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Punitive damages were justified in a reverse sex discrimination suit against the University of Pennsylvania where the evidence showed that one of the decision-makers decided not to interview any male candidates for coach of the women’s crew team despite knowing that the university’s policies prohibited ever taking gender into account when hiring, the 3rd U.S. Circuit Court of Appeals has ruled. In its 19-page opinion in Medcalf v. University of Pennsylvania, a unanimous three-judge panel upheld a jury’s November 2001 award of more than $115,000 — including $25,120 in punitive damages — to Andrew Medcalf, a former assistant coach of the university’s men’s crew team who said he was clearly the best candidate for the head coach of the women’s team and was passed over only because of his sex. The cost to Penn more than doubled later when U.S. District Judge Herbert J. Hutton awarded more than $175,000 in costs and attorney fees to Medcalf’s lawyer, Lawrence R. Woehrle of Sprague & Sprague, and nearly $13,000 in prejudgment interest on the backpay portion of the jury’s award. On appeal, the university’s lawyers argued that the jury should never have been allowed to consider remarks allegedly made by Carolyn Femovich, the university’s senior associate athletic director, since she was not a decision-maker. Attorneys Neil J. Hamburg of Hamburg & Golden and Penn in-house attorney Eric A. Tilles argued that since Athletic Director Steve Bilsky was the sole actual decision-maker, any statements by Femovich could not be used to attribute discriminatory animus to Penn. The 3rd Circuit disagreed, finding instead that there was “substantial evidence that Femovich was intimately involved in the process of selecting candidates to interview for the position of women’s crew coach, such that the jury could properly infer that she was a decision-maker.” U.S. Circuit Judge D. Brooks Smith noted that Bilsky testified that he gave Femovich the authority to conduct the search process for a head coach “as she saw fit.” Femovich, he noted, testified that she drafted the advertisements for the open position, and that she was responsible for checking references, reviewing resumes, selecting who would be interviewed, and setting up interview schedules. She also participated in interviewing each final candidate and giving recommendations to Bilsky, he noted. As a result, Smith concluded that “remarks that she made regarding her desire to put a woman in the position were clearly related to the search process for the specific position Medcalf applied for, such that they may properly be considered as evidence of discriminatory animus by Penn.” In the suit, Medcalf said he was told that university officials had decided that they could not hire a male for the open position because all of the other rowing coaches then on staff were male. He said he was also told Penn wanted a woman for the post because it believed the women’s rowing team needed a “strong female role model.” Medcalf testified at trial that Femovich told him she would find a woman as least as qualified as he was. The university had originally asked Stanley Bergman, the director of rowing, to recommend a candidate, Medcalf testified, but when Bergman submitted Medcalf’s name, the university decided not to give him an interview. Medcalf said Bergman told him at the time that he should get a lawyer because the decision to reject him was based on the fact that he is male. But Hamburg told the jury that Penn chose Barbara Kirch for the post because she had worked for nine years as head rowing coach at Dartmouth University and because she was an Olympian who had experience coaching the junior women’s national crew team, a position that gave her access to possible recruits for Penn’s team. On appeal, Hamburg argued that Medcalf’s evidence at trial fell short of proving that Penn had discriminated since the university offered legitimate non-discriminatory reasons for hiring Kirch. The appellate court disagreed, finding instead that Medcalf’s lawyer had shown there were “inconsistencies, contradictions, and implausibilities” in Penn’s proffered legitimate reasons. “The evidence, viewed favorably to Medcalf, reveals inconsistencies in Penn’s position as to what ‘hiring criteria’ it used to make the decision regarding the open coaching position, and what qualities it valued most highly in candidates,” Smith wrote in an opinion joined by 3rd Circuit Judge Richard L. Nygaard and Morton I. Greenberg. Smith noted that when Penn first announced the opening, it “placed a high importance on actual coaching ability.” But at trial, Smith found, Penn “focused almost exclusively on the administrative side of coaching,” contending that it selected Kirch over Medcalf based upon her relative superiority in areas such as knowledge of NCAA and Ivy League rules; recruiting; fund-raising; administering budgets; and knowledge of Ivy League student financial aid requirements and constraints. “The jury,” Smith found, “may have regarded this emphasis on administrative capabilities as suspect in light of the fact that there was strong evidence that Medcalf was a superior technical coach to Kirch and the other women who were granted interviews.” Hamburg and Tilles also argued that the jury’s punitive award should be overturned because the evidence didn’t satisfy the U.S. Supreme Court’s 1999 decision in Kolstad v. American Dental Association in which the justices held that punitive damages may be recovered under Title VII only where the plaintiff proves the discrimination was done “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Under Kolstad, the defense lawyers argued, since there was proof that Penn was making good faith efforts to comply with Title VII, it cannot be liable for any intentional discrimination by Femovich simply because she was acting with malice in a managerial capacity within the scope of her employment. But Smith found that Hutton “did not give the jury a Kolstad charge,” and that Penn did not raise any objection to the jury instructions on appeal. “Because the jury charge did not instruct on good faith, by failing to object to the charge on that ground, Penn has waived any argument that its good faith efforts to comply with Title VII preclude the imposition of vicarious liability for Carolyn Femovich’s actions,” Smith wrote. “Based on the charge the jury was given, the evidence is sufficient to support the award of punitive damages,” Smith wrote. Femovich’s remarks, as well as her awareness of Penn’s gender-neutral policy, justified the punitive award, Smith found. “A rational jury … could have found that Carolyn Femovich, who was clearly acting in a managerial capacity in the scope of her employment, acted with the requisite malice or reckless indifference to the federally protected rights of Medcalf,” Smith wrote. “Femovich knew that Penn had an equal opportunity employment policy that prevented Penn from taking gender into account in hiring, yet she did not grant any male candidate an interview, and several witnesses testified that she intended to put a woman in the coaching position.”

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