kost acted with the requisite reckless indifference or evinced an evil motive is quintessentially a question of fact. Given the abundant evidence the EEOC adduced establishing that Siouxland decision makers intentionally discriminated on the basis of pregnancy and that they knew pregnancy discrimination violated federal law, the EEOC certainly created a jury question on this issue. On this record, it cannot seriously be said that, as a matter of law, the evidence was so one-sided that no reasonable fact finder could have found that Siouxland acted with malice or reckless indifference. Accordingly, the district court committed reversible error in refusing to submit a punitive damages instruction to the jury. Cf. Kolstad, 527 U.S at 551 (Stevens, J., concurring in part and dissenting in part) ("Whatever the case, so long as a Title VII plaintiff proffers sufficient evidence from which a jury could conclude that an employer acted willfully, judges have no place making their own value judgments regarding whether the conduct was 'egregious' or otherwise presents an inappropriate candidate for punitive damages; the issue must go to the jury."). II. The District Court Abused Its Discretion In Refusing to Order Injunctive Relief. A. This Court Has Jurisdiction to Decide the EEOC's Appeal of the District Court's Denial of Injunctive Relief. Siouxland reprises in its brief its argument that this Court lacks jurisdiction over the EEOC's appeal of the district court's denial of injunctive relief. Siouxland Br. at 1, 35-37. This Court has already considered and rejected this argument. As we noted in our opening brief, EEOC Br. at 4, Siouxland filed a motion with this Court to dismiss the EEOC's appeal, asserting the same grounds it has now re-raised in its merits brief. This Court denied Siouxland's motion, and in doing so necessarily put to rest any notion that jurisdiction over this injunctive relief issue is lacking. Siouxland should not be permitted to reargue an issue this Court has already decided. See Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132, 1134-35 (8th Cir. 2007) (under the "law of the case" doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case" and under the "prior panel rule" one panel of this Court "has no authority to overrule an earlier decision of another panel" (internal quotation marks omitted)); Liberty Mut. Ins. Co. v. Elgin Warehouse & Equip., 4. F.3d 567, 571 (8th Cir. 1993) (a settled issue can only be revisited if it "was clearly erroneous and letting it stand would work a manifest injustice"). In any event, Siouxland's argument lacks merit because this Court does have jurisdiction to address the injunctive relief question. In its complaint in this case, the EEOC requested (among other things) injunctive relief to prevent Siouxland from committing similar acts of discrimination in the future, and back pay for Dooley and Gacke. (R.1 ¶¶ A-F) On April 10, 2007, after the jury returned verdicts in favor of the EEOC, Dooley, and Gacke, the district court entered judgments accordingly, ordering Siouxland to pay back pay. (R.136; R.137) However, the district court did not include in its judgment any injunctive relief. On May 10, 2007, the EEOC filed a Motion for Equitable Relief, asking the district court to award additional back pay to Dooley and Gacke, to award prejudgment interest on the awards of back pay, and to grant various forms of injunctive relief. (R.151; R.168) 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 of the district court's final judgments. (R.162) This Court docketed the EEOC's appeal as Appeal No. 07-2419. On August 10, 2007, the district court ruled on the EEOC's Motion for Equitable Relief, treating it as a motion under Rule 60(b) of the Federal Rules of Civil Procedure. (R.177) The district court determined that it was "permitted to consider a Rule 60(b) motion on the merits and deny it even if an appeal is already pending, and a separate appeal may thereafter be taken to challenge the denial of the motion." (R.177 at 4) The district court also explained that if a district court decides to grant a Rule 60(b) motion, "the parties should request the court of appeals to remand the case so a proper order can be entered accordingly." (R.177 at 4 (citing Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004); Pioneer Ins. Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir. 1997))) The district court denied the EEOC's request for additional back pay and injunctive relief. (R.177 at 5-6) However, the district court granted the EEOC's request for prejudgment interest on the awards of back pay. (R.177 at 4-5) The district court stated that "[i]t was the Court's intention to grant prejudgment interest in this case, and the Court will, if the matter is remanded to the Court, and after Siouxland has had an opportunity to submit its proposed calculation of prejudgment interest, grant relief under [Rule 60(b)] for the Court's inadvertent failure to follow its custom with regard to prejudgment interest." (R. 177 at 4) Based upon the district court's decision, the parties on August 23, 2007, jointly asked this Court to remand this case for the limited purpose of addressing the appropriate amount of prejudgment interest due on the awards of back pay and to allow the district court to enter judgments accordingly. In the parties' Joint Motion for Limited Remand and to Stay Proceedings on Appeal, the parties agreed as follows: In the interests of judicial economy and efficiency, the parties request that this Court stay any further proceedings in these consolidated appeals until the district court has resolved the prejudgment interest issue on remand and entered judgments accordingly. At that time, either the EEOC and/or Siouxland may file a separate appeal challenging the district court's disposition of part or all of the EEOC's Motion for Equitable Relief. Such separate appeal(s) could then be consolidated with the consolidated appeals already pending in this Court. All appealable issues related to this case could then be briefed and resolved at one time. Joint Motion for Limited Remand and to Stay Proceedings on Appeal (filed Aug. 23, 2007), at 5. This Court granted the parties' joint request. (R.186) In its Order on this matter, this Court stated: [T]he case is remanded for the limited purpose of allowing the district court to address the appropriate amount of prejudgment interest due on the awards of back pay and to allow the district court to enter judgment accordingly. The appeals will be stayed pending receipt of any additional appeals which may be filed following the entry of the judgment. The court will consolidate any new appeals with the current appeals. (R.186 at 1) On March 6, 2008, the district court issued a Memorandum Opinion and Order awarding prejudgment interest. (R.195) On March 7, 2008, the district court entered separate amended judgments including the amount of back pay and prejudgment interest awarded. (R.196; R.197) Again, these judgments contained no order of injunctive relief. On May 5, 2008, within sixty days of the district court's entry of amended judgments, the EEOC filed a new notice of appeal with respect to these judgments and "all prior rulings and orders in this matter in Defendant Siouxland's favor." (R.211) This Court docketed the EEOC's second appeal as Appeal No. 08-2048, and consolidated it with Appeal No. 07-2419. Given these facts, this Court has jurisdiction to decide whether the district court abused its discretion in failing to order injunctive relief. The EEOC has now filed two separate notices of appeal challenging the entry of judgments by the district court denying injunctive relief. Accordingly, by filing timely notices of appeal of these judgments, the EEOC has done all it needs to do to secure appellate jurisdiction for review of this issue. In discrimination cases like this one, the determination of the appropriate type and amount of relief for victims of discrimination is inextricably linked to the merits and is thus subsumed in the district court's final judgment. See, e.g., Reyher v. Champion Int'l Corp., 975 F.2d 483, 488 (8th Cir. 1992) (suggesting questions of liquidated damages and prejudgment interest under the Age Discrimination in Employment Act are elements of "plaintiff's complete compensation" and do not "raise issues wholly collateral to the judgment in the main cause of action"); cf. Obin v. Dist. No. 9 of Int'l Ass'n of Machinists & Aerospace Workers, 651 F.2d 574, 581-82 (8th Cir. 1981) (finding order awarding attorney's fees is separate appealable order because it "raises a collateral and independent claim, not . . . integral to the merits of the action"). Interestingly, in previous filings in the district court, Siouxland acknowledged that the EEOC's request for prejudgment interest, additional back pay, and injunctive relief related to matters encompassed within the merits of the case. (R.161 at 3) Accordingly, once the jury reached verdicts finding in favor of the EEOC, Dooley, and Gacke, the district court was obligated to enter judgments as to the appropriate type of injunctive relief. The court's decision on this issue - its failure to order any injunctive relief - became part of the judgments entered on April 10, 2007. The Commission filed a timely notice of appeal from the April 10, 2007, judgments (Appeal No. 07-2419). See Fed. R. App. P. 4(a)(1)(B). Out of an abundance of caution, the EEOC filed another timely notice of appeal after the district court's March 7, 2008, entry of new, amended judgments.<8> These timely appeals of these judgments - judgments which subsumed the issue of injunctive relief - thus conveyed jurisdiction on this Court to decide this issue. See 28 U.S.C. § 1291 (courts of appeals have jurisdiction "from all final decisions of the district courts"); Chambers v. City of Fordyce, Ark., 508 F.3d 878, 880 (8th Cir. 2007) (a district court order "effectively end[ing] the case . . . was therefore the final appealable order that could have started the appeal clock for all appealable orders in the case"). Siouxland again argues that the EEOC's post-judgment Motion for Equitable Relief was neither a proper Rule 59(e) nor a valid Rule 60(b) motion.<9> Siouxland Br. at 35-37. Siouxland contends that the district court had no authority to rule on the motion, and this somehow deprives this Court of jurisdiction to hear the EEOC's appeal on the injunctive relief issue. Siouxland Br. at 37. Siouxland ignores that the Commission filed a timely notice of appeal from the district court's first entry of judgments. Siouxland apparently assumes that this notice had no legal effect because, according to Siouxland, the Commission subsequently filed an "invalid" post-judgment motion. In essence, Siouxland contends that this Court has no jurisdiction to review a district court's failure to issue injunctive relief unless the party seeking such relief has first filed a timely and proper Rule 59(e) or Rule 60(b) motion. Siouxland's argument makes no sense and is contrary to the rules governing practice in the federal courts.<10> Nothing in the applicable rules or case law requires a party to file a Rule 59(e) or Rule 60(b) motion at all. Thus here, even if the Commission's post-trial Motion for Equitable Relief and/or the district court's ruling on that motion were invalid, the Commission's notice of appeal of the April 10, 2007, judgments provided this Court with jurisdiction to hear the injunctive relief issue. Siouxland has not pointed to any authority suggesting otherwise.<11> Consequently, this Court should, once again, reject Siouxland's jurisdictional challenge. B. The District Court Abused Its Discretion In Failing to Order Any Injunctive Relief. Siouxland provides no persuasive justification on the merits for the district court's refusal to order any injunctive relief in this case. Of course Siouxland is correct that Title VII does not mandate injunctive relief in every case, Siouxland Br. at 38, and the Commission has never claimed that it does. However, as we explained in our opening brief, EEOC Br. at 32-36, the case law is clear that the entry of an injunction is a quintessential form of relief, and is ordinarily appropriate and necessary once a violation of Title VII has been established. See, e.g., Taylor v. Jones, 653 F.2d 1193, 1203-04 (8th Cir. 1981) (where a "discriminatory atmosphere has been shown" the district court "should fashion injunctive relief to alleviate the unlawful practice before it" (citing Bundy v. Jackson, 641 F.2d 934, 946-48 (D.C. Cir. 1981) (emphasis added)); Bailey v. Runyon, 39 F.3d 1184, *1 (8th Cir. 1994) (citing Johnson v. Brock, 810 F.2d 219, 225 (D.C. Cir. 1987), in turn noting "enjoining a defendant from further acts of discrimination is a typical remedy in Title VII cases" (emphasis added))). The district court erred in departing from this presumption in favor of injunctive relief.<13> All of the major decision makers who discriminated in this case still work for and/or are owners of Siouxland. Moreover, Siouxland still insists that these decision makers did nothing wrong. Siouxland persists in the belief that its officials acted reasonably and rationally and were motivated only by benign and legitimate business considerations. Siouxland continues to maintain that Dooley "was hired and terminated based upon availability" and that Gacke "was never hired as she was deemed unqualified." Siouxland Br. at 45.<14> Given this continued profession of innocence (which flies in the face of the jury's findings), there is absolutely no suggestion, much less any assurance, that Siouxland will not commit additional violations of Title VII in the near future. As a result, injunctive relief was, and is, necessary here and the district court abused its discretion in failing to order any at all. See, e.g., Brock, 810 F.2d at 226 (if a defendant's "past practices . . . suggest a callous disregard for the goals of Title VII" injunctive relief is appropriate); cf. Bundy, 641 F.2d at 946 n.13 (injunctive relief is no longer necessary "only where there is no reasonable expectation that the conduct will recur"). Not surprisingly, Siouxland disagrees, arguing that injunctive relief was not warranted here because there was no pattern of discrimination at Siouxland and no new acts of discrimination have been reported since the events at issue in this case. Siouxland Br. at 41. As the EEOC explained in our opening brief, EEOC Br. at 33-35, these rationales, which the district court relied upon in denying all injunctive relief, are utterly unpersuasive. The fact that Siouxland discriminated against two employees on the basis of pregnancy does suggest that pregnancy discrimination (at least in the hiring context) is an accepted practice at Siouxland. Further, the fact that there have been no new acts of discrimination is not dispositive as to whether injunctive relief currently is appropriate. See, e.g., Taylor, 653 F.2d at 1203-04 (citing Bundy, 641 F.2d at 946-948, with approval); Bundy, 641 F.2d at 946 n.13 ("Common 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). Siouxland also claims that the particular injunctive relief the EEOC sought "was clearly overbroad and inappropriate." Siouxland Br. at 18, 40. Of course, even assuming that the specific equitable relief the Commission requested was somehow inappropriate, the proper course would not be simply to award no injunctive relief at all. At the least, this Court should remand to the district court with an order requiring the district court to craft an appropriately-tailored injunction. ARGUMENT AS CROSS-APPELLEE The District Court Did Not Abuse Its Discretion In Refusing to Grant Siouxland's Request for Separate Trials. Siouxland contends that if this Court reverses the district court's ruling on punitive damages and remands for a new trial, "the district court's refusal to grant separate trials should be reversed and separate trials scheduled for each separate and distinct claim of pregnancy discrimination." Siouxland Br. at 49. However, Siouxland has failed to show how the district court's denial of Siouxland's motion for separate trials was in any way erroneous. As a threshold matter, Siouxland is incorrect in suggesting that the EEOC first has to meet the "permissive joinder" requirements of Federal Rule of Civil Procedure 20 before it may proceed with a unified suit brought on behalf of multiple aggrieved individuals. Siouxland Br. at 42, 44-46. This case does not present any issues for resolution under Rule 20. The Commission is empowered by Title VII to file suit in the public interest in its own name on behalf of numerous individuals as part of a single cause of action. See 42 U.S.C. § 2000e-5(f)(1); see also General Tel. Co. of N.W., Inc. v. EEOC, 446 U.S. 318, 324, 331 (1980) ("Given the clear purpose of Title VII, the EEOC's jurisdiction over enforcement, and the remedies available, the EEOC need look no further than [Title VII itself] for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals" and in doing so "the EEOC is authorized to proceed in a unified action"). In such enforcement actions, like this one, the Commission itself - not the charging parties - is the plaintiff. Thus, by its own terms, Rule 20, which allows multiple plaintiffs to join in a single action together, simply does not apply to claims the EEOC brought in a Commission- initiated lawsuit as a single institutional plaintiff. See Fed. R. Civ. P. 20(a) (allowing for "persons" to join in one action as "plaintiffs" (plural)); see also Flavel v. Svedala Indus., Inc., 875 F. Supp. 550, 553-54 (E.D. Wis. 1994) (assuming that the EEOC's statutory authority to file actions in the public interest obviates its need to satisfy Rule 20, and explaining that "the EEOC may proceed in this matter on behalf of the plaintiffs whether or not they are 'similarly situated,' common questions of law or fact 'predominate,' or claims 'arise out of the same action or occurrence'").<15> When the EEOC files suit on behalf of a number of aggrieved individuals, the typical course is to try all the claims at once as part of a single trial. Of course, Federal Rule of Civil Procedure 42 provides that "[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims." Fed. R. Civ. P. 42(b); see also Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974) (applying Rule 42). As this Court has explained, such a trial management decision by the district court "should be upheld unless there has been a clear abuse of discretion." EEOC v. HBE Corp., 135 F.3d 543, 550 (8th Cir. 1998) (citing EPA v. City of Green Forest, Ark., 921 F.2d 1394, 1402 (8th Cir. 1990)). According to this Court, separate trials are only appropriate if keeping the claims consolidated will lead to "inefficiency, inconvenience, or unfair prejudice to a party." HBE Corp., 135 F.3d at 551 (emphasis added). Here, the district court considered and rejected Siouxland's request to hold separate trials for the claims the EEOC brought on behalf of Dooley and Gacke. (R.18 at 3; R.102 at 14) The district court ruled that trying both of the EEOC's claims at once actually would result in greater efficiency and convenience, since there were "common questions of law and overlapping relevant facts e.g., Defendant's history and policies." (R.102 at 14) That is certainly the case with respect to a trial on the issue of punitive damages. For example, if this Court remands this case, it is likely that Siouxland will attempt to establish the "good faith" affirmative defense to punitive damages provided for in Kolstad. This will require Siouxland to introduce evidence on, and will allow the jury to evaluate, whether Siouxland undertook adequate actions to comply with Title VII, such as by promulgating and enforcing an effective anti- discrimination policy and training its employees on pregnancy discrimination. See, e.g., Kolstad, 527 U.S. at 544-45 ("[T]he purposes underlying Title VII are . . . advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII's prohibitions."). The facts Siouxland will have to prove to establish this "good faith" defense will in all likelihood be substantially similar with respect to both of the EEOC's claims (i.e., the claims it brought on behalf of Dooley and Gacke). Further, the questions of law that predominate - namely, whether the Kolstad standard has been met - will be identical in both claims. It thus would be a waste of judicial time and resources to require these common factual and legal issues to be tried twice. See HBE Corp., 135 F.3d at 551 (finding it "appropriate to consolidate these claims and avoid the inefficiency of separate trials involving related parties, witnesses, and evidence"). Siouxland contends that trying these claims together will result in unfair prejudice. Siouxland Br. at 47-49. However, Siouxland offers absolutely no explanation or evidence to establish what sort of prejudice it would incur. In any event, any possible prejudice that theoretically might result from trying the Commission's two punitive damages claims together can be mitigated by an appropriate limiting instruction (which Siouxland can help formulate on remand). Siouxland claims that such a "limiting instruction [would be] insufficient to overcome the significant prejudice to Siouxland by having these unrelated claims tried together[,]" Siouxland Br. at 43, but never elaborates on why that is so. In fact, such limiting instructions are used routinely to mitigate any potential prejudice that might flow from trying claims together. See, e.g., Zafiro v. United States, 506 U.S. 534, 539 (1993) ("When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but . . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice."). This Court has often acknowledged their effectiveness and utility. See United States v. Lucas, 521 F.3d 861, 866 (8th Cir. 2008) ("A limiting instruction diminishes the danger of unfair prejudice."); cf. Nichols v. Am. Nat'l Ins. Co., 154 F.3d 875, 890 (8th Cir. 1998) ("Thorough review of the record makes the unfair prejudice at trial apparent, particularly in the absence of limiting instructions to the jury." (emphasis added)). Accordingly, the district court did not abuse its discretion in denying Siouxland's request to hold separate trials for each of the EEOC's two claims.<16> To the extent Siouxland with its "conditional" cross-appeal is seeking a "do over" on remand in the form of separate trials on liability (as well as punitive damages), this Court must deny this request. As already noted, Siouxland never filed a "non-conditional" notice of appeal of the underlying final judgments in this case challenging the jury's verdicts. Siouxland does not argue in its brief for a reversal on the merits, either. Siouxland's conditional cross-appeal suggests that it has no desire to retry the liability portion of this case and is willing to accept the jury's verdicts - as long as it is not forced to try the punitive damages issue on remand. But surely Siouxland is not entitled to retry the whole case just because this Court may rule for the Commission on the punitive damages question. The district court's error in failing to instruct the jury on punitive damages at the first trial hardly should serve as a springboard for Siouxland to reopen settled jury verdicts on liability. Siouxland's belated challenge to the district court's refusal to sever the EEOC's claims is no substitute for noticing an appeal of the jury's verdicts. Moreover, Siouxland never filed a motion for a new trial after the jury rendered its verdicts. Thus, Siouxland is precluded from seeking a new trial on the merits now, and this Court is without authority to grant one. See Unitherm, 546 U.S. at 404 (holding that "even if the District Court was inclined to grant a new trial on the basis of arguments raised in respondent's preverdict motion, it was without the power to do so under Rule 50(b) absent a postverdict motion pursuant to that Rule" and "[c]onsequently, the Court of Appeals was similarly powerless"). Accordingly, this Court should remand for a single trial on punitive damages only.<17> In doing so, this Court also should order the district court to instruct the new jury on the previous jury's finding that Siouxland intentionally discriminated against Dooley and Gacke on the basis of pregnancy. See Robertson Oil Co. v. Phillips Petroleum Co., 930 F.2d 1342, 1344-45 (8th Cir. 1991) (rejecting the notion that a new trial on punitive damages requires relitigation of "all the facts relevant to the existence of punitive damages" and approving the district court's approach of simply instructing the new jury on what the previous jury had found). CONCLUSION For these reasons, the EEOC respectfully requests that this Court remand this case for a single, consolidated trial on the issue of punitive damages only and for the entry of an order by the district court granting appropriate injunctive relief. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant 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 CERTIFICATE OF COMPLIANCE I certify that this response and reply brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2)(A)(i) because it contains 9564 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this response and reply 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 response and reply 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 November 13, 2008, I served the requisite number of paper and digital copies of this response and reply 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> Likewise, Siouxland's contorted reading of this Court's case law on this point cannot be reconciled with Kolstad. Siouxland construes Christensen v. Titan Distrib., Inc., 481 F.3d 1085 (8th Cir. 2007), and Chalfant v. Titan Distrib., Inc., 475 F.3d 982 (8th Cir. 2007), as imposing some sort of additional evidentiary burden beyond proof of the employer's knowledge that it may be acting in violation of federal law. Siouxland Br. at 33. However, in Christensen and Chalfant, this Court simply pointed to facts (in addition to knowledge of federal law) that reinforced a finding of malice or reckless indifference in those cases; this Court in no way established a rule requiring such additional evidence in every case. Nor could it. Any such heightened evidentiary requirement would contravene Kolstad's clear holding that all that is required for a finding of punitive damages is proof that the employer acted in the face of "a perceived risk that its actions will violate federal law." Kolstad, 527 U.S. at 536. In cases like this (and Christensen and Chalfant) where the decision makers have admitted that they were well aware of the federal prohibition at issue, no additional evidence of malice or reckless indifference is necessary to support an award of punitive damages. <2> Siouxland seems to suggest it acted in good faith in this case (e.g., noting that it had adopted an "equal employment policy," that "Dr. Akerson required that the policy be followed," that "there was evidence that NO other charges of discrimination had ever been filed against Siouxland in, at that time, its 18 years of existence," etc.). Siouxland Br. at 33. However, as we pointed out in our opening brief, EEOC Br. at 30 n.7, the district court never ruled on whether Siouxland had proven this affirmative defense, and there is a genuine issue as to whether it could do so. While Siouxland should and would have the chance to establish its "good faith" defense on remand, it would be inappropriate and premature for this Court to resolve this matter in the first instance now. In fact, Siouxland has not even specifically asked this Court to affirm on the alternative basis that it established the "good faith" affirmative defense to punitive damages. <3> Siouxland quotes a passage in Kolstad indicating that "egregious or outrageous acts may serve as evidence supporting an inference of the requisite 'evil motive.'" Siouxland Br. at 22 (quoting Kolstad, 527 U.S. at 538). Siouxland emphasizes the word "requisite" to suggest that the Supreme Court there was requiring "evil motive." But even a cursory reading of this part of Kolstad reveals that Siouxland is taking this phrase out of context. In the part of the opinion Siouxland cites, the Supreme Court was discussing how "evil motive" in particular might be demonstrated; it was not addressing the alternate condition of "reckless indifference" (i.e., the other "state of mind" that can justify an award of punitive damages). <4> For the same reason, Siouxland points to irrelevant facts in arguing that "a number of Siouxland's female employees were pregnant, accommodated and granted leave when appropriate[,]" Siouxland Br. at 29. The fact that Siouxland may not have violated Title VII in the past has no bearing on whether Dr. Akerson and Kost knowingly or recklessly violated Dooley's and Gacke's Title VII rights. Again, Siouxland is confusing and equating the absence of egregious acts (which are not required for punitive damages) with the absence of malice or reckless indifference (which may be present even if the discrimination at issue does not seem particularly outrageous in light of the employer's past practices). <5> In doing so, Siouxland ignores all evidence (not to mention the jury verdicts, discussed below) to the contrary. For instance, Siouxland stresses that Dr. Akerson testified that by terminating Dooley, he was treating her "exactly as the two other applicants who had been rejected when, during the interview process, those applicants indicated unavailability during the upcoming summer months." Siouxland Br. at 24, 27. However, as the EEOC pointed out in its opening brief, Dr. Akerson also testified that if either of these two non-pregnant applicants had pledged only to take one week of leave during the busy season - something the pregnant Dooley offered to do to keep her job - he would not have terminated them. EEOC Br. at 12. <6> Siouxland did not file a notice of appeal to challenge the jury's findings on liability. Moreover, Siouxland never made a post-verdict motion under Federal Rule of Civil Procedure 50(b) challenging the jury's findings. Accordingly, Siouxland waived its right to appeal the jury's verdicts that it intentionally discriminated on the basis of pregnancy by firing Dooley and refusing to hire Gacke. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 402-04, 407 (2006) (if a losing party fails to renew a pre-verdict motion for judgment as a matter of law or to file a motion for a new trial post-verdict, the appeals court is powerless to grant such relief on appeal). <7> The nature of the jury's verdicts in this single-motive disparate treatment case distinguishes this case from Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006), cited by Siouxland. Siouxland Br. at 26-27, 29. In "reasonable accommodation" cases like Canny, an employer can run afoul of the Americans with Disabilities Act despite its best efforts and/or its honest belief that it fulfilled its statutory obligations. It is not necessarily surprising that this Court in Canny would find that an employer who tried but failed to provide a reasonable accommodation under the ADA has not acted with "malice or reckless indifference" to a disabled employee's right to be accommodated. Indeed, by statute, punitive damages are categorically unavailable in cases where the employer "demonstrates good faith efforts" to identify and make a reasonable accommodation - even if the employer is nevertheless liable for not providing an accommodation. See 42 U.S.C. § 1981a(3). By contrast, in single-motive disparate treatment cases like the current case, a jury can only find the defendant liable if it first rejects the defendant's alleged legitimate, non-discriminatory explanation. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (explaining that "the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose"). When, as in this case, the jury finds that the defendant is dissembling to cover up a discriminatory motive, the same jury cannot logically also conclude that the defendant's fabricated explanation is proof that the defendant acted without malice or reckless indifference. Thus, Siouxland's reliance on Canny - involving a completely different context and theory of liability - is unavailing. <8> In doing so, the EEOC waited until all proceedings in the district court had concluded to file this new notice of appeal challenging the district court's disposition of all issues at once. The EEOC thus attempted to do precisely what the applicable rules contemplate. See, e.g., St. Mary's Health Ctr. of Jefferson City v. Bowen, 821 F.2d 493, 498 (8th Cir. 1987) (explaining that if a court grants a Rule 60(b) motion and enters new judgment, the time for appeal dates from the entry of the new judgment). Indeed, in its order remanding this case for an award of prejudgment interest, it appears this Court anticipated that new appeals could be filed. See Order (Aug. 28, 2007) (stating that upon remand, Appeal No. 07-2419 and Appeal No. 07-2420 "will be stayed pending receipt of any additional appeals which may be filed following the entry of the judgment"). <9> Siouxland also seems to suggest that the Commission should have filed a third notice of appeal within sixty days of the district court's August 10, 2007, ruling denying the EEOC's Motion for Equitable Relief. Siouxland Br. at 1. This contention is likewise unfounded. The August 10, 2007, order was not a final appealable decision. In its ruling, the district court did not resolve all issues raised by the EEOC's motion. It explicitly invited and anticipated additional proceedings on the motion (i.e., a remand from this Court to the district court, briefing on prejudgment interest, and ultimately the issuance of a new decision on this issue). Accordingly, any appeal noticed at this juncture would have been premature. Cf. Huey v. Sullivan, 971 F.2d 1362, 1364-65 (8th Cir. 1992) ("Generally, a district court decision is final when the court has rendered a decision that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." (internal quotation marks omitted)); United States v. Johnson, 525 F.3d 648, 649 (8th Cir. 2008) ("Our jurisdiction is restricted to appeals from 'final decisions of the district courts . . . .'" (quoting 28 U.S.C. § 1291)). <10> It is also at odds with the position Siouxland took previously in the parties' joint motion asking this Court to remand this case to the district court for the determination of prejudgment interest and the entry of amended judgments - a request that would have been inappropriate if the district court's Rule 60(b) ruling were a nullity. Similarly, the fact that Siouxland has not appealed the district court's entry of amended judgments awarding prejudgment interest to Dooley and Gacke undermines its claim that the district court lacked authority to decide the EEOC's Motion for Equitable Relief. <11> The cases Siouxland does cite, Siouxland Br. at 37, are easily distinguishable. For instance, in Reyher, a plaintiff filed a motion for liquidated damages and prejudgment interest more than two months after the court had entered final judgment. This Court held that these motions did not qualify as either Rule 59(e) or Rule 60(b) motions, and thus reversed the district court's grant of these motions. Reyher, 975 F.2d at 487-89. However, the plaintiff had never filed a timely notice of appeal from the actual final judgment. Rather, the defendant appealed from the district court's ruling on the post-trial motions for liquidated damages and prejudgment interest. Similarly, in Wilson v. Runyon, 981 F.2d 987, 988-89 (8th Cir. 1992), this Court reversed a district court's grant of a post-judgment motion because the district court had improperly characterized the motion as a Rule 60(b) motion (instead of recognizing that it actually was an untimely Rule 59(e) motion) and the appellant had not otherwise filed a timely motion from the underlying final judgment. Since the appellant waited until after the district court had ruled on the untimely Rule 59(e) motion to file a notice of appeal (and the untimely Rule 59(e) motion did not toll the notice-filing period), the appellant's notice of appeal was untimely and this Court refused to hear the appeal. See Wilson, 981 F.2d at 989 ("Because Wilson filed neither a timely appeal nor a post-trial motion we may properly review, we dismiss the appeal." (emphases added)). Here, by contrast, the Commission did not wait until the district court disposed of our Motion for Equitable Relief to file a timely notice of appeal of the underlying judgments. The cases Siouxland cites thus actually bolster the Commission's position that this Court has jurisdiction over the injunctive relief issue even if the EEOC's post-trial Motion for Equitable Relief should not have been considered by the district court. <12> In its opening brief, the Commission mistakenly cited Bundy and Brock as being decisions of this Court, when in fact they are decisions from the U.S. Court of Appeals for the D.C. Circuit. See EEOC Br. at 31, 32, 35, 36. As noted above, this Court has cited and relied on Bundy and Brock in its own decisions, and we believe the propositions for which we cited these cases reflect correct statements of the law. However, the EEOC regrets this error and apologizes to the Court for this unintentional misrepresentation. <13> Siouxland faults the EEOC for citing to Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 419 (1975), and Jones v. Am. State Bank, 857 F.2d 494 (8th Cir. 1988), claiming that these cases did not even involve injunctive relief. Siouxland Br. at 38-39. However, Siouxland skips right over the critical part of these cases cited by the EEOC which supports our position that injunctive relief is presumptively necessary once a Title VII violation has been established. The Supreme Court in Albemarle ruled (and this Court in Jones reiterated) 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, 422 U.S. at 418 (internal quotation marks omitted) (emphases added); Jones, 857 F.2d at 497 (same). This general rule of law is certainly applicable in this particular case. <14> For this reason, Siouxland's self-serving suggestion that "[t]he result of this action has no doubt impressed upon the [employer] the need to exercise greater care in determining employment practices[,]" Siouxland Br. at 41-42 (quoting Brock, 810 F.3d at 226), rings particularly hollow. The notion that Siouxland decision makers have learned their lesson is certainly belied by the arguments Siouxland makes on appeal. <15> The fact that the charging parties intervened here does not alter this analysis, or preclude the Commission from litigating its own case as a single non-severed action. Cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 287, 297 (2002) (there is a "difference between the EEOC's enforcement role and an individual employee's private cause of action" and the Commission "does not stand in the employee's shoes"); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368 (1977) ("EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties."). <16> Siouxland does complain that the limiting instruction the district court gave below on the merits failed to protect against the prejudice to Siouxland that inevitably resulted from trying together "what the district court itself recognized [as] two unrelated cases, involving different decision makers and different departments and based upon different business reasons." Siouxland Br. at 47; see id. at 48-49. Siouxland offers no proof of this beyond its mere assertion of it. In any case, since the liability finding is not at issue in these appeals, any criticism Siouxland might have of how the trial on liability was conducted is of no moment. Indeed, it is simply odd for Siouxland to argue now that it has been unduly prejudiced on the merits by the district court's decision to consolidate the EEOC's two pregnancy discrimination claims, since Siouxland failed to challenge that decision (and the alleged resulting "prejudice") by filing a "non-conditional" notice of appeal of the jury's verdicts. <17> This approach (i.e., remanding for a trial on punitive damages without a retrial on liability) is clearly contemplated by the case law. The Supreme Court has recognized that "where the requirement of a jury trial has been satisfied by a verdict according to law upon one issue of fact, that requirement does not compel a new trial of that issue even though another and separable issue of fact must be tried again." Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 515 (1931). This Court has held that "[i]n cases where the evidence supports a finding of liability, a new trial on both liability and damages is required only when both issues are so interwoven with each other that they cannot be tried separately." Morrissey v. Welsh Co., 821 F.2d 1294, 1299 n.3, 1306 (8th Cir. 1987) (citing Hallberg v. Brasher, 679 F.2d 751, 758 (8th Cir. 1982))); see also Vanskike v. ACF Indus., Inc., 665 F.2d 188, 212 (8th Cir. 1981) (affirming liability but reversing and remanding for a new trial on the issue of punitive damages only). In fact, this Court has applied this rule in Title VII cases like this one. See, e.g., Madison v. IBP, Inc., 330 F.3d 1051, 1060-61 (8th Cir. 2003) (Title VII case refusing a defendant's request to retry both liability and punitive damages and remanding for a new trial on punitive damages only).