Robert Christopher; Janet Stratton-Christopher v. Spectra Electrical Services, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT CHRISTOPHER; JANET
STRATTON-CHRISTOPHER,
Plaintiffs - Appellants,
v.
SPECTRA ELECTRICAL SERVICES,
INC.,
Defendant - Appellee.
No. 14-15244
D.C. No. 2:12-cv-00345-DGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted February 10, 2016
San Francisco, California
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
Plaintiffs Robert Christopher, an electrician previously employed by Defendant
Spectra Electrical Services, Inc., and his wife, Jane Stratton-Christopher filed an
action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and 42 U.S.C.
FILED
FEB 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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§ 1981, seeking compensatory and punitive damages for an alleged hostile work
environment and retaliation. They appeal the district court’s grant of partial summary
judgment to Spectra dismissing their request for punitive damages. They also appeal
the district court’s mid-trial denial of their oral motion to reconsider the summary
judgment order. The jury split its verdict, finding for the Christophers on their hostile
work environment claim, and for Spectra on the retaliation claim. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Spectra was liable for punitive damages only if it acted with “malice or reckless
indifference” to Mr. Christopher’s federally protected rights. 42 U.S.C.
§ 1981a(b)(1). “Malice” and “reckless indifference” pertain to an employer’s
“knowledge that it may be acting in violation of federal law, not its awareness that it
is engaging in actual discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535
(1999). In other words, Spectra “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. Therefore, the focus is on Spectra’s state of mind. Id. at 535.
1. At the outset, we reject the Christophers’ argument that the district court
applied the wrong rule of law. The court correctly relied on Kolstad, and never
misstated the governing law nor applied an erroneous legal standard.
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2. Spectra’s alleged failure to investigate or take remedial action after receiving
Mr. Christopher’s Charge of Discrimination – when he was no longer employed at
Spectra – does not raise a triable issue on punitive damages liability. Even assuming
Spectra was required to take some action to deter harassment by other employees, the
Christophers have pointed to no on-point authority stating the failure to do so meant
Spectra had violated Mr. Christopher’s federally protected rights. Because the
Christophers’ underlying theory of discrimination is therefore “novel or otherwise
poorly recognized,” id. at 537, Spectra’s alleged failure to take action cannot show the
requisite state of mind required under § 1981a(b)(1) and Kolstad to justify an award
of punitive damages.
3. Spectra’s alleged failure to enforce its anti-discrimination policies similarly
cannot, on its own, subject Spectra to punitive damages. Spectra’s diligence in
implementing its anti-discrimination policies is relevant to defend a charge that
Spectra is vicariously liable for punitive damages due to a supervisor’s actions. See
id. at 544-46. But the district court observed that the Christophers had not argued
Spectra was vicariously liable for punitive damages, and the Christophers identify no
error in that conclusion. Accordingly, we affirm the grant of partial summary
judgment to Spectra on the Christophers’ claim for punitive damages.
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4. At oral argument, the Christophers abandoned any challenge to the district
court’s denial of their mid-trial motion to reconsider the summary judgment order.
Keeping in mind our “review is limited to the record presented to the district court at
the time” of its decision, we find no error in the denial of reconsideration. Lippi v.
City Bank, 955 F.2d 599, 604 (9th Cir. 1992).
5. We need not address whether the district court erred in refusing to provide
the jury with a punitive damages instruction. Because the Christophers did not raise
the issue in their opening brief, it is waived. See Avila v. Los Angeles Police Dep’t,
758 F.3d 1096, 1101 (9th Cir. 2014).
AFFIRMED.
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