e court held that, notwithstanding the inadequacy of the defendant’s handling of plaintiffs’ internal harassment complaints and earlier complaints filed by others, the defendant made out its affirmative defense:
Davidson was arguably an agent in a managerial capacity, and she may have acted with malice or reckless indifference to the rights of the plaintiffs within the scope of her employment. However, these actions were contrary to Bally’s good faith effort to prevent sexual harassment in the workplace, as is evidenced by the fact that Bally’s had a well-publicized policy forbidding sexual harassment, gave training on sexual harassmet to new employees, established a grievance procedure for sexual harassment complaints, and initiated an investigation of the plaintiffs’ complaints. These actions evidence a good faith effort on the part of Bally’s to prevent and punish sexual harassment.
Punitive-Damage Amounts After State Farm: Civil Rights Cases
	Lust v. Sealy, Inc., 383 F.3d 580, 590, 94 FEP Cases 645 (7th Cir. 2004), affirmed the judgment on a jury verdict for the Title VII sex discrimination plaintiff, but held that the award of $273,000 in punitive damages was excessive in light of defendant’s remedial efforts, and that $150,000 is the most that could be sustained. The court affirmed the award of $27,000 in compensatory damages, and held that the caps made it unnecessary to address the ratio between the punitive and compensatory damage awards. “When Congress sets a limit, and a low one, on the total amount of damages that may be awarded, the ratio of punitive to compensatory damages in a particular award ceases to be an issue of constitutional dignity . . . .” (Citations omitted.) The court also stated:
	As we emphasized in Mathias, moreover, capping the ratio of compensatory and punitive damages makes sense only when the compensatory damages are large, which the statutory cap on total damages in employment discrimination cases precludes. Suppose Lust had been emotionally sturdier and incurred only $10 in emotional injury from the delay in her promotion to Key Account Manager. Would Sealy argue that in that case the maximum award of punitive damages would be $100? So meager an award would accomplish none of the purposes, discussed in Mathias, for which punitive damages are validly awarded.
Id. at 591. The case cited is Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 675–78 (7th Cir.2003). The court went on to state that imposing the maximum penalty in a case involving “slight, because quickly rectified, discrimination” would “impair marginal deterrence.” Id. Its argument is that employers in such a situation would have no incentive to avoid further discrimination  “It’s as if the punishment for robbery were death; then a robber would be more inclined to kill his victim in order to eliminate a witness and thus reduce the probability of being caught and punished, because if the murdering robber were caught he wouldn’t be punished any more severely than if he had spared his victim.” Id. 
	Williams v. ConAgra Poultry Co., 378 F.3d 790, 796–97, 94 FEP Cases 266 (8th Cir. 2004), affirmed the judgment on a jury verdict for the Title VII, § 1981, and Arkansas Civil Rights Act racial harassment and termination plaintiff, including the remitted awards of $173,156 in compensatory damages and $500,000 in punitive damages on the termination claim and compensatory damages of $600,000 on the harassment claim, but ordered that the punitive-damage award on the harassment claim be remitted to $600,000 from the jury’s verdict of $6,063,750. The court rejected defendant’s argument that it should not be liable for punitive damages, relying on incidents affecting the plaintiff, incidents affecting others of which the plaintiff was not aware, and relying on the egregiousness of the harassment. The court held that a reasonable jury could find malice from these facts and from the fact that ConAgra managers were inconsistent in their reasons for firing plaintiff:
	As we noted above, there was substantial evidence of egregious racial harassment at the El Dorado plant, and although Mr. Williams did not testify to being aware of this activity, it could be probative of the state of mind of ConAgra’s managers in firing him. Furthermore, at trial there were contradictions in the testimony of ConAgra managers with respect to the basis for Mr. Williams’s firing. Thus, in this case the same evidence that the jury used to support its finding of racial motivation in Mr. Williams’s discharge also supports an inference of intentional and malicious conduct by ConAgra. 
Id. at 796. The court also held that there was sufficient evidence to support a jury determination of reckless indifference on plaintiff’s harassment claim, because plaintiff made many complaints to upper management about his supervisor’s harassment, over several years, and no meaningful action was taken. The court held that the $6,063,750 punitive-damage award on the harassment claim was unconstitutionally excessive “for three interrelated reasons.” “First, in upholding the award the district court improperly relied on evidence of misconduct by ConAgra unrelated to Mr. Williams’s claim. Second, the punitive damages award is far in excess of what analogous statutes would allow. Finally, the ratio of punitive damages to compensatory damages far exceeds the levels that the Supreme Court has suggested are consistent with due process.” Id. at 796. As to the first, the court stated:
Tying punitive damages to the harm actually suffered by the plaintiff prevents punishing defendants repeatedly for the same conduct: If a jury fails to confine its deliberations with respect to punitive damages to the specific harm suffered by the plaintiff and instead focuses on the conduct of the defendant in general, it may award exemplary damages for conduct that could be the subject of an independent lawsuit, resulting in a duplicative punitive damages award. Where there has been a pattern of illegal conduct resulting in harm to a large group of people, our system has mechanisms such as class action suits for punishing defendants. Punishing systematic abuses by a punitive damages award in a case brought by an individual plaintiff, however, deprives the defendant of the safeguards against duplicative punishment that inhere in the class action procedure.
	That does not mean that conduct in other cases is always irrelevant when assessing the defendant’s reprehensibility. An incident that is recidivistic can be punished more harshly than an isolated incident. . . . In determining what constitutes a previous example of the same conduct, however, we must be careful not to let the exception swallow the rule. By defining his or her harm at a sufficiently high level of abstraction, a plaintiff can make virtually any prior bad acts of the defendant into evidence of recidivism. . . . 

	The Supreme Court has therefore emphasized that the relevant behavior must be defined at a low level of generality. “[E]vidence of other acts need not be identical to have relevance in the calculation of punitive damages,” id., but the conduct must be closely related.
Id. at 797 (emphasis in original). The question whether particular incidents are sufficiently factually and legally similar is not always simply, as the court’s application of the standard shows:
	In upholding the punitive damages award on the harassment claim, we find that the district court improperly relied on evidence of harassment not suffered by Mr. Williams that was insufficiently similar to his experiences to be evidence of recidivism under the narrow exception set forth in State Farm. In particular, the district court relied extensively on the testimony of Mr. Johnican who stated that he saw black dolls hung from nooses around the plant. He also reported invitations to KKK barbecues and seeing a long racist joke about keeping black individuals out of heaven posted in the factory. Another black employee, James Atkins, testified that he was invited on KKK hunting trips, where he was to serve as the hunted. He also testified to seeing nooses left about the factory. Tasha Moore testified that female black employees who responded favorably to sexually suggestive banter were extended the privileges of white employees, while black women who did not respond favorably were, along with other black employees, given less favorable treatment. Mr. Williams never testified to being aware of these events, let alone being the target of similar behavior. We hold that this misconduct is insufficiently similar to that of which Mr. Williams was the object to count as evidence of its recidivist character.
	The district court did, however, identify evidence that would fall within the State Farm recidivism exception. Mr. Atkins testified that white managers were extended privileges, like travel at company expense, unavailable to black employees. Ms. Moore testified that black employees were given shorter breaks than white employees. These instances are factually similar to the disparate work assignments that Mr. Williams testified about. Mr. Johnican testified to the widespread use of racist language of the kind that Mr. Williams complained of. Once the evidence has been subject to the winnowing required by State Farm, ConAgra’s conduct in Mr. Williams’s case remains reprehensible, but it is less appalling than the general picture of ConAgra’s misconduct that the district court drew.
Id. at 797–98. The court stated that “it would be inappropriate for the courts simply to extend the Title VII limitations to § 1981 cases under the guise of interpreting the Constitution,” and continued: “In this case, the award of punitive damages alone on the harassment claim was $6,063,750, more than twenty times the Title VII limit. We do not hold that there is any constitutionally required ratio between § 1981 damages awards and the Title VII cap, but so huge a discrepancy when coupled with the other infirmities that we discern in this award is telling and hard to ignore.” Id. at 798. The court then addressed the ratio between compensatory and punitive damages, and held that there was no simple test. “Rather, the mathematics alerts the courts to the need for special justification. In the absence of extremely reprehensible conduct against the plaintiff or some special circumstance such as an extraordinarily small compensatory award, awards in excess of ten-to-one cannot stand.” Id. It held that this case did not present such an extreme, and continued: 
Mr. Williams’s large compensatory award also militates against departing from the heartland of permissible exemplary damages. The Supreme Court has stated that “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” State Farm, 538 U.S. at 425, 123 S. Ct. 1513. Mr. Williams received $600,000 to compensate him for his harassment. Six hundred thousand dollars is a lot of money. Accordingly, we find that due process requires that the punitive damages award on Mr. Williams’s harassment claim be remitted to $600,000. 
Id. at 799.
Special Problems with the Federal Government as Employer
	Monreal v. Potter, 367 F.3d 1224, 1230–34, 93 FEP Cases 1562 (10th Cir. 2004), reversed the grant of summary judgment to the Title VII defendant U.S. Postal Service. The court affirmed the denial of class certification but held that three plaintiffs who filed individual discrimination complaints—which the Postal Service dismissed on the grounds that more than 180 days had passed and that the claims were subsumed in a pending administrative class action—adequately exhausted their administrative remedies without having to appeal the dismissals to the EEOC. The court also held that the plaintiffs who had filed the class administrative complaint adequately exhausted their individual claims by using the class procedure. Discussing 29 C.F.R. § 1614.408, the court held that “the following persons are authorized to file civil actions in United States District Court within the prescribed time periods: 1) ‘a complainant who has filed an individual complaint’; 2) ‘an agent who has filed a class complaint’; and 3) ‘a claimant who has filed a claim for individual relief pursuant to a class complaint.’” Id. at 1232 (emphases in original).
Appellate Tips for Effective Advocacy
	Smith v. Northeastern Illinois University, 388 F.3d 559, 94 FEP Cases 1295 (7th Cir. 2004), affirmed the grant of summary judgment and the judgment on a jury verdict for the Title VII racial harassment and First Amendment harassment defendants. The court stated: “Plaintiffs’ appellate brief provides a ‘laundry list’ of factual allegations followed by an ‘argument’ section in which the litany of unorganized factual allegations are prefaced or followed by conclusory statements. Plaintiffs’ counsel should be well aware that courts are not to do counsel’s work of organizing its arguments nor are they ‘in the business of formulating arguments for the parties.’” Id. at 562 n.3. Later in its opinion, the court stated, in connection with two plaintiffs’ appeal from the denial of their motion for a new trial:
	Smith and Reeves make two arguments to support their motion, both of which are cursory. Apparently addressing the weight of the evidence, their argument consists of a single sentence: “To fail to correct the present verdict will leave Defendants with th