U.S. EEOC v. W & O Inc., Nos. 98-5515

• Decision Date: 30 May 2000
• Docket Number: Nos. 98-5515,98-5646
• Parties: (11th Cir. 2000) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. W&O, INC., d.b.a. Rustic Inn, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 600

213 F.3d 600 (11th Cir. 2000)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. W&O, INC., d.b.a. Rustic Inn, Defendant-Appellant.

Nos. 98-5515, 98-5646.

United States Court of Appeals Eleventh Circuit.

May 30, 2000.

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[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Florida.(No. 95-06138-CV-JAG), Jose A. Gonzalez, Jr., Judge.

Before BIRCH and MARCUS, Circuit Judges, and ALAIMO^*, Senior District Judge.

BIRCH, Circuit Judge:

Before this court are two consolidated appeals arising from the Pregnancy Discrimination Act case brought by Plaintiff-Appellee United States Equal Employment Opportunity Commission ("EEOC") on behalf of a class of employees of Defendant-Appellant W&O, Inc., doing business as Rustic Inn ("W&O"). In the first appeal, No. 98-5515, W&O appeals the jury award of punitive damages to the employees and the district court's award of front pay to Barbara Nuesse ("Nuesse"), one of the employees. In the second appeal, No. 98-5646, W&O appeals the district court's order awarding costs to the EEOC. As to W&O's appeal of the damage awards, we AFFIRM the award of punitive damages and VACATE the award of front pay and REMAND for the district court to make factual findings as to whether reinstatement is feasible. As to the appeal of the award of costs, we AFFIRM the 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 past their fifth month of pregnancy and requiring them, instead, either to suspend working at the Rustic Inn or to work in the positions of cashier or hostess. Because they do not receive gratuities from customers, the cashier and hostess positions pay less than does the waitress position. In its complaint, the EEOC challenged the policy as violating the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k). The EEOC represented a class of three aggrieved employees: Nuesse, Suzette McDevitt ("McDevitt"), and Debbie Grossman ("Grossman"), each of whom was removed from the schedule, had her hours reduced, or left after being told that 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 final pretrial order, the parties included calculations of damages for the three employees; the calculations included back pay, interest on the back pay, and punitive damages but did not address front pay. The pretrial stipulation mentions front pay and reinstatement only in the undisputed statements of law. At trial, in addition to offering evidence regarding the aggrieved employees' back pay claims and W&O's financial situation, the parties offered testimony about the origin and application of the pregnancy policy, the job of 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 time that the Family and Medical Leave Act ("FMLA") was enacted. He viewed the policy, which stated, among other things, that a server should not work past five months of pregnancy, as a guideline. In drafting the policy, Diascro did some research, including calling "Wage and Labor" and looking at reference books and other restaurants' handbooks. James Donlin ("Donlin"), night manager for the Rustic Inn, testified that he called the Labor Board in 1992 and was advised that pregnant women should be able to keep their jobs for as long as they were able to fulfill their duties. Donlin admitted that a pregnant woman who did not take a cashier or hostess position would have to leave the Rustic Inn after her fifth month of pregnancy. He suggested that the policy came about because "some of the managers and owners are older, were from the old school." R7-173-168. Donlin stated that the owner Henry Oreal ("H.Oreal") and his sons Wayne ("W.Oreal") and Gary ("G.Oreal") all made comments indicating that they were 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 how long they'll stay." R8-174-323. W. Oreal stated that "[t]here's a very bad aura going around the place because of this particular case here...." R7-173-192-93. The policy was removed once found to be illegal. The new policy is "almost identical" to the FMLA 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, though anyone (pregnant or otherwise) could get help carrying trays weighing more than 25 pounds. The restaurant was split into four different 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 her sixth 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 being as "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 she was "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's note should affect the decision because the doctor would not know how hard the work was. Nuesse was removed from the schedule during her seventh month. After Nuesse gave birth, she was not contacted to be put back on the schedule. Nuesse testified that she was told by Allen Brenner ("Brenner"), a manager of the Rustic Inn, that it was not "a good idea I show my face around 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 was worried that she would drop a tray while running and hurt the fetus or someone else, and that Nuesse was not doing her work properly. R8-174-310-11, 314.¹ H. Oreal wanted her to switch to being a cashier but Nuesse "wanted to work when she wanted to work, and do what she wanted to do, and disregarded my problem...." R8-174-313. Nuesse admitted that H. Oreal told her she could "always have [her] job back." R7-173-55. H. Oreal testified that he liked Nuesse "as a person, as an employee ... [u]ntil this thing happened." R8-174-310. H. Oreal testified that Nuesse could return to the Rustic Inn even though "it cost [him] a ton of money." R8-174-314.

McDevitt: McDevitt explained that it was common knowledge at the Rustic Inn that pregnant women could work through their fifth month. At some point, McDevitt was given a handbook with the pregnancy policy in it. When McDevitt was four or five months pregnant with her first child, the head waitress told her that she would no longer be scheduled after that week; McDevitt went to Diascro and Donlin and told them that she needed to keep working. Diascro said that she could keep working as long as she wrote on the schedule that she would start pregnancy leave by a specified day, approximately two weeks later. McDevitt wanted 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 asserted that no one had been forced to stop working due to pregnancy. McDevitt testifies that she was retaliated against after that meeting. McDevitt left during her fifth month of the second pregnancy of her own choice because of child care issues. McDevitt states that there were no complaints about her work while pregnant, while Diascro asserts that McDevitt refused to work in a particular area during her second pregnancy.

Grossman: Grossman was working full-time when she became pregnant. Her husband was terminated from his job the day after she found out that she was pregnant. A couple of months into the pregnancy, Grossman had some spotting. She took the rest of the 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. He suggested that she take it easy for a few days; the head waitress told her to take the rest of the week off. Grossman called the head 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 she couldn't work and that she was "not thinking right" because she was pregnant. R7-173-201. Grossman convinced Diascro to give her some shifts, but he gave her fewer shifts than she had previously worked and intentionally gave her slower nights when she would have fewer customers. He also limited her to working in...