X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The full case caption appears at the end of this opinion. BIRCH, Circuit Judge: Before this court are two consolidated appeals arising from the Pregnancy Discrimination Act case brought by Plaintiff-AppelleeUnited States Equal Employment Opportunity Commission (“EEOC”) on behalf of a class of employees of Defendant-AppellantW & O, Inc., doing business as Rustic Inn (“W & O”). In the first appeal, No. 98-5515, W & O appeals the jury award of punitivedamages to the employees and the district court’s award of front pay to Barbara Nuesse (“Nuesse”), one of the employees. In thesecond appeal, No. 98-5646, W & O appeals the district court’s order awarding costs to the EEOC. As to W & O’s appeal of thedamage awards, we AFFIRM the award of punitive damages and VACATE the award of front pay and REMAND for thedistrict court to make factual findings as to whether reinstatement is feasible. As to the appeal of the award of costs, we AFFIRMthe award of witness fees, deposition costs, and photocopying costs, VACATE the award of exhibit costs and process server fees,and REMAND for re- evaluation of the process server fees request I. Factual Background When this case was filed, W & O had a written policy of barring pregnant waitresses from waiting tables at the Rustic Inn pasttheir fifth month of pregnancy and requiring them, instead, either to suspend working at the Rustic Inn or to work in the positionsof cashier or hostess. Because they do not receive gratuities from customers, the cashier and hostess positions pay less than doesthe waitress position. In its complaint, the EEOC challenged the policy as violating the Pregnancy Discrimination Act (“PDA”), 42U.S.C. � 2000e(k). The EEOC represented a class of three aggrieved employees: Nuesse, Suzette McDevitt (“McDevitt”), andDebbie Grossman (“Grossman”), each of whom was removed from the schedule, had her hours reduced, or left after being toldthat the policy would be applied to her. At summary judgment, the district court found that W & O’s policy violated the PDA; W & O does not appeal that determination.The district court scheduled a jury trial on the issue of damages. In the pretrial stipulation, adopted by the district court as the finalpretrial order, the parties included calculations of damages for the three employees; the calculations included back pay, interest onthe back pay, and punitive damages but did not address front pay. The pretrial stipulation mentions front pay and reinstatementonly in the undisputed statements of law. At trial, in addition to offering evidence regarding the aggrieved employees’ back payclaims and W & O’s financial situation, the parties offered testimony about the origin and application of the pregnancy policy, the jobof waitress at the Rustic Inn, and the specific treatment of each of the aggrieved employees. The pregnancy policy: Michael Diascro (“Diascro”), the Rustic Inn’s general manager, drafted the policy at the approximate timethat the Family and Medical Leave Act (“FMLA”) was enacted. He viewed the policy, which stated, among other things, that aserver should not work past five months of pregnancy, as a guideline. In drafting the policy, Diascro did some research, includingcalling “Wage and Labor” and looking at reference books and other restaurants’ handbooks. James Donlin (“Donlin”), nightmanager for the Rustic Inn, testified that he called the Labor Board in 1992 and was advised that pregnant women should be ableto keep their jobs for as long as they were able to fulfill their duties. Donlin admitted that a pregnant woman who did not take acashier or hostess position would have to leave the Rustic Inn after her fifth month of pregnancy. He suggested that the policycame about because “some of the managers and owners are older, were from the old school.” R7-173-168. Donlin stated that theowner Henry Oreal (“H. Oreal”) and his sons Wayne (“W. Oreal”) and Gary (“G. Oreal”) all made comments indicating that theywere from the “old school” and believed that a pregnant woman who was showing should not wait tables. In an EEOC affidavit,H. Oreal stated that “no one is going to run around here pregnant and big like that. No pregnant women are going to tell me howlong they’ll stay.” R8-174-323. W. Oreal stated that “[t]here’s a very bad aura going around the place because of this particularcase here. . . .” R7-173-192- 93. The policy was removed once found to be illegal. The new policy is “almost identical” to theFMLA regulations. Diascro admitted that he could have originally modeled the policy on the FMLA regulations but did not. The job: A waitress at the Rustic Inn had to handle multiple tables at one time. She had to carry trays loaded with food, thoughanyone (pregnant or otherwise) could get help carrying trays weighing more than 25 pounds. The restaurant was split into fourdifferent stations, with the outside canal area being the most desirable due to the large number of people who liked to sit there.The inner areas closer to the kitchen earned less money in tips. The area closest to the kitchen was the area where Rustic Inn”normally put pregnant waitresses.” R8-174-330. Nuesse: Nuesse testified that she gave W & O a note from her doctor stating that she could work, but that, around the time of hersixth month, H. Oreal told her that she was “too fat to be working in here” and that he didn’t want her serving his customers beingas “fat” as she was. R7-173-39. A few days later, H. Oreal called Nuesse into a meeting with the other owner, Wayne McDonald(“McDonald”) and W & O’s bookkeeper. At this meeting, H. Oreal told her that he wanted her to stop waiting tables because shewas “too big” and that she could work as a cashier or hostess. R7-173-40. H. Oreal testified that he did not think that the doctor’snote should affect the decision because the doctor would not know how hard the work was. Nuesse was removed from theschedule during her seventh month. After Nuesse gave birth, she was not contacted to be put back on the schedule. Nuessetestified that she was told by Allen Brenner (“Brenner”), a manager of the Rustic Inn, that it was not “a good idea I show my facearound there.” R7-173-46. Nuesse could not find a job waiting tables and now works for United Postal Service. H. Oreal alleged that customers complained to him about the fact that Nuesse was working while obviously pregnant, that he wasworried that she would drop a tray while running and hurt the fetus or someone else, and that Nuesse was not doing her workproperly. R8-174-310-11, 314. [FOOTNOTE 1] H. Oreal wanted her to switch to being a cashier but Nuesse “wanted to work when she wantedto work, and do what she wanted to do, and disregarded my problem. . . .” R8-174-313. Nuesse admitted that H. Oreal told hershe could “always have [her] job back.” R7-173-55. H. Oreal testified that he liked Nuesse “as a person, as an employee. . . [u]ntilthis thing happened.” R8-174-310. H. Oreal testified that Nuesse could return to the Rustic Inn even though “it cost [him] a ton ofmoney.” R8-174-314. McDevitt: McDevitt explained that it was common knowledge at the Rustic Inn that pregnant women could work through theirfifth month. At some point, McDevitt was given a handbook with the pregnancy policy in it. When McDevitt was four or fivemonths pregnant with her first child, the head waitress told her that she would no longer be scheduled after that week; McDevittwent to Diascro and Donlin and told them that she needed to keep working. Diascro said that she could keep working as long asshe wrote on the schedule that she would start pregnancy leave by a specified day, approximately two weeks later. McDevittwanted to keep working but was required to stop working during her fifth month of pregnancy. After the birth of her first child,McDevitt returned to the Rustic Inn. During McDevitt’s second pregnancy, she objected during a meeting when Diascro assertedthat no one had been forced to stop working due to pregnancy. McDevitt testifies that she was retaliated against after thatmeeting. McDevitt left during her fifth month of the second pregnancy of her own choice because of child care issues. McDevittstates that there were no complaints about her work while pregnant, while Diascro asserts that McDevitt refused to work in aparticular area during her second pregnancy. Grossman: Grossman was working full-time when she became pregnant. Her husband was terminated from his job the day aftershe found out that she was pregnant. A couple of months into the pregnancy, Grossman had some spotting. She took the rest ofthe day off and visited the doctor, who told her that it was only a broken blood vessel and had nothing to do with the baby. Hesuggested that she take it easy for a few days; the head waitress told her to take the rest of the week off. Grossman called thehead waitress later in the week to learn about the schedule and was told that management did not want her on the schedule.Grossman got upset and started to cry; the head waitress told her that she needed to talk to Diascro. Diascro told her that shecouldn’t work and that she was “not thinking right” because she was pregnant. R7-173-201. Grossman convinced Diascro to giveher some shifts, but he gave her fewer shifts than she had previously worked and intentionally gave her slower nights when shewould have fewer customers. He also limited her to working in the dining room. To try to make up for the lost income caused bygetting fewer and less desirable shifts, Grossman began working part-time at another restaurant, Chuck’s Steakhouse. Grossmanultimately went full-time at Chuck’s but made less money there; she worked there into her ninth month of pregnancy. It isundisputed that Grossman was a good waitress and that she was able to fulfill her duties while pregnant. W & O moved for judgment as a matter of law on the issue of punitive damages after the EEOC rested its case and after the closeof evidence; the district court denied the motions. The jury found W & O liable for $26,231.43 in back pay and $350,000.00 inpunitive damages as to Nuesse, for $3,800.24 in back pay and $200,000.00 in punitive damages as to McDevitt, and for $6,225.46in back pay and $200,000.00 in punitive damages as to Grossman. After the trial, the EEOC moved for judgment as a matter oflaw on the damage claims, for entry of judgment on the issues of back pay and punitive damages, subject to the statutory cap of$100,000 per employee, and for injunctive relief, including front pay for Nuesse in the amount of $924.27 every three months forthree years. W & O objected, arguing (among other things) that front pay was inappropriate because the pretrial stipulation includedno front pay calculations and because reinstatement of Nuesse was viable and that punitive damages were inappropriate due tolack of evidence of malice, excessiveness, and the statutory cap. The district court entered final judgment as requested by theEEOC. Specifically, the court ordered that W & O pay the full amount of back pay stated in the jury verdict and $100,000.00 inpunitive damages to each employee and that W & O pay Nuesse the requested front pay. W & O filed a renewed motion forjudgment as a matter of law or, alternatively, a new trial and a motion to set aside the damage award or for remittur. The motionschallenged the award of punitive damages on the grounds that there was insufficient evidence to justify punitive damages, that theawards were excessive, and that the statutory cap should limit the total punitive damages to $100,000. W & O also filed a motion toalter or amend the judgment; this motion challenged the punitive damages and the award of front pay. The district court denied thepost-judgment motions. W & O appealed the awards of punitive damages and of front pay to Nuesse. The EEOC filed a motion to tax costs pursuant to 28 U.S.C. � 1920 and Fed. R. Civ. P. 54(d). The EEOC requested witness feesfor Nuesse, McDevitt, and Grossman, including two days’ court appearance fees and mileage and parking costs for each, totaling$323.68. The EEOC also requested costs incidental to the taking of the depositions of W. Oreal, Donlin, McDonald, Lisa Melrone(“Melrone”), H. Oreal, Dorothy O’Shea (“O’Shea”), Barrington Smith (“Smith”), Kim Tatarka (“Tatarka”), Lori Zobel/Vallancourt(“Zobel”), Dr. Albert Pesticelli (“Pescitelli”), Regina McBride (“McBride”), Dorothy Raguse (“Raguse”), Micki DiClemente(“DiClemente”), Brenner, Nuesse, Grossman, McDevitt, and W & O as corporation, for a total amount of $4,648.44. The EEOCalso requested reimbursement of the costs of using a private process server, of trial exhibits, and of costs of copying discoverydocuments provided by W & O, for a total amount of $1,703.25. W & O challenged the requested costs. As to the witness fees, W & O argued that the EEOC should receive only $160.00 (twodays’ appearance fees for Grossman and one day’s appearance fees for Nuesse and for McDevitt with no mileage or parkingfees). In challenging the witness fees, W & O never argued that witness fees were inappropriate on the ground that the employeeswere parties to the action. W & O also contended that each of the depositions covered by the EEOC’s costs request wasunnecessary. Finally, W & O challenged the request for reimbursement for use of the process server, exemplification of trialexhibits, and photocopying as contrary to � 1920 and as unnecessary to the litigation. In its order on costs, the district court noted that parties are generally not awarded witness fees and that, in its view, the threeaggrieved employees “stand in the same position as parties to the suit.” R6-187-2. Because W & O had not challenged the witnessfees for the employees on the ground that they were parties to the case, the district court awarded witness fees to the EEOC butreduced the requested witness fees to $160.00, as W & O had argued. Except for reducing the EEOC’s requested costs forexemplification to reflect the fact that the EEOC had only used at trial three of the seven exhibits at issue in the costs request, thedistrict court rejected all of W & O’s arguments as to process server fees, exemplification, and photocopying. W & O timelyappealed the award of costs. [FOOTNOTE 2] II. Appeal No. 98-5515 W & O’s challenge to the sufficiency of evidence as to punitive damages is governed by Fed. R. Civ. Proc. 50. We review de novothe denial of W & O’s renewed motion for judgment as a matter of law on the issue of punitive damages. See Combs v. PlantationPatterns, 106 F.3d 1519, 1526 (11th Cir. 1997). Applying the same standards as the district court, we “consider ‘whether theevidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevailas a matter of law.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202(1986)). We must “‘consider all the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmovingparty.’” Id. (quoting Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989)). W & O’s challenges to the amount of punitive damages and the award of front pay is governed by Fed. R. Civ. Proc. 59(e). We”will not overturn a denial of a Rule 59 motion absent an abuse of discretion.” Mays v. United States Postal Serv., 122 F.3d 43, 46(11th Cir. 1997). “[W]e review the award of damages in a Title VII case for an abuse of discretion.” Virgo v. Riviera BeachAssocs., 30 F.3d 1350, 1363 (11th Cir. 1994). We review de novo all underlying questions of law. See Bechtel Constr. Co. v.Secretary of Labor, 50 F.3d 926, 931 (11th Cir. 1995). A.Punitive Damages W & O challenges the award of punitive damages on the grounds that there is insufficient evidence to justify punitive damages, thatthe punitive damages award is excessive, and that the district court misapplied the statutory cap in 42 U.S.C. � 1981a. [FOOTNOTE 3] Weaddress the sufficiency of the evidence and statutory cap issues first. 1.Malice or Reckless Indifference W & O argues that the EEOC presented insufficient evidence to justify punitive damages. Specifically, it argues that its motive, i.e.,to protect pregnant women and their unborn children, was benevolent and premised in the belief that it was not right for an overtlypregnant woman to wait tables and carry heavy trays. Until Congress passed the Civil Rights Act of 1991, punitive damages were unavailable under Title VII. See Kolstad v. AmericanDental Ass’n, 527 U.S. 526, -, 119 S. Ct. 2118, 2123- 24, 144 L. Ed. 2d 494 (1999). As part of the 1991 enactments, Congressadded a provision permitting Title VII plaintiffs to recover compensatory and punitive damages where the defendant “engaged inunlawful intentional discrimination” prohibited by Title VII. 42 U.S.C. � 1981a(a)(1). Congress included a standard as to whenpunitive damages would be permissible:
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

42 U.S.C. � 1981a(b)(1). The Supreme Court interprets � 1981a(b)(1) to mean precisely what its plain language says, namely, thatpunitive damages are appropriate if, and only if, the employer acts with “malice” or “reckless indifference,” such that the “employermust at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.”Kolstad, 527 U.S. at -, 119 S. Ct. at 2125. In Kolstad, the Supreme Court expressly rejected the idea “that eligibility for punitivedamages can only be described in terms of an employer’s ‘egregious’ misconduct.” Id. at -, 119 S. Ct. at 2124. In short, “[w]hileegregious misconduct is evidence of the requisite mental state, � 1981a does not limit plaintiffs to this form of evidence, and thesection does not require a showing of egregious or outrageous discrimination independent of the employer’s state of mind.” Id.(citations omitted). Thus, to the extent that W & O’s argument depends solely on the fact that its management acted out of thedesire to benefit the pregnant women in its employ, it is clear that its managers’ and owners’ alleged lack of ill will is not sufficient,in and of itself, to bar punitive damages. Rather, the award of punitive damages is valid if W & O acted with malice or reckless indifference to the civil rights of its pregnantemployees. “Malice means ‘an intent to harm’ and recklessness means ‘serious disregard for the consequences of [one's] actions.’”Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999) (quoting Splunge v. Shoney’s, Inc., 97 F.3d 488, 491 (11th Cir.1996)) (alteration in original). A jury may find reckless indifference where the employer does not admit that it knew that its actionswere wrong. See Merriweather v. Family Dollar Stores of Indiana, Inc., 103 F.3d 576, 582 (7th Cir. 1996). However, merenegligence as to the civil rights of employees is not enough to justify punitive damages. See EEOC v. Wal-Mart Stores Inc., 156F.3d 989, 992 (9th Cir. 1998). We conclude that there was sufficient evidence for the jury to find that W & O acted with reckless indifference to the civil rights ofits pregnant employees. Donlin was told by the Labor Board that W & O must permit pregnant women to keep their jobs as long asthey could fulfill their duties. Diascro researched the proposed policy, including calling Wage and Labor, and, while he could haveused the FMLA regulations as the model for W & O’s pregnancy policy, instead chose to draft this policy. Comments from variousmanagers, including H. Oreal’s statement that “no one is going to run around here pregnant and big like that [and n]o pregnantwomen are going to tell me how long they’ll stay,” R8-174-323, could be interpreted as showing an unwillingness to accede to thelaw. The jury would be entitled to find that W & O maintained the policy in the face of challenges until it was affirmatively foundthat it was illegal. Finally, while Diascro claimed that the five month benchmark in the policy was only a guideline, Donlin’stestimony, as well as the experience of the three women in this case, belied that claim. If the jury chose to believe Nuesse,McDevitt, and Grossman, then the jury would be entitled to find that their employment was ended solely because of pregnancy andthat each of the three women was capable of fulfilling her job duties. This evidence is sufficient, when considered with theevidence tending to show that Donlin and Diascro knew that pregnancy discrimination violated federal law, to justify a finding ofreckless indifference. See Kim v. Nash Finch Co., 123 F.3d 1046, 1066 (8th Cir. 1997) (affirming grant of punitive damageswhere “[t]here was evidence that [the defendant] knew what constituted unlawful employment practices” and where the disparatetreatment was engaged in by supervisors or management). [FOOTNOTE 4] 2.Statutory Cap W & O argues that the district court erred in applying the statutory cap found in 42 U.S.C. � 1981a(b)(3). The statutory cap is asliding scale of limitations on compensatory and punitive damages based upon the size of the employer, with the smallest coveredemployers being liable for up to $50,000 and the largest covered employers for up to $300,000 for each complaining party. See ��1981a(b)(3)(A)-(D). The statutory cap for W & O is found in � 1981a(b)(3)(B), which states:

The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party -. . . (B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000. . . .

It is undisputed that the $100,000 cap found in � 1981a(b)(3)(B) is the appropriate limitation to be applied to W & O based on itsemployment patterns. W & O argues, however, that the district court erred in finding that Nuesse, McDevitt, and Grossman wereeach entitled to receive a full $100,000 in punitive damages. In making this argument, W & O focuses on the term “complainingparty,” which, as used in � 1981a, is defined as “the Equal Employment Opportunity Commission, the Attorney General, or aperson who may bring an action or proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C. � 2000e et seq.).” 42U.S.C. � 1981a(d)(1)(A). W & O argues that the EEOC is the only complaining party and that the three employees, who are notplaintiffs, are limited to splitting $100,000. The EEOC, however, argues that each of the employees, like members of a classcertified under Fed. R. Civ. P. 23, is eligible for $100,000 apiece. This question of statutory interpretation is an issue of firstimpression in the courts of appeals. We find that each aggrieved employee represented by the EEOC in a Title VII action may receive up to the full amount permittedby the applicable statutory cap. We begin, as we must, “with the language of the statute itself.” United States v. Ron Pairs Enters.,489 U.S. 235, 241, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989). “[T]he plain meaning of the statute controls unless thelanguage is ambiguous or leads to absurd results.” United States v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995). Here, thelanguage does not clearly support W & O’s reading, for “complaining party” is not limited to a person who has brought a Title VIIaction or proceeding but instead is defined as an agency or “a person who may bring an action or proceeding under title VII.” �1981a(d)(1)(A) (emphasis added). Aggrieved employees “may” bring an action or proceeding under Title VII. Thus, while theterm “complaining party” includes the EEOC, the statutory language supports the conclusion that an aggrieved party whoseinterests are represented by the EEOC may receive up to the full amount of the statutory cap. Our conclusion is bolstered by the EEOC’s interpretation of � 1981a:

When the Commission, or an individual, is pursuing a claim on behalf of more than one person, the damage caps are to be applied to each aggrieved individual. For example, where the Commission files suit on behalf of ten complaining parties, against an employer who has 1000 employees, each complaining party may receive (to the extent appropriate) up to $300,000. The respondent’s total liability for all ten complaining parties may be up to $3,000,000.

“Enforcement Guidance: Compensatory and Punitive Damages Available under � 102 of the Civil Rights Act of 1991,” EEOCCompl. Man. (BNA) � N:6071, 6075-76 (July 1992). “[I]t is axiomatic that the EEOC’s interpretation of Title VII, for which it hasprimary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC’sinterpretation of ambiguous language need only be reasonable to be entitled to deference.” EEOC v. Commercial Office ProductsCo., 486 U.S. 107, 115, 108 S. Ct. 1666, 1671, 100 L. Ed. 2d 96 (1988). We conclude that the EEOC’s interpretation of thestatutory cap is reasonable. The statute’s language is consistent with the EEOC’s interpretation. The legislative history of � 1981a likewise supports the EEOC’s interpretation. See 137 Cong. Rec. S15445-02, S15471 (October30, 1991) (statement of Sen. Kennedy) (discussing addition of words “for each complaining party” to the statutory cap provisionsand stating: “The amount of damages that a victim can recover should not depend on whether that victim files her own lawsuit orjoins with other similarly situated victims in a single case. Rather, the amount of damages should depend on the injury the victimhas suffered, subject to the caps. This amendment ensures that the remedy provided . . . is available to each individual who hasbeen subjected to abuse.”); see also Burlington N. R.R. Co. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S. Ct. 1855, 1860,95 L. Ed. 2d 404 (1987) (“Legislative history can be a legitimate guide to a statutory purpose obscured by ambiguity.”). Thus, asthe Seventh Circuit noted, “[t]he language in question well serves the end of permitting each class member to receivecompensatory damages up to the single-party limit.” Smith v. Chicago Sch. Reform Bd. of Trustees, 165 F.3d 1142, 1150 (7th Cir.1999). However, the class certification requirements of “Rule 23 [are] not applicable to an enforcement action brought by theEEOC in its own name and pursuant to its authority under � 706 [42 U.S.C. � 2000e-5(f)(1)] to prevent unlawful employmentpractices.” General Tel. Co. of the Northwest v. EEOC, 446 U.S. 318, 323, 100 S. Ct. 1698, 1703, 64 L. Ed. 2d 319 (1980). Thus,reading � 1981a to permit recovery up to the statutory cap for each aggrieved party represented by the EEOC achieves the goalof full compensation for aggrieved employees without adding procedural requirements. See EEOC Compl. Man. at � N:6076 n. 8(stating that alternative interpretation of � 1981a would be “unwieldy, if not unworkable”); see also EEOC v. Moser Foods, Inc.,No. Civ. 94-2516 PHX EHC (D. Ariz. Nov. 7, 1997) (finding that EEOC interpretation of � 1981a is reasonable and that “[i]tmakes little sense to authorize the EEOC to bring a single suit on the claims of multiple employees against their employer if doingso reduces the damages that can be obtained.”). We find that each aggrieved employee represented by the EEOC in a Title VII action may receive up to the statutory cap withoutfiling a separate suit or intervening in the EEOC’s suit. Accordingly, the district court did not err in finding that the employees couldeach receive up to $100,000 in punitive damages. 3.Excessiveness Finally, W & O argues that the punitive damages awarded, even after reduction pursuant to the statutory cap, is excessive. InBMW of N. Amer., Inc. v. Gore, the Supreme Court analyzed three “guideposts” in deciding whether a punitive damages awardwas unconstitutionally excessive. 517 U.S. 559, 574, 116 S. Ct. 1589, 1598, 134 L. Ed. 2d 809 (1996). The BMW guidepostsinclude: (1) the “degree of reprehensibility” of the wrongdoing; (2) “the disparity between the harm or potential harm suffered by[the plaintiff] and [her] punitive damages award”; and (3) “the difference between this remedy and the civil penalties authorized orimposed in comparable cases.” Id. at 575, 116 S. Ct. at 1598-99. In applying the BMW guideposts, courts should also considerwhether the amount of punitive damages serves the interests of deterrence. Id. at 584, 116 S. Ct. at 1603. While BMW addressedthe constitutionality of punitive damage awards, it is “instructive” to courts considering the amount of punitive damages awarded inemployment discrimination cases. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 943 (5th Cir. 1996); see also Deters v.Equifax Credit Info Servs., 202 F.3d 1262, 1271- 73 (10th Cir. 2000) (applying BMW to employment discrimination case); UnitedStates v. Big D Enters., 184 F.3d 924, 933-34 (8th Cir. 1999) (same). We will likewise use the BMW factors to decide whetherthis punitive damages award is excessive. a.Degree of Reprehensibility “Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of thedefendant’s conduct.” BMW, 517 U.S. at 575, 116 S. Ct. at 1599. In assessing the reprehensibility of the defendant’s conduct inBMW, the Supreme Court noted a number of “aggravating factors,” including (1) whether the harm was not “purely economic innature”; (2) whether the defendant’s conduct “evinced . . . indifference to or reckless disregard for the health and safety ofothers”; and (3) whether, if there was economic injury inflicted, the injury was “done intentionally through affirmative acts ofmisconduct or when the target [was] financially vulnerable.” Id. at 576, 116 S. Ct. at 1599 (citation omitted). Here, while theemployees received economic remedies, the harm was not necessarily purely economic. Rather, the harm included the violation ofthe employees’ civil rights and, as the three employees testified, the infliction of worry and emotional upset. Additionally, theeconomic injury was intentional, done through affirmative acts at a time when the employees were financially vulnerable, due inpart to the pregnancies that led W & O to remove them from the schedules. W & O argues that its behavior should not be viewed as reprehensible because there was no physical abuse and because thecomments to which the three employees testified did not constitute verbal abuse. Physical and verbal abuse may contribute to thereprehensibility of a defendant’s discriminatory conduct. See, e.g., Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 414-15(S.D.N.Y. 1996) (finding that lack of physical abuse tended to show that plaintiff should not receive a large punitive damagesaward in a sexual harassment case). However, we agree with the Seventh Circuit that where a plaintiff suffers an adverseemployment action that “was not an isolated instance of discrimination by a single supervisor, but the predictable outcome ofnot-so-secret company practice,” such that the defendant “maintained a policy of intentional disregard for the statutory rights of itsfemale employees, we cannot say the maximum punitive damage award was inappropriate.” Emmel v. Coca-Cola Bottling Co. ofChicago, 95 F.3d 627, 637-38 (7th Cir. 1996). b.Ratio to Actual Damages “The principle that exemplary damages must bear a ‘reasonable relationship’ to compensatory damages has a long pedigree.”BMW, 517 U.S. at 580, 116 S. Ct. at 1601. In comparing punitive and compensatory damages, courts should consider “‘ “the harmlikely to result from the defendant’s conduct as well as the harm that actually has occurred.” ‘” Id. at 581, 116 S. Ct. at 1602(quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 460, 113 S. Ct. 2711, 2721, 125 L. Ed. 2d 366 (1993)). TheSupreme Court has not delineated “a simple mathematical formula, even one that compares actual and potential damages to thepunitive award,” partly because “low awards of compensatory damages may properly support a higher ratio than highcompensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” Id.at 582, 116 S. Ct. at 1602. Also, where “the injury is hard to detect or the monetary value of noneconomic harm might have beendifficult to determine,” the ratio of punitive damages to compensatory damages may permissibly be higher. Id. Before comparing the punitive damages to the actual damages, we must first determine what the “actual damages” were. In itsbrief on the merits, W & O alludes to its claim, made before the district court, that punitive damages are inappropriate where theplaintiff received back pay but no compensatory damages. See Appellant’s Initial Brief at 22-23. We disagree with this argumentand find that punitive damages may be appropriate where a plaintiff has received back pay but no compensatory damages. [FOOTNOTE 5] SeeProvencher v. CVS Pharmacy, 145 F.3d 5, 12 (1st Cir. 1998) (affirming grant of punitive damages where plaintiff received backpay and rejecting claim that punitive damages are only appropriate where plaintiff received compensatory damages); Hennessy v.Penril Datacomm Networks, Inc., 69 F.3d 1344, 1352 (7th Cir. 1995) (same). In addition to the fact that � 1981a includes nolanguage limiting the right to punitive damages to cases where the plaintiff receives compensatory damages, see Hennessy, 69F.3d at 1352 (analyzing �1981a(b)(1)), we agree with the First and Seventh Circuits that “in redressing an injury suffered by theplaintiff, back pay awards serve a similar purpose as compensatory damages awards,” Provencher, 145 F.3d at 12 (citingHennessy). We, therefore, may consider an award of back pay in deciding whether a punitive damages award is disproportionateto a plaintiff’s actual damages award. The parties also dispute whether the back pay and punitive damage awards should be considered for each employee or in theaggregate. If considered individually, the ratio of punitive damages to back pay is 3.8 to 1 for Nuesse ($100,000 to $26,231.43),26.3 to 1 for McDevitt ($100,000 to $3,800.24), and 16.1 to 1 for Grossman ($100,000 to $6225.46). If considered in the aggregate,the ratio of punitive damages to back pay is 8.3 to 1 ($300,000 to $36,257.13). [FOOTNOTE 6] Because the award of punitive damages wasreasonable regardless of whether considered individually or in the aggregate, we need not resolve this issue. We start from the principle that punitive damages “are awarded solely to punish defendants and deter future wrongdoing.” Waltersv. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir. 1986). As we noted when applying the BMW guidelines to a punitive damagesaward in an environmental pollution case, the combination of a small damages award and a strong state interest in deterrence of aparticular wrongful act may justify “ratios higher than might otherwise be acceptable.” Johansen v. Combustion Eng’g, Inc., 170F.3d 1320, 1338 (11th Cir. 1999). Indeed, the Seventh Circuit has noted that “[t]he smaller the compensatory damages, the higherthe ratio of punitive to compensatory damages has to be in order to fulfill the objectives of awarding punitive damages.” Cooper v.Casey, 97 F.3d 914, 919 (7th Cir. 1996); see also Johansen, 170 F.3d at 1338 (quoting Cooper with approval). This is not to saythat a compensatory and punitive damages are inversely proportional – indeed, in BMW, the Supreme Court struck down a punitivedamages award that was 500 times the size of the plaintiff’s compensatory damages. 517 U.S. at 582, 116 S. Ct. at 1602. Instead,this analysis requires a court to ask whether a relatively higher ratio of punitive to compensatory damages is permissible in order toeffect the deterrent purposes behind punitive damages. Thus, in Johansen, we affirmed a punitive to actual damages ratio of 100 to1 because it was “justified by the need to deter this and other large organizations from a ‘pollute and pay’ environmental policy.”170 F.3d at 1339. Affirming a punitive to actual damages ratio of 59 to 1 in a sexual harassment case, the Tenth Circuit found that”in cases, such as [the plaintiff's], where the injury is primarily personal, a greater ratio may be appropriate” and that the largepunitive damages award was reasonable in terms of deterring the defendant’s reckless indifference to its employee’s rights.Deters, 202 F.3d at 1273; see also id. at 1266 (stating that the plaintiff was awarded $5,000 in compensatory damages and$295,000 in punitive damages after the statutory cap was applied). Here, W & O deliberately discriminated against Nuesse,McDevitt, and Grossman, as well as other pregnant women, [FOOTNOTE 7] and only ceased applying its illegal policy because of this lawsuit.Additionally, W & O does not argue that the award is disproportionate in comparison to the net worth of the company. Cf. id. at1273 (considering the “wealth and size of the defendant” in determining whether the punitive damages award was reasonable);Morse v. Southern Union Co., 174 F.3d 917, 925 (8th Cir. 1999) (same). We conclude that the punitive award of $300,000,whether considered individually or collectively, was reasonable in terms of the interest in deterring illegal discrimination. SeeCooper, 97 F.3d at 920 (affirming award of punitive damages that was 12 times the award of compensatory damages because”[a]n award of punitive damages proportioned to the low compensatory damages that were awarded would have a very meagerdeterrent effect . . . and would not be commensurate with the moral gravity of the defendants’ actions”). a.Comparable Cases W & O argues that its conduct was not comparable to the most egregious behavior possible under Title VII and, thus, that thedistrict court erred in finding that a punitive damages award equal to maximum permissible under the statutory caps wasappropriate. [FOOTNOTE 8] This argument focuses on the Seventh Circuit’s decision in Hennessy, which held that it was inappropriate for thesexual harassment plaintiff to receive punitive damages equal to 100% of the possible damages under the statutory cap “given themuch more egregious nature of some sex discrimination cases.” 69 F.3d at 1356. The only other circuit courts to have addressedthis question have rejected the Seventh Circuit’s conclusion for two reasons. The first reason is that “[n]othing in the language ofthe statute suggests that the cap on damages is intended to diminish the jury’s role in assessing punitive damages or to alter thestandard for judicial review of such awards.” Luciano v. Olsten Corp., 110 F.3d 210, 221 (2d Cir. 1997). Additionally, because �1981a “establishes a regime whereby the jury will set the damages, without reference to the statutory cap,” it would beinappropriate and would “invade the province of the jury” for the judge to treat the statutory cap as “the limit of a damagesspectrum, within which the judge might recalibrate the award given by the jury.” Deters, 202 F.3d at 1273. We find that thereasoning of Luciano and Deters, based on the plain language of � 1981a, is persuasive and, thus, hold that it is only appropriatefor a judge to reduce a punitive damages award to below the maximum allowed under the � 1981a statutory cap if the award isunreasonable or otherwise “‘shock[s] the judicial conscience and constitute[s] a denial of justice,’” Luciano, 110 F.3d at 221(quoting Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992)) (alteration in original). [FOOTNOTE 9] Because the punitive damages award wasreasonable and because � 1981a put W & O on notice that it could be liable for punitive damages up to the statutory cap, we findthat the district court did not err in refusing to reduce the punitive damages below the statutory maximum. B.Front Pay 1.Waiver W & O argues that the EEOC waived its claim to front pay for Nuesse by failing to raise it in the final pretrial order (“PTO”).Federal Rule of Civil Procedure 16(e) states that the PTO, once entered by the court, “shall control the subsequent course of theaction unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to preventmanifest injustice.” Cf. Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir. 1997) (“[W]e will reverse the trial court’sdecision to follow the pre-trial order only where ‘the trial court has so clearly abused its discretion that its action could be deemedarbitrary.’”) (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)). Here, the PTO, adopted by the district court, includes two agreed statements of law addressing reinstatement and/or front pay.Statement 7 notes that “[i]f unlawful discrimination is found, the victims of that discrimination are entitled to reinstatement and fullback pay.” R2-69-10. Statement 11 states:

Claimants are presumptively entitled to reinstatement (or instatement) under the “make whole” policy of the Act. As an alternative to reinstatement, front pay can be ordered. Front pay is appropriate when a claimant is entitled to reinstatement, but a hostile or otherwise unsuitable work environment counsels against reinstatement.

R2-69-12 (citations omitted). W & O argues that these statements were insufficient and notes that the EEOC failed to introduceevidence or make arguments at trial about front pay. Thus, W & O argues that the issue of front pay was not part of the trial andthat the district court’s award of front pay usurped the role of the jury. W & O’s arguments stem from its belief that “[t]he issue of front pay traditionally goes to the jury, and testimony regarding it isintroduced into evidence during the course of the trial.” Appellant’s Initial Brief at 32. This claim is incorrect. Ramsey v. ChryslerFirst, Inc., cited by W & O, observed that “[t]he award of front pay is a form of equitable relief; as such, ‘[t]he decision whether togrant [it] and, if granted, what form it should take, lies in the discretion of the district court.’” 861 F.2d 1541, 1545 (11th Cir. 1988)(quoting Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1563 (11th Cir. 1988)) (first alteration added). Thus, Ramsey stands forthe proposition that front pay is an issue for the trial judge, and not the jury, to decide. While we have not decided the question ofwhether front pay remains an equitable remedy under Title VII after passage of the Civil Rights Act of 1991, the majority ofCircuits that have addressed this question have found that front pay, being an alternate remedy to reinstatement, retains itsequitable nature under � 1981a. See Gotthardt v. National R. R. Passenger Corp., 191 F.3d 1148, 1154 (9th Cir. 1999) (findingthat � 1981a(b)(3) cap does not apply to front pay because it is an equitable remedy); McCue v. State of Kansas, Dept. of HumanResources, 165 F.3d 784, 791-92 (10th Cir. 1999) (holding that “front pay is a form of equitable relief available under 42 U.S.C. �2000e-5(g), to be awarded by the judge not the jury”); Martini v. Federal Nat’l Mortgage Assoc., 178 F.3d 1336, 1348-49 (D.C.Cir. 1999) (“Like the majority of circuits, we have regarded front pay as an equitable remedy available under section 706(g) [ofTitle VII] both before and after the Civil Rights Act of 1991 made compensatory damages available under Title VII.”), cert.dismissed, – U.S. -, 120 S. Ct. 1155 (2000); Allison v. CITGO Petroleum Corp., 151 F.3d 402, 423 n.19 (5th Cir. 1998) (“[T]heright to a jury trial provided by section 1981a(c) does not include the power to determine the availability of back pay or front pay.These are equitable remedies to which no right to jury trial attaches.”) (citations omitted); Williams v. Pharmacia, Inc., 137 F.3d944, 952 (7th Cir. 1998) (“As the equivalent of reinstatement, front pay falls squarely within the statutory language authorizing ‘anyother equitable relief.’”) (quoting 42 U.S.C. � 2000e-5(g)(1)). But see Hudson v. Reno, 130 F.3d 1193, 1203-04 (6th Cir. 1997)(treating front pay as compensatory damages for “future pecuniary losses” under � 1981a(b)(3) in part because the Sixth Circuithad historically “treated front pay, in most contexts, as a legal, rather than an equitable remedy”), cert. denied, 525 U.S. 822, 119S. Ct. 64, 142 L. Ed. 2d 50 (1998). We hold that front pay retains its equitable nature under Title VII after passage of the CivilRights Act of 1991 and, thus, that the district court did not err in deciding front pay without submission to the jury. [FOOTNOTE 10] 10 Having reaffirmed the principle that front pay is an equitable remedy awarded at the discretion of the district court, we rejectW & O’s claim that the EEOC waived the claim of front pay due to the alleged paucity of references to front pay in the PTO andits failure to submit evidence of or to argue front pay during the jury trial. [FOOTNOTE 11] 2.Reinstatement We turn to W & O’s claim that the district court erred in awarding front pay to Nuesse rather than reinstatement. “In addition toback pay, prevailing Title VII plaintiffs are presumptively entitled to either reinstatement or front pay.” Weaver v. Casa Gallardo,Inc., 922 F.2d 1515, 1528 (11th Cir. 1991). We review the “decision to award front pay in lieu of reinstatement for an abuse ofdiscretion.” Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999). While we presume that reinstatement is the appropriate remedy in a wrongful discharge case, id. at 1338, “when extenuatingcircumstances warrant, a trial court may award a plaintiff front pay in lieu of reinstatement,” id. at 1339. In deciding whether toaward front pay, rather than reinstatement, courts look to whether “‘discord and antagonism between the parties would renderreinstatement ineffective as a make-whole remedy,’” Lewis v. Federal Prison Indus., 953 F.2d 1277, 1280 (11th Cir. 1992)(quoting Goldstein v. Manhattan Indus., 758 F.2d 1435, 1449 (11th Cir. 1985)), the “‘defendant’s management [had] intimidated orthreatened’” the plaintiff, id. (quoting Eivins v. Adventist Health Sys., 660 F. Supp. 1255, 1263 (D. Kan. 1987)), or the terminationhad harmed the plaintiff’s emotional well-being, id. Evidence in the record supports both the claim that W & O has stated itswillingness to re-hire Nuesse and the claim that there is discord and antagonism between the parties, including the allegedstatement made to Nuesse that she should not show her face at the Rustic Inn, H. Oreal’s statement that he liked Nuesse until thiscase, and W. Oreal’s statement that the case had poisoned the atmosphere at the Rustic Inn. The district court’s failure to offerany explanation for its decision to award front pay is problematic, for “we do require that a trial court ‘carefully articulate’ itsreasons for awarding front pay in lieu of reinstatement.’” Farley, 197 F.3d at 1339; see also R5-167 at 2 (awarding front pay toNuesse without making factual findings). Accordingly, we vacate the award of front pay and remand for the district court to makefactual findings as to whether reinstatement is viable. [FOOTNOTE 12] III. Appeal No. 98-5646 “This court will not disturb a costs award in the absence of a clear abuse of discretion.” Technical Resource Servs. v. DornierMed. Sys., 134 F.3d 1458, 1468 (11th Cir. 1998). Prevailing parties are entitled to receive costs under Fed. R. Civ. P. 54(d), seeGilchrist v. Bolger, 733 F.2d 1551, 1556-57 (11th Cir. 1984), and the United States may receive costs like other prevailing parties,see Pine River Logging & Improvement Co. v. United States, 186 U.S. 279, 296, 22 S. Ct. 920, 927, 46 L. Ed. 2d 1164 (1902).However, a court may only tax costs as authorized by statute. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445,107 S. Ct. 2494, 2499, 96 L. Ed. 2d 385 (1987) (rejecting claim that “a federal court is empowered to exceed the limitationsexplicitly set out in [28 U.S.C.] �� 1920 and 1821 without plain evidence of congressional intent to supersede those sections”),superseded on other grounds, 42 U.S.C. � 1988(c) (1991). The district court awarded costs to the EEOC pursuant to 28 U.S.C. � 1920. W & O does not dispute the EEOC’s entitlement tocosts as a prevailing party. However, W & O challenges each of the costs awarded to the EEOC. We vacate the award of costssolely as to the EEOC’s exhibit costs and affirm the award of costs as to witness fees, deposition costs, photocopying costs, andcosts of service. A.Witness Fees for Nuesse, McDevitt, and Grossman W & O challenges the award of witness fees for Nuesse, McDevitt, and Grossman. Noting that witnesses who are parties ininterest to a case are generally not awarded fees but that W & O had failed to raise that objection, the district court awarded theEEOC $160.00 in witness fees for the three women after reducing the amount pursuant to the objections that W & O actually didmake. [FOOTNOTE 13] See also Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 1977) (noting the rule that courts will generally not award witnessfees for party-witnesses); Barber v. Ruth, 7 F.3d 636, 646 (7th Cir. 1993) (applying rule to witnesses who were not nominalparties but were “parties in interest”). We have never addressed the issue of how a district court should determine whether awitness who was not a nominal party is a “party in interest” and, thus, ineligible for witness fees, and we have found no case in anycourt addressing whether claimants in an EEOC case are ineligible for witness fees as “parties in interest.” However, this case isnot appropriate for resolution of these questions because of W & O’s failure to raise them at the district court. “Failure to raise anissue, objection or theory of relief in the first instance to the trial court generally is fatal.” Denis v. Liberty Mut. Ins. Co., 791 F.2d846, 848-49 (11th Cir. 1986); see also Miller Indus. v. Caterpillar Tractor Co., 733 F.2d 813, 820 n.12 (11th Cir. 1984) (“Becausethe defendant’s objection does not question this court’s subject matter jurisdiction, we find that the defendant’s failure to raise theobjection at the trial level resulted in its waiver.”). We have previously applied this rule to a party’s failure to object to witness fees.See Kansas City So. Ry. Co. v. Caruso, 387 F.2d 602, 602 (5th Cir. 1968). Accordingly, we find that W & O waived its objection tothe witness fees assessed for Nuesse, McDevitt, and Grossman. B.Deposition Costs Taxation of deposition costs are authorized by � 1920(2). See United States v. Kolesar, 313 F.2d 835, 837-38 (5th Cir. 1963)(“Though 1920(2) does not specifically mention a deposition, . . . depositions are included by implication in the phrase ‘stenographictranscript.’”). “[W]here the deposition costs were merely incurred for convenience, to aid in thorough preparation, or for purposesof investigation only, the costs are not recoverable.” Goodwall Const. Co. v. Beers Const. Co., 824 F. Supp. 1044, 1066 (N.D. Ga.1992), aff’d, 991 F.2d 751 (Fed. Cir. 1993). The question of whether the costs for a deposition is taxable depends on the factualquestion of whether the deposition was wholly or partially “‘necessarily obtained for use in the case.’” Newman v. A.E. StaleyMfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981) (quoting � 1920(2)). We will not reverse the district court’s taxation ofdeposition costs absent an abuse of discretion. Id. In this case, W & O challenges every deposition for which the EEOC sought costs. Almost all of the deponents were on W & O’switness list in the PTO; these include W. Oreal, Donlin, McDonald, Merlone, H. Oreal, O’Shea, Smith, Tatarka, Zobel, Pescitelli,DiClemente, Nuesse, McDevitt, Grossman, and Diascro. We have upheld the taxation of a deposition where the losing party listedthe deponent on its witness list. See Murphy v. City of Flagler Beach, 761 F.2d 622, 631 (11th Cir. 1985). Taxation of depositioncosts of witnesses on the losing party’s witness list is reasonable because the listing of those witnesses indicated both that theplaintiff might need the deposition transcripts to cross-examine the witnesses, see Independence Tube Corp. v. Copperweld Corp.,543 F. Supp. at 717 (N.D. Ill. 1982), and that “the information those people had on the subject matter of this suit was not soirrelevant or so unimportant that their depositions were outside the bound of discovery,” id. at 718. Several of the depositions were used by the EEOC at summary judgment or at trial. Portions of the depositions of W. Oreal,McDonald, McBride, Brenner, and Diascro were read into evidence at trial, while the EEOC used the depositions of DiClementeand Diascro to conduct cross-examination at trial. It is not necessary to use a deposition at trial for it to be taxable, but admissioninto evidence or use during cross-examination tends to show that it was necessarily obtained. See, e.g., Kolesar, 313 F.2d at 840(“[T]he utility (and necessity) for a deposition is not alone measured by whether all or any part of it[ ] is formally offered inevidence as such. A deposition used effectively in cross examination may have its telling effect without so much as a line of itbeing formally proffered.”). The following deponents testified at trial: Nuesse, McDevitt, Donlin, Grossman, and H. Oreal.Depositions for these witnesses may be taxable, in the discretion of the district court. See id. (noting ways that depositions may benecessary for trial preparation). Similarly, the depositions of Donlin, O’Shea, and Raguse were relied upon by the EEOC in itsmotion for summary judgment. A district court may tax costs “associated with the depositions submitted by the parties in supportof their summary judgment motions.” Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th Cir. 1997). While W & O arguesthat the use of these depositions was minimal or that they were not critical to the EEOC’s ultimate success, W & O has notdemonstrated that any portion of the depositions was not “related to an issue which was present in the case at the time thedeposition was taken.” Independence Tube Corp., 543 F. Supp. at 718. Accordingly, we find that the district court did not abuse its discretion in taxing the costs for those depositions for which there is noother challenge and, therefore, affirm the district court as to the deposition costs for the depositions of W. Oreal, Donlin,McDonald, Merlone, H. Oreal, O’Shea, Smith, McBride, Raguse, DiClemente, Brenner, and Diascro. [FOOTNOTE 14] We turn now to theremaining six depositions. 1.Pescitelli, Tatarka, and Zobel The depositions of Pescitelli, Tatarka, and Zobel were not used by the EEOC at summary judgment or at trial, and the EEOCsuccessfully moved in limine to have the testimony of all three of these witnesses excluded from trial. We have found no case lawstating that a prevailing party who successfully moved to exclude the testimony of witnesses was barred from recovering the costsof deposing the witnesses. Pescitelli was Nuesse’s obstetrician and Tatarka and Zobel were servers at the Rustic Inn; there is noevidence showing that their depositions were not related to an issue in the case when the depositions were taken. Accordingly, weaffirm the district court as to the deposition costs for Pescitelli, Tatarka, and Zobel. 2.Nuesse, McDevitt, & Grossman There is no consensus as to whether the costs for depositions of parties (or parties in interest) may be taxed. Compare Heverly v.Lewis, 99 F.R.D. 135, 136 (D. Nev. 1983) (refusing to grant prevailing party travel costs for attendance at her own depositionbecause “a prevailing party may not recover, as a cost of suit, the expenses incident to the taking of his or her own deposition”);Morrison v. Alleluia Cushion Co., 73 F.R.D. 70, 72 (N.D. Miss. 1976) (refusing to tax deposition costs for witness who was “anactive party in the litigation”) with Scallet v. Rosenblum, 176 F.R.D. 522, 527 (W.D. Va. 1997) (permitting taxation of “copies ofdeposition transcripts of party deponents” where the copies were reasonably necessary); Hancock v. Albee, 11 F.R.D. 139, 141(D. Conn. 1951) (taxing cost of copy of deposition of prevailing plaintiff because it was “reasonably necessary that plaintiffs’counsel should have a copy in order to protect the plaintiffs’ rights by holding the impeachment within proper limits”). We findmore persuasive the view of the courts that do not bar taxation of costs for depositions of parties but, instead, look to whether thedepositions were reasonably necessary. After reviewing the record and, particularly, noting that McDevitt’s deposition was used toimpeach her during the trial, see, e.g., R7-173-95, we find that the district court did not abuse its discretion in taxing the costs ofthe depositions of Nuesse, McDevitt, and Grossman. 3.Conclusion We affirm the taxation of costs as to all of the depositions. C.Other Costs 1.Exemplification Costs W & O argues that exhibit costs are not taxable. The only statutory provision arguably covering exhibit costs is � 1920(4), whichpermits taxation of “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.” See, e.g., Maxwell v.Hapag-Lloyd Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988) (holding that � 1920(4) covers exhibits and other illustrativematerials); In re Air Crash Disaster at John F. Kennedy Int’l Airport on June 24, 1975, 687 F.2d 626, 631 (2d Cir. 1982) (same).However, we have held that “[t]here is no statutory provision for the taxation of charts and exhibits as costs.” Johns-ManvilleCorp. v. Cement Asbestos Products Co., 428 F.2d 1381, 1385 (5th Cir. 1970). Notwithstanding this holding, Johns-Manvillepermitted taxation of exhibit costs if the prevailing party received pretrial authorization to produce the exhibits. See id. We mustdetermine what effect the Supreme Court opinion in Crawford Fitting has on Johns-Manville. Crawford Fitting, which was issuedafter Johns- Manville, held that courts can tax costs only with statutory authorization. 482 U.S. at 445, 107 S. Ct. at 2499.Considering Johns-Manville in light of Crawford Fitting, we hold that exhibit costs are not taxable because there is no statutoryauthorization. [FOOTNOTE 15] 2.Copy Costs W & O challenges the copying costs awarded to the EEOC on the ground that the copies were not “necessarily obtained for use inthe case” pursuant to � 1920(4). W & O argues that the copies were not necessary because they were neither used as courtexhibits nor furnished to the court or opposing counsel. [FOOTNOTE 16] “Use of information contained in a file is not a prerequisite to finding thatit was necessary to copy the file.” Cengr, 135 F.3d at 455; see also United States for the Use and Benefit of Evergreen PipelineConst. Co. v. Merritt Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir. 1996) (“Photocopying costs may be recovered even thoughthe underlying document was not admitted at trial.”). Rather, like with depositions, in evaluating copying costs, the court shouldconsider whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue. Here, thecopies at issue were of documents produced by W & O pursuant to the EEOC’s motion to produce. “Copies attributable todiscovery” are a category of copies recoverable under � 1920(4). Desisto College, Inc. v. Town of Howey-in-the Hills, 718 F.Supp. 906, 913 (M.D. Fla. 1989). Accordingly, we find that the district court did not abuse its discretion in taxing the EEOC’sphotocopying costs. 3.Service of Process Costs W & O challenges the award of costs for the EEOC’s use of private process server on the ground that � 1920 only permits taxationof fees of the U.S. Marshal for process service. Pursuant to � 1920(1), “[f]ees of the clerk and marshal” may be taxed as costs.However, “[s]ince the enactment of section 1920(1), the method of serving civil summonses and subpoenas has changed. TheU.S. Marshal no longer has that responsibility in most cases, but rather a private party must be employed as process server.”Alflex v. Underwriters Lab., Inc., 914 F.2d 175, 178 (9th Cir. 1990) (citing Fed. R. Civ. P. 4(c) & 45(c)). We have yet to addressthe question of whether a party who utilizes a private process server may be reimbursed for fees under � 1920(1). [FOOTNOTE 17] The EighthCircuit has rejected taxation of fees for private process servers on the ground that � 1920 “contains no provision for suchexpenses.” Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir. 1985); see also Breitenbach v. Neiman Marcus Group, 181 F.R.D.544, 548 (N.D. Ga. 1998) (same); Desisto College, 718 F. Supp. at 913 (same); Zdunek v. Washington Metro. Area Transit Auth.,100 F.R.D. 689, 692 (D.D.C. 1983) (same). The Ninth Circuit permits taxation of fees for private process fees solely on the basisof a historic shift to the use of private process servers, Alflex, 914 F.2d at 178. The Second Circuit and Seventh Circuit havedisapproved of that approach and instead found that reading � 1920(1) in conjunction with 28 U.S.C. � 1921, which lists fees ofthe marshal, justifies taxation of “service costs that do not exceed the marshal’s fees, no matter who actually effected service.”Collins v. Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996); Evergreen Pipeline, 95 F.3d at 172 (holding that it is within the districtcourt’s discretion to award private process server fees). We hold that private process server fees may be taxed pursuant to �� 1920(1) and 1921. We reject the reasoning of Alflex, whichis contrary to the holding of Crawford Fitting, but find persuasive the reasoning that � 1920(1) “refers to the fees ‘of’ the marshalbut does not require payment ‘to’ the marshal” and, accordingly, that the “fees of the marshal” refers to fees authorized by � 1921,rather than fees collected by the marshal. Collins, 96 F.3d at 1060. Thus, a district court does not abuse its discretion in taxingprivate process server fees that do not exceed the statutory fees authorized in � 1921. In light of this conclusion, we vacate theaward of procees server fees and remand to the district court for determination as to whether the fees requested by the EEOCare commensurate with the limits found in � 1921. IV. Conclusion As to W & O’s appeal of the damage awards, we AFFIRM the award of punitive damages and VACATE the award of front payand REMAND for the district court to make factual findings as to whether reinstatement is feasible. As to the appeal of theaward of costs, we AFFIRM the award of witness fees, deposition costs and photocopying costs, VACATE the award of exhibitcosts and of process server fees, and REMAND for re-evaluation of the process server fees request. :::FOOTNOTES::: FN1 Even when not pregnant, Nuesse always ran and moved quickly. FN2 The EEOC also requested as miscellaneous costs the expense of travel and lodging for EEOC attorneys and the costs ofcourt-ordered mediation. These miscellaneous costs were denied by the district court and are not at issue in this appeal. TheEEOC also has not appealed the district court’s decision to reduce its requested witness fees and exemplification costs. FN3 W & O initially also challenged the district court’s jury instruction on punitive damages but conceded at oral argument that theinstruction was correct in light of the Supreme Court’s decision in Kolstad v. American Dental Ass’n, 527 U.S. 526, 119 S. Ct.2118, 144 L. Ed. 2d 494 (1999), which was issued after briefing closed in this case but before we held oral argument. FN4 This case is distinguishable from Deneen v. Northwest Airlines, Inc., where the Eighth Circuit held that punitive damages wereinappropriate in a pregnancy discrimination case where the defendant “believed the contract required it to consider [the plaintiff's]pregnancy-related condition and ensure her fitness for duty before allowing her to return from layoff status” and where thedefendant “was concerned about the health of [the plaintiff] and her baby.” 132 F.3d 431, 439 (8th Cir. 1998). No contractrequires W & O to consider its servers’ pregnancy in permitting them to work. FN5 We need not address the issue of whether punitive damages can be appropriate under � 1981a where a plaintiff receives neithercompensatory damages nor back pay. See Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998) (findingthat punitive damages are appropriate under � 1981a in the absence of compensatory damages and back pay). FN6 A question not addressed by prior precedent is whether Nuesse’s front pay award should be factored into the analysis. Nuessewas awarded front pay of 12 payments of $924.27, for a total of $11,091.24. If Nuesse’s front pay is considered, it would changethe ratio of her individual awards to 2.7 to 1 ($100,000 to $32322.67) and the ratio of the aggregate awards to 6.3 to 1 ($100,000 to$47,348.37). Because we find that the punitive damages award was reasonable without considering the front pay award, we neednot address this question. FN7 The parties do not discuss the fact that BMW permitted courts to consider both “actual and potential damages” in weighing thereasonableness of punitive damages. 517 U.S. at 582, 116 S. Ct. at 1602. Testimony showed that W & O had applied the policy toother women and would likely have continued to apply it in the future without this lawsuit. “[I]n imposing punitive damages it isproper to consider not only the harm that actually resulted from the defendant’s misdeeds but also the harm that might haveresulted. This includes ‘the possible harm to other victims that might have resulted if similar future behavior were not deterred.’”Dean v. Olibas, 129 F.3d 1001, 1007 (8th Cir. 1997) (quoting TXO Prod., 509 U.S. at 460, 113 S. Ct. at 2721)). FN8 W & O’s argument also seems to assume that the jury, and the court, would be constrained to take the most charitable view ofW & O’s behavior, i.e., that the pregnancy policy “arose out of the Employer’s concern for the pregnant waitresses, their unbornchildren, and their customers.” Appellant’s Initial Brief at 25. While a jury would be entitled to take that perspective, some of thetestimony (e.g., H. Oreal’s comments to Nuesse and his statement on his EEOC affidavit) would afford the jury a basis for findingthat W & O’s motivations were not as benevolent as W & O wanted the jury to believe. FN9 We also note that the Seventh Circuit, applying its Hennessy analysis, affirmed a punitive damages award constituting themaximum under the statutory cap where the defendant had a policy of refusing to promote women. See Emmel, 95 F.3d at 638. FN0 One consequence of this ruling is that front pay is not included under the � 1981a(b)(3) statutory caps. See Gotthardt, 191 F.3d at1154; Martini, 178 F.3d at 1349. FN11 Because of this conclusion, we need not resolve W & O’s claims that the statements of law made in the PTO are insufficient topreserve a remedy raised in the complaint. FN12 While it may be implicit in the district court’s award of front pay that the court credited the EEOC’s claims of antagonism towardNuesse and discounted W & O’s claims that reinstatement was a viable option, we must require the district court to make explicitfindings on this issue. FN13 The EEOC has not appealed the district court’s reduction of the requested witness fees. FN14 W & O does argue that several of these witnesses (particularly the women who were servers at the Rustic Inn) offered cumulativetestimony and that the EEOC should not have needed to formally depose the witnesses because the EEOC had alreadyinterviewed them. Given that W & O listed these witnesses on its witness list as part of the PTO and that the district courtexercised its discretion in taxing costs for the allegedly cumulative witnesses, we reject that argument. Also, we have found nocaselaw to show that the fact that the EEOC has interviewed a prospective witness bars the taxation of deposition costs for thatwitness. Cf. Cengr v. Fusibond Piping Sys., 135 F.3d 445, 455 (7th Cir. 1998) (rejecting claim that depositions of defendant’semployees were not taxable because defendant should have “rel[ied] on the oral statements or affidavits of their employees ratherthan depositions which were already taken”). FN15 The fact that other circuits disagree with this analysis is irrelevant. Under Bonner v. City of Prichard, Johns- Manville is bindingprecedent on this circuit. 661 F.2d 1206, 1207 (11th Cir. 1981). “Under the prior panel precedent rule, we are bound by earlierpanel holdings . . . unless and until they are overruled en banc or by the Supreme Court.” United States v. Smith, 122 F.3d 1355,1359 (11th Cir. 1997). While the ruling in Crawford Fitting undermines the holding in Johns-Manville that costs may be taxedwithout statutory authorization for exhibits if the party received pretrial authorization to produce the exhibits, the holding inJohns-Manville that there is no statutory authorization for such taxation has not been undermined by any Supreme Court or enbanc decision. But see Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 335 (5th Cir. 1995) (requiring pretrial authorizationfor trial exhibits before permitting taxation of costs but not addressing effect of Crawford Fitting on taxation of exhibit costs underJohns- Manville). FN16 W & O also argues that the copies were not “necessarily obtained” because they were allegedly sent to the EEOC DistrictManager in Washington, D.C. The EEOC states that the Washington, D.C. address found on the copying bill was merely thebilling address. This dispute, however, is irrelevant to the question of whether the copies were necessarily obtained. FN17 In Loughan v. Firestone Tire & Rubber Co., we summarily affirmed an award of costs that included “costs of service ofsubpoenas, witnesses, and mileage fees.” 749 F.2d 1519, 1526 n.2 (11th Cir. 1985). Loughan, which was decided before CrawfordFitting, does not address the possible distinction between service fees for marshals and private process servers or whether � 1920provides support for payment of private process servers. FN18 Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of Georgia, sitting by designation.


EEOC v. W & O, Inc. In the United States Court of Appeals for the Eleventh Circuit United States Equal Employment Opportunity Commission, Plaintiff-Appellee, v. W & O Inc., d.b.a. Rustic Inn, Defendant-Appellant. No. 98-5515 & 98-5646 Appeals from the United States District Court for the Southern District of Florida. D. C. Docket No. 95-6138-CV-JAG Filed: May 30, 2000 Before: BIRCH and MARCUS, Circuit Judges, and ALAIMO [FOOTNOTE 18], Senior District Judge.
 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

The Asia Legal Awards (ASLA) 2022

June 29, 2022
Hong Kong

Where the region's top lawyers, law firms and in-house teams will gather to celebrate their most stellar achievements of the year.


Learn More

Pennsylvania Legal Awards 2022 (PALA)

June 29, 2022
PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania with their dedication to law.


Learn More

Elite Trial Lawyers 2022 (ETL)

July 14, 2022
New York, NY

The National Law Journal Elite Trial Lawyers recognizes U.S.-based law firms performing exemplary work on behalf of plaintiffs.


Learn More

GENERAL LIABILITY ATTORNEY- LONG ISLAND-NEW YORK


Mineola firm with national practice seeks talented, experienced (3-5 years post-admission) attorneys with deposition experience to handle co...


Apply Now ›

SPECIAL EDUCATION ATTORNEY


The law firm of Raffaele & Associates is dedicated to serving the legal needs of students, children, and their families. Our Attorneys, ...


Apply Now ›

Deputy Chief Prosecutor, Fort McMurray


JOB INFORMATION Job Title: Deputy Chief Prosecutor, Fort McMurrayJob Requisition ID: 20880 Ministry: Justice & Solicitor General Locatio...


Apply Now ›

MCCORMICK & PRIORE, P.C.

06/23/2022
TLI Web

IN MEMORIUM: With a profound sense of sadness, McCormick & Priore announces that Harry A Short, Jr., a preeminent products liability defense lawyer in Philadelphia with a career that spanned over sixty-five (65) years, passed away on June 14, 2022.


View Announcement ›

STARR GERN DAVISON & RUBIN

06/20/2022
NJLJ Web

Starr Gern Davison & Rubin, PC. Attorneys at Law are pleased to announce that SHELLEY L. STANGLER, ESQ. has joined the firm as of Counsel.


View Announcement ›