Catharina F. Costa v. Desert Palace, Inc., Dba Caesars Palace Hotel & Casino

299 F.3d 838 Catharina F. COSTA, Plaintiff-Appellee, v. DESERT PALACE, INC., dba Caesars Palace Hotel & Casino, Defendant-Appellant. No. 99-15645. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 21, 2002. Filed August 2, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Mark J. Ricciardi, David B. Dornak, Michael J. Shannon, Ricciardi Law Group, Las Vegas, NV, for defendant-appellant. Robert N. Peccole, Peccole & Peccole, Ltd., Las Vegas, NV, for plaintiff-appellant. Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-96-00009 DWH/RJJ. Before SCHROEDER, Chief Judge, REINHARDT, KOZINSKI, FERNANDEZ, KLEINFELD, SILVERMAN, GRABER, McKEOWN, FISHER, GOULD, and PAEZ, Circuit Judges. OPINION McKEOWN, Circuit Judge 1 We agreed to hear this case en banc 1 primarily to examine the legal standard for proof of a violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. In this classic instance of what has been termed a "mixed-motive" case, the…

We agreed to hear this case en banc 1 primarily to examine the legal standard for proof of a violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. In this classic instance of what has been termed a “mixed-motive” case, the employer, Caesars Palace Hotel and Casino (“Caesars”), terminated Catharina Costa, the only woman in her bargaining unit, citing disciplinary problems. Costa argued, and the jury agreed, that sex was “a motivating factor” in her termination. 42 U.S.C. § 2000e-2(m). Because Caesars failed to establish that she would have been terminated without consideration of her sex, the jury awarded back pay and compensatory damages. Finally, the jury found that the discrimination was “egregious” and warranted punitive damages. Caesars argues that Costa should have been held to a special, higher standard of “direct evidence,” a threshold it claims she did not meet. We disagree. Title VII imposes no special or heightened evidentiary burden on a plaintiff in a so-called “mixed-motive” case. Consequently, we affirm the liability finding as well as the judgment for back pay and compensatory damages. In light of intervening…

with whom KOZINSKI, FERNANDEZ, and KLEINFELD, Circuit Judges, join, dissenting:

I respectfully dissent because the majority does not follow the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989), in Title VII mixed motives cases. The majority’s analysis is not persuasive and should be corrected because it disregards the holding of Hopkins that is reflected in Justice O’Connor’s concurring opinion.

In Hopkins , the plurality, comprised of four Justices, concluded that an employee should be able to recover under Title VII if gender was “a factor in the employment decision at the moment it was made,” id. at 241 , 109 S.Ct. 1775 , unless the employer, using objective evidence, could show by a preponderance of the evidence that it would have made the same decision absent the discriminatory motive. Id. at 244-45, 252 , 109 S.Ct. 1775 .

Justice White, joined by Justice O’Con-nor, concurred in the judgment. Justice White thought that the impermissible motive must have been a “substantial factor” in the employer’s decision and that the employer need not use “objective evidence” to make its same-decision showing. Id. at 259, 261…