Appeals Court Oks Punitives Against U. Penn.

August 4, 2003 (PLANSPONSOR.com) - A federal appeals court has okayed the punitive damages awarded in a reverse sex discrimination case against the University of Pennsylvania filed by a man who claimed he was passed over as womens' crew coach because of his sex.

>In its unanimous opinion, a three-judge panel of the US 3rd Circuit Court of Appeals upheld a November 2001 jury award of more than $115,000 – including $25,120 in punitive damages – to plaintiff Andrew Medcalf, the Legal Intelligencer reported. Medcalf, a former assistant coach of the university’s men’s crew team said he was clearly the best candidate for the head coach of the women’s crew team and alleged that he was passed over only because he was a man.

>The cost to Penn more than doubled later when US District Judge Herbert Hutton of the US District Court for the Eastern District of Pennsylvania awarded more than $175,000 in costs and attorney fees to Medcalf’s lawyer, Lawrence Woehrle and nearly $13,000 in prejudgment interest on the back pay portion of the jury’s award.

>Punitive damages were warranted because the evidence showed that one of the decisionmakers 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 Circuit judges decided.

>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 decisionmaker. The Penn lawyers claimed that since Athletic Director Steve Bilsky was the sole actual decisionmaker, 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 decisionmaker.”

>Circuit Judge D. Brooks Smith noted in the appeals ruling 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. “Based on the (legal) charge the jury was given, the evidence is sufficient to support the award of punitive damages,” Smith wrote.

>As a result, Smith concluded that “remarks that (Femovich) 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.” 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.”

>Penn ultimately 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.

>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.

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