Arizona, Department of Law v. Asarco, L.L.C. (798 F. Supp. 2d 1023, 2011)

United States District Court for the District of Arizona 2011-07-13

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER REGARDING POST-TRIAL MOTIONS

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION........................................................1027

A. Factual Background...................................................1027

B. Procedural Background,................................................1028

II. ASARCO’S MOTION FOR JUDGMENT AS A MATTER OF LAW.............1030

A. Applicable Standards..................................................1030

B. Sufficiency Of The Evidence Of Sexual Harassment.......................1031

1. Arguments of the parties...........................................1031

2. Analysis .........................................................1032

C. Sufficiency Of The Evidence Supporting Punitive Damages................1034

1. Arguments of the parties...........................................1034

2. Analysis .........................................................1035

D. Excessiveness Of The Punitive Damages Award ..........................1036

1. Arguments of the parties...........................................1036

2. Analysis .........................................................1037

a. The BMW factors..............................................1037

i. Reprehensibility..........................................1038

ii. Proportionality...........................................1038

Hi. Comparison to civil and criminal penalties..................1044

b. Additional factors .............................................1045

c. The due process calculation.....................................1045

i. The amount of punitive damages to consider.................1045

ii. Consideration of the pertinent factors.......................1047

E. Summary............................................................1050

III. ASARCO’S ALTERNATIVE MOTION FOR NEW TRIAL ....................1050

A. Applicable Standards..................................................1050

B. Misleading Supplemental Jury Instruction ..............................1051

1. Arguments of the parties...........................................1051

2. Analysis .........................................................1052

C. Erroneous Admission Of “Me Too” Evidence.............................1055

1. Arguments of the parties...........................................1055

2. Analysis .........................................................1055

D. Summary............................................................1056

IV. THE PLAINTIFFS’ REQ UEST FOR EQUITABLE AND INJUNCTIVE RELIEF...............................................................1056

V. CONCLUSION...........................................................1058

The Civil Rights Division of the Arizona Department of Law (ACRD) and individual plaintiff Angela Aguilar, a laborer at a mine operated by defendant ASARCO, L.L.C., alleged claims of hostile work environment sexual harassment and retaliation for complaining about sexual harassment in violation of state and federal law. Aguilar also alleged that she was constructively discharged from her job at the mine by harassment and retaliation. After an eight-day trial, the jury found for the plaintiffs on the sexual harassment claim, but for ASARCO on Aguilar’s claim of retaliation and on her allegations that she had been constructively discharged either as the result of sexual harassment or retaliation. On the plaintiffs’ sexual harassment claim, the jury awarded no compensatory damages for past or future emotional distress, and only $1.00 in nominal damages, but $868,750.00 in punitive damages.

This case was exceptionally well tried by all the lawyers. All counsel were superbly prepared. All counsel demonstrated extraordinary trial skills and exceptional zealous advocacy on behalf of their respective clients. More importantly, all of the lawyers, at every turn in the trial, displayed the utmost professionalism to each other, the opposing parties, the jury, and me.

In post-trial motions, the plaintiffs seek injunctive and equitable relief and ASARCO seeks judgment as a matter of law, or, in the alternative, a new trial. ASARCO asserts that neither the sexual harassment claim nor the prayer for punitive damages should have been submitted to the jury, but if I find that they were properly submitted, that the punitive damages award should be reduced, at the very least, to the applicable “cap” of $300,000 under Title VII, if not to $9 or less, on the ground that the punitive damages award is constitutionally excessive. The plaintiffs assert that the sexual harassment claim and prayer for punitive damages were properly submitted and that the punitive damages award should be reduced no lower than the statutory “cap.”

I. INTRODUCTION

A, Factual Background

Angela Aguilar, the individual plaintiff in this case, was hired as a laborer by defendant ASARCO, L.L.C., at the North Mill of ASARCO’s Mission Mine in December 2005. The parties agree that, at trial, the plaintiffs presented evidence of three instances of alleged sexual harassment of Aguilar, although they put very different “spins” on the evidence of these instances.

First, the plaintiffs presented evidence that Aguilar was sexually harassed by her immediate supervisor, Wayne Johnson, shortly after she began working as a car loader at the mine’s filter plant on March 19, 2006. The plaintiffs’ evidence was that Aguilar fended off Johnson’s sexual advances for a couple of weeks, without evident effect, before she complained to the human resources manager, Lupe Gonzalez, but Gonzalez merely “coached” her about how to talk with Johnson. Because the harassment continued, Aguilar complained to Sam Lawrence, the Mission Mill manager on two occasions, but it was not until after she made the second complaint to Lawrence that Johnson stopped harassing her. Thereafter, Johnson not only stopped harassing Aguilar, but ceased speaking to her or training her for her job and complained about her work performance. Aguilar also presented evidence that, just months after Johnson stopped harassing her, he subjected another woman assigned to work with him as a car loader to unwelcome sexual advances. Johnson was not disciplined for his conduct toward either Aguilar or the other woman. ASARCO presented evidence that, in her written notes and her statements to Gonzalez, Aguilar described Johnson as a “perfect gentleman,” arguing that this evidence demonstrates that any supposed harassment by Johnson was neither severe nor pervasive. ASARCO also contends that the evidence shows that, after ASARCO took remedial action, Johnson’s harassment of Aguilar stopped.

Second, the plaintiffs presented evidence that Aguilar’s subsequent supervisor, Julio Esquivel, yelled at her and otherwise treated her poorly. Although ASARCO presented evidence that Esquivel treated all employees, male, and female, poorly, the plaintiffs contend that the evidence showed that Esquivel treated Aguilar more rudely and roughly than he treated male employees and threatened her with reprimands and termination. Such differential treatment, they contend, included telling Aguilar that “your ass is mine,” that he would talk to her more than he talked to his “lady,” and that she would have to do everything that he told her to do in the way that he told her to do it, but there is no evidence that he treated male employees in this way. The plaintiffs also contend that they presented evidence that ASARCO failed to investigate Aguilar’s complaints about Esquivel’s conduct, and instead disciplined her, but suspended Esquivel for ten days without pay when male employees complained about his conduct.

Third, the plaintiffs presented evidence of pornographic graffiti, labeled with Aguilar’s name, in the portable toilet that she was forced to use. The parties agree that this pornographic graffiti was eventually painted over, and ASARCO contends that no one other than Aguilar testified to having seen it, while Aguilar herself testified that she saw it on only about five occasions. The plaintiffs contend, however, that the evidence shows that Aguilar had no choice but to use the portable toilet on several occasions, that ASARCO was extremely dismissive of Aguilar’s complaints about the pornographic graffiti and, worse, that there were other incidents of pornographic graffiti in restrooms at the mine, both before and after the incident involving Aguilar.

B. Procedural Background

In this action, the Civil Rights Division of the Arizona Department of Law (ACRD) and Angela Aguilar allege claims of hostile work environment sexual harassment and retaliation for complaining about sexual harassment in violation of state and federal law. I was assigned the trial of this matter as a visiting judge. Although there is no right to a jury trial on the state-law claims, the parties agreed to be bound by the jury’s verdict on the state-law claims as to whether or not discrimination or retaliation occurred, leaving only the appropriate equitable relief, if any, on the state-law claims for me to decide post-trial.

A jury trial began on April 4, 2011. At the trial, plaintiff ACRD was represented by Ann Hobart, Litigation Section Chief Counsel, Civil Rights Division, Office of the Attorney General, in Phoenix, Arizona. Plaintiff Angela Aguilar was represented by Sandy Forbes of Waterfall, Economidis, Caldwell, Hanshaw and Villamana P.C., in Tucson, Arizona. Defendant ASARCO, L.L.C., was represented by David T. Barton and Eric B. Johnson of Quarles & Brady L.L.P., in Phoenix, Arizona.

After seven days of evidence, the case was submitted to the jury on April 13, 2011. Late in the afternoon on April 13, 2011, the jurors sent the following note: Instruction No 5

One through four elements. The word conduct is used. Can this be applied to more than one situation or does it have to apply to all?

Docket no. 328. I circulated a draft response, to which ASARCO agreed, that stated, “The word ‘conduct’ can apply to more than one situation but each situation must be proved by the greater weight of the evidence.” However, after further consultation with the parties, I provided the following answer:

I have received a note signed by a juror, a copy of which is attached.

In response to your note, I state the following:

The word “conduct” can apply to one or more situations.

This instruction should be taken together with the jury instructions I previously gave to you. The instructions must be considered as a whole.

Docket no. 329.

In the early afternoon of April 14, 2011, the jury returned a verdict finding for the plaintiffs on their claim of sexual harassment, finding no constructive discharge on that claim, awarding no compensatory damages for past or future emotional distress, awarding $1.00 for nominal damages, and awarding $868,750.00 for punitive damages. The jury found for ASARCO on the plaintiffs’ claim of retaliation for sexual harassment complaints. I entered judgment (docket no. 330) pursuant to the jury’s verdict on April 14, 2011.

On April 21, 2011, the ACRD filed Proposed Findings Of Fact And Conclusions Of Law (docket no. 331) pertaining to its claim for hostile work environment sexual harassment pursuant to A.R.S. §§ 41-1463(B) and 1481. On April 21, 2011, the plaintiffs also filed a Joint Supplemental Memorandum Regarding Their Request For Injunctive And Equitable Relief (docket no. 332), and a Notice Re: Equitable Relief Of Back Pay And Reinstatement Or Front Pay (docket no. 333), withdrawing their requests for any such equitable relief. On April 26, 2011, plaintiff Aguilar filed her Motion For Attorney’s Fees Pursuant To LRCiv 54.2(b)(1) (docket no. 335).

At ASARCO’s request, I held a telephonic conference on post-trial matters on May 3, 2011. See Order (docket no. 337). During that conference, it was agreed that ASARCO would file its post-trial motions by May 12, 2011, that oral arguments on both the plaintiffs’ and the defendant’s post-trial motions would be set during my return visit to Arizona, and that the attorney’s fee matter would be addressed separately later. I also advised the parties that the ACRD’s proposed findings of fact were unnecessary in this case. After that conference, I set oral arguments on the plaintiffs’ joint request for injunctive and equitable relief and on ASARCO’s anticipated post-trial motions for June 6, 2011, when I would again be in Arizona as a visiting judge.

On May 12, 2011, ASARCO filed a Response To Plaintiffs’ Joint Supplemental Memorandum Regarding Their Request For Injunctive And Equitable Relief (docket no. 339) and a Renewed Motion For Judgment As A Matter Of Law Or In The Alternative Motion For New Trial (docket no. 340). On May 19, 2011, the ACRD filed a Reply In Support Of Plaintiffs’ Request For Injunctive And Equitable Relief (docket no. 342), in which Aguilar filed a Joinder (docket no. 343). On May 27, 2011, the plaintiffs filed their Opposition To Defendant’s Renewed Motion For Judgment As A Matter Of Law Or In The Alternative Motion For New Trial (docket no. 344). On June 3, 2011, ASARCO filed a Reply (docket no. 345) in further support of its post-trial motions. Also on June 3, 2011, the ACRD filed its Notice Of Withdrawal Of Plaintiff State Of Arizona’s Proposed Findings Of Fact And Conclusions Of Law (docket no. 346).

At the oral arguments on June 6, 2011, on the post-trial motions, plaintiff ACRD was again represented by Ann Hobart, plaintiff Aguilar was again represented by Sandy Forbes, and defendant ASARCO was again represented by David T. Barton and Eric B. Johnson. The oral arguments, like the other briefing and arguments in this case, were spirited, thorough, and enlightening. At the conclusion of the oral arguments, I authorized the parties to submit post-argument briefs on the impact of Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir.2003), on analysis of punitive damages in this case. Plaintiff Aguilar filed such a Supplemental Memorandum (docket no. 351) on June 16, 2011, and defendant ASARCO filed its Memorandum Re Zhang v. American Gem Seafoods, Inc. (docket no. 353) on June 21, 2011.

The post-trial motions are now fully submitted.

The parties initially agreed that I should delay my ruling on post-trial motions until after they held a mediation at the end of July 2011. However, in response to further inquiries from me, the parties agreed that a ruling prior to their mediation session might facilitate the mediation. Therefore, I now enter this ruling on the post-trial motions.

There will be no need for me to reach the plaintiffs’ request for equitable and injunctive relief if I grant ASARCO’s motion for judgment as a matter of law or its alternative motion for new trial. Therefore, I will begin my legal analysis with ASARCO’s post-trial motions.

II. ASARCO’S MOTION FOR JUDGMENT AS A MATTER OF LAW

ASARCO’s motion for judgment as a matter of law has three prongs: (1) there was insufficient evidence of hostile environment sexual harassment even to submit that claim to the jury; (2) punitive damages were not warranted as a matter of law; and (3) the jury’s punitive damages award is excessive as a matter of law. I will consider each of these contentions in turn. First, however, I will address the standards applicable to a Rule 50(b) motion for judgment as a matter of law.

A. Applicable Standards

Rule 50(b) of the Federal Rules of Civil Procedure provides for post-trial renewal of a motion for judgment as a matter of law pursuant to Rule 50(a) made before the case was submitted to the jury, as occurred here. Although the Rule provides that the court may “allow judgment on the verdict, if the jury returned a verdict,” “order a new trial,” or “direct the entry of judgment as a matter of law,” Fed.R.CivP. 50(b)(1)-(3), it does not state the standards applicable to granting or denying such relief. The Ninth Circuit Court of Appeals has filled this gap, explaining that “[a] grant of such a motion is proper if the evidence, construed in favor of the nonmoving party, permits only one reasonable conclusion,” and that conclusion is contrary to the verdict. Art Attacks Ink, L.L.C. v. MGA Entertainment, Inc., 581 F.3d 1138, 1143 (9th Cir.2009) (citing Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002)); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.2009). More specifically still, “ ‘in entertaining a motion for judgment as a matter of law, the court ... may not make credibility determinations or weigh the evidence.’ ” Go Daddy Software, Inc., 581 F.3d at 961 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, “ ‘[the court] must view the evidence in the light most favorable to the nonmoving party ... and draw all reasonable inferences in that party’s favor.’ ” Id. (quoting Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th Cir.2006)). Thus, the question is whether there is “substantial evidence” supporting the jury’s verdict. Id. The Ninth Circuit Court of Appeals reviews de novo renewed motions for judgment as a matter of law, such as the one now before the court. Art Attacks Ink, 581 F.3d at 1143; Go Daddy Software, Inc., 581 F.3d at 961.

B. Sufficiency Of The Evidence Of Sexual Harassment

1. Arguments of the parties

ASARCO argues that the plaintiffs failed to establish a sexually hostile work environment, as a matter of law, because none of the isolated incidents on which their claim relies meets the exacting standards for proof of a hostile environment claim. ASARCO argues that the incidents involving Wayne Johnson were mild and, even assuming that they amounted to harassment, it is undisputed that ASARCO took prompt remedial action that, according to Aguilar’s own testimony, effectively ended the alleged harassment. ASARCO argues that the incident involving Julio Esquivel cannot even be shown to be because of Aguilar’s sex, because Esquivel treated everyone, male and female, poorly. ASARCO argues that, even supposing Esquivel treated women differently than he treated men, merely yelling at female employees and other personality conflicts are not sufficient to raise a claim of sexual harassment that could go to the jury. As to the bathroom graffiti incident, ASARCO argues that Aguilar’s limited exposure to offensive graffiti during a brief period does not establish sufficiently severe or pervasive harassment as a matter of law.

The plaintiffs argue that the evidence shows not only that the harassment was because of Aguilar’s sex, but that it was sufficiently severe and pervasive to be actionable and to support the jury’s verdict. They contend that ASARCO’s arguments are based on very selective descriptions of the pertinent evidence. First, as to harassment by Wayne Johnson, the plaintiffs argue that the evidence shows that Aguilar had to fend off Johnson’s sexual advances for a couple of weeks. The plaintiffs also argue that ASARCO is flat wrong to assert that ASARCO took prompt remedial action in response to that harassment or that whatever action it took ended that harassment. Instead, they argue that the human resources manager, Gonzalez, did nothing effective in response to Aguilar’s first complaint, and that it was only after she made two complaints to the mill manager, Lawrence, that any action was taken. Even that action, they argue, only caused Johnson to stop speaking to Aguilar or training her—another form of harassment—and did not stop him from subsequently harassing another woman assigned to work with him as a car loader with unwelcome sexual advances. They also argue that the evidence shows that Esquivel did subject Aguilar to harassment that was different from his general rudeness to male and female workers, including the “your ass is mine” comment mentioned above. They contend that each of the cases on which ASARCO relies to show that this harassment was insufficient is distinguishable. Finally, as to the bathroom graffiti incident, the plaintiffs argue that the evidence shows that Aguilar was forced to use the bathroom in question for a period of time and that ASARCO treated her complaints about the graffiti dismissively. As to this incident, the plaintiffs again assert that the cases cited by ASARCO provide no useful comparisons.

In reply, ASARCO argues that Aguilar testified that she has only recently been able to tell her husband and attorneys that Johnson groped her and propositioned her for sex. Thus, in ASARCO’s view, there is no evidence to corroborate her claim that she made any complaint to management about anything other than being asked out and complimented on her looks. ASARCO also argues that Aguilar admitted at trial that none of Esquivel’s comments were disparaging or demeaning comments about women, just complaints about her work performance. Finally, ASARCO argues that Aguilar was unable to provide a coherent timeline as to when the graffiti appeared and when it was painted over, she saw it only a few times, and no one other than Aguilar testified to having seen the graffiti before it was painted over.

At oral arguments, ASARCO admitted that it has no case standing for the proposition that each individual situation relied upon by a sexual harassment plaintiff had to constitute sexual harassment, standing alone, for the plaintiffs to prevail. Nevertheless, ASARCO argues that, unless each incident at least arguably constituted actionable harassment, ASARCO never had notice of sexual harassment to which it could have responded. ASARCO also argues that cases involving the totality of the circumstances involved incidents related either by actor, or time and space, or situations, or circumstances. Here, ASARCO argues, there are three distinct incidents of alleged harassment, so that a “totality of the circumstances” analysis is inappropriate.

2. Analysis

As the Ninth Circuit Court of Appeals recently explained,

A plaintiff may establish a sex hostile work environment claim by showing that he was subjected to verbal or physical harassment that was sexual in nature, that the harassment was unwelcome and that the harassment was sufficiently severe or pervasive to alter the conditions of the plaintiffs employment and create an abusive work environment. See Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998). A plaintiff must establish that the conduct at issue was both objectively and subjectively offensive: he must show that a reasonable person would find the work environment to be “hostile or abusive,” and that he in fact did perceive it to be so. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

Dawson v. Entek Int'l, 630 F.3d 928, 937-38 (9th Cir.2011); EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 997 (9th Cir.2010). As the Supreme Court has recognized, the “ ‘critical issue’ ” in determining whether harassment was “because of sex” is “ “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). “Whether a working environment is objectively ‘abusive’ ‘can be determined only by looking at all the circumstances,’ which ‘may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance .... [N]o single factor is required.’ ” Prospect Airport Servs., 621 F.3d at 999 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). “ ‘[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.’” Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir.2000) (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991), in turn citing King v. Board of Regents, 898 F.2d 533, 537 (7th Cir.1990)).

ASARCO cites authority for the proposition that “isolated incidents” of alleged sex-based conduct may not create a hostile work environment, see, e.g., Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir.1992) (stating that “isolated incidents of sexual horseplay” did not create a hostile work environment), but no authority for the proposition that each “isolated incident” on which a plaintiffs claim of sexual harassment is based must individually constitute actionable harassment. Indeed, that proposition is contrary to long-standing precedent. As the Ninth Circuit Court of Appeals has reiterated, “[w]hether a working environment is objectively ‘abusive’ ‘can be determined only by looking at all the circumstances.’ ” Prospect Airport Servs., Inc., 621 F.3d at 999 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367) (emphasis added). Thus, the jury was entitled to consider whether or not the environment was hostile on the basis of all of the situations alleged, not just whether the various incidents of alleged harassment, individually, were sufficiently severe.

Similarly, I have found no authority for the proposition that incidents must somehow be “related” to be considered under a “totality of the circumstances” standard. Such a “relatedness” requirement would seriously undermine the effectiveness of the antidiscrimination laws, as it would allow a plaintiff to be subjected to serial, but “distinct” harassment—for example, while transferring through several departments of a single employer—without recourse, even though “looking at all the circumstances,” the plaintiff was subjected to frequent, humiliating conduct that interfered with the plaintiffs work performance and, moreover, that showed a “culture” of harassment at that employer.

Finally, I have found no case law supporting the proposition that an employer must only respond to a complaint of actionable harassment; rather, the question is whether the employer responded adequately to alleged harassment. See, e.g., Dawson, 630 F.3d at 938 (“Where an employee is allegedly harassed by co-workers, the employer may be liable if it knows or should know of the harassment but fails to take steps “reasonably calculated to end the harassment.” (internal quotation marks and citations omitted)”). Moreover, “an employer must intervene promptly,” in a manner that not only stops the harasser, but persuades other potential harassers to refrain from unlawful conduct. See id. at 940. If an employer is allowed to wait until it deems the alleged harassment is sufficient to be actionable before responding, the promptness and effectiveness of any response would be undermined.

ASARCO’s assertion that the evidence is inadequate to support a claim that Aguilar was subjected to a sexually hostile environment is, as the plaintiffs contend, also based on a selective view of the evidence or a weighing of the evidence that cannot be the basis for my review on a Rule 50(b) motion. Go Daddy Software, Inc., 581 F.3d at 961. Instead, viewing the evidence in the light most favorable to the plaintiffs, I cannot say that the evidence “permits only one reasonable conclusion” that is contrary to the verdict. Art Attacks Ink, L.L.C., 581 F.3d at 1143; Go Daddy Software, Inc., 581 F.3d at 961. The harassment by Johnson and the harassment in the form of pornographic graffiti were undisputably because of Aguilar’s sex in light of Johnson’s sexual advanees and the nature of the graffiti. See Oncale, 523 U.S. at 81, 118 S.Ct. 998. Moreover, the plaintiffs have pointed to evidence raising reasonable inferences that, even if Esquivel treated all male and female employees poorly, he nevertheless subjected Aguilar to treatment to which he did not or would not subject male employees. Id. I also believe that a reasonable juror could conclude from the evidence that the instances of harassment were sufficiently frequent to demonstrate a pervasive atmosphere of sexual harassment, such that even the relatively less severe conduct at issue in each incident here, when taken together, met the threshold of prohibited harassment. Brooks, 229 F.3d at 926; see also Prospect Airport Servs., Inc., 621 F.3d at 999 (reiterating that whether a working environment is objectively abusive “can be determined only by looking at all the circumstances”) (internal quotation marks and citations omitted).

Therefore, ASARCO’s motion for judgment as a matter of law on the plaintiffs’ sexually hostile environment claim will be denied.

C. Sufficiency Of The Evidence Supporting Punitive Damages

1. Arguments of the parties

Next, ASARCO contends that, even if the sexually hostile environment claim was submissible, the prayer for punitive damages was not. ASARCO argues that there is no evidence that ASARCO intended to injure Aguilar or acted in the face of a perceived risk of violating antidiscrimination laws. Instead, ASARCO argues, again, that it took prompt action to address Aguilar’s claim of harassment by Johnson, moved her to a different crew when she complained about Esquivel’s conduct, and painted over the bathroom graffiti. Clearly, ASARCO argues, whatever action some employees may have taken to offend Aguilar, ASARCO as a company took effective action to protect her Title VII rights, and there is no evidence that ASARCO condoned or approved any of the alleged conduct. ASARCO argues that courts have refused to award punitive damages in eases involving far more egregious conduct.

The plaintiffs assert that there was more than enough evidence to submit punitive damages to the jury. They argue that the evidence shows that ASARCO was recklessly indifferent to the harassment and discrimination Aguilar suffered during her employment, starting with her complaints to human resources and management about Johnson’s behavior, continuing through the bathroom graffiti and her complaints to management, and on through her complaints to human resources and management about Esquivel. The plaintiffs argue that the people to whom Aguilar was supposed to direct her complaints according to ASARCO’s sexual harassment policy, see Plaintiffs’ Exhibit 50, failed to treat her complaints seriously or to investigate those complaints adequately. The plaintiffs also argue that the evidence shows that the managers who were aware of ASARCO’s written policy requiring investigation of all harassment complaints simply ignored their responsibilities when Aguilar complained and that there was no training for supervisory personnel about responding to complaints of harassment.

In reply, ASARCO reiterates its contention that the plaintiffs failed to present evidence sufficient to justify punitive damages. Specifically, ASARCO argues that there is no evidence to support a finding of reckless indifference, because ASARCO responded effectively to each of Aguilar’s complaints of sexual harassment.

2. Analysis

Whether or not punitive damages should have been submitted is also reviewed under the “sufficiency of the evidence” standard. Bains, L.L.C. v. Arco Prods. Co., Div. of Atlantic Richfield Co., 405 F.3d 764, 774 (9th Cir.2005). Thus, once again, “[t]he test is whether the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury.” Id. (internal quotation marks and citations omitted); accord Art Attacks Ink, L.L.C., 581 F.3d at 1143; Go Daddy Software, Inc., 581 F.3d at 961

The Ninth Circuit Court of Appeals has explained the standards for an award of punitive damages in a Title VII case, as follows:

[W]e note that Title VII provides for punitive damages, which may be awarded “if the complaining party demonstrates that the respondent engaged in a discriminatory practice ... with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1) (emphasis added). To award punitive damages, the individuals’ conduct must have been more than just intentional discrimination—instead they must have known they were acting in violation of federal law. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535-36, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); see also Ngo v. Reno Hilton Resort Corp., 140 F.3d 1299, 1304 (9th Cir.1998) (“Punitive damages may not be awarded ... where a defendant’s discriminatory conduct is merely ‘negligent in respect to the existence of a federally protected right.’” (quoting Hernandez-Tirado v. Artau, 874 F.2d 866, 870 (1st Cir.1989))).

Elsayed Mukhtar v. California State Univ., Hayward, 299 F.3d 1053, 1068 n. 15 (9th Cir.2002); Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1197 (9th Cir.2002) (explaining that the plaintiff does not have to prove that the defendant acted “egregiously” (citing Kolstad, 527 U.S. at 534-35, 119 S.Ct. 2118)). “The defendant is appropriately subject to punitive damages if it acts ‘in the face of a perceived risk that its actions will violate federal law.’ ” Hemmings, 285 F.3d at 1197 (quoting Kolstad, 527 U.S. at 536, 119 S.Ct. 2118). As the Ninth Circuit Court of Appeals has noted, “A written antidiscrimination policy does not insulate a company from liability [for punitive damages] if it does not enforce the antidiscrimination policy and, by its actions, supports discrimination.” Bains, 405 F.3d at 774 (citing Swinton v. Potomac Corp., 270 F.3d 794, 810-11 (9th Cir.2001)).

Again, I cannot say that the evidence in this case, construed in the light most favorable to the plaintiffs, permits only one reasonable conclusion, that punitive damages were not available as a matter of law. Bains, 405 F.3d at 774 (stating the standard for review for submission of punitive damages); accord Art Attacks Ink, L.L.C., 581 F.3d at 1143; Go Daddy Software, Inc., 581 F.3d at 961. There is no dispute that ASARCO had an antidiscrimination policy. However, the plaintiffs have pointed to evidence that, despite having such a policy, ASARCO’s managerial and human resources personnel did not provide prompt and effective remedial action, but 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. Having a policy alone is not enough to escape liability for punitive damages. Bains, 405 F.3d at 774. Indeed, evidence that such a policy existed, but was not followed, gives rise to a reasonable inference that ASARCO perceived a risk that its actions violated federal law and acted in reckless indifference to whether or not its conduct violated antidiscrimination laws. See Elsayed Mukhtar, 299 F.3d at 1068 n. 15; Hemmings, 285 F.3d at 1197.

ASARCO is not entitled to judgment as a matter of law that punitive damages were not warranted in this case.

D. Excessiveness Of The Punitive Damages Award

ASARCO’s final ground for judgment as a matter of law is that, even if the sexual harassment claim and the punitive damages prayer were submissible, the amount of punitive damages awarded by the jury was both in excess of the statutory cap for Title VII punitive damages and so excessive that it violates due process. The plaintiffs concede that the award exceeded the statutory “cap,” but contend that a punitive damages award of $300,000, at the statutory “cap,” is not unconstitutionally excessive.

1. Arguments of the parties

ASARCO asserts that the Supreme Court has announced that, in practice, few awards exceeding a single-digit ratio between punitive damages and compensatory damages, to a significant degree, will satisfy due process. ASARCO acknowledges that an exception to this rule is where a particularly egregious act has resulted in only a small amount of economic damages. ASARCO argues that this is not such a case. Moreover, ASARCO argues that, considering the factors pertinent to the determination of the appropriate amount of a punitive damages award, no more than $9 in punitive damages should be awarded in this case.

Somewhat more specifically, ASARCO argues that there is, at best, little evidence of “reprehensibility” of its conduct. ASARCO argues that there was no evidence at trial that it acted with malice, and that the plaintiffs argued only that ASARCO was indifferent to Aguilar’s complaints. ASARCO reiterates its argument that it took prompt and adequate steps in response to Aguilar’s complaints. ASARCO also asserts that there is an untenable disparity between the actual harm Aguilar purportedly suffered and the punitive damages awarded. ASARCO asserts that the jury’s rejection of Aguilar’s prayer for emotional distress damages and her allegation that she was constructively discharged, which would have opened the door to backpay or frontpay, demonstrates that Aguilar did not suffer any harm as a result of ASARCO’s alleged misconduct. As to the difference between the punitive damages award and civil penalties, ASARCO argues that discrimination cases ordinarily involve a single-digit ratio between punitive damages and actual damages. Finally, ASARCO argues that the jury impermissibly punished ASARCO for alleged harm to others, because this is the only explanation for the verdict in this case. If the punitive damages award had been based on conduct toward Aguilar, ASARCO argues, the jury would have awarded her compensatory damages. ASARCO argues that harm suffered by other employees who were subjected to pornographic graffiti, specifically, Esquivel and Miller, cannot support a punitive damages award for Aguilar.

The plaintiffs take a very different view of the amount of punitive damages that the evidence would support. They argue that courts have recognized the difficulty of addressing the “proportionality” issue in cases that involve only nominal or low compensatory damages. They note that at least one federal appellate court has recognized that the punitive damages-to-compensatory damages ratio analysis cannot be applied effectively to nominal damages, because nominal damages are often awarded to vindicate constitutional or statutory rights, and the proportionality analysis would defeat any award of punitive damages at all in such cases. They note that another federal appellate court has recognized that the combination of the statutory cap and the high threshold of culpability for awards of punitive damages in Title VII cases confines the punitive damages award to a constitutionally tolerable proportion. They contend that, while the Ninth Circuit Court of Appeals has not yet gone quite so far, it has recognized that the statutory cap serves as a restraint on the permissible amount of punitive damages, and has, in fact, concluded that the statutory cap for Title VII cases suggested a comparator for a punitive damages award in a § 1981 case in which only nominal damages had been awarded. Moreover, they contend that another Circuit Court of Appeals has upheld a punitive damages award at the statutory cap in a Title VII case, where only $1 in nominal damages had been awarded.

Turning to other factors pertinent to a determination of the amount of a punitive damages award, the plaintiffs argue that ASARCO’s conduct was sufficiently reprehensible to sustain a punitive damages award at the statutory cap of $300,000. They point out that the harm that Aguilar suffered from harassment was at least partially physical in nature, because Johnson touched her, the graffiti urged sexual penetration of her, and Esquivel intimidated her physically with his voice and gestures. The plaintiffs also contend that Aguilar was forced to tolerate the three phases of harassment, because she was economically vulnerable. Moreover, the plaintiffs argue that ASARCO demonstrated its reckless disregard of Aguilar’s rights in its dismissive and ineffective treatment of her complaints. They also argue that an award of $300,000, the statutory cap, is consistent with the Supreme Court’s direction to consider civil penalties in comparable cases.

In reply, ASARCO argues that courts have reduced punitive damages awards well below the applicable cap in cases involving conduct far more egregious than the plaintiffs have established. ASARCO argues in its reply brief that the decision of the Ninth Circuit Court of Appeals in Mendez v. County of San Bernardino, 540 F.3d 1109 (9th Cir.2008), in which the court affirmed a reduction of a punitive damages award from $250,000 to $2,500 for each claim on which the plaintiff had been awarded only $1 in nominal damages, is “directly on point.” However, ASARCO argues that, because this is not a case involving egregious conduct that resulted in only limited harm, if punitive damages are available at all, they should not exceed $9.

2. Analysis

The Ninth Circuit Court of Appeals reviews de novo a district court’s determination of whether or not a punitive damages award is excessive. Mendez v. County of San Bernardino, 540 F.3d 1109, 1120 (9th Cir.2008) (adding that pertinent findings of fact are reversed only if they are clearly erroneous); Bains, 405 F.3d at 775. Several factors are pertinent in the excessiveness analysis.

a. The BMW factors

The “guideposts” ordinarily considered to determine whether or not a punitive damages award is excessive, established by the Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)— and, hence, often called the BMW factors or the Gore factors—are the following: “(1) the degree of reprehensibility, (2) the disparity between the harm suffered and the punitive damages award, and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases.” Bains, 405 F.3d at 775 (citing BMW, 517 U.S. at 574-75, 116 S.Ct. 1589); accord Mendez, 540 F.3d at 1120. However, “that one BMW guidepost may indicate that a particular award raises BMW-type concerns does not prove that award to be constitutionally excessive.” Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1045 (9th Cir.2003). These BMW factors require some further explanation.

i. Reprehensibility. As to the first BMW factor, “reprehensibility,” the Ninth Circuit Court of Appeals has explained that the court should consider the following: “whether ‘the harm caused was physical as opposed to economic; [whether] the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; [whether] the target of the conduct had financial vulnerability; [whether] the conduct involved repeated actions or was an isolated incident; and [whether] the harm was the result of intentional malice, trickery, or deceit, or mere accident.’ ” Bains, 405 F.3d at 775 (quoting State Farm, 538 U.S. at 419, 123 S.Ct. 1513); accord Mendez, 540 F.3d at 1120 (also quoting State Farm). While the lack of any threat of physical harm reduces reprehensibility, conduct that is not isolated but repeated, that targets highly vulnerable people financially, and that causes harm resulting from intentional malicious conduct does suggest reprehensibility. Id. So, too, does intentional, repeated ethnic harassment, id., and I presume that the Ninth Circuit Court of Appeals would reach the same conclusion as to repeated sexual harassment. Furthermore, failure to remedy or even address discriminatory conduct or the effects of discrimination might reasonably lead jurors to conclude that punitive damages were necessary to prevent future discrimination. Id.

ii. Proportionality. The second BMW factor, the ratio between the punitive damages and the actual harm, is “‘perhaps [the] most commonly cited indicium of an unreasonable or excessive punitive damages award.’ ” Zhang, 339 F.3d at 1044 (quoting BMW, 517 U.S. at 580-81, 116 S.Ct. 1589). This factor is generally analyzed by comparing punitive and compensatory damages. Id. More specifically,

The Court has refused to give a precise mathematical guideline for the “constitutionally acceptable range,” but the two cases in which the Court struck down punitive damages awards both involved rather large ratios of punitive to compensatory damages: in BMW, the ratio was a “breathtaking 500 to 1,” id.; in State Farm, the ratio was 145 to one, 538 U.S. at 424, 123 S.Ct. at 1524. Likewise, in Cooper Industries [Inc. v. Leatherman Tool Group, Inc.], where the Court questioned the size of the award but declined to rule on its constitutionality, the ratio was ninety to one. 532 U.S. [424] at 429, 121 S.Ct. 1678, 149 L.Ed.2d 674.

Despite its refusal to establish a firm numerical limit to the ratio, the BMW Court noted that precedent “suggested that the relevant ratio was not more than 10 to 1,” 517 U.S. at 559, 116 S.Ct. 1589. In State Farm, the Court “deeline[d] again to impose a brightline ratio which a punitive damage award cannot exceed,” 538 U.S. at [425], 123 S.Ct. at 1524, but offered similar guidance on the general limits to an acceptable ratio: “[I]n practice, few awards exceeding a single-digit ratio ... will satisfy due process.” Id. “Single-digit multipliers are more likely to comport with due process” than the extreme ratios found in BMW or State Farm. Id.

Zhang, 339 F.3d at 1044.

The plaintiffs assert that some courts have recognized that this “proportionality” or “disparity” factor is not as relevant in a case in which nominal damages, rather than compensatory damages, have been awarded. For example, in Williams v. Kaufman County, 352 F.3d 994 (5th Cir. 2003), a § 1983 case by detainees against a county sheriff and the county for violation of the detainees’ civil rights during the execution of a search warrant, the Fifth Circuit Court of Appeals stated that “any punitive damages-to-compensatory damages ‘ratio analysis’ cannot be applied effectively in cases where only nominal damages have been awarded,” because “strict proportionality would defeat the ability to award punitive damages at all” in actions, for example, seeking vindication of constitutional rights, the kind of case in which nominal damages are most likely. Id. at 1016 (emphasis in the original). Therefore, that court upheld the district court’s award, after a bench trial, of $100 in “nominal damages” and $15,000 in punitive damages per plaintiff, a 150:1 ratio. Id.

A few years later, in Abner v. Kansas City Southern R. Co., 513 F.3d 154 (5th Cir.2008), a Title VII and § 1981 racially hostile environment case, the Fifth Circuit Court of Appeals again affirmed a jury award of no compensatory damages, but $125,000 in punitive damages for each plaintiff. The court first held, in pertinent part, “that a punitive damages award under Title VII and § 1981 need not be accompanied by compensatory damages.” Id. at 160. The court “base[d] [its] holding on the language of the statute, its provision of a cap, and the purpose of punitive damages under Title VII.” Id. Among other rationales, the court agreed with the assessment of the Second Circuit Court of Appeals that “ ‘there is some unseemliness for a defendant who engages in malicious or reckless violations of legal duty to escape either the punitive or deterrent goal of punitive damages merely because either good fortune or a plaintiffs unusual strength or resilience protected the plaintiff from suffering harm.’ ” Id. at 163-64 (quoting Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir.2001)). The court then rejected the defendant’s argument that the award was unconstitutionally excessive:

As we see it, the combination of the statutory cap and high threshold of culpability for any award confines the amount of the award to a level tolerated by due process. Given that Congress has effectively set the tolerable proportion, the three-factor Gore analysis is relevant only if the statutory cap itself offends due process. It does not and, as we have found in punitive damages cases with accompanying nominal damages, a ratio-based inquiry becomes irrelevant. [Williams, 352 F.3d at 1016.] Accepting this analysis makes the sufficiency of evidence to support the statutory threshold a determinant of constitutional validity.

Abner, 513 F.3d at 164 (footnote omitted). Because the court found no evidentiary deficiency for the award of punitive damages, the court affirmed the award of $125,000 in punitive damages to each plaintiff. Id. at 165.

Similarly, in Kemp v. American Tel. & Tel. Co., 393 F.3d 1354 (11th Cir.2004), a RICO case in which the plaintiff received $115.05 in actual damages and $1 million in punitive damages, the Eleventh Circuit Court of Appeals rejected application of a “single-digit ratio” and reduced the punitive damages award only to $250,000, resulting in a ratio of approximately 2,173:1. Id. at 1365. The court reasoned as follows:

[A]s the Supreme Court has explained, in some situations a higher ratio may be appropriate where a “particularly egregious act has resulted in only a small amount of economic damages.” [BMW, 517 U.S. at 582, 116 S.Ct. 1589] (internal quotation marks omitted). Given the small amount of economic damages in this case, the district court believed that AT & T’s conduct fell within this exception, since the company’s conduct was deceitful, involved repeated illegal acts, and targeted the financially vulnerable.

We agree with the district court that a mechanical application of the Supreme Court’s single-digit multiplier formula would not adequately take account of the seriousness of AT & T’s misconduct. In Johansen v. Combustion Engineering, Inc., 170 F.3d 1320 (11th Cir.1999), we upheld a punitive award of $4.35 million dollars, which was around 100 times the amount, of actual damages awarded by the jury, because this amount was “justified by the need to deter this and other large organizations from a ‘pollute and pay’ environmental policy.” 170 F.3d at 1339. We noted that the defendant in Johansen was “a large and extremely wealthy international corporation” and that sometimes a “bigger award is needed to attract the ... attention of a large corporation” in order to promote deterrence. effectively. Id. at 1338 (internal quotation marks omitted). We later explained that the result in Johansen was motivated by the recognition that “the combination of a small damages award and a strong state interest in deterrence of a particular wrongful act may justify ‘ratios higher than might otherwise be acceptable.’ ” W & O, Inc., 213 F.3d at 616 (quoting Johansen, 170 F.3d at 1338).

Like the state interest at issue in Johansen, Georgia’s interest in deterring fraud and illegal gambling also justifies a ratio “higher than might otherwise be acceptable.” Johansen, 170 F.3d at 1338. Reducing the jury’s award to an amount not significantly larger than nine times the actual damages awarded in this case would mean that AT & T would receive a sanction of little more than a thousand dollars. Such an amount, levied against a company as large as AT & T, would utterly fail to serve the traditional purposes underlying an award of punitive damages, which are to punish and deter. See Gore, 517 U.S. at 568, 116 S.Ct. 1589 (“Punitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.”). Therefore, we agree with the district court that this case falls within the exception articulated in Gore.

Kemp, 398 F.3d at 1363-64 (footnote omitted).

In EEOC v. Harbert-Yeargin, 266 F.3d 498 (6th Cir.2001), a Title VII sexual harassment case, Judge Gilman of the Sixth Circuit Court of Appeals embraced exceptions to the single-digit-ratio rule of thumb, as to the claim of one of the plaintiffs, Carlton, who was awarded $1 in nominal damages, but $300,000, the statutory cap, in punitive damages. Judge Gilman explained:

In BMW ... the Supreme Court expressly pointed out that low compensatory damages does not preclude a large punitive damage award “if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which ... the monetary value of the noneconomic harm might have been difficult to determine.” [BMW, 517 U.S.] at 582, 116 S.Ct. 1589. The essence of this guidepost is to “require[] a court to ask whether a relatively higher ratio of punitive to compensatory damages is permissible in order to effect the deterrent purposes behind punitive damages.” W & O, 213 F.3d at 616.

A large punitive-to-compensatory-damages-award ratio is justified in the case before us in order to support the deterrent purpose of Title VII. As pointed out in Carlton’s brief, he suffered a “physical assault for which no punishment was meted out. In addition, he was subjected to continuous harassment that supervisors encouraged or condoned.” Although the economically compensable value of Carlton’s injuries might have been small, the egregiousness of the acts suffered by Carlton— unwanted physical intrusion in his genital area—was great enough to support a much higher ratio so as to ensure that such conduct does not occur in the future. See Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1273 (10th Cir.2000) (stating that “where the injury is primarily personal, a greater ratio may be appropriate”).

Furthermore, “[i]n determining the amount and effectiveness of exemplary damages to be awarded against a defendant, the court may take into consideration the defendant’s wealth or net worth.” Whitney v. Citibank, N.A., 782 F.2d 1106, 1119 (2d Cir.1986). The jury in the present case was made aware that Harbert-Yeargin is part of a global corporation, Raytheon Co., with a net worth of $11.8 billion at the time of the trial. In light of the defendant’s net worth, a higher punitive-to-compensatory-damages-award ratio is justified in order to serve Title VII’s purpose of punishment and deterrence, because a smaller award would have had much less of an effect on a corporation of Harbert-Yeargin’s size. As the trial court stated, “even considering the amount of the fine only, a penalty of $300,000.00 for a corporation worth nearly 12 billion is comparable to a $3,000.00 fine for an individual.” Accordingly, I would hold that the amount of punitive damages awarded to Carlton was supported by the second part of the BMW analysis.

Harbert-Yeargin, Inc., 266 F.3d at 515-16 (Gilman, J., writing for himself).

Although the plaintiffs read Bains to suggest that the Ninth Circuit Court of Appeals would also tolerate a punitive damages award in the hundreds of thousands of dollars following a nominal damages award, I am not convinced that Bains stands for that proposition. Rather, in Bains, the court noted that, where the jury awarded one dollar in nominal damages for discrimination on a § 1981 claim and $50,000 in compensatory damages for breach of contract, and the conduct involved in the two claims was intertwined, $50,000 was “the harm suffered.” Bains, 405 F.3d at 776. Thus, the court performed its “proportionality” analysis by comparing the $5 million punitive damages award by the jury to the $50,000 compensatory damages award, not to the $1 nominal damages award, standing alone. Id.

A case that more clearly signals the inclination of the Ninth Circuit Court of Appeals to depart from a strict single-digit “proportionality” analysis in a nominal damages case is actually one cited by ASARCO, Mendez v. County of San Bernardino, 540 F.3d 1109 (9th Cir.2008). Mendez was a case involving claims of violation of civil rights pursuant to § 1983 arising from an allegedly illegal arrest and unconstitutional search. In Mendez, the court upheld the district court’s reduction of a $250,000 punitive damages award on two claims, following an award of $1 of nominal damages on each claim, but the reduction was to $2,500 on each claim, for a total of $5,000, not to $18, the amount that the defendants in that case asserted represented the proper ratio. Id. at 1121-22. The court explained,

Under the second Gore guidepost, we look to the ratio between the punitive damages and the actual harm inflicted on the plaintiff. 517 U.S. at 580, 116 S.Ct. 1589. In this case, because Mendez was awarded only nominal damages, the award of $250,000 in punitive damages—which represents a ratio of 125,-000 to one—is obviously considerably in excess of the single-digit ratios the Court has deemed “more likely to comport with due process” than higher ratios. See State Farm, 538 U.S. at 425, 123 S.Ct. 1513. The Court, however, has carved out an exception relevant to this case, which is that “ratios greater than those we have previously upheld may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages.” Id. (internal quotation marks omitted). Constitutional torts such as Mendez’s are far more likely to present such scenarios. Ratios in excess of single digits in § 1983 suits therefore will not generally violate due process when the victim suffers no compensable injury. If we were to hold otherwise, then “any appreciable exemplary award would produce a ratio that would appear excessive by this measure.” Lee [v. Edwards], 101 F.3d [805,] 811 [(2d Cir.1996)]. This would conflict with the Court’s clear guidance that punitive damages should remain available under § 1983 even in the absence of a compensable injury, and that in such situations “punitive damages may be the only significant remedy available.” Smith v. Wade, 461 U.S. 30, 55 n. 21, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (internal quotation marks omitted).

The district court did not rule otherwise, however, and awarded Mendez $5,000 in punitive damages—a ratio of 2,500 to one, which is also significantly in excess of single digits. The district court firmly rejected the County’s suggestion that the only punitive damages award that would comport with due process would be an $18 award, noting that such a small award would not be “sufficient to deter other law enforcement officers from engaging in similar conduct in the future.” Although we agree that the second Gore guidepost may have reduced relevance in § 1983 suits involving only nominal damages, we do not agree with Mendez’s contrary suggestion that this factor has no relevance. In this case, the jury awarded a staggering $250,000 in punitive damages, even though the jury found that Mendez suffered no compensable injury from Reyes’ actions. While the second Gore guidepost may not be dispositive of the excessiveness of the award in this case, the great disparity between the actual and punitive damages does not cut in Mendez’s favor.

Mendez, 540 F.3d at 1121-22. Thus, while the court could not accept a 250,000:1 ratio, it did affirm a 2,500:1 ratio.

Although I find persuasive the reasoning in out-of-circuit cases, cited above, on the limited relevance of a “proportionality” analysis in a case where nominal damages have been awarded, I am bound to follow Mendez, because it is at least relevant, if not controlling, Ninth Circuit authority. Indeed, ASARCO asserted in its reply brief that Mendez is “directly on point.”

Specifically, Mendez counsels that, as in a § 1983 case involving only nominal damages, “[ajlthough ... the second Gore guidepost may have reduced relevance in [Title VII] suits involving only nominal damages, [the Ninth Circuit Court of Appeals] do[es] not agree ... that this factor has no relevance.” Id. at 1122. Furthermore, although Mendez is a § 1983 case, not a Title VII discrimination case, it nevertheless clearly establishes that, in cases in which punitive damages are available, as they are for both § 1983 cases and Title VII cases, ratios in excess of single digits will not generally violate due process when the victim suffers no compensable injury, because to hold otherwise would mean that “ ‘any appreciable exemplary award would produce a ratio that would appear excessive by this measure.’ ” Id. at 1121-22 (quoting Lee, 101 F.3d at 811). Making any appreciable exemplary award excessive would, in turn, conflict with Congress’s clear guidance that puniti