testimony, I granted
defendants' motion to strike Ms. Estes' demand for front pay and
submitted the back pay demand to the jury "subject to later deciding the
legal questions raised by the motion." Fed.R.Civ.P. 50(b). The legal
question is whether Ms. Estes' proof of economic injury was too
speculative. I have concluded, after reviewing the record, that it was.
Dr. McCarthy thought the value of Ms. Estes' continued employment at
Georgetown was $69,994 more than what Ms. Estes actually earned between
the date she was fired and the date of the trial. Tr. at 950. That
opinion rested principally upon the proposition, which Dr. McCarthy
"imagine[d]," that had Ms. Estes not been fired, she would instead have
been promoted to Mr. Porta's job (six months after the date of her
termination) and given a $20,000 raise — to match Mr. Porta's
salary of $66,200. Tr. at 946, 972-73. Dr. McCarthy's opinion did not
fully account for Ms. Estes' performance reviews, Tr. at 977, nor for the
fact that Ms. Estes had not applied for Mr. Porta's job or any other job
from 1992 until 1996, Tr. at 975-76, nor did Dr. McCarthy consider Mr.
Porta's greater work experience or the fact that he had credentials
— a J.D. degree and prior positions as a certified public
accountant and a chartered financial analyst — that Ms. Estes
lacked. Tr. at 974-75. Most importantly, Dr. McCarthy's income
projections completely ignored Ms. Estes' voluntary move to Wilmington in
July 1998. Tr. at 962-63, 968.
Ms. Estes' proof of economic injury fell well short of the standard set
by cases like Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567-68
(D.C. Cir. 1993) (lost earnings projection based on possible but not
probable lines of work was too speculative); Meschino v. Int'l Tel. &
Tel. Corp., 661 F. Supp. 254, 258 (S.D.N.Y. 1987) (assumption that
plaintiff would have been promoted based on praise of former supervisor
who had been replaced was too speculative). Unlike the plaintiff in
Brown v. Marsh, 713 F. Supp. 20, 21-23 (D.D.C. 1989), whose back pay
award reasonably assumed a series of promotions, Ms. Estes did not
consistently apply for promotions and was not "extolled at every turn"
for exceptional work performance. Id. at 22.
Because plaintiff's proof of economic injury was impermissibly
speculative, the jury's award of back pay must be set aside. Ms. Estes'
motion for prejudgment interest on the back pay award is moot.
3. Punitive damages
I declined to instruct the jury on punitive damages under the D.C.
Human Rights Act because no reasonable juror could have found clear and
convincing evidence of evil motive or actual malice on the part of either
Mr. Porta or Georgetown. See United Mine Workers v. Moore, 717 A.2d 332,
341 (D.C. 1998). The question then was whether the jury should be given
a punitive damage instruction under Title VII's more liberal standard of
acting "with malice or with reckless indifference to the federally
protected rights" of Ms. Estes. 42 U.S.C. § 1981a(b)(1). If so, the
instruction would be applicable only to Georgetown, because punitive
damages under Title VII are available only against the employer. See Gary
v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995) (Title VII does not impose
My decision to instruct the jury that they could award punitive damages
under Title VII rested on a single sentence of the Supreme Court's
opinion in Kolstad v. American Dental Ass'n, 527 U.S. 526, 535 (1999)
(emphasis added): "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"; and upon a
single fact: the delivery of Ms. Estes' lawyer's demand letter to
Georgetown's president on November 27, 1996. That letter put Georgetown
on notice of Ms. Estes' claim and imparted to Georgetown the knowledge
that, if it fired Ms. Estes, it might be doing so in violation of federal
law. This ruling appears to be compelled by Kolstad, but its
implications are disturbing. If it is correct, an employer who follows
through with a planned discharge of an employee after receiving a formal
demand letter risks automatic exposure to punitive damages, merely
because the employee or her lawyer have been astute enough or quick
enough to get the demand letter in the mail before the pink slip
arrives.*fn5 Neither Kolstad nor the evidence in this case provides any
other basis for the punitive damage instruction. There was no evidence
"sufficient to support an inference that the requisite mental state
[could] be imputed" to Georgetown, 527 U.S. at 546, with respect to Ms.
Estes' hostile work environment claim. To have permitted the jury to
award punitive damages for the hostile work environment on a common law
agency theory — simply that Mr. Porta was a manager acting within
the scope of his employment — on a record devoid of any
corroboration of Ms. Estes' "locker room" testimony*fn6 or evidence that
anyone at Georgetown had notice of the claim before the demand letter of
November 27, 1996, would have ignored Kolstad's disapproval of
oversimplified vicarious liability for punitive damages and "penalized
those employers who educate themselves and their employees on Title VII's
prohibitions," id. at 544.*fn7
4. Other issues
I have carefully reviewed defendants' assertions that a new trial is
warranted by any one of several trial rulings: foreclosing inquiry as to
the previous ties of Gilbert Brown and Karen Kenner to plaintiff's
counsel; allowing Eric Sheppard to testify notwithstanding the existence
of his videotaped de bene esse deposition; and receiving "car pool
testimony." Those rulings are explained in the record, and none of them
warrants a new trial.
A comment by plaintiff's counsel in his closing arguments also does not
require a new trial. Appealing to the jury for a punitive damage award,
plaintiff's counsel stated: "The mere fact that defendants have avoided
having to pay any kinds of damages in that — for front pay . . . is
all the more reason that this defendant . . . must be taught a
lesson . . . ." Tr. at 1732-33. There was no contemporaneous objection,
perhaps because of a tactical decision by counsel that a timely objection
would only emphasize a small point that had already passed.
Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1349 (D.C.
Cir. 1999), requires allocation of the compensatory damage award to
plaintiff's DCHRA claim.
Plaintiff's motion for indemnification for taxes that may be assessed
on an award of attorneys' fees is not ripe for consideration. The
determination required by LCvR 54.2(b) has yet to be made.
I have considered the remaining arguments in support of the defendants'
motion and find them to be without merit. An appropriate order
accompanies this memorandum.
For the reasons set forth in the accompanying memorandum, it is this
___ day of November 2002,
ORDERED that defendants' motion for judgment as a matter of law, or in
the alternative, a new trial [# 183], is denied, except for the motion to
set aside the back pay award [#183], which is granted. It is further
ORDERED that plaintiff's motion for indemnification of taxes that may
be assessed on attorneys' fees [# 184] is denied without prejudice. It
ORDERED that plaintiff's motion [# 184] to reduce the punitive damages
award to $300,000 pursuant to 42 U.S.C. § 1981a(b)(3) and to allocate
the compensatory damages award of $40,000 to her DCHRA claim is granted.
It is further
ORDERED that the Clerk of the Court file an amended judgment in favor
of plaintiff for $340,000. And it is further
ORDERED pursuant to LCvR 54.2(a) that the time for plaintiff to file an
amended motion for attorneys' fees is extended to a date to be set at a
later time, and that the parties confer and attempt to reach an agreement
on fee issues. The status conference contemplated by LCvR 54.2(a) is set
for December 12, 2002 at 4:30 p.m.