Angela Aguilar, Intervenor-Plaintiff-Appellee, v. ASARCO LLC, Defendant-Appellant.
No. 11-17484
United States Court of Appeals, Ninth Circuit
December 10, 2014
Argued and Submitted En Banc June 18, 2014
772 F.3d 1050
State of ARIZONA; Terry L. Goddard, Attorney General for the State of Arizona; Arizona Department of Law, Civil Rights Division, Plaintiffs-Appellees.
IX. Conclusion
The district court correctly granted summary judgment to the justices of the Arizona Supreme Court. Although Plaintiffs can establish Article III standing based on injuries suffered by Girvin, Plaintiffs fail to establish that the AOM Rule is unconstitutional on First Amendment, Fourteenth Amendment, or Privileges and Immunities Clause Grounds. We affirm the decision of the district court. All outstanding motions filed by Plaintiffs-Appellants and Defendants-Appellees are denied. Each party shall bear its own costs on appeal.
AFFIRMED.
Thomas C. Horne, Ann Hobart, and Leslie Ross, Assistant Attorneys General, State of Arizona Department of Law, Civil Rights Division, Phoenix, AZ, for Plaintiff-Appellee State of Arizona.
Eric Schnapper (argued), University of Washington Law School; Jenne S. Forbes, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, AZ, for Intervenor-Plaintiff Appellee.
Julie L. Gantz (argued), Attorney, P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Jennifer S. Goldstein, Acting Assistant General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae United States Equal Employment Opportunity Commission.
Before: SIDNEY R. THOMAS, Chief Judge, and STEPHEN REINHARDT, ALEX KOZINSKI, BARRY G. SILVERMAN, RONALD M. GOULD, MARSHA S. BERZON, RICHARD R. CLIFTON, N. RANDY SMITH, MARY H. MURGUIA, MORGAN CHRISTEN, and JACQUELINE H. NGUYEN, Circuit Judges.
OPINION
THOMAS, Chief Judge:
This appeal presents the question of whether a $300,000 punitive damages ver
I
ASARCO, LLC (“ASARCO“) operates the Mission Mine complex in Sahuarita, Arizona, near Tucson. Mission Mine includes a copper mine from which copper ore is extracted and a mill facility in which the ore is crushed, filtered, and refined. Angela Aguilar worked at the Mission Mine complex from December 2005 through November 2006. She started as a mill laborer and became a car loader operator in March 2006. A month later, she then became a filter operator in the filter plant and two months later, a rod and ball mill person. Aguilar alleges that during her time at ASARCO, she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged from her employment.
The State of Arizona filed suit against ASARCO under the Arizona Civil Rights Act in Pima County Superior Court, alleging harassment, disparate treatment, and retaliation against Aguilar. Aguilar subsequently filed her own lawsuit against ASARCO, alleging harassment, constructive discharge, and retaliation under Title VII. The proceedings were consolidated and removed to the United States District Court for the District of Arizona.
After an eight-day trial, the jury found ASARCO liable on Aguilar‘s sexual harassment claims, in violation of
The district court rejected the motion for judgment as a matter of law. Applying the due process analysis in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), it concluded the punitive damages award was not unconstitutional but, given the $300,000 cap on compensatory and punitive damages found in
ASARCO timely appealed, arguing that the district court erred by refusing to reduce the punitive damages award further, by admitting evidence of other employees who witnessed pornographic graffiti, and by awarding Aguilar attorneys’ fees. A three-judge panel of this court affirmed the district court as to the evidence and attorneys’ fees, but vacated the $300,000 punitive damages award. Applying the three factors found in Gore, the panel majority concluded that while ASARCO‘s conduct was reprehensible, the ratio of 300,000 to 1 between the punitive and nominal damages awards was excessive. Arizona v. ASARCO LLC, 733 F.3d 882, 885-92 (9th Cir.2013). Citing to the highest ratio
Upon the majority vote of the active, non-recused judges of the court, we agreed to rehear this case en banc. Arizona v. ASARCO LLC, 755 F.3d 1044 (9th Cir.2014). We have jurisdiction under
II
Applying Gore, ASARCO argues that the district court erred in upholding the jury‘s punitive damages award, which the court then reduced to $300,000 because of the statutory cap on damages contained in
A
In Gore, the Supreme Court altered the legal punitive damages landscape, applying the Due Process Clause of the Fourteenth Amendment to a state court‘s $2 million punitive damages award (accompanying a $4000 compensatory damages award) arising from state common law claims, and concluding that the punitive damages amount was “grossly excessive” and therefore unconstitutional. 517 U.S. at 565-67, 574–75, 116 S.Ct. 1589. To assess the constitutionality of a state common law punitive damages award, the Court in Gore employed three guideposts, which it later summarized in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), as follows: “(1) the degree of reprehensibility of the defendant‘s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Id. (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589).
Under Gore and State Farm, the most important guidepost is reprehensibility. State Farm articulated several factors courts could consider in assessing the egregiousness of a defendant‘s conduct:
the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of
intentional malice, trickery, or deceit, or mere accident.
As for the second factor—the disparity between the harm suffered by the plaintiff and the punitive damages award—the Court has repeatedly eschewed the adoption of a “bright-line ratio which a punitive damages award cannot exceed.” Id. at 425, 123 S.Ct. 1513. Nevertheless, the Court has noted that, “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Id. The Court also cautioned, however, that a higher ratio may be appropriate where the conduct is especially egregious, but results in minimal economic damages. Id. (citing Gore, 517 U.S. at 582, 116 S.Ct. 1589, for the proposition that economic awards may be small because the injury is hard to quantify or detect).
Gore is undeniably of some relevance in this context. See, e.g., Cooper Indus., 532 U.S. at 441-43, 121 S.Ct. 1678 (applying Gore to a due process challenge to punitive damages awarded in a federal Lanham Act suit); Payne v. Jones, 711 F.3d 85, 96-106 (2d Cir.2013) (assessing a non-constitutional claim that a punitive damages award was excessive by, in part, looking to the Gore factors). Indeed, it is conceivable that even awards conferred under a carefully crafted statutory scheme governing punitive damages could fail to comport with due process.
Still, this case presents a different question than the Supreme Court considered in Gore. Here, Aguilar has asserted a claim under a statute, Title VII, which includes a carefully crafted provision,
B
In resolving ASARCO‘s due process challenge in the Title VII context, we start with the constitutional concerns underlying the Court‘s due process analysis in Gore and State Farm. First and foremost, the Court developed the Gore doctrine out of a concern that a defendant “receive fair notice not only of the conduct that will subject him to punishment, but also the severity of the penalty” that may be imposed. Gore, 517 U.S. at 574, 116 S.Ct. 1589. The Court was also interested in avoiding arbitrary, biased, or ill-informed deprivation of property of defendants by juries when the statute or common law did not provide sufficient safeguards. State Farm, 538 U.S. at 416-18, 123 S.Ct. 1513. The Court sought to uphold the deterrence function of punitive damages awards, while policing awards that exceed an amount necessary to deter future wrongdoing. Gore, 517 U.S. at 584, 116 S.Ct. 1589.
In Gore, the Court also discussed the reasoning underlying each of its three
An exacting Gore review, applying the three guideposts rigorously, may be appropriate when reviewing a common law punitive damages award. However, when a punitive damages award arises from a robust statutory regime, the rigid application of the Gore guideposts is less necessary or appropriate. Thus, the more relevant first consideration is the statute itself, through which the legislature has spoken explicitly on the proper scope of punitive damages.
In some instances, a statute may leave gaps, or room, for the common law to shape the scope of punitive damages awards, within the boundaries of due process. See, e.g., Exxon, 554 U.S. at 514-15, 128 S.Ct. 2605 (adopting, in the area of federal maritime law, a 1 to 1 ratio between compensatory and punitive damages). But here, the statutory scheme leaves little to the imagination. Cf. id. at 516-17, 128 S.Ct. 2605 (Stevens, J., concurring in part and dissenting in part) (arguing that, since federal maritime law is largely statutory, Congress‘s decision “not to restrict the availability of a particular remedy favors adherence to a policy of judicial restraint,” and implicitly stating that the role of the court is equally, if not more, limited when Congress has reined in a remedy explicitly).
When we examine
Second, the statute sets a cap on certain types of compensatory damages, combined with punitive damages.
These two aspects of the statute address Gore‘s concern that defendants be on notice of what conduct might make them liable for punitive damages and the extent to which they might be held liable. The punitive damages provision codified at
Moreover, the statute dramatically reduces the chance of random, arbitrary awards, because the statute articulates the degree of culpability that a defendant must have before being subject to liability and restricts damages awards to a range between $0 and $300,000. Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir.2001) (“To the extent that courts worried about unleashing juries to award limitless punitive damages in cases where no harm had occurred, this concern is eliminated by the imposition of the statutory caps.“). Similarly, the odds of over-deterrence are low, given the statute‘s narrow circumscription of punitive damages awards. In sum, the general constitutional concerns underlying Gore are addressed by the provisions of
The same is true of Gore‘s guidelines. Section 1981a satisfies Gore‘s concern that conduct must be reprehensible by imposing an intent requirement that ensures jurors understand that only certain negative conduct should be penalized. In addition, the statutory scheme provides that conduct in violation of the statute, which subjects the employer to compensatory damages, does not necessarily compel a punitive damages award.
Gore‘s ratio analysis has little applicability in the Title VII context because
In addition, as the Fifth Circuit noted in Abner, 513 F.3d at 163, Title VII violations
“Nominal damages are not intended to compensate a plaintiff for injuries, nor to act as a measure of the severity of a defendant‘s wrongful conduct.” Cummings v. Connell, 402 F.3d 936, 945 (9th Cir.2005). Because nominal damages measure neither damage nor severity of conduct, it is not appropriate to examine the ratio of a nominal damages award to a punitive damages award.1 Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 154 (4th Cir.2008) (noting that “when a jury only awards nominal damages ... a punitive damages award may exceed the normal single digit ratio because a smaller amount would utterly fail to serve the traditional purposes” of punitive damages awards and stating that, in this case, the court would “not rely upon the challenged ratio” but instead compare this award “to other cases involving similar claims” (internal quotation marks omitted)); Williams v. Kaufman Cnty., 352 F.3d 994, 1016 & n. 76 (5th Cir.2003) (stating that “any punitive damages-to-compensatory damages ‘ratio analysis’ cannot be applied effectively in cases where only nominal damages have been awarded“); Romanski v. Detroit Entm‘t, LLC, 428 F.3d 629, 645 (6th Cir.2005) (noting that in a
Further, in this case, the nominal damages were capped. The jury was instructed that it could not award more than $1 in nominal damages. When compensatory or nominal damages are subject to a cap, there is no meaningful way to apply a Gore ratio analysis because the true harm is not measured.
Gore‘s third guidepost bolsters our conclusion that punitive damages awards conferred under the statutory scheme in this case do not violate due process. The purpose of the third guidepost is deference to reasoned legislative judgments. Gore, 517 U.S. at 583, 116 S.Ct. 1589. Here, Congress has made a reasoned judgment not simply as to analogous criminal or civil penalties, but as to punitive damages awarded in cases like the one at hand. We need not search outside the statutory scheme Congress enacted for legislative guidance in other contexts.
Finally, we see no reversible error in the district court‘s conclusion that the record evidence justified a punitive damages award under the statute. As the Fifth Circuit noted in Abner, just because damages awards conferred under a certain statutory scheme comport with due process and Gore does not mean our constitu
In its post-trial motions, ASARCO argued there was insufficient evidence presented at trial to support a punitive damages award under
Even if we assume, given ASARCO‘s presentation of the facts and its argument regarding the reprehensibility of its own conduct, that ASARCO did not waive any challenge to the sufficiency of the evidence supporting an award of punitive damages, we still conclude that the district court did not err in granting $300,000 in punitive damages. In its decision, the district court noted that ASARCO did have an anti-discrimination policy in force. But it also recounted particular evidence in the record, specifically that ASARCO‘s management “did not provide prompt and effective remedial action” when made aware of Aguilar‘s complaints. Instead, the court pointed to evidence that ASARCO “treated Aguilar‘s claims dismissively, did nothing to investigate Aguilar‘s claims, or took steps that were not reasonably calculated to and did not stop the harassment.” The court noted that, based on its evaluation of the evidence, ASARCO repeatedly, over the course of months, failed to adequately respond to discrete instances of harassment against Aguilar. Moreover, the court reasoned, because the evidence demonstrated that ASARCO “is a serial violator of antidiscrimination laws” (as evidenced by the sexually explicit graffiti targeting other employees), the deterrence aim of punitive damages awards warranted a significant award that would discourage future misconduct by ASARCO.
Our review of the record confirms that the district court did not clearly err in its assessment of the facts. Indeed, there is significant and compelling evidence that management was aware of, and did little to resolve, lewd, inappropriate, and sexually aggressive behavior directed to Aguilar; sexually explicit, targeted pictures of Aguilar on the walls of the bathroom rented specifically for her use; and overly aggressive management and criticism of Aguilar by supervisors. Aguilar complained to management multiple times. The sexually explicit graffiti in the bathroom was not removed while she was working in the filter plant. As the district court correctly noted, to the extent ASARCO did have an antidiscrimination or harassment policy, the existence of such a policy alone is not enough to save it. See Bains LLC v. Arco Prods. Co., 405 F.3d 764, 774 (9th Cir.2005) (“A written antidiscrimination policy does not insulate a company from liability [under, in Bains,
In sum, we conclude that punitive damages awards conferred under
III
A
ASARCO also challenges the district court‘s admission of evidence of other sexually explicit graffiti in bathrooms that was similar to the sexually explicit graffiti directed to Aguilar.
We review “for abuse of discretion a district court‘s decision to admit evidence,” reversing only if we are “convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir.2011) (internal quotation marks omitted). To obtain reversal of an evidentiary ruling, ASARCO “must show that the error was prejudicial, and that the verdict was more probably than not affected as a result.” Id. (internal quotation marks omitted). ASARCO argues evidence that sexually explicit graffiti was also targeted at the other employees was too factually dissimilar and temporally remote from Aguilar‘s experience and that, as a result, the evidence was more prejudicial than probative under Federal Rule of Evidence 403.
We disagree. Any prejudice to ASARCO was limited by the circumscribed nature of the evidence and the limiting instruction given by the district court. The evidence had probative value in helping the jury assess whether Aguilar had proved the elements of harassment. Moreover, contrary to ASARCO‘s assertion, this evidence formed only a small part of the evidence presented by Aguilar.
Thus, under our deferential standard of review, we conclude that the district court did not abuse its discretion in narrowly admitting this evidence. Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 689-90 (9th Cir.2001) (noting that a district court “enjoys considerable discretion” in determining whether harassment of employees other than the victim is more prejudicial than probative).
B
Finally, ASARCO challenges the court‘s decision to grant Aguilar‘s motion for $350,902.75 in attorneys’ fees and costs. “Awards of attorney‘s fees are generally reviewed for abuse of discretion.” Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir.2005). Discretionary review, however, is only applied if the court is “satisfied that the correct legal standard was applied and that none of the district court‘s findings of fact were clearly erroneous.” Id. Citing Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), ASARCO argues Aguilar is not eligible for attorneys’ fees because she achieved little
We conclude that the district court did not abuse its discretion in granting the attorneys’ fees motion. First, given the overlap between Aguilar‘s harassment claim and her other claims, ASARCO‘s argument that she prevailed on merely one claim is incorrect. Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 517-18 (9th Cir. 2000) (“Although Passantino did not prevail on her discrimination claims or her claim for injunctive relief, she prevailed on her retaliation claims, which were inextricably intertwined with her discrimination claims.“). More importantly, even if Aguilar was only awarded nominal, and not compensatory, damages, any analogy to Farrar disappears because, unlike in that case, Aguilar was awarded almost $900,000 in punitive damages from the jury, and was ultimately granted $300,000 in punitive damages from the district court. Compare Farrar, 506 U.S. at 107, 113 S.Ct. 566 (noting that the jury awarded the plaintiffs nothing). We affirm the district court‘s grant of attorneys’ fees.
IV
Because its provisions meet the constitutional concerns underlying Gore, we conclude that
AFFIRMED.