James Hall v. Consolidated Freightways Corporation of Delaware

*The Honorable Glen M. Williams, Senior United States District
Judge for the Western District of Virginia, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0248P (6th Cir.)
File Name: 03a0248p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JAMES HALL,
Plaintiff-Appellant/
Cross-Appellee,
v.
CONSOLIDATED
FREIGHTWAYS CORPORATION
OF DELAWARE,
Defendant-Appellee/
Cross-Appellant.
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Nos. 00-4316/4431
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 98-02554—Dan A. Polster, District Judge.
Argued: June 14, 2002
Decided and Filed: July 25, 2003
Before: DAUGHTREY and CLAY, Circuit Judges;
WILLIAMS, Senior District Judge.*
2 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
_________________
COUNSEL
ARGUED: Edward L. Gilbert, SLATER, ZURZ &
GILBERT, Akron, Ohio, for Appellant. Todd H. Lebowitz,
BAKER & HOSTETLER, Cleveland, Ohio, for Appellee.
ON BRIEF: Edward L. Gilbert, SLATER, ZURZ &
GILBERT, Akron, Ohio, for Appellant. Todd H. Lebowitz,
Jose C. Feliciano, Sr., BAKER & HOSTETLER, Cleveland,
Ohio, for Appellee.
CLAY, J., delivered the opinion of the court, in which
WILLIAMS, D. J., joined. DAUGHTREY, J. (p. 20),
delivered a separate concurring opinion.
_________________
OPINION
_________________
CLAY, Circuit Judge. In Case No. 00-4316, Plaintiff-
Appellant/Cross-Appellee, James Hall, appeals from the
district court’s order granting in part the motion brought by
Defendant-Appellee/Cross-Appellant, Consolidated
Freightways Corporation of Delaware, under Federal Rule of
Civil Procedure 50 for partial judgment as a matter of law or,
in the alternative, to alter judgment, grant remittitur, or grant
a new trial, following the jury verdict awarding Plaintiff
$50,000 in compensatory damages and $750,000 in punitive
damages in this case alleging race discrimination, wrongful
termination, hostile work environment, and retaliation under
state and federal law. Specifically, Plaintiff challenges the
district court’s order granting Defendant’s Rule 50 motion as
it relates to reducing Plaintiff’s jury award from a total of
$800,000 to $302,400 in order to comply with the federal
statutory cap.

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In Case No. 00-4431, Defendant cross appeals from the
district court’s order denying its Rule 50 motion as it relates
to Plaintiff receiving punitive damages in any amount.
Specifically, Defendant maintains that the evidence in this
case did not support an award of punitive damages under
federal or state law.
For the reasons set forth below, in Case No. 00-4316, we
REVERSE the district court’s order remitting Plaintiff’s jury
award on punitive damages and REMAND with instructions
for the court to reinstate the full jury award; in Case No. 00-
4431, we AFFIRM the district court’s order denying
Defendant’s Rule 50 motion for judgment as a matter of law
regarding the award of punitive damages to Plaintiff.
STATEMENT OF FACTS
Procedural History
Plaintiff, a truck driver employed by Defendant since 1984,
filed suit against Defendant on November 6, 1998, alleging
race discrimination, racially hostile work environment,
wrongful termination based on race, and retaliation in
violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C.
§ 2000(e) et seq., and in violation of Ohio Revised Code
§ 4112 et seq. The case was tried before a jury beginning on
May 9, 2000. Ten days later, on May 19, 2000, the jury
returned a verdict in favor of Plaintiff on all counts, and
awarded Plaintiff $50,000 in compensatory damages and
$750,000 in punitive damages.
Defendant filed a Rule 50 motion for partial judgment as a
matter of law or, in the alternative, to alter judgment, grant
remittitur, or grant a new trial. The district court granted
Defendant’s motion in part, by remitting the award of
punitive damages to the federal statutory cap ($750,000 to
$252,400). Plaintiff then filed this timely appeal, challenging
the district court’s order remitting the award of punitive
4 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
damages. Defendant filed this timely cross-appeal
challenging the district court’s order denying partial judgment
as a matter of law with respect to the award of punitive
damages to Plaintiff in any amount.
Facts
Plaintiff began his employment as a truck driver at
Defendant’s facility located in Richfield, Ohio, in February of
1984. Plaintiff had an excellent work record, having missed
only one day of employment in approximately fifteen years of
service. Plaintiff claimed, however, that during the course of
his employment, he had to endure numerous incidents of
racist graffiti on company property, and numerous incidents
of racial slurs such as having his supervisors profess to
Plaintiff that he was a problem because of his race—African
American. In addition, Plaintiff claimed that he was
demeaned and harassed by co-workers without objection from
supervisors.
After several years of enduring these racial attacks, Plaintiff
filed a complaint with the Ohio Civil Rights Commission and
the Equal Employment Opportunity Commission (“EEOC”)
on December 27, 1996. Thereafter, according to Plaintiff, the
incidences of racial harassment increased. For example a Klu
Klux Klan symbol and membership card solicitation were
placed on Plaintiff’s locker. This escalated racial harassment
led Plaintiff to file a second complaint of discrimination and
retaliation on August 8, 1997.
About three months later, on November 7, 1997, Plaintiff
was abruptly and inappropriately terminated for what Plaintiff
characterized as minor and false reasons. Plaintiff claimed
that the termination was actually in retaliation for his filing of
the discrimination complaints, and because of his race.
Plaintiff filed a third complaint of racial discrimination, and
the Ohio Civil Rights Commission found probable cause to
sue. In the meantime, through the union contract, it was ruled

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1W e shall address Defendant’s cross-appeal first inasmuch as
resolution of the cross-appe al affects P laintiff’s appeal.
that Plaintiff’s termination was improper and he was ordered
reinstated to his job. Plaintiff was issued his right to sue letter
on September 22, 1998, and this case ensued.
DISCUSSION
Case No. 00-4431 – Cross-Appeal by Defendant1
This Court reviews de novo a district court’s decision to
grant judgment as a matter of law pursuant to Rule 50(a) of
the Federal Rules of Civil Procedure. See Monday v.
Ouellette, 118 F.3d 1099, 1101-102 (6th Cir. 1997). In
reviewing the decision, we must consider the evidence in the
light most favorable to the nonmovant, giving that party the
benefit of all reasonable inferences. See Tuck v. HCA Health
Servs. of Tenn., 7 F.3d 465, 469 (6th Cir. 1993).
Accordingly, when faced with a Rule 50(a) motion, a district
court may not weigh the evidence or make credibility
determinations, as these are jury functions. See Lytle v.
Household Mfg., Inc., 494 U.S. 545, 554-55 (1990). A
dismissal pursuant to Rule 50(a) is improper where the
nonmovant presented sufficient evidence to raise a material
issue of fact for the jury. See Sawchik v. E.I. du Pont de
Nemours & Co., 783 F.2d 635, 636 (6th Cir. 1986) (citing
O’Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir. 1975)). In
other words, the decision to grant judgment as a matter of law
or to take the case away from the jury is appropriate
“whenever there is a complete absence of pleading or proof
on an issue material to the cause of action or when no
disputed issues of fact exist such that reasonable minds would
not differ.” Id. Judgment as a matter of law pursuant to Rule
50(a) is appropriate only where “a party has been fully heard
with respect to an issue and there is no legally sufficient
6 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
evidentiary basis for a reasonable jury to have found for that
party with respect to that issue.” Fed. R. Civ. P. 50(a)(1).
For plaintiffs who did not obtain compensatory or punitive
damages under 42 U.S.C. § 1981, but prevailed in a Title VII
case other than one relying on a disparate impact theory of
discrimination, § 1981a permits but limits such awards. See
42 U.S.C. §§ 1981(a)(1), 1981a(b)(3)(D) (capping
compensatory and punitive damages, exclusive of any
backpay award, at $300,000 for those defendants employing
more than 500 employees). In adopting this provision,
“Congress sought to expand the available remedies by
permitting the recovery of compensatory and punitive
damages in addition to previously available remedies, such as
front pay.” Pollard v. E.I. du Pont de Nemours & Co., 532
U.S. 843, 854 (2001). To recover punitive damages under the
statute, a plaintiff must demonstrate that his employer
engaged in a discriminatory practice “‘with malice or with
reckless indifference to the [plaintiff’s] federally protected
rights.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535
(1999) (quoting 42 U.S.C. § 1981a(b)(1) and resolving circuit
spilt by rejecting the argument that a defendant’s conduct
must be egregious to support an award of punitive damages).
“Malice” and “reckless indifference” under the statute refer to
“the employer’s knowledge that it may be acting in violation
of federal law, not its awareness that it is engaging in
discrimination.” Id. at 535. That is, “in the context of
§ 1981a, an employer must at least discriminate in the face of
a perceived risk that its actions will violate federal law to be
liable in punitive damages.” Id. at 536.
In considering Defendant’s Rule 50 motion with respect to
the jury’s award of punitive damages, the district court
recognized that the Supreme Court’s decision in Kolstad v.
American Dental Ass’n, 527 U.S. 526 (1999) was controlling,
inasmuch as in Kolstad the Supreme Court clarified that
standards to be applied when determining the appropriateness
of punitive damages in a Title VII case. Specifically, the

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district court recognized that under Kolstad, “malice or
reckless disregard for federally protected rights is sufficient
to support a punitive damages award.” (J.A. at 72.) In light
of this, the district court opined:
The jury for this case was not a “runaway” jury in any
sense of the word. It was an all white jury that heard the
evidence as it was presented to them by both sides.
There were numerous instances throughout the trial
where the two parties to a conversation or meeting
testified in a diametrically opposing fashion and the
testimony could not be reconciled. The jurors had to
conclude that one witness or the other was not telling the
truth. They weighed the credibility of the witnesses and
found Plaintiff and his witnesses to be more credible than
Defendant’s witnesses. That is their role.
As an aside, the Court notes that had Consolidated
Freightways been as aggressive in responding to graffiti,
flyers, and persistent offensive slurs as it was to
allegations that an African American supervisor, Ricky
Peterson, had engaged in verbal sexual harassment of a
subordinate, the unlawful conduct would have been
eliminated. The jury concluded that Plaintiff was
subjected to years of discriminatory treatment and
hostility, and that the company did not take meaningful
action. These are things that should have and could have
been corrected, but weren’t. While the jury could have
concluded that the company was merely negligent, there
was evidence from which the jury could have found
“reckless indifference.” Therefore, the punitive damage
award is not unreasonable. For all of these reasons,
Defendant’s request to vacate the jury’s award is
DENIED.
(J.A. at 73 (emphasis in original).)
8 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
Defendant goes on at length in the statement of facts
section of its brief regarding its alleged “good faith” measures
to comply with Title VII. That is, Defendant claims that it is
“undisputed” that it made extensive efforts to comply with
Title VII by having and posting a comprehensive zero-
tolerance racial harassment policy since 1994, by holding
meetings to educate the staff about the policy, and by
enforcing the policy. In response, Plaintiff claims that the
facts are very much in dispute, and cites trial testimony from
various witnesses refuting Defendant’s claims. For example,
in refuting Defendant’s statement that it “takes the additional
affirmative step of holding anti-discrimination meetings every
year to ensure that every employee and every manager was
familiar with the [anti-discrimination/anti-harassment]
policy,” (Defendant’s Brief at 10), Plaintiff states that “as the
historical testimony of Rick Peterson, the company’s
[Defendant’s] highest ranking black employee, helped to
establish, the existence of such meetings has long been in
dispute.” (Plaintiff’s Final Reply Brief at 4.) Plaintiff adds
that Peterson’s testimony was buttressed by the trial
testimony of several other witnesses who claimed that they
were never at any such meetings. (Plaintiff’s Final Reply
Brief at 6-7, citing trial testimony of African American as
well as Caucasian employees such as Willie Askew, James
Adams, William Barrow, Ed Clay, Clarence Chapman, and
Frederick Armstrong).
Similarly, with respect to Defendant’s claim that it posted
the anti-discrimination policy throughout the facility and
made the policy widely available to employees, (Defendant’s
Brief at 9), Plaintiff states that the policy was not posted
anywhere that any worker would notice, and that few workers
in fact did notice. (Plaintiff’s Final Reply Brief at 3.) In
support of Plaintiff’s contention, he relies upon the testimony
of Peterson who testified that he never saw the policy posted
until December of 1997. Likewise, regarding Defendant’s
contention that it made good faith efforts to enforce the
policy, Plaintiff notes that the two individuals Defendant cites

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as being disciplined for violating the policy were not
disciplined until 1998, several years before circumstances
existed to enforce the policy (i.e., grounds existed to enforce
the policy’s disciplinary measures since 1994). Plaintiff also
makes note of the fact that when sexual harassment was
alleged by an employee, Defendant offered a $1,000 reward
for information because “rewards” in the trucking industry
“always got results;” indeed, the sexual harassment came to
a stop. However, when the issue was racial harassment, no
such reward incentives were offered, and the racial
harassment did not stop; rather, it escalated. (Plaintiff’s Final
Reply Brief at 7-9 relying upon testimony of Peterson and
Madigan).
The above-referenced testimony indicates that the district
court was correct in asserting that the decision to award
punitive damages came down to the credibility of witnesses.
Inasmuch as neither the district court nor this Court is
permitted to make credibility determinations or to weigh the
evidence on a Rule 50 motion, the jury’s decision to credit the
testimony of Plaintiff’s witnesses over that of Defendant’s
witnesses cannot be disturbed. See Lytle, 494 U.S. at 554-55.
Moreover, this testimony also indicates that Plaintiff met his
burden of proving that punitive damages were appropriate.
As Kolstad establishes, “malice” and “reckless indifference”
under the statute refer to “the employer’s knowledge that it
may be acting in violation of federal law . . . .” Kolstad, 527
U.S. at 535. Defendant argues that its actions cannot be
found to be in knowing violation of federal law because of its
good faith efforts to comply with Title VII, such as having a
policy, posting the policy, having meetings regarding the
policy, and enforcing the policy. Defendant is correct in its
assertion that, under Kolstad, “in the punitive damages
context, an employer may not be vicariously liable for the
discriminatory employment decision of managerial agents
where those decisions are contrary to the employer’s ‘good
faith efforts to comply with Title VII.’” See id. at 545.
10 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
2The Seventh Circuit established a formal three-part test in the wake
of Kolstad for determining whether punitive damages were appropriate:
the first step requires the plaintiff to show that the employer acted with the
requisite mental state; once the plaintiff has met this burden, then the
second step requires a showing by the plaintiff that the employees who
discriminated against him were managerial agents; and finally, if the
showing is made, then the employer may avoid liability by showing that
it engag ed in good faith efforts to implement an antidiscrimination p olicy.
See Bruso v. United Airlines, Inc., 239 F.3d 84 8, 857-58 (7th Cir. 2001).
Although it appe ars that this C ourt has not per se adop ted the express
three-step process as announc ed by the Seventh C ircuit, the C ourt has in
effect somewhat followed the process in light of Kolstad. See EEOC v.
Harbert-Yeargin, Inc., 266 F.3d 498, 512 -14 (6th Cir. 2001) (discussing
the requisite showing of malice/ reckless indifference, but not addressing
the good faith defense); see also Jeffries v. Wal-Mart Stores, Inc., No. 99-
4150, 200 1 W L 84 548 6 (6th Cir. July 20, 2001) (unpublished) (same);
EEOC v. EMC Corp. of Ma ss., No. 98-1517 , 2000 W L 1918 19 (6th Cir.
Feb. 8, 2000) (unpub lished) (same).
However, the record does not support Defendant’s assertion
in this case.
As illustrated, the record is replete with testimony refuting
Defendant’s alleged “good faith” efforts. The Seventh Circuit
has found that in determining whether punitive damages were
properly awarded in the wake of Kolstad, the plaintiff must
first demonstrate that the employer acted with the requisite
mental state.2 See Bruso v. United Airlines, Inc., 239 F.3d
848, 857 (7th Cir. 2001). The Bruso court found that a
plaintiff may demonstrate the requisite mental state by
showing that “the relevant individuals knew of or were
familiar with the antidiscrimination laws and the employer’s
practices for implementing those laws.” Id. Alternatively,
the Bruso court opined, a plaintiff may demonstrate that the
employer acted with the requisite mental state (reckless
disregard for the plaintiff’s federally protected rights) by
showing the defendant’s employees lied, either to the plaintiff
or to the jury, in order to cover up their discriminatory
actions. Id. at 858 (citing Passantino v. Johnson & Johnson

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Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000)).
In the matter at hand, the diametrically opposed testimony
from Defendant’s employee witnesses versus that of
Plaintiff’s employee witnesses provides support for the
conclusion that Defendant’s employees were not truthful in
their actions, such that it may be said that Plaintiff
demonstrated that Defendant acted with reckless disregard for
his federal rights. See id.
In addition, the Bruso court found that for any employer to
show that it engaged in good faith efforts so as to avoid
liability for punitive damages, it is not enough that the
employer have a written or formal anti-discrimination policy.
See 239 F.3d at 858. Rather, the employer must demonstrate
that it engaged in good faith efforts to implement the policy.
See id. (emphasis added). “Otherwise, employers would have
an incentive to adopt formal policies in order to escape
liability for punitive damages, but they would have no
incentive to enforce those policies.” Id.; see also Cadena v.
Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000);
Passantino, 212 F.3d at 517. In this case, Defendant cannot
succeed in showing that it implemented its policy in good
faith where it did not enforce the policy until 1998, despite
numerous incidents of racial animus in the prior four years,
and where Defendant did not implement the policy with the
same force as to race that it did as to sex.
We therefore conclude that the district court did not err in
denying Defendant’s Rule 50 motion as to the award of
punitive damages.
Case No. 00-4316 – Appeal by Plaintiff
A district court’s construction of the damage caps in
§ 1981a is a question of statutory construction and is therefore
reviewed de novo. See Hudson v. Reno, 130 F.3d 1193, 1198
(6th Cir. 1997), abrogated on other grounds, Pollard v. E.I.
de Pont de Nemours & Co., 532 U.S. 843 (2001); see also
12 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
United States v. Spinelle, 41 F.3d 1056, 1057 (6th Cir. 1994);
United States v. Brown, 915 F.2d 219, 223 (6th Cir. 1990).
In ruling that the statutory cap applied to the jury’s award
of damages in this case, the district court opined:
Defendant’s final contention with respect to the
compensatory and punitive damage award is that it must
be reduced to conform to the $300,000 statutory cap for
noneconomic damages under Title VII. Section 1981a
caps an employer’s exposure to compensatory and
punitive damages along a sliding scale that varies with
the employer’s size. . . .
Pursuant to the statute, Defendant calculates that
Plaintiff’s compensatory damages were limited to three
weeks of missed work and emotional distress. Because
the Plaintiff earned approximately $20 per hour, three
weeks of lost pay would total approximately $2,400 ($20
per hour x 5 days per week x 3 weeks). The remaining
$47,600 of his $50,000 compensatory award is therefore
attributable to emotional distress and is subject to the
$300,000 cap. Thus, in accordance with 42 U.S.C.
§ 1981a(b)(3), the punitive damages award must not
exceed $252,400, which is $300,000 less $47,600 in
emotional distress damages.
Plaintiff argues against the application of the federal
cap because his claims were tried under both Title VII
and Chapter 4112 of the Ohio Revised Code, and
contends damages in excess of the federal cap could be
properly awarded. Citing Laderach v. U-Haul, 207 F.3d
825, 828 (6th Cir. 2000), Plaintiff maintains that the
“title” of an instruction is irrelevant. He argues that
whether the Court “titled” the jury instructions under
Title VII or under Ohio law is of no consequence, since
state and federal employment discrimination claims

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parallel one another. “If the proof is sufficient to find
one, it is sufficient to find the other also.”
Plaintiff further argues that the Court’s punitive
damage instruction, while applying the federal standards,
was sufficient to award punitive damages under state
standards. However, to so construe Plaintiff’s argument
would be to render the federal cap on damages
meaningless. The Court finds that the statutory cap of
$300,000 is applicable here.
As a final argument, Plaintiff asserts that the Ohio
Supreme Court held in Rice v. CertainTeed Corp., 84
Ohio St. 3d 417 (Ohio 1999), that punitive damages are
unlimited when federal and state claims are tried
together. However, as Defendant points out, the sole
issue before the Ohio Supreme Court in Rice was
whether punitive damages could be assessed at all under
Ohio law. Furthermore, Rice also restated the Ohio law
requirement that “[i]n Ohio, punitive damages are
awarded only upon a finding of actual malice.” Rice, 84
Ohio St. 3d at 422.
Here the jury was instructed, under the federal
standard, that punitive damages could be awarded if they
found that Defendant “had engaged in a discriminatory
and/or retaliatory practice or practices with malice or
reckless indifference to the rights of Plaintiff James Hall
to be free from such intentional discrimination and/or
retaliation in employment.” (Court’s Jury Instruction at
15) (emphasis provided). The fact that the jury
concluded that there was malice or recklessness in the
Defendant’s conduct does not necessarily mean that it
concluded that there was actual malice – as would be
required by Ohio law. Because we do not have an
affirmative finding on malice, the Ohio standard is not
satisfied.
14 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
Accordingly, because the jury was instructed under
federal law and under federal standards, the federal cap
must be applied. Defendant’s motion to alter judgment
and grant remittitur is GRANTED. Pursuant to 42
U.S.C. § 1981a, the punitive damage award is hereby
reduced to the statutory maximum of $300,000 plus, the
amount of the backpay award ($2,400). Judgment for
Plaintiff is amended to reflect a damage award of
$302,400. Defendant’s Rule 50 motion for judgment as
a matter of law is DENIED in all other respects.
(J.A. at 74-76 (emphasis in original).)
On appeal, Plaintiff argues that the district court erred in
capping his damages under § 1981a. Plaintiff notes that under
federal law, punitive damages are permitted if the jury finds
that a defendant acted with “malice” or “reckless indifference
to the rights of others;” while under state law, punitive
damages are permitted if the jury finds that a defendant acted
with “actual malice.” Plaintiff argues, however, that despite
the difference between the federal and state standards, the jury
made a finding of actual malice in this case sufficient to
satisfy Ohio’s statute. Plaintiff makes two arguments in
support of his position. First, Plaintiff contends that the
jury’s finding of retaliation satisfied Ohio’s actual malice
standard; and second, in the alternative, Plaintiff contends that
“[e]ven if the jury awarded punitive damages based on a
finding of reckless indifference, the ‘conscious indifference’
to rights required to find reckless indifference satisfies the
‘conscious disregard’ for rights standard required to find
actual malice under Ohio State law.” (Plaintiff’s Brief on
Appeal at 11.) Based upon the jury instructions regarding
what the jury needed to find in order to support a verdict of
reckless indifference as well as what the jury needed to find
in order to support a verdict of malice, we find that the district
court erred in capping the damages.

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In Zoppo v. Homestead Insurance Co., 644 N.E.2d 397,
399, 401-02 (Ohio 1994), the Ohio Supreme Court held that
§ 2315.21(C)(2) of the Ohio Revised Code, the section which
required a court to set the amount of punitive damages even
in jury trials, violated the right to trial by jury under the Ohio
Constitution. As a result, unlike the federal statute (§ 1981a),
punitive damages are not capped under Ohio law. See id.
The Ohio Supreme Court also noted that punitive damages
may be recovered upon proof of “actual malice.” Id. at 402.
“Actual malice” for purposes of satisfying the award of
punitive damages is defined under Ohio law as “‘(1) that state
of mind under which a person’s conduct is characterized by
hatred, ill will or a spirit of revenge, or (2) a conscious
disregard for the rights and safety of other persons that has a
great probability of causing substantial harm.’” Id. (emphasis
is original) (quoting Preston v. Murty, 512 N.E.2d 1174 (Ohio
1987)).
Here, in charging the jury before deliberations, the district
court instructed as follows regarding the award of punitive
damages:
In this case, you may award punitive damages if you
find that the Defendant Consolidated Freightways
engaged in a discriminatory and/or retaliatory practice or
practices with malice or reckless indifference to the
rights of Plaintiff James Hall to be free from such
intentional discrimination and/or retaliation in
employment.
Malice is defined as either:
One, that state of mind in which a person’s conduct is
characterized by hatred, ill-will, or spirit of revenge, or
16 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
Two, a conscious disregard for the rights and safety of
other persons that has a great probability of creating
substantial harm.
Reckless indifference means indifference of an
egregious character to the plaintiff’s rights to be free of
such discriminatory or retaliatory conduct. Reckless
indifference reflects that entire want of care which would
raise the presumption of a conscious indifference to
consequences.
(J.A. at 309-10 (emphasis added).)
“Indifference” is defined as “the quality, state, or fact of
being indifferent.” See WEBSTER’S NEW COLLEGIATE
DICTIONARY 585 (1974). “Indifferent,” in turn, is defined as
“that [which] does not matter one way or the other” or to be
“marked by a lack of interest in or concern about something.”
See id. “Disregard” is defined as “to pay no attention to,” or
to “neglect.” See id. at 330. Because the district court
instructed the jury that “reckless indifference” was that
conduct which would raise a presumption of a “conscious
indifference” to the consequences of Defendant’s actions, a
finding of “reckless indifference” by the jury was sufficient
to meet Ohio’s definition of “actual malice.” See Zoppo, 644
N.E.2d at 402 (defining “actual malice” as “‘a conscious
disregard for the rights and safety of other persons that has a
great probability of causing substantial harm’” (emphasis
added)). In other words, because Ohio defines “actual
malice” in the alternative as acting with a “conscious
disregard,” and because the district court in the matter at hand
instructed the jury that “reckless indifference” was that
conduct which rises to the level of creating a “conscious
indifference” to the consequences of one’s actions, the district
court erroneously concluded that it was unable to determine
whether the jury found actual malice for purposes of
satisfying Ohio’s requirements for awarding punitive
damages. See J.A. at 74-76 (indicating the district court’s

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ruling that because “the jury concluded that there was malice
or recklessness in the Defendant’s conduct does not
necessarily mean that it concluded that there was actual
malice – as would be required by Ohio law. Because we do
not have an affirmative finding of malice, the Ohio standard
is not satisfied”). We see no appreciable difference between
a “conscious indifference” or a “conscious disregard” for
purposes the jury’s awarding punitive damages under Ohio
law in this case. Although Defendant is correct in noting that
the Ohio Supreme Court has specifically rejected “any
definition of ‘actual malice’ which include[s] recklessness as
an element,” “recklessness” was not made an element here;
rather, pursuant to the jury instructions, “recklessness” was
defined as a “conscious disregard” which the Ohio courts
recognize as meeting the standard for “actual malice.” See
Motorists Mut. Ins. Co. v. Said, 590 N.E.2d 1228, 1234 (Ohio
1992), rev’d on other grounds, Zoppo, 644 N.E.2d at 399.
We find support for our conclusion in Martini v. Federal
National Mortgage Assoc., 178 F.3d 1336 (D.C. Cir. 1999),
wherein the United States Court of Appeals for the D.C.
Circuit held that punitive damages awarded in excess of the
federal statutory cap could be reallocated to the plaintiff’s
award for punitive damages awarded under the D.C. Human
Rights Act. See id. at 1349. In Martini, the plaintiff had filed
suit under Title VII and the D.C. Human Rights Act against
her former employer, Federal National Mortgage Association
(“Fannie Mae”), and former supervisors, claiming sexual
harassment and retaliation. Id. at 1338. The jury found
Fannie Mae liable under both the federal and state statutes,
and awarded a total of nearly seven million dollars. Id.
Specifically, pursuant to a verdict form with “special
interrogatory questions” for assessing damages for each type
of claim against each defendant (Fannie Mae or a named
supervisor) under each statute (Title VII or D.C. Human
Rights Act), the jury awarded $153,500 in backpay,
$1,894,000 in front pay and benefits, and $3,000,000 in
punitive damages under Title VII; as well as $615,000 in
18 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
compensatory damages and $1,286,000 in punitive damages
under the D.C. Human Rights Act. Id. at 1339, 1349.
Pursuant to a post-trial motion, the district court, among other
things, reduced damages awarded under Title VII to $453,500
pursuant to the statutory cap. Id. at 1340. The plaintiff
appealed to the D.C. Circuit arguing, among other things, that
“any Title VII damages exceeding the cap should be
reallocated to her D.C. Human Rights Act recovery.” Id. at
1349. The D.C. Circuit agreed. Id.
In so ruling, the court began by noting that “[t]he district
court gave the jury a single set of instructions applicable to
Martini’s claims under both Title VII and the D.C. Human
Rights Act[,]” and, “[a]s required by law, the court never
informed the jury about Title VII’s damages cap.” Martini,
178 F.3d at 1349. The court went on to reason:
Because the jury used exactly the same instructions in
evaluating Martini’s Title VII and D.C. law claims, and
because the jury had no knowledge of Title VII’s damage
cap, it had no legal basis for distinguishing between the
two statutes. Thus, for any one claim against any one
defendant, distinguishing between damages that the jury
awarded under Title VII and damages that it awarded
under the D.C. Human Rights Act makes no sense. . . .
To be sure, only $300,000 of [the award] may be
awarded under Title VII. But we see no reason why
Martini should not be entitled to the balance under the
D.C. Human Rights Act, since the local law contains the
same standards of liability as Title VII but imposes no
cap on damages.

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Nos. 00-4316/4431 Hall v. Consolidated
Freightways
19
3The jury instructions themselves were not set forth in Ma rtini.
However, § 1981a provides that punitive damages may be awarded “if the
complaining party demonstrates that the respondent engaged in a
discriminatory practice or discriminatory practices with m alice or with
reckless indifference to federally protected rights of an aggrieved
individual,” see 42 U.S.C. § 1981a, while the D.C. Human Rights Act
provides that punitive damages are available if the “employee can
establish evil motive or actual malice on [the] part of her employer.” See
D.C. Code Ann. § 2-1403.16 (2001). Therefore, without knowing
precisely how the jury was instructed, it would appear that the fact that the
D.C. statute requires actual malice, but the federal statute requires actual
malice or reckless indifference, was of no consequence to the court’s
finding that damages awarded in excess of the federal cap could be
reallocated to the state award.
Id. (emphasis added).3 Similarly, in the matter at hand, where
the jury was instructed in such a fashion sufficient to support
punitive damage awards under both the federal as well as the
state statute, Plaintiff should be entitled to the balance of the
award in excess of the federal $300,000 cap under state law.
In light of this conclusion, we need not address Plaintiff’s
alternative argument that the jury’s finding of retaliation
necessarily included a finding of actual malice for purposes
of satisfying Ohio’s standard for awarding punitive damages.
CONCLUSION
For the reasons set forth above, we AFFIRM the district
court’s order denying Defendant’s motion for judgment as a
matter of law with respect to jury’s award of punitive
damages in Case No. 00-4431; we REVERSE the district
court’s order capping the jury’s award of punitive damages
under the federal statute in Case No. 00-4316; and REMAND
the case to the district court with instructions to reinstate the
jury’s full award of damages.
20 Hall v. Consolidated
Freightways
Nos. 00-4316/4431
______________________
CONCURRENCE
______________________
MARTHA CRAIG DAUGHTREY, Circuit Judge,
concurring. As the majority notes, the plaintiff in this case
advanced alternative theories upon which the jury’s award of
punitive damages could be sustained under state law, despite
the federal cap in § 1981a. The majority takes great pains to
uphold the award under both theories, including what I find
to be a somewhat strained analysis with regard to whether the
jury instructions on “reckless indifference” and “conscious
disregard” can support a finding of “actual malice,” the
prerequisite in Ohio for an award of punitive damages.
Nevertheless, I conclude that the jury could, and undoubtedly
did, find that the defendant’s retaliation in this case met the
Ohio definition of “actual malice” as “that state of mind under
which a person’s conduct is characterized by . . . a spirit of
revenge.” Zoppo v. Homestead Insurance Co., 644 N.E.2d
397,402 (Ohio 1994).
For this reason, and because I concur in the remainder of
the majority’s analysis on the issues raised in both the appeal
and the cross-appeal in this case, I would reach the same
result as the majority does in reinstating the jury’s full award
of damages.

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