Sheila White v. Burlington Northern & Santa Fe Railway Co.

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0102P (6th Cir.)
File Name: 04a0102p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SHEILA WHITE,
Plaintiff-Appellee/
Cross-Appellant,
v.
BURLINGTON NORTHERN &
SANTA FE RAILWAY CO.,
Defendant-Appellant/
Cross-Appellee.
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Nos. 00-6780;
01-5024
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 99-02733—Jon Phipps McCalla, District Judge.
Argued: June 11, 2003
Decided and Filed: April 14, 2004
Before: BOGGS, Chief Judge; MARTIN, KRUPANSKY,
BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and
COOK, Circuit Judges.
2 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
_________________
COUNSEL
ARGUED: Bryan P. Neal, THOMPSON & KNIGHT,
Dallas, Texas, for Appellant. William B. Ryan, DONATI
LAW FIRM, Memphis, Tennessee, for Appellee.
ON BRIEF: Bryan P. Neal, THOMPSON & KNIGHT,
Dallas, Texas, Ralph T. Gibson, BATEMAN GIBSON,
Memphis, Tennessee, for Appellant. William B. Ryan,
Donald A. Donati, DONATI LAW FIRM, Memphis,
Tennessee, for Appellee. Ann E. Reesman, Robert E.
Williams, McGUINESS, NORRIS & WILLIAMS,
Washington, D.C., Jenifer M. Bosco, NATIONAL
EMPLOYMENT LAWYERS ASSOCIATION, San
Francisco, California, Ralph E. Lamar IV, Collegeville,
Pennsylvania, for Amici Curiae.
_________________
OPINION
_________________
GIBBONS, J., announced the judgment and majority
opinion of the en banc court on all issues. The entire en banc
court joined Parts I (Background) and III (Attorney’s Fees) of
the majority opinion. Part II (Adverse Employment Action)
of the majority opinion was joined by BOGGS, C. J., and
KRUPANSKY, BATCHELDER, GILMAN, ROGERS,
SUTTON, and COOK, JJ., and Part IV (Punitive Damages)
was joined by MARTIN, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51),
filed a separate concurring opinion joining Parts I, III, and IV
of the majority opinion and writing separately as to Parts II
and V, in which he was joined by MARTIN, DAUGHTREY,
MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an
opinion concurring in Parts I - III and dissenting from Parts

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IV and V, in which he was joined by BOGGS, C. J., and
KRUPANSKY, BATCHELDER, and ROGERS, JJ.
JULIA SMITH GIBBONS, Circuit Judge. In this appeal,
the en banc court addresses the meaning of “adverse
employment action” for purposes of Title VII. We decide that
a thirty-seven day suspension without pay constitutes an
adverse employment action regardless of whether the
suspension is followed by a reinstatement with back pay. We
also address several other issues raised by this appeal.
Sheila White brought this action against her employer,
Burlington Northern & Santa Fe Railway Company
(Burlington Northern), alleging sex discrimination and
retaliation in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3. The
jury returned a verdict in favor of Burlington Northern on the
sex discrimination claim and in favor of White on the
retaliation claim. The jury awarded White compensatory
damages but no punitive damages. After the trial, the district
court denied Burlington Northern’s motion for judgment as a
matter of law on the retaliation claim and granted White’s
motion for attorney’s fees.
Burlington Northern appeals from the denial of its motion
for judgment as a matter of law and from the award of
attorney’s fees to White. White cross-appeals, challenging
the district court’s jury instruction regarding punitive
damages. For the reasons set forth below, we affirm the
district court’s denial of Burlington Northern’s motion for
judgment as a matter of law and the district court’s award of
attorney’s fees to White. We conclude, however, that the
district court erred in instructing the jury on the issue of
punitive damages, and therefore we remand the case for
further proceedings consistent with this opinion.
4 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
I. BACKGROUND
Before June 1997, Ralph Ellis operated the stationary
forklift for Burlington Northern at its Tennessee Yard in
Memphis. In June 1997, Ellis resigned from the forklift
position in order to work on a mobile track gang, in which
position Ellis earned more pay than he would have if he had
continued working in the forklift position. Marvin Brown,
roadmaster of the Tennessee Yard, interviewed White for a
job with Burlington Northern and expressed interest in
White’s experience operating a forklift. On June 23, 1997,
Burlington Northern hired White to work in its Maintenance
of Way department at its Tennessee Yard, and following
White’s hire, Brown assigned her to operate the forklift at the
Tennessee Yard.
White was the only female working in the Maintenance of
Way department at the Tennessee Yard. White’s immediate
supervisor was foreman Bill Joiner. Joiner had never
supervised a woman before, and he admitted at trial that he
treated White differently because of her gender. He also
admitted that he did not believe that the Maintenance of Way
department was an appropriate place for women to work.
According to White, Joiner repeatedly expressed this belief to
her while she was working under his supervision. According
to Joiner, several other Burlington Northern employees also
expressed the belief that women should not work on a
railroad. Another Burlington Northern employee agreed at
trial that there was “a general anti-woman feeling” among
Burlington Northern employees at the Tennessee Yard.
Despite concerns about the propriety of a woman working
on the railroad, the evidence was uncontradicted that White
did not have difficulty performing her job. According to
Brown, he never received a complaint regarding White’s
performance operating the forklift. Joiner testified that White
had no problems performing her job. Furthermore, another
Burlington Northern foreman testified that no one expressed

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concern about White’s ability to get along well with others in
the workplace or about anything specific to White other than
her gender.
On September 16, 1997, White complained to Brown and
other company officials about specific incidents of alleged
sexual harassment committed by Joiner. The company
investigated. Following the investigation, Burlington
Northern suspended Joiner for ten days and ordered him to
attend a training session regarding sexual harassment.
On September 26, 1997, Brown met with White to inform
her that Joiner had been disciplined pursuant to her complaint.
He also, however, told her that the company had learned
during the investigation of several complaints about her
working in the forklift position. According to Brown, the
complaints did not relate to her performance but related to the
fact that the forklift position was a less arduous and cleaner
job than other track laborer positions. Brown testified that
other employees, including Ellis, complained about a junior
employee being allowed to work the forklift instead of “a
more senior man.” Other witnesses testified that the forklift
job was generally considered a physically easier and cleaner
job than other track laborer positions, although it required
more qualifications. Joiner testified that other track laborers
complained about White being allowed to hold the position
instead of a male employee.
During the September 26 meeting regarding the resolution
of White’s internal sexual discrimination complaint, Brown
informed White that he was removing her from the forklift
position and assigning her to a standard track laborer position
because of her coworkers’ complaints. Her pay and benefits
remained the same, but her new job was, by all accounts,
more arduous and “dirtier” than the forklift position. Brown
replaced White with Ellis, the only other employee qualified
to perform the forklift job. Brown admitted at trial that he
had heard complaints about White being allowed to work the
6 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
forklift before she complained of discrimination but that he
did not remove her from the position until after she
complained of discrimination.
Brown’s trial testimony is inconsistent with Burlington
Northern’s interrogatory response. In that response, the
railroad stated that it removed White from the forklift position
because a more senior employee claimed the job according to
the collective bargaining agreement. Brown, however,
testified at trial that the forklift job was not governed by the
collective bargaining agreement and that he had the discretion
to place anyone he chose in that position regardless of
seniority. Moreover, neither the union, nor anyone else,
initiated a grievance about White’s operation of the forklift.
A union official testified that the union’s records did not
reflect any complaints regarding White’s assignment to the
forklift position. Only White and Ellis were qualified to
perform the forklift position. Ellis, who had voluntarily
resigned from the forklift job for a higher-paying job, testified
that he did not complain to Brown or anyone else about White
operating the forklift and that he did not request that he be
returned to the position.
On October 10, 1997, White filed a charge with the Equal
Employment Opportunity Commission (EEOC) alleging sex
discrimination and retaliation. She filed a second charge with
the EEOC on December 4, 1997, alleging retaliation. In her
second EEOC charge she alleged that Brown had placed her
under surveillance and was checking on her daily activities.
Her second EEOC charge was mailed to Brown on
December 8, 1997.
On December 11, 1997, White was working in Blytheville,
Arkansas, supporting a regional tie gang. She was working
under the supervision of Burlington Northern foreman Percy
Sharkey. At some point during the day, Sharkey instructed
White to ride in a truck with another foreman, James Key.
Sharkey instructed another track laborer, Greg Nelson, to ride

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with him in his vehicle. According to White, when she
approached Key he told her that she had to ride with Sharkey
because Key wanted Nelson to ride with him. Against
Sharkey’s order, Nelson rode away with Key. White testified
that Sharkey became very upset when she returned and told
him that Nelson had ridden away with Key and that she
would have to ride with him. Contrary to White’s testimony,
Sharkey testified that White refused to ride with Key,
claiming that she had seniority over Nelson and insisting
upon riding with Sharkey.
According to Sharkey, he called Brown to discuss the
situation and Brown told him that, based on Sharkey’s
description of events, White had been insubordinate and
should be removed from service immediately. On the
afternoon of December 11, Sharkey informed White that she
was suspended. Although Sharkey had the authority to
suspend White himself, Sharkey testified that Brown made
the decision to suspend White. Brown testified that Sharkey
made the decision. White testified that Sharkey told her at the
time that Brown had instructed him to suspend her. In a letter
to the EEOC, Burlington Northern stated that Brown made
the decision, but Brown testified that this letter was incorrect.
Nelson received no discipline, although Sharkey
acknowledged at trial that Nelson had disobeyed his direct
order.
White testified that Sharkey had told her at some point
before her suspension that Brown considered White a
“troublemaker.” Sharkey acknowledged at trial that he had
told White that the railroad was trying to “get rid” of her.
The decision to suspend White occurred seven days after
White filed her second EEOC charge and three days after the
charge was mailed to Brown. The suspension took effect
immediately and was without pay. According to company
policy, the suspension without pay would automatically
become a termination if White did not file a grievance with
8 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
her union appealing the decision within fifteen days. White
timely filed such a grievance and also filed another EEOC
charge on December 15, 1997, alleging retaliation.
While her grievance was pending, White was without a job
and without income and she did not know if or when she
would be allowed to return to work. During this period,
White sought medical treatment for emotional distress and
incurred medical expenses. The grievance remained pending
through the end of December and the first half of January
1998. After an investigation and a hearing, the hearing
officer, who was a Burlington Northern manager, found that
White had not been insubordinate and that she should not
have been suspended. After being suspended without pay for
thirty-seven days, White was reinstated to her position with
full back pay on January 16, 1998.
After exhausting her avenues for relief before the EEOC,
White filed this action against Burlington Northern in the
district court, alleging sex discrimination and retaliation in
violation of Title VII. A jury trial was conducted from
August 29, 2000, to September 5, 2000. The jury returned a
verdict in favor of Burlington Northern on White’s sex
discrimination claim and a verdict in favor of White on her
retaliation claim. The jury awarded White $43,500 in
compensatory damages, including $3,250 in medical
expenses, on her retaliation claim. The jury found against
White on her claim for punitive damages. After the trial,
pursuant to Federal Rule of Civil Procedure 50(b), Burlington
Northern filed a renewed motion for judgment as a matter of
law on the retaliation claim, which the district court denied.
White filed a motion for an award of attorney’s fees pursuant
to 42 U.S.C. § 2000e-5(k), and the district court awarded
White $54,285, which represented eighty percent of White’s
total attorney’s fees.

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II. MOTION FOR JUDGMENT AS A MATTER OF
LAW
We first review the district court’s denial of Burlington
Northern’s post-trial motion for judgment as a matter of law
pursuant to Rule 50(b). Our standard of review is de novo.
Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595,
598 (6th Cir. 2001). The inquiry for resolving a motion for
judgment as a matter of law pursuant to Rule 50 is the same
as the inquiry for resolving a motion for summary judgment
pursuant to Rule 56. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). We review all of the evidence
in the record in the light most favorable to the nonmoving
party and determine whether there was a genuine issue of
material fact for the jury. Gray, 263 F.3d at 598.
We must affirm the jury verdict unless there was “no
legally sufficient evidentiary basis for a reasonable jury to
find for [the prevailing] party.” Fed. R. Civ. P. 50(a). We
draw all reasonable inferences in favor of the prevailing party,
and we do not make any credibility determinations or weigh
the evidence. Reeves, 530 U.S. at 150. Therefore, we “must
disregard all evidence favorable to the moving party that the
jury is not required to believe.” Id. at 151. “That is, the court
should give credence to the evidence favoring the nonmovant
as well as that ‘evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that
that evidence comes from disinterested witnesses.’” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 300
(1986)).
Burlington Northern contends that it is entitled to judgment
as a matter of law on White’s retaliation claim because,
according to Burlington Northern, neither White’s transfer
from the forklift job to a standard track laborer job nor her
suspension without pay for thirty-seven days constitutes an
adverse employment action for purposes of Title VII. In the
alternative, Burlington Northern contends that there was
10 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
insufficient evidence for the jury to conclude rationally that
Burlington Northern’s asserted legitimate, non-discriminatory
reasons for transferring and suspending White were pretexts
for retaliation.
In determining whether Burlington Northern is entitled to
judgment as a matter of law, we first discuss the meaning of
“adverse employment action” for purposes of Title VII. Then
we discuss whether White’s transfer and suspension were
adverse employment actions. Finally we address whether
there was sufficient evidence for the jury to rationally find
that Burlington Northern’s asserted legitimate reasons were
pretexts for unlawful retaliation.
A. Defining Adverse Employment Action
Title VII’s anti-retaliation provision provides:
(a) Discrimination for making charges, testifying,
assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
or applicants for employment . . . because he has opposed
any practice made an unlawful employment practice by
this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter.
42 U.S.C. § 2000e-3(a) (section 704(a) of Title VII)
(emphasis added). Title VII does not define the phrase
“discriminate against,” which is repeated in Title VII’s other
anti-discrimination provisions, but courts have made clear
that not just any discriminatory act by an employer constitutes
discrimination under Title VII. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998) (citing cases requiring a
“tangible employment action” to support a Title VII claim).

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1Although this court and most other courts use the term “adverse
employment action,” some courts, including the Supreme Court, use the
term “tangible employment action” or some other variation for the same
concept. See, e.g., Bu rlington Indus., 524 U.S. at 761 (“tangible
employment action”); Bowman, 220 F.3d at 461 n.5 (“Courts use the
terms ‘tangible employment detriment’ and ‘materially adverse
emp loyment action’ interchangeably.”).
As the one alternative to showing the existence of an adverse
employment action, a plaintiff may support a Title VII claim by showing
that “plaintiff was subjected to severe or pervasive retaliatory [or other
discrimination based] harassment by a supervisor.” Morris v. Oldham
County Fiscal Co urt, 201 F.3d 784, 79 2 (6th Cir. 2000). What constitutes
severe or p ervasive harassme nt is not at issue in this appeal.
Employment actions that are de minimis are not actionable
under Title VII. Bowman v. Shawnee State Univ., 220 F.3d
456, 462 (6th Cir. 2000). “If every low evaluation or other
action by an employer that makes an employee unhappy or
resentful were considered an adverse action, Title VII would
be triggered by supervisor criticism or even facial expressions
indicating displeasure.” Primes v. Reno, 190 F.3d 765, 767
(6th Cir. 1999).
To prevent lawsuits based upon trivial workplace
dissatisfactions, we require that a plaintiff prove the existence
of an “adverse employment action” to support a Title VII
claim. Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir.
1999) (defining “adverse employment action” as a “materially
adverse change in the terms and conditions of [plaintiff’s]
employment”).1 This case requires us to clarify further the
meaning of “adverse employment action” for purposes of
Title VII.
The first time this court required a plaintiff to prove the
existence of an “adverse employment action” as part of a Title
VII claim was in Geisler v. Folsom, 735 F.2d 991 (6th Cir.
1984). In Geisler, the plaintiff alleged that her employer
violated Title VII’s anti-retaliation provision by
discriminating against her for filing a sex discrimination
12 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
charge with the EEOC. After a bench trial, the district court
found that “[p]laintiff failed to show any adverse employment
action in response to her EEOC charge or any other protected
activity. While additional tension arose after others became
aware of [plaintiff]’s charge, such ‘predictable tension’ is not
‘the type of adverse employment action prohibited by Title
VII’s retaliation clause.’” 735 F.2d at 994 (quoting the
district court). This court affirmed, stating:
We agree with the district judge that a general increase of
tension in the workplace would be expected to follow
revelation that a claim of discrimination in employment
had been filed. However, evidence of such an increase
should be considered, and any discrete act or course of
conduct which could be construed as retaliation must be
examined carefully. After such examination we conclude
that the finding that no ‘adverse employment action’
resulted from the filing of the EEOC charge is not clearly
erroneous, particularly in view of the contrary evidence
. . . .
735 F.2d at 996 (quoting the district court’s use of the phrase
“adverse employment action”).
A few months after deciding Geisler, this court stated that
to support a claim for retaliation under Title VII a “plaintiff
must establish: (1) that he engaged in activity protected by
Title VII; (2) that he was the subject of adverse employment
action; and (3) that there exists a casual [sic] link between his
protected activity and the adverse action of his employer.”
Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375
(6th Cir. 1984). The Jackson court did not cite Geisler as a
basis for including “adverse employment action” among the
elements of a Title VII retaliation claim; instead it relied upon
cases from the Fifth, Tenth, and Eleventh Circuits. Id. (citing
Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343
(10th Cir. 1982); Jones v. Lumberjack Meats, Inc., 680 F.2d
98, 101 (11th Cir. 1982); Whatley v. Metro. Atlanta Rapid

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2The decisio ns cited by Jackson from the Tenth and Eleventh
Circuits, Burru s and Jones, both cite Smalley v. City of Eato nville, 640
F.2d 765, 769 (5th Cir. 1981), which in turn cites Whatley as the basis for
including “adve rse employm ent actio n” am ong the elements of a Title VII
claim. Whatley cites a treatise published in 1976. 632 F.2d at 1328
(citing B. Schlei & P. Grossman, Em ployment Discrimination Law, Ch.
15 (1976)). It appears that the inclusion of “adverse employment action”
as an element of a T itle VII claim originated with the treatise cited by
Whatley. See Williams v. Bo orstin, 663 F.2d 109, 120 (D.C. Cir. 1980)
(J. Bazelon, concurring) (stating that “adverse employm ent actio n” is
among the elements of a Title VII retaliation claim under “the standard
found in B. Schlei & P. Grossman, Employment Discrimination Law 436
(1976)”). The first reported case in the nation to include “adverse
employment action” as an element of a Title VII claim was decided the
year after publication of the treatise. EEO C v. Locals 14 an d 15 Int’l
Union of O perating Eng ’rs, 438 F. Supp. 876 , 881 (S.D.N.Y . 1977).
Transit Auth., 632 F.2d 1325, 1328 (5th Cir. 1980)). The
cases cited by Jackson, like Jackson itself, each involved a
termination of employment, and so none of these cases
addressed the issue of what types of employment actions
short of termination constitute adverse employment actions.2
Ever since Geisler and Jackson, the adverse-employment-
action element has remained a part of a Title VII claim in this
circuit. After Geisler, the first time that this court decided a
case based on the adverse-employment-action element was in
Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987). In
Yates, this court reversed a district court’s factual finding of
retaliation, holding that it was clear error for the district court
to find that a temporary job reassignment that resulted in no
pay or benefits reduction was an adverse employment action
cognizable under Title VII’s anti-retaliation provision. For
this holding, the Yates court relied solely upon a district court
decision from Delaware. Id. (citing and endorsing Ferguson
v. E.I. duPont deNemours and Co., 560 F. Supp. 1172, 1201
(D. Del. 1983), which held that a job reassignment is not an
adverse employment action if it is only temporary and results
in no reduction in pay or benefits).
14 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
3For instance, in Hollins v. Atlantic Co., this court relied upon Kocsis
to decide that an employee had not suffered an adverse employment
action when she received lower ratings in a performance evaluation. 188
F.3d 652, 662 (6th Cir. 1999). The Hollins court held that lower ratings
After Yates, it was almost ten years before we had another
opportunity to develop the definition of adverse employment
action. In Kocsis v. Multi-Care Management Inc., this court
considered the definition of adverse employment action in the
context of a discrimination claim under the Americans with
Disabilities Act. 97 F.3d 876, 885-87. Relying in part upon
the Seventh Circuit’s definition, this court held that a plaintiff
claiming employment discrimination must show that she
suffered “a materially adverse change in the terms of her
employment.” Id. at 885 (citing Spring v. Sheboygan Area
Sch. Dist., 865 F.2d 883 (7th Cir. 1989), which involved an
age discrimination claim). A “mere inconvenience or an
alteration of job responsibilities” or a “bruised ego” is not
enough to constitute an adverse employment action. Id. at
886 (citing Crady v. Liberty Nat’l Bank and Trust Co., 993
F.2d 132, 136 (7th Cir. 1993), and Flaherty v. Gas Research
Inst., 31 F.3d 451, 456 (7th Cir. 1994)).
Furthermore, according to Kocsis, “reassignments without
salary or work hour changes do not ordinarily constitute
adverse employment decisions in employment discrimination
claims.” Id. at 885 (citing Yates, 819 F.2d at 638, which
applied to “temporary” reassignments). A reassignment
without salary or work hour changes, however, may be an
adverse employment action if it constitutes a demotion
evidenced by “a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or
other indices that might be unique to a particular situation.”
Id. at 886 (citing Crady, 993 F.2d at 136).
In this circuit, Kocsis is the seminal case for defining
adverse employment action.3 The Supreme Court in

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were not enough in the absence of “evidence to show that the lowered
performance ratings actually had an effect on her wages such that a court
may conc lude that there was a m aterially ad verse employment action.”
Id. In Bowm an v. Sha wnee Sta te Un iversity, this court relied upon Kocsis
and Hollins to hold that the temporary removal of a university instructor
from his position as the Coordinator of Sports Studies did not rise to the
level of an adverse employment action. 220 F.3d 456, 46 1-62 (6th Cir.
2000). The Bowman court focused on the facts that the removal was for
only ten days, the employee maintained his position as a full-time
university instructor, and he never lost any incom e. Id.
Burlington Industries v. Ellerth relied upon Kocsis and
several decisions from other circuits when it stated that “[a]
tangible employment action constitutes a significant change
in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.” 524 U.S. 742, 761 (1998). The Supreme Court
also observed that:
A tangible employment action in most cases inflicts
direct economic harm . . . . Tangible employment
actions are the means by which the supervisor brings the
official power of the enterprise to bear on subordinates.
A tangible employment decision requires an official act
of the enterprise, a company act. The decision in most
cases is documented in official company records, and
may be subject to review by higher level supervisors.
Id. at 762. But see Ray v. Henderson, 217 F.3d 1234, 1242
n.5 (9th Cir. 2000) (rejecting the contention that Burlington
Industries set forth a standard for adverse employment actions
in the retaliation context).
In this appeal, White and the EEOC, which has filed an
amicus curiae brief on White’s behalf, urge us to revise our
definition of adverse employment action for purposes of Title
VII retaliation cases and adopt the interpretation included in
16 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
4W e have recognized that the dictionary definition of “discriminate”
is “to distinguish; to make distinctions in treatment; show partiality or
prejudice.” Mattei v. Mattei, 126 F.3d 79 4, 804 (6th Cir. 1997) (quoting
W ebster’s New W orld Dictio nary); see also Oxford English Dictionary
the EEOC Guidelines. The EEOC has interpreted “adverse
employment action” in the context of a Title VII retaliation
claim to mean “any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter a charging
party or others from engaging in protected activity.” EEOC
Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998).
Although EEOC Guidelines are not binding on the courts,
they “constitute a body of experience and informed judgment
to which courts and litigants may properly resort for
guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65
(1986) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
The EEOC claims that this court’s development of the
adverse-employment-action element has been unfaithful to
the letter and purpose of Title VII’s anti-retaliation provision.
According to 42 U.S.C. § 2000e-3(a), it is unlawful for an
employer to “discriminate against” an employee for engaging
in protected conduct. The EEOC contends that the most
natural reading of this language is that it prohibits “any form
of discrimination” against an individual for opposing
discrimination or filing a charge. The Ninth and Seventh
Circuits have also embraced a broad interpretation of Title
VII’s anti-retaliation provision. See Ray v. Henderson, 217
F.3d 1234, 1243 (9th Cir. 2000) (“This provision does not
limit what type of discrimination is covered, nor does it
prescribe a minimum level of severity for actionable
discrimination.”); Knox v. State of Indiana, 93 F.3d 1327,
1334 (7th Cir. 1996) (“There is nothing in the law of
retaliation that restricts the type of retaliatory act that might
be visited upon an employee who seeks to invoke her rights
by filing a complaint.”).4

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17
(2d ed. 1989) (“to discriminate against: to make an adverse distinction
with regard to; to distinguish unfavorably from others”).
Despite the EEOC’s contention that “any form of
discrimination” falls within the most natural reading of the
statute, the EEOC acknowledges in its brief that its definition
of adverse employment action excludes “petty slights and
trivial annoyances” and anything that is not reasonably likely
to deter employees from engaging in protected activity. The
EEOC does not explain how it justifies excluding such
discriminatory acts under its strictly literal reading of the
statute, which prohibits discrimination without any explicit
textual limitation regarding the type of discrimination or level
of severity required. Therefore, the EEOC admits that a
strictly literal reading of “discriminate against” is not a fair
interpretation of Title VII since it is unlikely that Congress
intended to authorize Title VII claims over trivial matters.
We developed the adverse-employment-action element to
prevent the kind of claims based upon trivial employment
actions that a strictly literal reading of Title VII’s anti-
retaliation provision would allow. Because the language of
Title VII does not explicitly provide any limit on the types of
discriminatory acts prohibited, the language of Title VII does
not favor the EEOC’s proposed limitations over the
limitations this court has developed during the last twenty
years of defining the adverse-employment-action element of
a Title VII claim.
The EEOC argues that the purpose of Title VII’s anti-
retaliation provision supports its definition. “In enacting
section 2000e-3, Congress unmistakably intended to ensure
that no person would be deterred from exercising his rights
under Title VII by the threat of discriminatory retaliation.”
EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993).
While the EEOC’s proposed definition more overtly
incorporates the purpose of Title VII’s anti-retaliation
18 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
5Although both § 2 000e-2(a)(1) and § 20 00e-3(a) use the phrase
“discriminate against,” the former specifies that the prohibited
discrimination must be “with respect to his com pensation, terms,
conditions, or privileges of employment,” while the anti-retaliation
provision contains no such language. The parties dispute whether this
additional language is a limitation or an expansion of the conduct
pro hibited. W e have never before d istinguished between the types of
conduct prohibited in the different provisions, and we do not do so here.
provision, this court’s definition, properly interpreted, also
accomplishes the goal while appropriately counterbalancing
the need to prevent lawsuits based upon trivialities. Instead
of requiring district courts to determine on a case-by-case
basis what actions by an employer are reasonably likely to
deter an employee from engaging in protected activity, we
have over the last twenty years given some shape to the
definition by describing the kinds of material adverse
employment actions that rise above the level of trivial. As we
recognized in Kocsis, however, it is impossible to list every
possible employment action that falls into the definition of
adverse employment action and a court must consider
“indices that might be unique to a particular situation.”
Kocsis, 97 F.3d at 886.
In addition, this court’s definition has the benefit of
applying equally to all Title VII discrimination claims, not
only to retaliation claims. Having a different standard for
different provisions of Title VII would be burdensome and
unjustified by the text of the statute, which uses the same
phrase “discriminate against” in each of its anti-
discrimination provisions. See Morris v. Oldham County
Fiscal Court, 201 F.3d 784, 791-92 (6th Cir. 2000) (applying
rules of statutory construction to hold that “discriminate
against” means the same thing each time it appears in Title
VII); Mattei v. Mattei, 126 F.3d 794, 806 (6th Cir. 1997)
(presuming that Congress intended the phrase “discriminate
against” to have the same basic meaning each time it is used
in a statute).5

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19
W e find it untenable to interpret the additional language as an expansion
of prohibited conduct because “with respect to” is a phrase comm only
used to limit. But cf. Mattern v. Eastman Kodak Co., 104 F.3d 702, 709
(5th Cir. 19 97) (“The anti-retaliation provision speaks only of
‘discrimination’; there is no mentio n of the vague harms contemplated in
§ 2000e-2(a)(2). Therefore, this provision can only be read to exclude
such vague harms, and to include only ultimate employment decisions.”).
The D.C. Circuit and the United States District Court for the Northern
District of Ohio have written well-reasoned opinions that conclude that
the absence of the additional language from the anti-retaliation provision
means that an employer is prohibited from retaliating in materially
adverse ways, regardless of whether the retaliatory acts affect
emp loyment. Passer v. American Chem. Soc., 935 F.2d 322, 330-31
(D.C. Cir. 19 91) (holding that an employer’s cancellation of a major
public symposium in former employee’s honor could be an act of
retaliation under a statute that parallels Title VII’s anti-retaliation
provision); EEOC v. Outback Stea khou se of Florida, Inc., 75 F.Supp.2d
756, 758-60 (N.D. Ohio 199 9) (holding that Title VII’s anti-retaliation
provision is not limited to discrimina tion affecting employm ent). It is
unnecessary for us to resolve the question addressed in Passer and
Outback S teakho use because the actions at issue in the present case (job
transfer and suspension) clearly affect employment.
We therefore reject White’s and the EEOC’s request that
we adopt a new definition of adverse employment action for
purposes of Title VII retaliation cases, and we reaffirm the
definition that we have developed in cases such as Kocsis and
its progeny. Since the adverse-employment action element
developed by this Circuit is an exception to a broad, strictly
literal reading of Title VII’s anti-discrimination provisions,
we will continue to define the exception narrowly so as not to
frustrate the purpose of Title VII while deterring lawsuits over
trivial matters.
B. Suspension Without Pay
We now apply our definition of adverse employment action
to the actions at issue in the present case. We consider the
suspension first. Burlington Northern argues that a
suspension without pay, followed thirty-seven days later by
20 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
a reinstatement with back pay, is not an adverse employment
action. For this argument, Burlington Northern primarily
relies upon Dobbs-Weinstein v. Vanderbilt University, 185
F.3d 542 (6th Cir. 1999).
In May 1994, a Vanderbilt University dean denied tenure
to Professor Dobbs-Weinstein and advised her that her
teaching appointment at Vanderbilt would end on August 31,
1995. Id. at 543. Dobbs-Weinstein filed an internal
grievance with Vanderbilt, alleging gender and national-
origin discrimination among other things, and in May 1995,
she filed an action under Title VII. Id. On August 31, 1995,
her employment contract with Vanderbilt ended. Id. at 544.
In November 1995, while her lawsuit was still pending, the
Vanderbilt Board of Trustees reversed the decision of the
dean and rehired her as a tenured professor. Id. The board
also granted her back pay to account for the delayed
promotion and the period of unemployment. Id. Dobbs-
Weinstein persisted with her lawsuit, however, seeking
interest on the back pay and compensation for emotional
distress and injury to reputation. Id.
Despite the facts that she was initially denied tenure and her
employment ended temporarily, this court held that Dobbs-
Weinstein had not suffered an adverse employment action
cognizable under Title VII. Id. at 545. We recognized that
“‘tenure decisions in an academic setting involve a
combination of factors which tend to set them apart from
employment decisions generally.’” Id. (quoting Zahorik v.
Cornell Univ., 729 F.2d 85, 92-93 (2d Cir. 1984)). We relied
upon the fact that Vanderbilt reversed the decision of its dean
and granted Dobbs-Weinstein back pay as the result of its
internal grievance procedure. Id. This reversal, we reasoned,
was the “ultimate employment decision.” Id. We held that
“intermediate” tenure decisions that are appealable through a
tenure review process cannot form the basis of a Title VII
claim. Id. We did not, however, cite any section of Title VII
that requires exhaustion of internal grievance procedures

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21
6In fact, as will be mentioned again below, the Supreme Court has
pointed out to this court before that internal grievance procedures and an
action under Title VII are “legally independent” such that the statute of
limitations on a Title VII claim is not tolled during the pendency of an
internal grievance process. Int’l Union of Elec. Workers v. Ro bbins &
Myers, Inc., 429 U.S. 229 , 236 (1976) (reversing a Sixth Circuit decision).
before one files a lawsuit.6 Instead, we relied upon a decision
from the Fourth Circuit, Page v. Bolger, 645 F.2d 227, 233
(4th Cir. 1981), which we interpreted as holding that Title VII
applies only to “ultimate employment decisions such as
hiring, granting leave, discharging, promoting, and
compensating.” Id. Neither the Fourth Circuit nor the
Dobbs-Weinstein court, however, cited a statutory provision
that limits Title VII’s application to ultimate employment
decisions.
Since deciding Page, the Fourth Circuit has retreated from
the “ultimate employment decision” standard. Von Gunten v.
Maryland, 243 F.3d 858, 865, 866 n.3 (4th Cir. 2001)
(limiting Page and holding that “‘ultimate employment
decision’ is not the standard in this circuit”). Furthermore,
the majority of other circuits have either implicitly or
explicitly rejected a standard limiting Title VII’s reach to
ultimate employment decisions. See id. at 864, 866 n.4
(citing cases). Indeed, the only other circuits where this
standard even arguably has any viability are the Fifth and the
Eighth. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707
(5th Cir. 1997) (applying the “ultimate employment decision”
standard); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th
Cir. 1997) (same).
The Fifth Circuit, however, has questioned whether the
“ultimate employment decision” standard survived the
Supreme Court’s pronouncements in Burlington Industries
regarding the definition of tangible employment action.
Fierros v. Texas Dep’t of Health, 274 F.3d 187, 192-93 & n.2
(5th Cir. 2001) (pretermitting question); but see Hernandez v.
22 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
7W e recognize that our decision in Do bbs-Weinstein was based in
part upon the unique nature of “tenure decisions in an academic setting.”
185 F.3d at 545. Other circuits also have acknowledged the unique nature
of tenure decisions. See Ta nik v. S. M ethodist Univ., 116 F.3d 775, 776
(5th Cir. 19 97); Brousard-Norcross v. Augustana Coll. Ass’n, 935 F.2d
974, 976 (8th Cir. 199 1); Kumar v. Bd. of Trs., U niv. of Mass., 774 F.2d
1, 11 (1 st Cir. 19 85); Zah orik, 729 F.2d at 92-93 (2d C ir. 1984). Because
we are not presented here with a denial of tenure, we do not decide to
what extent our holding in Do bbs-Weinstein survives our d ecision in this
case.
Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir.
2003) (applying “ultimate employment decision” standard
without discussing Burlington Industries or Fierros). And
while the Eighth Circuit has ostensibly adopted the “ultimate
employment decision” standard, it has consistently applied a
broader standard. See, e.g., Manning v. Metro. Life Ins. Co.,
127 F.3d 686, 692 (8th Cir. 1997) (ultimate employment
decision includes “tangible change in duties or working
conditions that constituted a material employment
disadvantage”); Kim v. Nash Finch Co., 123 F.3d 1046, 1060
(8th Cir. 1997) (ultimate employment decision includes
reduction of duties, actions that disadvantage or interfere with
the employee’s ability to do his or her job, “papering” of an
employee’s file with negative reports and reprimands even
though employee was “not discharged, demoted, or
suspended”).
We now join the majority of other circuits in rejecting the
“ultimate employment decision” standard.7 First and
foremost, it is contrary to the plain language of Title VII,
which provides that an employer must not “discriminate
against” an employee based upon a prohibited classification.
As this court has found, the words “discriminate against”
literally mean “any kind of adverse action.” Mattei, 126 F.3d
at 805. Congress could have provided that employers shall
not “discriminate against an employee when making ultimate

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23
employment decisions,” but instead it chose to use the words
“discriminate against” with no such qualifier.
Second, the employment action taken in the present case
(suspension without pay for thirty-seven days) is not the type
of employment action that this court developed the adverse-
employment-action element to filter. The adverse-
employment-action element is a warranted judicial
interpretation of Title VII intended to deter discrimination
lawsuits based on trivial employment actions, such as those
that cause a “mere inconvenience” or a “bruised ego.”
Kocsis, 97 F.3d at 886. But as an exception to the strictly
literal reading of the statute, the adverse-employment-action
element of a Title VII lawsuit must not be interpreted too
broadly. Taking away an employee’s paycheck for over a
month is not trivial, and if motivated by discriminatory intent,
it violates Title VII. See Lovejoy-Wilson v. NOCO Motor
Fuel, Inc., 263 F.3d 208, 223-24 (2d Cir. 2001) (holding that
a suspension without pay for one week was an adverse
employment action even though the employee was later
reimbursed for lost wages because the employee “suffered the
loss of the use of her wages for a time”).
Third, the “ultimate employment decision” standard
contravenes “the purpose of Title VII to make persons whole
for injuries suffered on account of unlawful employment
discrimination.” Albemarle Paper Co. v. Moody, 422 U.S.
405, 418 (1975). While the standard ensures that a
wrongfully suspended employee eventually receives back
pay, it allows an employer unilaterally to cut off the
employee’s claims for other damages, which have been
explicitly authorized by Title VII since the Civil Rights Act
of 1991, such as interest on the back pay, attorney’s fees,
emotional suffering, and punitive damages. 42 U.S.C.
§§ 1981a(b); 2000e-5(g), (k). Although Burlington Northern
argues that it made White whole when it granted her back
pay, Congress has declared that part of making a Title VII
plaintiff whole is compensating her for interest on the back
24 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
pay, attorney’s fees, and emotional suffering. In this case, the
jury found that White had suffered $43,500 in damages other
than back pay due to Burlington Northern’s retaliation.
Lastly, the “ultimate employment decision” standard is in
tension with Supreme Court cases holding that the statute of
limitations on a Title VII claim is not tolled during the
pendency of an internal grievance process. See, e.g., Int’l
Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S.
229, 236 (1976). According to the Supreme Court, a Title VII
claim arises on the date the alleged discriminatory decision
occurs, even though an employee has challenged the decision
via an internal grievance process. Id. at 234. The Supreme
Court has rejected the argument that the pendency of an
internal grievance process renders the employment decision
“tentative” or “non-final” for purposes of Title VII. Id. The
Supreme Court has also rejected the argument that “the
danger of possible conflict between the concurrent pursuit of
both collective-bargaining and Title VII remedies should
result in tolling the limitations period for the latter while the
former proceeds to conclusion.” Id. at 239. The alleged
discriminatory decision in the present case was the suspension
without pay. White’s election to challenge this decision
through an internal grievance process does not render the
decision not actionable under Title VII.
The Equal Employment Advisory Council (the EEAC)
argues in its amicus curiae brief on behalf of Burlington
Northern that employers must maintain the prerogative to
suspend summarily employees suspected of wrongdoing
pending an investigation without facing the risk of Title VII
liability. Otherwise, according to the EEAC, employers will
be faced with the dilemma of either allowing potentially
dangerous or disruptive individuals to remain in the
workplace or suspending them pending an investigation,
thereby risking Title VII liability.

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& Santa Fe Ry. Co.
25
8The National Employment Lawyers Association in its amicus curiae
brief on behalf of White concedes that a suspension with pay pending a
timely, good-faith investigation does not constitute an adverse
employment action and recommends this course to employers concerned
abo ut possible misconduct.
In response to the EEAC’s concerns, we initially note that
an employer taking an adverse employment action against an
employee, including a suspension without pay, only risks
Title VII liability if there exists sufficient evidence to prove
that the employer took the action based upon illegal
discrimination. To the extent the EEAC’s concerns for an
employer’s risk of Title VII liability are valid, however, they
are allayed by Jackson v. City of Columbus, which holds that
a suspension with pay and full benefits pending a timely
investigation into suspected wrongdoing is not an adverse
employment action. 194 F.3d 737, 752 (6th Cir. 1999). In
Jackson, we held that there was no adverse employment
action when a mayor effectively suspended with pay a police
chief for four days pending an investigation of the police
chief’s alleged improper conduct in office. See id. at 744
(noting that the mayor referred to the suspension with pay of
the police chief as a reassignment “to his residence”).8
C. Job Transfer
Next we consider whether the job transfer at issue in the
present case was an adverse employment action. Burlington
Northern appeals the district court’s decision that transferring
White from her forklift operator job to a standard track
laborer job was an adverse employment action. We agree
with the district court.
While the standard track laborer job paid the same as the
forklift operator position, White’s new position was by all
accounts more arduous and “dirtier.” Furthermore, the
forklift operator position required more qualifications, which
is an indication of prestige. See Kocsis, 97 F.3d at 886-87
26 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
(finding that the plaintiff had failed to show an adverse
employment action because, among other things, her job
reassignment did not entail any loss in prestige). According
to Burlington Northern’s own witnesses, the transfer occurred
because the forklift operator position was objectively
considered a better job and the male employees resented
White for occupying it. In essence, as the district court found,
the reassignment was a demotion evidenced by “indices . . .
unique to [the] particular situation.” Kocsis, 97 F.3d at 886;
see also Burlington Indus., Inc., 524 U.S. at 761 (defining
“tangible employment action” for purposes of Title VII
liability as including a job “reassignment with significantly
different responsibilities”); Mattei, 126 F.3d at 808 (stating
that transferring an employee at the same salary to “some
wretched backwater” is “clearly” actionable in a retaliation
claim).
D. Evidence of Pretext
Having rejected Burlington Northern’s arguments that there
was no adverse employment action taken against White, we
now address Burlington Northern’s alternative argument in
support of reversing the district court’s denial of its motion
for judgment as a matter of law. Burlington Northern appeals
the district court’s decision that there was sufficient evidence
from which the jury reasonably concluded that Burlington
Northern’s asserted legitimate, non-discriminatory reasons for
removing White from the forklift position and then
suspending her were pretexts for unlawful retaliation. We
agree with the district court.
White presented to the jury substantial evidence to
contradict Burlington Northern’s asserted legitimate reasons,
including contradictory statements from Burlington
Northern’s own officers. Burlington Northern asserted one
reason for transferring White in its interrogatory response, but
then Brown, the official who made the decision to transfer
White, asserted a different, contradictory reason at trial.

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27
Furthermore, Brown testified that he transferred White in part
based upon complaints from Ellis, but at trial Ellis denied
complaining about White. Regarding the suspension, the
evidence was not even consistent regarding who made the
decision, much less the motivation for the decision. Brown
testified that Sharkey made the decision to suspend White,
while Sharkey testified that Brown made the decision.
Burlington Northern asserts that Brown suspended White for
insubordination, but another Burlington Northern official who
served as a hearing officer for White’s internal grievance
concluded that White had not been insubordinate. White’s
second EEOC charge accused Brown of violating Title VII,
and White was suspended three days after this charge was
mailed to Brown.
Based upon all the evidence, including the contradictory
evidence from Burlington Northern’s own officers, the jury
was entitled to find that Burlington Northern’s asserted
legitimate reasons were false and were pretext for unlawful
retaliation. See Reeves, 530 U.S. at 147 (holding that a jury
is entitled to treat a party’s dishonesty about a material fact as
evidence of culpability).
28 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
III. ATTORNEY’S FEES
Burlington Northern’s last issue on appeal is a challenge to
the amount the district court awarded White in attorney’s
fees. The district court awarded White eighty percent of her
attorney’s fees based on her degree of success in the lawsuit.
Burlington Northern argues that White was not as successful
as the district court found and that her attorney’s fee award
should be reduced.
We review a district court’s determination regarding the
amount of an award of attorney’s fees under Title VII for an
abuse of discretion. Scales v. J.C. Bradford and Co., 925
F.2d 901, 909 (6th Cir. 1991). “This deference, ‘is
appropriate in view of the district court’s superior
understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual
matters.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424,
437 (1983)). Under Title VII, a district court has discretion
to award a prevailing party “a reasonable attorney’s fee.” 42
U.S.C. § 2000e-5(k). In determining what constitutes a
reasonable attorney’s fee, the degree of success achieved in
the lawsuit is a crucial factor. Scales, 925 F.2d at 910.
Although we may have awarded a different amount if we
were considering the issue de novo, we do not find that the
district court abused its discretion in awarding White eighty
percent of her attorney’s fees. White brought two claims in
this lawsuit (sex discrimination and retaliation) but only
prevailed on one (retaliation). As the district court correctly
stated in its written decision, however, both of these claims
arose from a common set of facts, and it would be difficult to
divorce work done on one claim from work done on the other.
In light of this consideration and others addressed by the
district court in its decision, we find that the district court did
not abuse its discretion in awarding White eighty percent of
her attorney’s fees.

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& Santa Fe Ry. Co.
29
IV. PUNITIVE DAMAGES
In her cross-appeal, White asserts that the district court
erred in charging the jury on punitive damages. The district
court instructed the jury that punitive damages may be
considered if White showed by “clear and convincing”
evidence that Burlington Northern acted “either intentionally,
recklessly, maliciously, or fraudulently.” The jury did not
award White punitive damages. White contends that the
appropriate burden of proof on a claim for punitive damages
under Title VII is a preponderance of the evidence, not clear
and convincing evidence. White is correct.
According to Title VII, “[a] complaining party may recover
punitive damages under this section against a respondent . . .
if the complaining party demonstrates that the respondent
engaged in a discriminatory practice or discriminatory
practices with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.” 42
U.S.C. § 1981a(b)(1); see also Kolstad v. Am. Dental Ass’n,
527 U.S. 526 (1998) (discussing what a plaintiff must prove
to recover punitive damages under Title VII). Title VII is
silent concerning the evidentiary standard for demonstrating
malice or reckless indifference for purposes of a punitive
damages claim. In the absence of more specific guidance,
“[c]onventional rules of civil litigation generally apply in
Title VII cases, and one of these rules is that parties to civil
litigation need only prove their case by a preponderance of
the evidence.” Price Waterhouse v. Hopkins, 490 U.S. 228,
253 (1989) (plurality decision) (internal citation omitted); see
also Desert Palace, Inc. v. Costa, 123 S.Ct. 2148, 2154
(2003) (holding that Title VII’s silence with respect to an
evidentiary standard suggests that a conventional
preponderance of the evidence standard applies).
Other circuits have reached this same conclusion with
respect to punitive damages claims generally, see Simpson v.
Pittsburgh Corning Corp., 901 F.2d 277, 282-83 (2d Cir.
30 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
1990) (declining to apply a higher standard of proof than
preponderance of the evidence for punitive damages award in
products liability case because “such a change is best left for
Congress or for higher judicial authority”); In re Exxon
Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001) (applying
preponderance standard to award of punitive damages in
maritime case because Congress has not legislated a higher
standard), and with respect to punitive damages in Title VII
suits, see Karnes v. SCI Colorado Funeral Servs., Inc., 162
F.3d 1077, 1080-82 (10th Cir. 1998) (concluding that a
preponderance of the evidence standard is applicable to
claims for punitive damages under Title VII); Notter v.
N. Hand Prot., No. 95-1087, 1996 WL 342008, at *10-11 (4th
Cir. June 21, 1996) (rejecting argument that the standard of
proof for punitive damages in Title VII case is clear and
convincing evidence because “[i]n discrimination cases
brought under federal law, punitive damages need be proven
only by a preponderance of the evidence”).
The dissenting opinion states that punitive damages are an
unconventional form of relief and therefore deserve a
heightened standard of proof. Unquestionably, punitive
damages serve a different purpose than compensatory
damages. The requirement that punitive damages be awarded
only when a defendant acts maliciously or recklessly
recognizes this difference in purpose and ensures that punitive
damages will be awarded only in the most egregious cases.
Punitive damages are not, however, unconventional in the
sense that they are a new or nontraditional form of relief. In
fact, punitive damages have a long history in American civil
litigation, where the traditional standard of proof has been
“preponderance of the evidence.” See generally Jury
Determination of Punitive Damages, 110 Harv. L. Rev. 1513,
1531-32 (1997) (recognizing that preponderance of the
evidence is the traditional civil standard of proof). Cf. Smith
v. Wade, 461 U.S. 30, 53-56 (1983) (noting that “[t]here has
never been any general common-law rule that the threshold
for punitive damages must always be higher than that for

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31
9The limits are lower for smaller employers, with the lowest limit
being $50,000 for employers with 15-100 employees. 42 U.S .C.
§ 1981 a(b)(3)(A)-(D).
compensatory liability” and rejecting actual malicious intent
requirement for punitive damage award in § 1983 cases, even
when underlying standard of liability for compensatory
damages is recklessness).
The dissent, unable to point to any precedent imposing a
higher standard of proof for Title VII punitive damages
claims than preponderance of the evidence, also relies on
authority not directly germane to the issue at hand. For
instance, the dissent notes that, in recent years, public policy
concerns, primarily about excessive punitive damage awards,
have prompted many states to adopt a “clear and convincing”
standard of proof for punitive damages. Trends at the state
level, however, do not inform our consideration of punitive
damages claims under the federal Title VII statute. In fact,
the dissent’s statistics indicate that, while many states applied
a heightened standard of proof to state punitive damage
claims at the time that Title VII was amended to permit such
claims in 1991, a majority of states at that time chose not
apply a heightened standard.
Moreover, to the extent that concerns about excessive
punitive damage awards prompted the adoption of heightened
standards of proof before or after 1991, those concerns do not
exist under the Title VII statutory scheme. Under Title VII,
damage awards – both compensatory and punitive – are
capped, with $300,000 being the largest sum that can be
awarded to a claimant against the largest employers, those
with 500 or more employees.9 42 U.S.C. § 1981a(b)(3)(D).
The $300,000 limit is imposed on the sum of the
compensatory and punitive damage awards; there is no
separate limit for each type of damages. 42 U.S.C.
§ 1981a(b)(3). Thus, Title VII’s own quite substantial
32 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
restrictions on punitive damage awards guard against
excessive awards.
Besides identifying trends at the state level, the dissent also
cites cases that involve due process challenges to the
application of a preponderance of the evidence standard of
proof. Some of these cases concern situations wholly
unrelated to punitive damages claims. See Addington v.
Texas, 441 U.S. 418, 431-33 (1979) (resolving, in the face of
a due process challenge, the standard of proof required in a
civil commitment hearing); Santosky v. Kramer, 455 U.S.
745, 747-48 (1982) (determining the standard of proof that
due process demands in the context of a parental rights
termination proceeding). Other cases cited by the dissent
implicate a due process challenge to large punitive damage
awards. See State Farm Mut. Auto. Ins. Co. v. Campbell, 123
S. Ct. 1513, 1519-20 (2003); Pacific Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 19 (1991). While the Supreme Court has
found excessive punitive damages awards to be violative of
due process, State Farm, 123 S. Ct. at 1526, the Court has
specifically rejected the notion that the Due Process Clause
requires a higher standard of proof for punitive damages
claims than preponderance of the evidence. Pacific Mut. Life
Ins., 499 U.S. at 23 n.11. The sole bit of assistance derived
from any of these cases is the Court’s direct rejection in
Pacific Mutual of the notion that the Constitution requires a
standard of proof any higher than preponderance of the
evidence for punitive damages claims.
The only case relied on by the dissent that could be
instructive is Woodby v. INS, 385 U.S. 276 (1966), where the
Supreme Court considered the standard of proof for a
deportation hearing. As in the instant case, the Court in
Woodby was confronted with determining the standard of
proof when “Congress has not addressed itself to the question
of what degree of proof is required . . . .” Id. at 284. In
Woodby, the Court held that for deportation proceedings, the
standard of proof was “clear, unequivocal, and convincing

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evidence,” id. at 286, which the dissent apparently references
for the proposition that we should apply the same standard of
proof here. While Woodby is helpful in its reminder that the
judiciary has traditionally resolved the question of the proper
standard of proof under a federal statute when Congress has
not addressed the issue, id. at 284, it gives us no direction in
this case. Its reasoning is based on the immediate hardship of
deportation. Deportation, as an outcome of an administrative
and judicial proceeding, bears little similarity to an award of
damages, particularly an award under Title VII, which
Congress has carefully restricted to limit its potential harm to
employers.
Accordingly, in determining the proper standard of proof
for a punitive damage claim under Title VII, we receive no
specific guidance from the statutory language of the Act.
Supreme Court precedent offers some assistance, however.
Deriving that guidance from Price Waterhouse and Desert
Palace – both of which specifically discuss standards of proof
in Title VII cases – is more appropriate than looking to the
Supreme Court’s views on the standard of proof in dissimilar
contexts or its stray comments about state or federal standards
of proof in the course of deciding other issues. While there
have been developments concerning the standard of proof for
punitive damages claims at the state level, these trends do not
support the conclusion that the “clear and convincing”
standard applies to federal punitive damage claims under Title
VII, which has its own limitations on punitive damage
awards. Furthermore, as this case does not implicate a due
process challenge to the size of a punitive damages award, or
to the standard of proof used in civil commitment hearings,
hearings terminating parental rights, or in the context of
deportation, we do not find the dissent’s cited authority to be
persuasive. Rather – in deciding the standard of proof to be
applied to plaintiff’s claim for punitive damages under Title
VII – we choose to follow the guidance provided by the
Supreme Court that “[c]onventional rules of civil litigation
34 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
generally apply in Title VII cases.” Price Waterhouse, 490
U.S. at 253.
Therefore, the district court erred when it instructed the jury
that White must prove her case for punitive damages by clear
and convincing evidence. The district court, however, also
erred when it instructed the jury that White only needed to
prove that Burlington Northern acted “either intentionally,
recklessly, maliciously, or fraudulently.” As noted above, a
plaintiff seeking punitive damages under Title VII must prove
that the defendant acted “with malice or with reckless
indifference to the federally protected rights of an aggrieved
individual.” This standard requires a plaintiff to prove more
than merely intentional discrimination. Kolstad, 527 U.S. at
536-37 (explaining standard). In addition, the Supreme Court
has stated that only under certain conditions may an employer
be vicariously liable for punitive damages under Title VII.
Id. at 545 (specifying conditions).
Finally, the dissent questions whether plaintiff has
presented sufficient evidence to submit the punitive damages
issue to a jury under either standard and would resolve the
issue in defendant’s favor without remand. While defendant
argues generally that plaintiff’s evidence was insufficient to
permit an award of punitive damages, the parties did not
analyze the evidence with any specificity under either
potentially applicable standard of proof in their briefing to
this court. Nor have we focused on the sufficiency of the
evidence to permit a punitive damage award, since this was
not the reason we granted an en banc hearing. We cannot
find that the evidence is insufficient on a damage issue simply
because judicial officers may disagree on an issue relating to
liability, as the dissent suggests. Rather, in order to decide
whether a trier of fact could award punitive damages in this
case, a careful examination of the entire record is required.
This exercise is most appropriately undertaken in the first
instance by the district court. If the district court determines
on remand that the evidence is sufficient to support a claim

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35
for punitive damages under the standard announced by the
Supreme Court in Kolstad, then the district court should
conduct a new trial on the issue of punitive damages only.
V. CONCLUSION
For all these reasons, we affirm the district court’s denial of
Burlington Northern’s motion for judgment as a matter of law
and the district court’s award of attorney’s fees to White. We
conclude, however, that the district court erred in instructing
the jury on the issue of punitive damages, and therefore we
remand the case for further proceedings consistent with this
opinion.
36 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
_____________________
CONCURRENCE
_____________________
CLAY, Circuit Judge, concurring. I join Parts I, III, and IV
of the majority opinion. I also agree with Part II insofar as it
rejects the untenable “ultimate employment action” doctrine,
concludes that Sheila White’s removal from her forklift
position and her thirty-seven-day suspension constitute
adverse employment actions within the meaning of Title VII,
and affirms the district court’s denial of Burlington’s Rule 50
motion. Although the majority properly rejected the
“ultimate employment action” doctrine this court embraced in
Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545-46
(6th Cir. 1999), I would be remiss if I failed to point out that
such an express rejection of the “ultimate employment action”
doctrine effectively overrules Dobbs-Weinstein. I write
separately, however, because I disagree with the rule the
majority today embraces with respect to what constitutes an
adverse employment action within the meaning of Title VII’s
anti-retaliation provision, 42 U.S.C. 2000e-3(a). Instead, I
believe that the appropriate standard is the one articulated in
the Ninth Circuit and advocated by the EEOC; i.e., an
employer’s retaliatory action is sufficiently adverse for
§ 704(a) purposes if it would be “reasonably likely to deter
[employees] from engaging in protected activity.” Ray v.
Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). The
“reasonably likely to deter” standard is more consistent with
§ 704(a)’s statutory language and congressional intent, as well
as Supreme Court case law.

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A. Why the “Reasonably Likely to Deter” Rule is the
Appropriate Standard for a Retaliation Case
1. Statutory and Case Law Support
The Supreme Court has repeatedly instructed courts, as a
first step in interpreting a statute, “to determine whether the
language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” Robinson v. Shell
Oil Co., 519 U.S. 337, 340, (1997). The inquiry is at an end
“if the statutory language is unambiguous and ‘the statutory
scheme is coherent and consistent.’” Id. (quoting United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).
It is readily apparent from a reading of § 704(a) that Congress
placed no limitations on the reach of the anti-retaliation
provision.
Section 704(a) states that “[i]t shall be an unlawful
employment practice for an employer to discriminate against
any of his employees . . . because [the employee] has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge . . . under this
subchapter.” 42 U.S.C. § 2000e-3(a). The word
“discriminate,” in turn, is not defined in Title VII, but the
scope is impliedly quite broad. A review of other Title VII
provisions is revealing, inasmuch as § 703(a) prohibits
employers from “fail[ing] or refus[ing] to hire or to discharge
any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1) (emphasis added). Thus, both
§§ 703(a) and 704(a) use the term “discriminate,” but only the
general discrimination provision (§703(a)) places limitations
on the word “discriminate.” Congress chose not to place any
limitations on “discriminate” within the meaning of § 704(a).
Thus, a straightforward reading of the § 704(a)’s plain text
makes clear that there is no statutory support for the idea that
38 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
a decision to undertake retaliatory action must materially
affect the terms and conditions of employment in order to
violate its proscriptions. Indeed, the most natural reading of
this language is that it prohibits any form of discrimination
against an individual for opposing discrimination or filing a
charge, regardless of whether that discrimination takes the
form of, for example, termination, suspension, lateral transfer,
harassment, or discipline. At least some of the circuits have
expressly agreed. Smith v. Sec’y of Navy, 659 F.2d 1113,
1119 n.56 (D.C. Cir. 1981) (noting that the language of the
anti-retaliation provision “speaks unconditionally” and is not
“limit[ed] to acts causing particular harms such as the loss of
a particular job or promotion”); Ray, 217 F.3d at 1243 (noting
that language of the anti-retaliation provision “does not limit
what type of discrimination is covered, nor does it prescribe
a minimum level of severity for actionable discrimination”);
Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996)
(“There is nothing in the law of retaliation that restricts the
type of retaliatory acts that might be visited upon an
employee . . . .”).
Incorporating by reference the limitations placed on
“discriminate” in § 703(a) into “discriminate” in § 704(a) is
altogether inappropriate. Such incorporation by reference is
appropriate only when it is consistent with Congress’
expressed intent. Section 704(a)’s legislative history is scant,
and therefore we are left to look to its plain legislative text.
Congress could quite easily have placed the same limitation
on § 704(a) as it did on § 703(a), yet it chose not to do so.
Congress’ legislative intent, by all indications, was to remove
all obstacles from an employee’s ability to defend his or her
Title VII rights by filing EEOC charges.
The Supreme Court, in Russello v. United States, confirmed
its view against narrowly construing the meaning of a statute
when the plain language unambiguously expressed its
legislative purpose and intent. 464 U.S. 16, 23 (1983). In
determining the proper applicability of the word “interest” as

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used in 18 U.S.C. §1963(a)(1) in the context of a RICO case,
the Supreme Court held that ‘“[w]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.”’ Russello, 464 U.S. at 23 (quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972). Specifically, in discussing the particular statutory
provision at issue, the Court noted that “[t]he argument for a
narrow construction of § 1963(a)(1) is refuted by the language
of the succeeding subsection (a)(2). The former speaks
broadly of ‘any interest . . . acquired,’ while the latter reaches
only ‘any interest in . . . any enterprise which [the defendant]
has established[,] operated, controlled, conducted or
participated in the conduct of in violation of section 1962.’”
Id. (quoting 18 U.S.C. § 1962). The Court went on to express
its belief that if Congress had intended to restrict § 1963
(a)(1), it presumably would have done so expressly as it did
in the immediately following subsection. Id.
Contrary to the majority opinion, this Court has already
embraced this logic. In Lynch v. Johns-Manville Sales Corp.,
we held that when looking to stay proceedings in a
Chapter 11 bankruptcy context, a solvent co-defendant may
not use the automatic stay provision in 11 U.S.C. § 362(a),
when the said provision facially stays proceedings “against
the debtor,” and fails to suggest that these rights may be
invoked by any one other than the defendant. 710 F.2d 1194,
1198 (6th Cir. 1983). The Court noted “[it] is a fundamental
rule of statutory construction that inclusion in one part of a
congressional scheme of that which is excluded in another
part reflects a congressional intent that the exclusion was not
inadvertent.” Id. at 1197.
The Supreme Court case, Robinson v. Shell Oil Co., 519
U.S. 337, 340 (1997), views § 704(a)’s legislative intent in
this manner. In Robinson, the plaintiff sued his former
employer, alleging that it had retaliated against him by giving
40 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
him a negative employment reference to a potential employer.
Id. There was no allegation that the former employer itself
had made an ultimate employment decision, or that it took
any adverse action that materially altered the plaintiff’s job
responsibilities. (Indeed, it could not have done so, given that
the plaintiff was no longer working for the employer at the
time.) Nevertheless, a unanimous Court allowed the
plaintiff’s claim to proceed after holding that former
employees may challenge retaliatory actions. Id. at 346.
Although Robinson dealt specifically with the issue of
determining who is an “employee” for purposes of Title VII’s
anti-retaliation provision (as opposed to what constitutes an
adverse employment action), its reasoning is pertinent: a
former employee counts as an employee within the meaning
of § 2000e-3(a), because otherwise an employee could be
fired in retaliation and not be able to sue. In so holding, the
Court noted that an alternative statutory interpretation would
have undermined or vitiated one of Title VII’s most important
purposes–maintaining “unfettered access to statutory remedial
mechanisms.” Id.
In line with the teachings of Robinson and the Supreme
Court’s view that § 704(a) should not be limited in its
construction, this Court, in EEOC v. Ohio Edison, also
interpreted § 704(a) to be a broad anti-retaliation provision
that should reach as far as its intended protections allow.
7 F.3d 541, 545-46 (6th Cir. 1993) (holding that Title VII’s
protections against retaliation extended to situations where an
employee was discriminated against because his
representative opposed an unlawful employment practice). In
reaching this result, we stated that “[i]n enacting section
2000e-3, Congress unmistakably intended to ensure that no
person would be deterred from exercising his rights under
Title VII by the threat of discriminatory retaliation.” Id. at
543. We relied, in part, on the Supreme Court’s analysis of
statutory interpretation in NLRB v. Scrivener, which held that
“the language of a statute should not be read strictly, but
should ‘be read more broadly’ if such a reading was also

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consistent with the ‘purpose and objective’ of the prohibition
made illegal by the statute.” Id. at 545 (quoting NLRB v.
Scrivener, 405 U.S. 117, 122 (1972)).
Additionally in Mattei v. Mattei, this Court once again
chose to interpret the Title VII’s anti-retaliation provision
broadly, as to prohibit any kind of adverse action. 126 F.3d
794, 798 (6th Cir. 1997). There, we were asked to give
meaning to the concept of discrimination as it is used in the
Employee Retirement Income Security Act (“ERISA”). Id.
The ERISA provision at issue was § 510 which made it
unlawful, under certain circumstances, to “discriminate
against” a participant or beneficiary. Id. at 797 (quoting 29
U.S.C § 1140). The majority found guidance in Title VII’s
and the ADEA’s interpretive use of the phrase “discriminate
against,” noting that neither of these Acts defined this phrase,
but rather their respective provisions “are consistently
interpreted . . . to forbid an employer to take any kind of
adverse action against an individual because he has engaged
in [] protected activity . . . .” Id. at 806 (emphasis in original).
We concluded that because the ERISA anti-retaliation
provision at issue used the same phrase (“discriminate
against”) as the Title VII and ADEA provisions, and was
enacted after them, it was proper to assume that Congress
intended for the ERISA provision “to have the same basic
meaning.” Id. at 806.
Even more recently, the Supreme Court has cautioned
courts against unwarranted limitations on otherwise
unambiguous statutory text. In Desert Palace, Inc. v. Costa,
the Supreme Court rejected the approach of many circuits to
limit a Title VII plaintiff’s ability to receive a mixed-motive
jury instruction in cases where direct evidence of
discrimination had not been submitted at trial, determining
that a “direct evidence” requirement “is inconsistent with the
text of [42 U.S.C. § 2000e-2(m)].” 123 S.Ct. 2148, 2153
(2003). The Court reasoned, in pertinent part, that the
§ 2000e-2(m) “unambiguously states that a plaintiff need only
42 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
‘demonstrat[e]’ that an employer used a forbidden
consideration with respect to ‘any employment practice.’” Id.
On its face, “the statute does not mention, much less require,
that a plaintiff make a heightened showing through direct
evidence.” Id. The Court was further persuaded by a review
of the term “demonstrates,” which Title VII, as amended in
the 1991 Civil Rights Act, defined as “to ‘mee[t] the burdens
of production and persuasion.’” Id. at 2154 (citing 42 U.S.C.
§ 2000e(m)). The Court added, “If Congress intended the
term‘demonstrates’ to require that the ‘burdens of production
and persuasion’ be met by direct evidence or some other
heightened showing, it could have made that intent clear by
including language to that effect in § 2000e(m). Its failure to
do so is significant, for Congress has been unequivocal when
imposing heightened proof requirements in other
circumstances, including in other provisions of Title 42.” Id.
at 2154. Desert Palace is instructive, inasmuch as it
cautioned courts not to read limitations into statutory
language, particularly where Congress expressly limited such
terms in other provisions of the same title yet declined to do
so in the presently reviewed statutory provision. We are
faced with precisely the same situation. Section 703(a)
expressly limited the scope of “discriminate” to actions
relating to the employee’s “compensation, terms, conditions,
or privileges of employment.” Section 704(a) could just as
easily have limited its scope of “discriminate,” yet chose not
to do so. It is abundantly clear that the lessons of Desert
Palace dictate that we not read such limitations into § 704(a)
now.
2. Administrative Agency Support
In addition to support from the statutory text and Supreme
Court case law, there is administrative agency support for the
“reasonably likely to deter” view, inasmuch as the EEOC has
interpreted 42 U.S.C. § 2000e-3 in this manner. While it is
true that the EEOC Compliance Manual on Retaliation is not
binding authority, the guidelines nevertheless “constitute a

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body of experience and informed judgment to which courts
and litigants may properly resort for guidance.” Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 65 (1986) (quoting Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)). It is persuasive
authority. According to the EEOC, an “adverse employment
action” means “any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity.”
EEOC Compliance Manual Section 8, “Retaliation,” ¶ 8008
(1998). Under this approach, a number of retaliatory actions
which are not expressly encompassed in a “materially
adverse” standard would fall into the ambit of a § 704(a)
violation, so long as they are reasonably likely to deter
employees from engaging in protected activity. The EEOC’s
test is not unlimited however, for instance, “petty slights and
trivial annoyances are not actionable, as they are not likely to
deter protected activity.” EEOC Compliance Manual Section
8, “Retaliation,” 8-14. As the Ninth Circuit observed, the
focus is not on the “ultimate effects of each employment
action,” but rather on the “deterrent effects.” Ray, 217 F.3d
at 1243. Given the primary purposes of Title VII’s anti-
retaliation provision, this is where the emphasis properly lies.
3. Policy Considerations
From a policy (and logical) perspective, many factors
support an interpretation of adverse employment action that
extends beyond the boundaries of an employment decision
that materially affects the terms and conditions of
employment.
As noted above, a “materially adverse” standard would
undermine the driving force behind § 704(a), which is to
maintain “unfettered access to statutory remedial
mechanisms.” Robinson, 519 U.S. at 346. This Court has
similarly observed that Congress, in enacting Title VII’s anti-
retaliation provision, “‘unmistakably intended to ensure that
no person would be deterred from exercising his rights under
44 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
1See Hashimoto v. Dalton, 118 F.3d 6 71 (9th Cir. 1997) (holding that
negative job references are actionable under § 704(a)); Ray, 217 F.3d at
1243; Jeffries v. Kansa s, 147 F.3d 122 0, 12 31-3 2 (10th Cir. 1998)
(holding that, “[i]n recognition of the remedial nature of Title VII, the law
in this circuit liberally defines adverse emp loyment action” and “takes a
case-by-case approach to determining whether a given employment action
is ‘adverse’”); Berry v. Stevinso n Chevrolet, 74 F .3d 9 80, 9 84-8 6 (10th
Title VII by the threat of discriminatory retaliation.’” EEOC
v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993).
Indeed, the “materially adverse” rule would allow many
types of retaliatory actions to go completely unaddressed and
unpunished. For instance, the D.C. Circuit has held that
negative job references to prospective employers and
cancelling public events honoring an employee constitute
retaliatory behavior, even though such retaliatory actions do
not affect the terms and conditions of one’s employment.
Passer v. Am. Chem. Soc’y, 935 F.2d 322, 331 (D.C. Cir.
1991). The “materially adverse” rule does not make clear
whether such adverse behavior on an employer’s part would
fall within the ambit of § 704(a). It also seems to leave open
the issue of retaliatory harassment. See Causey v. Balog, 162
F.3d 795, 803 (4th Cir. 1998) (recognizing the validity of a
§ 704(a) retaliatory harassment claim).
Contrary to the majority’s position, the Ninth Circuit’s
“reasonably like to deter” standard adequately addresses the
many varied forms of retaliation while safeguarding against
a slippery slope effect by disallowing employees from
litigating trivial annoyances. The inquiry would not be
whether any adverse action has been taken but whether, as a
matter of law, the adverse action would deter a reasonable
employee from engaging in protected activity. This ferrets
out suits alleging frivolous harms, while maintaining suits for
very deleterious actions such as supervisor harassment.
Moreover, there are no indications that the broad rules still
employed in the Ninth, Tenth, and Eleventh Circuits1 have

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Cir. 1996) (construing Title VII’s anti-retaliation provision to protect an
employee from a malicious prosec ution action brought by a former
employer); Wideman v. Wal-Mart Sto res, Inc., 141 F.3d 145 3, 14 56 (11th
Cir. 1998) (holding that negative job evaluations, demo tions, suspensions,
disadvantageous transfer and toleration of harassment may be actionable
as a retaliation claim).
2Cf. Mo rris v. Wa l-ma rt Stores, Inc., 330 F.3d 854 (6th Cir. 2003)
(holding, under Tennessee law, that the reasonable person standard is
utilized to determine whether or not sufficient evidence exists when
contemplating a directed verdict motion in a res ipsa loquitur negligence
case); U.S. v. Jones, 335 F.3d 52 7 (6th Cir. 2003) (employing a
reaso nable person standard when adjudicating the presence of apparent
authority to determine whether entry was consensual in a Fourth
Amendm ent context); Five Cap, Inc., v. National Labor Relations Boa rd,
294 F.3d 768, 786 (6th Cir. 2002) (emp loying the objective “reasonable
person” standard when determining whether or not work conditions are
so “unbe arable” as to violate § 8(a)(3) of the National Labor Relations
Act).
opened unmanageable floodgates to aggrieved Title VII
plaintiffs.
B. Why the Majority Opinion Incorrectly Rejected the
“Reasonably Likely to Deter” Rule
Notwithstanding legislative, Supreme Court, and
administrative support for a broad rule, the majority rejects
the “reasonably likely to deter” standard, citing reasons that
are less than persuasive. The majority suggests that the
“reasonably likely to deter” standard is too broad. Yet the
rule is no broader than the statutory language requires; nor is
it any broader than that which is utilized in tort cases, which
often involves a “case-by-case” analysis when compelling
courts to employ a “reasonable person” standard in
determining what constitutes a duty of care. The reasonable
person standard is readily understandable, is not burdensome
and is commonly used in legal discourse.2
46 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
In fact, this Court, in Thaddeus-X v. Blatter, previously
embraced such an objective standard which the majority now
claims to be unreasonable. 175 F.3d 378, 396 (6th Cir. 1999)
(en banc). In Thaddeus-X, a case involving a § 1983 action
brought by the state inmates against prison officials based on
alleged retaliation, we adopted an objective standard in
determining what constitutes an “adverse action.” Id. at 396.
In determining “whether actions of lesser severity merit being
deemed ‘adverse’ for purposes of a retaliation claim, we
adopt[ed] the standard suggested by Judge Posner in Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982), that an adverse
action is one that would ‘deter a person of ordinary firmness’
from the exercise of the right at stake.” Id. We reasoned that
“[t]he benefits of such a standard are that it is an objective
inquiry, capable of being tailored to the different
circumstances in which retaliation claims arise, and capable
of screening [out] the most trivial of actions from
constitutional cognizance.” Id. at 398.
Moreover, The Ninth, Tenth, and Eleventh Circuits all
employ such an objective standard, specifically in the Title
VII context, and by so doing, none of the Circuits appear to
have had any difficulty in determining what is adverse and
what is frivolous. See, e.g., Doe v. Dekalb County School
Dist., 145 F.3d 1441, 1449 (11th Cir. 1998) (taking an
“objective approach” to its case-by-case standard).
Furthermore, retaliation requires a broad rule because
retaliation can take many forms, perhaps more than Congress
at the time of its drafting could think of or reasonably
anticipate. Nevertheless, it is not the function of this Court to
graft its own policy values onto a statute; rather, it is this
Court’s responsibility to discern Congress’ legislative intent
in enacting the statute. In other words, we must determine
whether Congress, not this Court, would envision a plaintiff
like Sheila White receiving relief from the retaliatory actions
allegedly perpetrated against her by Burlington Northern.
Congress’ intent is manifest: to provide employees who have

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been victimized by discrimination with access to appropriate
statutory remedies under Title VII. Robinson, 519 U.S. at
346.
The majority’s approach would utilize the same standard
for §§ 703 and 704 so that it would not be necessary to
undertake individual reviews under the separate sections of
the statute when cases arise. This approach similarly is
unavailing since Title VII’s statutory language indicates that
Congress intended for courts to treat general discrimination
differently than retaliatory discrimination. Indeed, the recent
Supreme Court case of Desert Palace emphasized the
importance of statutory construction and the significance of
statutory language as the starting point for a court’s analysis.
123 S.Ct. at 2153. Moreover, different purposes are involved
here and it is logical that the two sections would be treated
differently. Section 703(a) of Title VII never expected to
shield protected groups from every little slight they
encounter; its purpose was to assist in getting discriminated-
against plaintiffs into the American workforce and to keep
them there. As far as retaliation is concerned, congressional
intent was clear: to provide “unfettered access to statutory
remedial mechanisms.” Robinson, 519 U.S. at 346.
Contrary to the majority’s suggestion, the rule on adverse
employment actions to which the majority opinion adheres is
quite ambiguous. In an attempt to obviate the need for a
court’s case-by-case determination of what actions by an
employer would be “reasonably likely to deter” an employee
from engaging in protected activity, the majority points to this
Court’s case law regarding what constitutes a “material
adverse employment action.” The majority relies on Kocsis
v. Multi-Care Management, Inc., which requires courts to
look to “indices unique to a particular situation,” when
considering whether or not an employment action is
materially adverse. 97 F.3d 876, 886 (6th Cir.1996). This
approach ultimately requires a case-by-case review to
determine what is “unique” and what is not in each “particular
48 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
situation.” Accordingly, if the goal is to provide guidance
while making individual review obsolete, it would be more
advantageous to utilize a better defined inquiry than that of
Kocsis’ “indices unique to a particular situation.” This is
particularly so when there is an alternative approach available
which would also advance Title VII’s goal of equal access to
its protections under the law. In the present case, the majority
opinion concluded that the forklift transfer constituted an
adverse employment action by classifying Burlington
Northern’s action as an example of “indices unique to a
particular situation.” While that may satisfactorily dispose of
the present case, the majority opinion leaves unclear what
other types of adverse actions would fall within the ambit of
this category, absent a better delineation of the category. As
a result, employers like Burlington Northern could continue
to hide behind mere technicalities and claim that other
deleterious harms not encompassed in today’s ruling, such as
employer-sanctioned retaliatory harassment, do not qualify as
adverse employment actions when the employee does not
experience a demotion or a material change of duties.
The majority suggests that the EEOC’s position, in
advocating the “reasonably likely to deter” standard, is
inconsistent with its concession that legally cognizable
adverse action should not encompass trivial slights. Yet no
inconsistency is apparent. It is logical that a person pursuing
solutions prescribed by EEOC standards would reasonably
expect some backlash, in the form of a limited number of
negative consequences, some unhappy colleagues and perhaps
even some ostracism. The EEOC’s recommendation,
however, allows redress only for those plaintiffs who can
show that such retaliatory actions would reasonably deter the
charging party from engaging in protected activity. EEOC
Compliance Manual § 8, “Retaliation,” ¶ 8008 (1998). The
majority essentially seeks to dismiss the EEOC’s approach
because it supposedly lacks safeguards against trivial and
petty allegations; however, by purporting to exclude trivial
and unsubstantiated allegations in order to define the

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“adverse-employment-action element” narrowly so as not to
frustrate the purpose of Title VII, the majority actually
impedes Title VII’s effectiveness.
Moreover, the majority suggests that the “materially
adverse” requirement, “properly interpreted . . . accomplishes
[§ 704(a)’s purposes] while appropriately counterbalancing
the need to prevent lawsuits based upon trivialities” and that
the “indices . . . unique to a particular situation” standard
accurately captures all other non-trivial actions taken against
the employee. Yet Hollins v. Atlantic Co., 188 F.3d 652, 662
(6th Cir. 1999), which utilized the “materially adverse”
standard, rejected the employee’s argument that her
unwarranted negative job evaluation constituted an adverse
employment action simply because it was not accompanied
by monetary loss or anything else falling into the penumbra
of adverse actions listed in Kocsis, 97 F.3d at 886. In other
words, the “materially adverse” standard was ineffective in
Hollins, because a negative job evaluation is not trivial; it is
tangible. It is a black mark on one’s record that can have
severe future consequences for an employee, inasmuch as an
employer can use the unwarranted negative job evaluation to
deny the employee future promotions. Similarly, it leaves
unaddressed such other deleterious harms such as employer-
sanctioned retaliatory harassment. The Hollins court made no
attempt to utilize the “unique indices” category in order to
afford the plaintiff relief. 188 F.3d at 662.
What the majority evidently intends (but fails to state
expressly) is that it is unwilling to consider actionable a wide
variety of non-trivial, tangible adverse employment actions in
order to limit the number of legitimate, legally cognizable
claims that can be filed by aggrieved employees. There is no
other apparent reason for its analysis.
Finally, the majority also attempts to rely in part on the
Supreme Court decision, Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998). However, such reliance is also
50 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
3The Ninth Circuit in Ray v. Henderson found defendant’s reliance
on Burlington similarly misplaced when advocating that Title VII
qualifies the type of employment actions that would constitute an
“adverse” action. 217 F.3d at 1242, n.5. The Co urt stated that Burlington
did not set forth a standard for adverse emplo yment actions in the anti-
retaliation context. Id.
misplaced. In Burlington, the Supreme Court, in devising an
agency principle to govern employer liability for a
supervisor’s harassment of an employee, observed that an
employer is always liable for a discriminatory “tangible
employment action.” The Court distinguished tangible
employment actions from actions not obviously attributable
to the employer, defining tangible employment actions as “the
means by which the supervisor brings the official power of
the enterprise to bear on subordinates.” Id. at 762. A tangible
employment action “requires an official act of the enterprise,
a company act,” and would include such acts “as discharge,
demotion, or undesirable reassignment.” Id. at 765.
Elsewhere in the opinion the Court observed that “[a] tangible
employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or
a decision causing a significant change in benefits.”
Burlington, 524 U.S. at 761. However, Burlington addressed
Title VII’s § 703(a), not § 704(a) and, as discussed earlier, the
respective scopes of § 703(a) and 704(a) necessarily differ.3
C. Conclusion
In 1999, a panel of this Court held that an adverse
employment action, for purposes of a Title VII retaliation
claim, must materially affect the terms and conditions of the
plaintiff’s employment. Hollins, 188 F.3d at 662. Our grant
of the petition for rehearing en banc provided this Court with
an opportunity to reconsider the validity of Hollins’
unreasoned importation of § 703(a)’s definition of an
“adverse employment action” into § 704(a) and to clarify

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what actions are sufficiently adverse with respect to
retaliation claims. A traditional statutory analysis and
recognition of Title VII’s legislative intent does not dictate
the majority’s continuing adherence to the “materially
adverse” standard, and the rule set forth by the majority fails
to provide the clarity desperately needed in this pervasive area
of litigation. The lack of clarity in the majority’s approach
could result in more court decisions against true victims of
§ 704(a) retaliation because the employer’s retaliatory actions
conveniently manage to elude the confines of the “materially
adverse” definition. Instead of following the majority
approach, I would hold that the retaliatory actions Burlington
Northern took against White constituted adverse employment
actions because such actions are reasonably likely to deter an
employee from engaging in protected activity.
52 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
SUTTON, Circuit Judge, concurring in part and dissenting
in part. I agree with the majority’s treatment of “adverse
employment actions” under Title VII, and accordingly join
Parts I–III of its opinion in full. I respectfully dissent,
however, from the majority’s resolution of the punitive
damages issues, and accordingly write separately to explain
my disagreement with Parts IV–V of the Court’s opinion.
At the trial in this case, the district court instructed the jury
that it may award punitive damages under Title VII only if the
plaintiff proved that she was entitled to them by “clear and
convincing” proof. In arguing that the district court erred in
this respect and in contending that a punitive damages claim
may be proved by a “preponderance” of the evidence under
Title VII, the plaintiff relies on two United States Supreme
Court decisions and one court of appeals decision. Whether
considered together or singly, however, these cases do not
support the plaintiff’s position.
The first case, Desert Palace, Inc. v. Costa, 123 S. Ct. 2148
(2003), holds that “circumstantial” evidence, in addition to
“direct” evidence, may be used to prove discrimination in a
Title VII mixed-motive case. That holding, however, does
not answer today’s question since circumstantial evidence
may be used to prove facts in cases that require a
preponderance of the evidence and cases that require proof
beyond a reasonable doubt, including criminal cases. See id.
at 2154 (“[W]e have never questioned the sufficiency of
circumstantial evidence in support of a criminal conviction,
even though proof beyond a reasonable doubt is required.”).
In reaching its circumstantial-evidence conclusion, it is true,
Desert Palace noted that Congress’s “failure” to specify that
only “direct” evidence could be used to prove discrimination

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was “significant, for Congress has been unequivocal when
imposing heightened proof requirements in other
circumstances, including in other provisions of Title 42.” Id.
But that mode of analysis bears on our inquiry only if
punitive damages represent a form of conventional relief in
the same way that circumstantial evidence represents a form
of conventional proof. In my view, that is not the case and
accordingly Desert Palace does not advance the point. If
punitive damages are not a conventional remedy, Congress’s
“failure” to speak to the question would suggest that the
burden of proof traditionally applied to unconventional
remedies in general or punitive damages in particular should
be used.
Two months before the Court decided Desert Palace, it
made clear that punitive damages are not a conventional
remedy. In State Farm Mutual Automobile Insurance Co. v.
Campbell, 123 S. Ct. 1513, 1519–20 (2003), the Court
explained that punitive damages and compensatory damages
“serve different purposes,” that punitive damages “are aimed
at deterrence and retribution” and “serve the same purposes
as criminal penalties,” and that special constitutional rules of
review apply to such awards. If there is a lesson to be drawn
from Desert Palace and State Farm, it would seem to be that
a punitive damages claim represents an unconventional form
of relief, which deserves a heightened rather than a run-of-
the-mill standard of proof.
The two other cases upon which the plaintiff relies are no
more helpful in establishing that a preponderance standard
applies to punitive damages claims. Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989) (plurality opinion), also
concerned an issue of conventional relief (namely, the
quantum of proof in Title VII mixed-motive cases), not an
issue related to punitive damages. Id. at 253 (“Only rarely
have we required clear and convincing proof where the action
defended against seeks only conventional relief.”). In saying
that “[c]onventional rules of civil litigation generally apply in
54 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Title VII cases,” id., the plurality of course did not establish
that these conventional rules apply to requests for
unconventional relief, and if anything suggested just the
opposite.
Karnes v. SCI Colorado Funeral Services, Inc., 162 F.3d
1077 (10th Cir. 1998), is even less helpful. In that case, the
defendant argued that the higher burden of proof for punitive
damages claims under Colorado law should apply to Title VII
claims. The court disagreed, concluding that state law does
not control the answer to the question, then summarily (and
mistakenly) relied on Price Waterhouse to say that a
preponderance standard applies. Id. at 1080–81.
It is one thing, I recognize, to say that the cited cases do not
answer the question; it is another to determine the answer. In
the plaintiff’s defense, the statute does not give us a lot to
work with in determining what Congress meant. As an initial
matter, the statute itself fails to specify a burden of proof,
stating only that a plaintiff may recover punitive damages if
she “demonstrates” that the defendant intentionally engaged
in discriminatory practices. 42 U.S.C. § 1981a(b)(1). In a
later subchapter, Congress defines “demonstrates”
unhelpfully to mean “meets the burdens of production and
persuasion,” id. § 2000e(m), a definition that chases the tail
of the initial inquiry. Nor does the context in which the
relevant words appear or the legislative history to the Civil
Rights Act of 1991 offer any other insights into the
appropriate burden of proof. Pub. L. No. 102-166, § 102, 105
Stat. 1072.
Under these circumstances, it is appropriate to consider
other indicators of statutory meaning, analogous Supreme
Court precedents and relevant state laws predating the
legislation. See Steadman v. SEC, 450 U.S. 91, 95 (1981)
(“Where Congress has not prescribed the degree of proof
which must be adduced . . . this Court has felt at liberty to
prescribe the standard, for ‘[i]t is the kind of question which

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has traditionally been left to the judiciary to resolve.’”)
(quoting Woodby v. INS, 385 U.S. 276, 284 (1966)); see also
North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (“[I]t
is not only appropriate but also realistic to presume that
Congress was thoroughly familiar with [our] precedents . . .
and that it expect[s] its enactment[s] to be interpreted in
conformity with them.”) (citations and quotations omitted);
Nishikawa v. Dulles, 356 U.S. 129, 135 (1958) (requiring a
clear and convincing standard of proof for voluntary
expatriation in the absence of congressional guidance and in
the light of analogous Supreme Court precedents); cf.
Santosky v. Kramer, 455 U.S. 745, 769 (1982) (“A majority
of the States have concluded that a ‘clear and convincing
evidence’ standard of proof strikes a fair balance [in parental-
rights termination cases]. We hold that such a standard
adequately conveys to the factfinder the level of subjective
certainty about his factual conclusions necessary to satisfy
due process.”); Addington v. Texas, 441 U.S. 418, 431–32
(1979) (“We note that 20 states, most by statute, employ the
standard of ‘clear and convincing’ evidence; 3 states use
‘clear, cogent, and convincing’ evidence; and 2 states require
‘clear, unequivocal and convincing’ evidence.”) (footnotes
and emphasis omitted).
By 1991, when Congress authorized punitive damages in
Title VII claims, two Supreme Court cases had intimated that
a clear and convincing standard ought to apply to punitive
damages claims. In Pacific Mutual Life Insurance Co. v.
Haslip, 499 U.S. 1 (1991), decided before Congress amended
Title VII, the Court noted that “[t]here is much to be said in
favor of a State’s requiring, as many do, a standard of ‘clear
and convincing evidence’ or, even, ‘beyond a reasonable
doubt’” for punitive damages. Id. at 23 n.11 (citations
omitted). Two years earlier, Justice Brennan noted that
exceptions exist to the preponderance of the evidence
standard “when the government seeks to take unusual
coercive action—action more dramatic than entering an award
of money damages or other conventional relief.” Price
56 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Waterhouse, 490 U.S. at 253 (plurality opinion) (emphasis
added).
In analogous settings before 1991, the Supreme Court also
had adopted a clear and convincing evidence standard for
civil cases involving unconventional relief—in the face of
congressional silence about the appropriate burden of proof.
In Woodby v. INS, 385 U.S. 276 (1966), the Supreme Court
observed that “Congress ha[d] not addressed itself [in the
Immigration and Nationality Act] to the question of what
degree of proof is required in deportation proceedings,” then
observed that this is “the kind of question which has
traditionally been left to the judiciary to resolve.” Id. at 284.
Reasoning that deportation proceedings fall somewhere
between ordinary civil litigation and criminal litigation, the
Court held that “clear, unequivocal, and convincing evidence”
must support a deportation order—the same burden used in
analogous cases involving civil fraud, expatriation, adultery,
illegitimacy, lost wills and oral contracts. Id. at 285 & n.18.
Compare Nishikawa, 356 U.S. at 135 (holding that, in the
face of congressional silence on the question, proof of an act
of expatriation must be by clear and convincing evidence),
with Vance v. Terrazas, 444 U.S. 252, 265 (1980) (upholding
a preponderance of the evidence standard specified by
Congress after Nishikawa).
Supreme Court decisions analogizing punitive damages to
criminal penalties also suggest that a higher burden of proof
ought to apply here. See State Farm, 123 S. Ct. at 1519–20
(“[P]unitive damages . . . are aimed at deterrence and
retribution,” and “serve the same purposes as criminal
penalties.”); id. at 1521 (“It should be presumed that a
plaintiff has been made whole for his injuries by
compensatory damages, so punitive damages should only be
awarded if the defendant’s culpability . . . is so reprehensible
as to warrant the imposition of further sanctions to achieve
punishment or deterrence.”); City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 266 (1981) (“Punitive damages

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by definition are not intended to compensate the injured party,
but rather to punish the tortfeasor.”).
For like reasons, the factual predicate for a punitive
damages award—that the defendant acted with “malice” or
“reckless indifference,” see 42 U.S.C. § 1981a(b)(1)—has a
stigmatizing effect that deserves more evidentiary certainty
than the preponderance standard provides. See State Farm,
123 S. Ct. at 1521 (“[P]unitive damages should only be
awarded if the defendant’s culpability is [] reprehensible.”)
(emphasis added); Addington, 441 U.S. at 424 (“One typical
use of the [clear and convincing] standard is in civil cases
involving allegations of fraud or some other quasi-criminal
wrongdoing by the defendant . . . [to] reduce the risk to the
defendant of having his reputation tarnished erroneously.”);
see also Haslip, 499 U.S. at 54 (O’Connor, J., dissenting)
(“[P]unitive damages are quasi-criminal punishment. Unlike
compensatory damages . . . punitive damages are specifically
designed to exact punishment in excess of actual harm to
make clear that the defendant’s misconduct was especially
reprehensible. Hence, there is a stigma attached to an award
of punitive damages that does not accompany a purely
compensatory award.”).
By 1991, the supreme courts or legislatures of 29 States had
directly addressed the issue whether punitive damage claims
required a heightened burden of proof. Of those States, 20 of
them chose the clear and convincing standard for all punitive
damages claims, one State (Colorado) applied the beyond a
reasonable doubt standard to these claims and two States
(Florida and Oklahoma) applied the clear and convincing
standard when the punitive award was a specific multiple of
the actual damages in the case. See App. A (identifying the
burden of proof in each State with respect to punitive
damages in 1991). See also Michael Rustad & Thomas
Koenig, The Historical Continuity of Punitive Damages
Awards: Reforming the Tort Reformers, 42 Am. U. L. Rev.
58 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
1269, 1278 n.63 (1993) (identifying States with a clear and
convincing standard in 1993).
When Congress addressed this issue in 1991, it also was
doing so in the context of a modern trend in favor of the
higher standard—a trend that was well underway before the
1991 amendments to Title VII. The American Bar
Association recommended the higher standard in 1986. See
Special Committee on Punitive Damages, Punitive Damages:
A Constructive Examination, 1986 A.B.A. Sec. Litig. 33
(“Because one of the purposes of punitive damages is
punishment . . . [t]he committee concludes [] that the ‘clear
and convincing’ burden of proof is appropriate for an award
of punitive damages. This is the standard often used in fraud
cases, to which there is some analogy.”). The American Law
Institute did the same in 1991. See 2 American Law Institute,
Reporters’ Study: Enterprise Responsibility for Personal
Injury 264 (1991) (“An enterprise should be liable for
punitive damages only when there is clear and convincing
evidence of reckless disregard for the safety of others in the
decisions made by management officials or other senior
personnel.”). As of today, the supreme courts or legislatures
from 34 States have addressed the burden of proof issue, with
31 now requiring a heightened burden of proof. See App. B
(identifying the burden of proof for punitive damages in each
State as of 2004).
The States within the Sixth Circuit, moreover, are nearly
uniform in applying a clear and convincing standard. By
1991, Ohio and Kentucky had established the standard by
statute, and Tennessee did so by court decision in 1992. See
App. A. Although the Michigan courts have not directly
addressed the issue, at least one state appeals court has
approved, without discussion, a jury instruction requiring
proof by a preponderance of the evidence for an award of
exemplary damages. Green v. Evans, 401 N.W.2d 250, 252
(Mich. Ct. App. 1985). But see Kewin v. Mass. Mut. Life Ins.
Co., 295 N.W.2d 50, 55 (Mich. 1980) (noting that exemplary

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damages serve only to compensate plaintiffs for “humiliation,
sense of outrage, and indignity”—and may not serve as
punishment to the defendant).
While there may not be a Rosetta Stone to guide us here,
Supreme Court precedents concerning punitive damages and
comparable forms of relief, as well as relevant state-law
practices, suggest that a clear and convincing standard of
proof ought to govern these claims. A claim for punitive
damages, in a nutshell, is more akin to claims concerning
fraud, deportation and expatriation, oral contracts and
illegitimacy than it is to more conventional civil claims.
Accordingly, the heightened burden of proof associated with
these claims and traditionally associated with punitive
damages claims in general ought to apply.
The additional citations identified by the majority in
support of the plaintiff’s position do not alter this analysis.
Smith v. Wade, 461 U.S. 30 (1983), deals with whether actual
malice is required to obtain punitive damages under § 1983,
not with the preponderance/clear and convincing debate
raised here. Simpson v. Pittsburgh Corning Corp., 901 F.2d
277 (2d Cir. 1990), involved a products liability claim under
New York law, in which the defendant argued that the Due
Process Clause of the United States Constitution requires a
clear and convincing standard. In rejecting that argument, the
court “acknowledg[ed] the force of the argument that since
punitive damages are awarded primarily to punish a defendant
for past conduct and to deter it and others from similar
conduct in the future, a standard of proof appropriate for
‘quasi-criminal wrongdoing’ should be required.” Id. at 282.
In re Exxon Valdez, 270 F.3d 1215 (9th Cir. 2001), is an
admiralty-law decision in which the Ninth Circuit concluded
that the district court did not “abuse its discretion” in applying
a preponderance standard to a punitive damages claim. Id. at
1232–33. Again, the primary debate in the case was whether
the Due Process Clause required a higher standard.
60 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Moreover, if like the Ninth Circuit we applied an abuse of
discretion to this issue (which we do not), it no doubt would
be a very different question whether the district court in this
case abused its discretion in imposing the higher standard of
proof. The Fourth Circuit’s decision in Notter v. North Hand
Protection, No. 95-1087, 1996 WL 342008 (4th Cir. June 21,
1996), besides being unpublished, rejects only one argument
by the employer in that case—that the higher burden of proof
for punitive damages claims under state law should control
the Title VII inquiry. Id. at *10. And the Harvard Law
Review piece supports the employer’s position in this case.
In addition to approving “measures that guide and direct
juries toward appropriate [] determinations,” it notes that “the
widespread acceptance of the clear and convincing evidence
standard demonstrates [the] states’ acknowledgment of the
retributive function of punitive damages.” Jury
Determination of Punitive Damages, 110 Harv. L. Rev. 1513,
1532–33, 1536 (1997).
Nor does the cap on punitive damages claims under Title
VII advance plaintiff’s argument. While a cap on punitive
damages addresses one issue in this area (the outer limits of
awards), it does not account for the other issues in this
area—the appropriate quantum of proof required (1) before a
jury may attach a “reprehensibility” label to another’s
conduct, State Farm, 123 S. Ct. at 1521, or (2) before a jury
may award punitive damages that have a significant ratio to
the underlying compensatory award. In ascertaining the
constitutional limits of punitive damages, it is the ratio of the
two awards, not the size of the punitive damages award, that
the Supreme Court considers in measuring the award’s
compliance with Due Process—which is why awards under
$300,000 may still violate the Constitution and why they still
deserve the prevailing burden of proof for punitive damages
claims in this country, namely clear and convincing evidence.
See id. at 1524 (ratios involving “[s]ingle-digit multipliers are
more likely to comport with due process, while still achieving
the State’s goals of deterrence and retribution, than awards

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with ratios in range of 500 to 1, or, in this case, of 145 to 1”)
(citation omitted); see also Ross v. Kansas City Power &
Light Co., 293 F.3d 1041, 1049 (8th Cir. 2002) (reducing
punitive damages award from $120,000 to $60,000 to correct
constitutional deficiency); Tyson Foods, Inc. v. Stevens, 783
So. 2d 804, 810 (Ala. 2000) (“In this case, the punitive-
damages award of $75,000 is 30 times the compensatory-
damages award of $2,500. Considering the facts before us,
we find the ratio of 30:1 to be unreasonable.”); Employees’
Benefit Ass’n v. Grissett, 732 So. 2d 968, 979 (Ala. 1998)
(“The punitive award of $150,000 is 170 times the
compensatory award of $880. That 170:1 ratio is
unacceptable.”).
But that is not the most significant problem with invoking
the damages cap in this instance. All agree that Congress did
not give the courts particularly helpful guidance here,
requiring us to answer what the burden of proof for a federal
punitive damages claim should be in the face of congressional
silence. An answer that says punitive damages claims receive
a preponderance standard when the award is under $300,000
but receive a clear and convincing standard when the award
is some higher amount to be named later does not seem very
helpful. Neither do I understand how the damages cap could
make a difference in the outcome of this case. If, in this
instance, the Court had concluded that a clear and convincing
standard generally applies to punitive damages claims in the
face of congressional silence, the existence of a cap of this
sort by itself could not alter the presumption. If instead the
Court had concluded that a preponderance standard generally
applies in this setting, the existence of a damages cap would
make no difference at all. Either way, in other words, the
outcome would be unaffected by the existence of the cap.
I have one other qualm with the majority’s decision on this
point—which is reaching the burden of proof issue at all. I do
not understand how White could prevail on remand in a
punitive-damages-only trial, no matter what the burden of
62 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
persuasion is. Because we required an en banc hearing to
decide whether White suffered an adverse employment action
and, notably, to determine whether this Circuit embraced the
ultimate-employment-decision test, it would not seem
possible for a jury to conclude that Burlington Northern acted
with reckless disregard for White’s federally-protected rights
in imposing the suspension. See 42 U.S.C. § 1981a(b)(1)
(requiring proof that the employer “engaged in a
discriminatory practice or discriminatory practices with
malice or with reckless indifference to the federally protected
rights of an aggrieved individual”); Kolstad v. Am. Dental
Ass’n, 527 U.S. 526, 535 (1999) (“The 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.”) (emphasis
added); id. at 537 (recognizing that imposing punitive
damages would be inappropriate when “[t]he underlying
theory of discrimination [is] novel or otherwise poorly
recognized”).
A punitive damages claim with respect to the transfer count
is even harder to imagine. Until now, no Sixth Circuit case
(to my knowledge) has found a cognizable Title VII claim
arising from a lateral transfer, let alone a transfer within an
employee classification and without a loss in pay. See Kocsis
v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)
(“[R]eassignments without salary or work hour changes do
not ordinarily constitute adverse employment decisions in
employment discrimination claims.”) (citing Yates v. Avco
Corp., 819 F.2d 630, 638 (6th Cir. 1987)). While the opinion
concludes that this transfer count is cognizable under Title
VII, its reasons for doing so could not support a finding that
Burlington Northern acted with “malice” or “reckless
indifference” to White’s rights.

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63
For these reasons, I respectfully dissent from Parts IV and
V of the Court’s opinion.
64 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
APPENDIX A
State Burdens of Proof for Punitive Damages in 1991
By 1991, the supreme courts or legislatures of the following
States had adopted a higher burden of proof for awarding
punitive damages:
Alabama Ala. Code § 6-11-20(a) (1991 ) (clear and convincing
evidence).
Alaska Alaska Stat. § 09.17.020 (1991 ) (clear and convincing
evidence).
Arizona Linthicum v. Nationw ide Life Ins. Co., 723 P.2d 675,
680–81 (Ariz. 1 986) (“[W]hile a plaintiff may collect
compensatory damages upon proof by a preponderance
of the evidence of his injuries due to the tort of another,
we conc lude that reco very of punitive damages should
be awardable only upon clear and convincing evidence
of the defendant’s evil mind.”).
California Cal. Civ. Code § 3294(a) (1991) (clear and convincing
evidence).
Colorado Colo. Rev. Stat. § 13-25-127(2) (1991 ) (beyond a
reasonable doubt).
Florida Fla. Stat. Ann. § 768.73(1)(b) (1991) (punitive damages
exceeding three times actual dam ages must be proved
by clear and convincing evidence).
Georgia Ga. Code Ann. § 51-12 -5.1(b) (1991) (clear and
convincing evidence).
Hawaii Masaki v. Gen. M otors Corp., 780 P.2d 566, 575 (Haw.
1989) (“[F]or all punitive damage claims we adopt the
clear and convincing standard of proof.”).

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& Santa Fe Ry. Co.
65
Indiana Ind. Code § 34-4 -34-2 (1991) (clear and convincing
evidence).
Iowa Iowa Code § 668A .1(1)(a) (1991) (clear and convincing
evidence).
Kansas Kan. Stat. Ann. § 60-3702(c) (199 1) (clear and
convincing evidence).
Kentucky Ky. Rev. Stat. Ann. § 411.184 (2) (1991) (clear and
convincing evidence).
Maine Tuttle v. Raymond, 494 A.2d 1353, 1363 (Me. 1985)
(“[W]e hold that a plaintiff may recover exemplary
damages based upon tortious conduct only if he can
prove by clear and convincing evidence that the
defendant acted with malice.”).
Minneso ta Minn. Stat. § 549.20(1)(a) (1991) (clear and convincing
evidence).
Mo ntana Mont. Code A nn. § 27-1-221(5) (199 1) (clear and
convincing evidence).
Nevada Nev. Rev. Stat. 42.005(1) (1991) (clear and convincing
evidence).
No rth
Dakota
N.D . Cent. Code § 32-03.2-11 (1991) (clear and
convincing evidence).
Ohio Ohio Rev. Code Ann. § 2315.21(C)(3) (1991) (clear
and convincing evidence).
Oklahoma Okla. Stat. tit. 23 § 9.1.A (1991) (punitive damages
exceeding the amount of actual damages must be
proved by clear and convincing evidence).
Oregon Or. Rev. Stat. § 41.315(1) (1991 ) (clear and convincing
evidence).
66 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
South
Carolina
S.C. Code A nn. § 15-33-135 (19 91) (clear and
convincing evidence).
Utah Utah Code Ann. § 78-18-1(1)(a) (1991) (clear and
convincing evidence).
W isconsin Wangen v. Ford Motor Co., 294 N.W.2d 437, 458 (W is.
1980) (“W e hold that the [clear, satisfactory and
convincing evidence] b urden of pro of shall apply to
punitive damages claims hereafter.”).
By 1991, the supreme courts or legislatures of the following
States had rejected a higher burden of proof for awarding
punitive damages:
Connecticut Freeman v. Alamo Mgm t. Co., 607 A.2d 370, 375
(Conn. 1992) (“W e disagree . . . with the . . . conclusion
. . . that clear and convincing proof is an app ropriate
standard of proof whenever claims of tortious conduct
[such as those involving punitive damage s] have serious
consequences or harsh or far-reaching effects on
individuals or require the proof of willful, wrongful and
unlawful acts.”).
Idaho Idaho Cod e § 6-1604 (1) (1991) (prepo nderance of the
evidence).
Mississippi Gaylord’s of Meridian, Inc. v. Sicard, 384 So. 2d 1042,
1045 (Miss. 1980) (“Although the damages are by way
of pena lizing the defendant against whom they are
sought, the proof is by a preponderance of the evidence
rather than beyond a reasonable doubt.”) overruled on
other grounds by C & C Trucking Co. v. Smith, 612 So.
2d 1092 , 110 5–0 6 (M iss. 199 2); Andrew Jackson Life
Ins. Co. v. Williams, 566 So. 2d 117 2, 1188 (M iss.
1990) (“[T]he law requires a finding of ‘bad faith-
plus’—based upon a preponderanc e of the
evidence— before punitive damages may be awarded.”).

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67
Missouri Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 75
(Mo. 1990) (“The defendant argues that punitive
damage submissions should require ‘clear and
convincing’ evidence. T his requirement is contrary to
our norm al requirements in the subm ission of civil
cases. W e are not disp osed so to hold, or to follow
cases from other jurisdictions so holding.”).
New
Mexico
United Nuclear Corp. v. A llendale M ut. Ins. Co ., 709
P.2d 649, 654 (N.M. 1985) (“It is the general rule . . .
that issues of fact in civil cases are to be determined
according to the preponderance of the evidence . . . .
W e are not convinced that the degree of proof should be
changed [to require clear and convincing evidence] in
punitive damage areas.”).
South
Dakota
Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991)
(“[S.D. Codified Laws § 2 1-1-4.1] does not establish a
clear and convincing evid ence standard but merely
requires clear and convincing evidence to show a
reaso nab le basis [to believe the defendants committed
acts warranting punitive damages]. The clear and
convincing language merely mo difies the ‘reasonable
basis’ language to make a prima facie showing that
punitive dam ages may be in order.”).
By 1991, the supreme courts and legislatures of the
following States had yet to address the question whether
claims for punitive damages require a heightened burden of
proof, though (as noted below) some lower courts had
addressed the issue and some supreme courts had mentioned,
without discussing, jury instructions requiring a
preponderance of the evidence:
68 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Arkansas Nat’l Bank of Comm erce v. McNeill Trucking Co.,
Inc., 828 S.W.2d 584, 591 (Ark. 1 992 ) (Du dley, J.,
concurring) (“I would hope that the possible
changes discussed in this opinion [i.e. the adoption
of a clear and convincing standard for punitive
damages] might be brought before this court in an
adversarial manner . . . . It is a matter which we
have never addressed .”).
Delaware Cloroben Chem. Corp. v. Comegys, 464 A.2d 887,
891–92 (Del. 198 3) (“W e now turn to C loroben’s
contention that the jury improperly awarded
punitive damages in that they were not supported
by a preponderance of the evidence . . . . Our
review of the record indicates that there is
sufficient evidence to support a finding . . . [and]
we must reject the argument that there was
insufficient evidence to support an award of
punitive damages.”); Gu thridge v. Pen-Mod, Inc.,
239 A.2d 709, 715 (Del. Super. Ct. 1967)
(instructing the jury that “[p]unitive damages may
be awarded only if the jury finds by a
preponderance of the evidence that the defendants’
actions were motivated by some form of malice.”).
Illinois Illinois Terminal R.R. Co. v. Thompson, 71 N.E.
328, 333 (Ill. 1904) (approving a jury instruction
that “left it to the discretion o f the jury to impose
whatever damages they might choose, even to the
extent of allowing punitive damages” by a
preponderance o f the evidence).

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69
Louisiana Galjour v. Gen. Am. Tank Car Corp., 764 F. Supp.
1093, 1100–01 (E.D. La. 1991) (“In fact, there are
no Louisiana ca ses which specifically discuss the
app ropriate burden of proof for exemplary
damages . . . . The defendants’ argument that a
heightened burd en of p roof should apply to
exemplary damages is not without merit, as shown
by recent legislative enactments in other
jurisdictions, but it is not the law in Louisiana.
Until the Louisiana legislature takes action to raise
the burden, the law is that the burden of proof for
exemplary damages is by a preponderance of the
evidence.”) (footnote omitted); see also Int’l
Harvester Credit Corp. v. Seale, 518 So. 2d 1039,
1041 (La. 1988) (“U nder Louisiana law, punitive
or other ‘penalty’ damages are not allowable unless
expressly authorized by statute.”).
Maryland Gorman v. Sabo, 122 A.2d 475, 479 (Md. 1956)
(“There is no doubt that punitive damages may be
recovered in [this] case . . . . The applicable law
was correctly put to the jury by the trial court in his
charge. He told them the Sab os must prove their
case ‘by a fair prepo nderance of the evidence.’”)
(citation omitted ); Thorne v. Contee, 565 A.2d 102,
108 (Md. Ct. Spec. App. 1989 ) (“In order for the
issue of punitive dam ages to go to the jury, Thorne
must have produced sufficient evidence of
Contee’s wanton or reckless conduct to meet the
preponderance of the evidence test.”), cert. denied,
569 A.2d 643 (Md. 1990); 569 A.2d 1242 (Md.
1990).
70 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Massachusetts Santos v. Chrysler C orp., No. 921039, 1996 W L
1186818, at *3 (Mass. Super. Ct. Sept. 18, 1996)
(“Chrysler contends that the court erred beca use it
failed to instruct the jury that they must find by
clear and convincing evidence that Chrysler was
grossly negligent before they could award punitive
damages. The contention is meritless. Under
Massachusetts law the burden of pro of in civil
proceedings of this kind is satisfied ‘by a fair
preponderance of the evidence.’”) (citation
omitted), aff’d in part a nd re ma nde d on other
grounds, 715 N.E.2d 47 (M ass. 1999).
Michigan Green v. Evans, 401 N.W.2d 250, 252 (Mich. Ct.
App. 198 5) (ap proving, without discussing the
burden of proof, a jury instruction stating: “Such
exemplary damages only are recoverable if the
Plaintiff has proven by a p repo nderance of the
evidence, malice, willful and wanton misconduct
or negligence so great as to indicate reckless
disregard of the rights of another.”). But see Kew in
v. Ma ss. Mut. Life Ins. Co., 295 N.W.2d 50, 55
(Mich. 1980) (noting that exemplary dam ages o nly
serve to compensate plaintiffs for “humiliation,
sense of outrage, and indignity”—exemp lary
damages may not serve as punishment to the
defendant).
Nebraska Distinctive Printing & Packaging Co. v. Cox, 443
N .W .2d 566, 574 (Neb. 1989) (“[P]unitive,
vindictive, or exemplary damages contravene Neb.
Const. art. VII, § 5, and thus are not allow ed in this
jurisdiction.”).
New
Hamp shire
New Hampshire has not addressed the burden of
proof for punitive damages. See N.H. Rev. Stat.
Ann. § 507:16 (2004) (“No punitive damages shall
be awarded in any action, unless otherwise
provided by statute.”).

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71
New Jersey Fischer v. Joh ns-M anv ille Corp., 512 A.2d 466,
482 (N.J. 1986) (refusing to address the burden of
proof in punitive damages cases because “the
parties have not briefed or argued the issue, nor
have the courts below addressed it”); see also
Jackson v. Consol. Rail C orp., 538 A.2d 1310,
1321 n.5 (N .J. Sup er. Ct. App. Div. 1988)
(“Defendant also attacks the punitive damage
verdict because the court in its charge did not place
the burden on plaintiff to prove same by ‘clear and
convincing’ evidence. However, that is not the
present standard applicable in New Jersey.”).
New Y ork Greenbaum v. Handelsbanken, 979 F.Supp. 973,
982 (S.D.N.Y. 199 7) (“[T ]he Court determines that
until . . . higher authorities elect[] to address the
question, the preponderance of the evidence
standard should apply to punitive damages
deliberations.”).
No rth Carolina Caudle v. Benbow, 45 S.E.2d 361, 362 (N.C. 1947)
(approving, without discussing, a jury instruction
requiring the jury to “first find by the
preponderance of the evidence the presence of
actual malice”).
72 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Pennsylvania Ma rtin v. John s-Ma nville Corp ., 494 A.2d 1088,
1098 n.14 (Pa. 1985) (Hutchinson, J., delivering
the judgment of the court and an opinion joined by
only one o f the five remaining justices)
(recognizing that many jurisdictions have adopted
a clear and convincing standard and concluding:
“W e believe the goal of limiting punitive damage
awards in the context of products liability litigation
is best served by focusing on the nature of the
defendant’s conduct instead of increasing the
plaintiff’s burden of persuasion.”); Rizzo v.
Michener, 584 A.2d 973, 979 (Pa. Super. Ct. 1990)
(“The trial judge must determine in the first
instance whether the plaintiff has presented
sufficient evidence to support a punitive damage
claim, which requires evidence on which the jury
might reasonably conclude that outrageous conduct
has been established by a preponderance of the
evidence.”), appeal denied, 596 A.2d 159 (Pa.
1991).
Rhode Island Rhode Island has not addressed the burden of proof
for recovering punitive dam ages.
Tennessee Tennessee first addressed the burden of proof for
punitive damages in 1992 in Hodges v. S.C. T oof &
Co., 833 S.W.2d 896, 900–0 1 (Tenn. 199 2), and
held that the clear and convincing standard applies
to all claims for punitive dam ages.
Texas Law son-Avila Con st., Inc. v. Stoutam ire, 791
S.W.2d 584, 594 (Te x. Ct. App . 199 0) (“W e . . .
continue to follow the Texas precedent established
by the Co urts of this State and hold that the burden
of proof in cases involving . . . exemplary damages
is by a preponderance of the evidence [and not
clear and convincing evidence].”) (internal
quotations omitted ), writ of error denied (Dec. 12,
1990).

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Nos. 00-6780; 01-5024 White v. Burlington Northern
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73
Vermo nt Vermo nt has not addressed the burden of proof for
recovering punitive damages.
Virginia Peacock Buick, Inc . v. Du rkin, 277 S.E.2d 225, 227
n.3 (Va. 1981 ) (approving, without discussing the
burden of pro of, a jury instruction stating: “[I]f you
believe from a preponderance of the evidence that
the defendant acted wantonly, opp ressively, or with
such recklessness as evinced a conscious disregard
of the rights of others, or with such malice as
implied a spirit of mischief, or criminal
indifference to civil obligations, you may award
the plaintiff such additional sum as punitive
damages.”).
Washington Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566
(W ash. 1997) (holding, without addressing the
burden of proof, that the trial court pro perly
instructed the jury that it could award punitive
damages on the 42 U .S.C. § 1 983 claim ‘only if
you find [by a preponderance of the evidence] that
the cond uct of an individual defendant was
malicious or taken in reckle ss disregard of
plaintiffs’ rights’”) (alteration in original). But see
Dailey v. North Coa st Life Ins. Co., 919 P.2d 589,
590 (Wa sh. 1996) (“Since its earliest decisio ns, this
court has consistently disapproved of punitive
damages as contrary to public policy.”).
W est Virginia Go odw in v. Thomas, 403 S.E.2d 13, 16 (W . Va.
1991) (reinstating an award of punitive dam ages,
without discussing the burden of proof, based on
the following jury instruction: “[I]f you find from
a preponderance of all the evidence in this case,
that the actions of the Defendants in evicting the
Plaintiff were in total disre gard of the P laintiff’s
rights as a lessee in the leased premises and that
such actions were willful and wanton then you may
award the Plaintiff punitive damages.”).
74 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
W yoming Campen v. Stone, 635 P.2d 1121, 1127 (Wyo.
1981) (approving, without discussing the burden of
proof, a jury instruction stating: “Punitive damages
can properly be awarded . . . only if, one of the
following [acts] ha s bee n pro ven b y a
preponderance of the evidence.”) (internal
quotations omitted).

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Nos. 00-6780; 01-5024 White v. Burlington Northern
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75
APPENDIX B
State Burdens of Proof for Punitive Damages in 2004
As of today, the supreme courts or legislatures from the
following States have adopted the higher burden of proof for
awarding punitive damages:
Alabama Ala. Code § 6-11-20(a) (2004) (clear and convincing
evidence).
Alaska Alaska Stat. § 09.17.020(b) (2004) (clear and
convincing evidence).
Arizona Linthicum v. Nationw ide Life Ins. Co., 723 P.2d 675,
680–82 (Ariz. 1986) (“[W]hile a plaintiff may collect
compensatory dama ges upon p roo f by a
preponderance of the evidence of his injuries due to
the tort of another, we conclude that recovery of
punitive damages should be awardable only upon
clear and convincing evidence of the defendant’s evil
mind.”); Saucedo ex rel. Sinaloa v. Salvation Army,
24 P.3d 12 74, 1277 (Ariz. Ct. App. 2001) (“In
Arizona, to recover punitive dam ages, a plaintiff
must prove by clear and convincing evidence that a
‘defendant’s wrongful conduct was guided by evil
motives or wilful or wanto n disregard of the interests
of others.’”) (citation omitted), review denied (Oct. 3,
2001).
California Cal. Civ. Code § 329 4(a) (2004) (clear and
convincing evidence).
Colorado Colo. Rev. Stat. § 13-25-127(2) (2004) (beyond a
reasonable doubt).
Florida Fla. Stat. Ann. § 768.725 (2004) (clear and
convincing evidence).
76 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Georgia Ga. Code A nn. § 51-12-5.1(b) (2004) (clear and
convincing evidence).
Hawaii Schefke v. Reliable Collection Agency, Ltd., 32 P.3d
52, 71 (Haw. 2001) (“Clear and convincing evidence
of ‘some wilful misconduct or . . . entire want of care
which would raise presum ption of a conscious
indifference to conseq uences’ supports an award of
punitive damages.”) (internal quotations omitted).
Idaho Idaho Code § 6-1604(1) (2004) (clear and convincing
evidence).
Indiana Ind. Code § 34-51-3-2 (2004 ) (clear and convincing
evidence).
Iowa Iowa Code § 668A.1(1 )–(2) (2004) (clear and
convincing evidence).
Kansas Kan. Stat. Ann. § 60-3702(c) (20 04) (clear and
convincing evidence).
Kentucky Ky. Rev. Stat. Ann. § 411.18 4(2) (2004 ) (clear and
convincing evidence).
Maine St. Francis De Sales Fed. Credit Union v. Sun In s.
Co. of N.Y., 818 A.2d 995 , 1001 (M e. 2002) (“‘[I]n
order to recover punitive damages, a plaintiff must
prove by clear and convincing evidence that the
defendant acted with malice.’”) (quoting Tuttle v.
Raymond, 494 A.2d 13 53, 1354 (Me. 198 5)).
Maryland Ow ens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 657
(Md. 1992) (“[I]n any tort case a plaintiff must
establish by clear and convincing evidence the basis
for an award of punitive damages.”); Carter v.
Aram ark Spo rts and Entm’t Servs., Inc., 835 A.2d
262, 287 (Md. Ct. Spec. App. 2003) (“T he ‘clear and
convincing’ standard of proof applies to make o ut a
claim for punitive dam ages.”).

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77
Minneso ta Minn. Stat. § 549.20(1)(a) (2004) (clear and
convincing evidence).
Mississippi Miss. Code A nn. § 11-1-65(1)(a) (2004) (clear and
convincing evidence).
Missouri Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104,
111 (Mo. 1996) (“For commo n law punitive damage
claims, the evid ence must meet the clear and
convincing standard of proo f.”); Hoskins v. Bus.
Men ’s Assurance, 116 S.W .3d 5 57, 5 64 (Mo. Ct.
App. 200 3) (“P unitive damages are properly
submitted in a negligence [or strict liab ility] case only
if there is clear and convincing evidence that ‘at the
time of the negligent act, the defendant[s] knew or
had reason to know that there was a high degree of
probab ility that the action would result in injury.’”)
(citation omitted).
Mo ntana Mont. Code Ann. § 27-1-221(5) (2004) (clear and
convincing evidence).
Nevada Nev. Rev. Stat. 42.005(1) (2004) (clear and
convincing evidence).
New Jersey N.J. Stat. Ann. § 2A:15-5.12(a) (2004) (clear and
convincing evidence).
No rth
Carolina
N.C. Gen. Stat. § 1D-15(b) (200 4) (clear and
convincing evidence).
No rth Dakota N.D. Cent. Code § 32-03.2-11(1) (2004) (clear and
convincing evidence).
Ohio Ohio Rev. Code A nn. § 2315.21(C)(2) (2004) (clear
and convincing evidence).
Oklahoma Okla. Stat. tit. 23, § 9.1.B–.D (2004) (clear and
convincing evidence).
78 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Oregon Or. Rev. Stat. § 18.537(1) (2004 ) (clear and
convincing evidence).
South
Carolina
S.C. Code A nn. § 15-33-135 (20 04) (clear and
convincing evidence).
Tennessee Hodges v. S.C. Too f & Co., 833 S.W.2d 896, 901
(Tenn. 1992) (“[A] plaintiff must prove the
defendant’s intentional, fraudulent, malicious, or
reckless conduct by clear and convincing evidence.”);
Barnett v. Lane, 44 S.W.3d 924, 928 (Tenn. Ct. App.
2000) (“[A]n award [of punitive damages] is only
app ropriate when the necessary conduct has been
shown ‘by clear and convincing evidence.’”).
Texas Tex. Civ. Prac. & Rem. Code Ann. § 41.003(b)
(2004) (clear and convincing evidence).
Utah Utah Code Ann. § 78-18-1(1)(a) (2004) (clear and
convincing evidence).
W isconsin Wangen v. Ford Motor Co., 294 N.W.2d 437, 458
(W is. 1980) (“W e hold that the [clear, satisfactory
and convincing evidence] burden of proof shall apply
to punitive damages claims hereafter.”); City of West
Allis v. Wis. Elec. Power Co., 635 N.W.2d 873, 881
(W is. Ct. Ap p. 2001) (“The evidence [supporting a
punitive damages award] must also be ‘clear and
convincing.’”), pet. for review denied, 643 N.W.2d
93 (W is. 2002).

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Nos. 00-6780; 01-5024 White v. Burlington Northern
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79
As of today, the supreme courts or legislatures from the
following States have rejected a higher burden of proof for
awarding punitive damages:
Connecticut Freeman v. Alamo M gm t. Co., 607 A.2d 370, 375
(Conn. 1992) (“We disagree . . . with the . . .
conclusion . . . that clear and convincing proof is an
app ropriate standard of proof whenever claims of
tortious conduct [such as those involving punitive
damages] have serious consequences or harsh or far-
reaching effects on individuals or require the proof of
willful, wrongful and unlawful acts.”).
New
Mexico
United Nuclear Corp. v. A llendale Mu t. Ins., 709 P.2d
649, 654 (N.M. 1985) (“It is the general rule . . . that
issues of fact in civil cases are to be determined
according to the prep onderance of the evidence . . . .
W e are not convinced that the degree o f proo f should
be changed [to require clear and convincing evidence]
in punitive damages areas.”).
South
Dakota
Flockhart v. Wya nt, 467 N.W.2d 473, 475 (S.D. 1991)
(“[S.D. Codified Laws § 21-1-4.1] does not establish
a clear and co nvincing evidence standard but merely
requires clear and convincing evidence to show a
reaso nab le basis [to believe the defendants committed
acts warranting punitive damages]. The clear and
convincing language merely mod ifies the ‘reasonable
basis’ language to make a prima facie showing that
punitive dam ages may be in order.”).
80 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
As of today, the supreme courts and legislatures from the
following States have yet to address the question whether
claims for punitive damages require a heightened burden of
proof, though (as noted below) some lower courts have
addressed the issue and some supreme courts had mentioned,
without discussing, jury instructions requiring a
preponderance of the evidence:
Arkansas Nat’l Bank of Commerce v. M cNeill Truck ing C o.,
Inc., 828 S.W .2d 58 4, 590 (Ark. 1 992 ) (Du dley, J.,
concurring) (“I would hope that the possible changes
discussed in this opinion [i.e. the adoptio n of a clear
and convincing standard for punitive damages] might
be brought before this court in an adversarial manner
. . . . It is a matter which we have never addressed.”).
Delaware Cloroben Chem . Corp. v. Comegys, 464 A.2d 887,
891–92 (Del. 1983) (“W e now turn to Cloroben’s
contention that the jury imp roperly awarded punitive
damages in that they were not supported by a
preponderance of the evidence . . . . Our review of
the record indicates that there is sufficient evidence
to support a finding . . . [and] we must reject the
argument that there was insufficient evidence to
support an award of punitive damages.”); Guthridge
v. Pen-Mod, Inc., 239 A.2d 709 , 715 (Del. Supe r. Ct.
1967) (instructing the jury that “[p]unitive damages
may be awarded only if the jury finds by a
preponderance of the evidence that the defendants’
actions were motivated b y some form of malice.”).
Illinois Illinois Terminal R.R. Co. v. Thompson, 71 N.E. 328,
333 (Ill. 1904) (app roving a jury instruction that “left
it to the discretion of the jury to impose whatever
damages they might choose, even to the extent of
allowing punitive damages” by a preponderance of
the evidence).

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Louisiana Hill v. Sampson, 628 So. 2d 81, 84 (La. Ct. App.
1993) (“W hile this argument has theoretical ap peal,
we are not inclined by these judicial means to
establish ‘clear and convincing evidence’ as the
standard of proof for exemplary damages under
[Louisiana’s DU I law]. In our view, had the
legislature intended a higher standard of proo f than
that of a preponderance of the evidence, it would
have clearly so indicated.”); Rivera v. United Gas
Pipeline Co., 697 So. 2d 327, 335 (La. Ct. App.
1997) (holding that earlier interpretation of
Louisiana’s hazardous substance handling statute
“says nothing of creating a ‘clear and convincing’
burden of proof, and this Court is not prep ared to
create one . . . . Ergo, until the Louisiana legislature
takes direct action, the burden of proof for exemplary
damages is by a preponderance o f the evidence.”),
cert. denied, 704 So. 2d 1 196, 119 7 (La. 1997).
Massachusetts Santos v. Chrysler C orp., N o. 92 10 39 , 19 96 W L
1186818, at *3 (M ass. Sup er. Ct. Sept. 18, 1996)
(“Chrysler contends that the court erred because it
failed to instruct the jury that they must find by clear
and convincing evidence that Chrysler was grossly
negligent before they could awa rd punitive damages.
The contention is meritless. Under Massachusetts law
the burden of proof in civil proceedings of this kind
is satisfied ‘by a fair preponderance of the
evidence.’”), affirmed in part and remanded on other
grounds, 715 N.E.2d 47 (M ass. 1999).
82 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Michigan Green v. Evans, 401 N.W.2d 250, 252 (Mich. Ct.
App. 198 5) (ap proving, witho ut discussing the
burden of proof, a jury instruction stating: “Such
exemplary damages only are recoverable if the
Plaintiff has proven by a prepond erance of the
evidence, malice, willful and wanton misconduct or
negligence so great as to indicate reckless disregard
of the rights of another”). But see Kewin v. Ma ss.
Mut. Life Ins. Co., 295 N.W.2d 50, 55 (M ich. 1980)
(noting that exemplary damages only serve to
com pensate plaintiffs for “humiliation, sense of
outrage, and indignity”—exemplary damages may
not serve as punishment to the defendant).
Nebraska Distinctive Printing & Packaging Co. v. Cox, 443
N.W.2d 566, 574 (Neb. 1989) (“[P]unitive,
vindictive, or exemplary damages contravene Neb.
Const. art. VII, § 5, and thus are not allowed in this
jurisdiction.”).
New
Hamp shire
New Hamp shire has not addressed the burden of
proof for punitive damages. See N.H. Rev. Stat. Ann.
§ 507:16 (2004) (“No punitive damages shall be
awarded in any action, unless otherwise provided by
statute.”).

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New York Greenbaum v. Svenska Handelsbanken, 979 F. Supp.
973, 978 –82 (S.D .N.Y. 1997 ) (“[T]he Court
determines that until . . . higher authorities elect[] to
address the question, the preponderance of the
evidence standard should apply to punitive damages
deliberations.”). Com pare M unoz v. Puretz, 753
N.Y.S.2d 463, 466 (N.Y. App. Div. 2003) (“In order
to recover p unitive damages, a plaintiff must show
[certain cond uct] by ‘clear, unequivocal and
convincing evidence.’”) (citation omitted ), with In re
Seventh Judicial Dist. Asbesto s Litig., 593 N.Y.S.2d
685, 686–87 (N.Y. App. Div. 1993) (“The trial court
properly instructed the jury that the evidentiary
standard for proving entitlement to punitive damages
is preponderance of the evidence, not clear and
convincing evidence.”).
Pennsylvania Ma rtin v. Johns-Manville Corp., 494 A.2d 1088,
1098 n.14 (Pa. 1985) (Hutchinson, J. delivering the
judgment of the court and an opinion jo ined b y only
one of the five remaining justices) (recognizing that
many jurisdictions have adopted a clear and
convincing standard and concluding: “W e believe the
goal of limiting punitive damage awards in the
context of products liability litigation is best served
by focusing on the nature of the defendant’s conduct
instead of increasing the plaintiff’s burden of
persuasion.”); Rizzo v. Michener, 584 A.2d 973, 979
(Pa. Super. Ct. 1990 ) (“The trial judge must
determine in the first instanc e whether the p laintiff
has presented sufficient evidence to sup port a
punitive damage claim, which requires evidence on
which the jury might reasonably conclude that
outrageous conduct has been established by a
preponderance of the evidence.”), appeal denied, 596
A.2d 159 (Pa. 1991).
Rhode Island Rhode Island has not addressed the burden of proof
for recovering punitive dam ages.
84 White v. Burlington Northern
& Santa Fe Ry. Co.
Nos. 00-6780; 01-5024
Vermo nt Vermo nt has not addressed the burden of proof for
recovering punitive damages.
Virginia Peacock Buick, Inc . v. Du rkin, 277 S.E.2d 225, 227
n.3 (Va. 1981 ) (approving, without discussing the
burden of pro of, a jury instruction stating: “[I]f you
believe from a preponderance o f the evidence that the
defendant acted wantonly, oppressively, or with such
recklessness as evinced a conscious disregard of the
rights of others, or with such malice as implied a
spirit of mischief, or criminal indifference to civil
obligations, you may award the plaintiff such
additional sum as punitive damages.”); RF & P Corp.
v. Little, 40 S.E.2d 908, 914 (Va. 1994) (holding that
a prep onderance of the evidence standard applies to
a knowing and willful violation of a statute resulting
in a civil fine, and the clear and convincing evidence
standard applies only “to certain cases that are
equitable in nature, such as suits involving fraud and
misrepresentation, undue influence, [or] estoppel.”).
Washington Sintra, Inc. v. City of Seattle, 935 P.2d 555, 566
(W ash. 1997) (stating, without addressing the burden
of proof, that the trial court properly instructed the
jury that it could awa rd punitive damages on a 42
U.S.C. § 19 83 claim “only if you find [by a
preponderance of the evidence] that the conduct of an
individual defendant was malicious or taken in
reckless disregard of plaintiffs’ rights.”) (quotation
omitted and alteration in origina l). But see Dailey v.
North Coast Life Ins. Co., 919 P.2d 5 89, 590 (W ash.
1996) (“Since its earliest decisions, this court has
consistently disapproved of punitive damages as
contrary to public policy.”).

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W est
Virginia
Goodwin v. Thomas, 403 S.E.2d 13, 16 (W. Va.
1991) (finding sufficient evidence to support an
award of punitive damages, without discussing the
burden of pro of, based o n the follo wing jury
instruction: “[I]f you find from a prep onderance of all
the evidence in this case, that the actions of the
Defendants in evicting the Plaintiff were in total
disregard of the Plaintiff’s rights as a lessee in the
leased prem ises and that such actions were willful
and wanton.”).
W yoming Campen v. Stone, 635 P.2d 1121, 1127 (Wyo. 1981)
(approving, without discussing the burden of proof,
a proposed jury instruction stating: “Punitive
damages can properly be award ed . . . only if, one of
the following [acts] has been proven by a
preponderance o f the evidence.”).

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