￼￼￼￼Asarco Urges 9th Circ. Panel To Cut Sex Harassment Award – Law360 6/19/14, 8:57 AM
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By Brandon Lowrey
Law360, Los Angeles (June 18, 2014, 10:01 PM ET) — Arizona mining company Asarco LLC urged an en banc Ninth Circuit panel Wednesday to further slash a $300,000 punitive damages award to a female worker who sued for sexual harassment, saying damages were still unconstitutionally excessive after a Ninth Circuit panel reduced the figure to $125,000 in October.
During a hearing Wednesday in Seattle, Asarco attorney David T. Barton of BurnsBarton PLC argued that the $300,000 statutory maximum under Title VII of the Civil Rights Act should be reserved for only the most egregious cases, and less severe cases should be scaled down from there.
“You’ve got to leave some room at the top of the scale, which goes to $300,000, for cases that are going to be worse because you’re going to see them and you have them,” Barton argued, adding that “simple requirements of fairness” demand that employers understand that the $300,000 reward is limited to those engaging in the most egregious conduct.
Barton cited the 1996 Supreme Court case BMW of North America Inc. v. Gore to contend that punitive damages that vastly exceed actual damages suffered are unconstitutional except in rare cases. In this case, Barton said the amount should be less than $2,500, the amount awarded in a case he argued was similar.
However, Chief Judge Alex Kozinski said that in other cases in which Gore was applied, there was no cap to damages as there is with the Title VII violation in this case. Since Congress set the maximum reward at $300,000, he suggested Gore isn’t needed to find the upper limit for damages.
“Here, we have … a congressional determination as to the upper limit for damages,” he said. “What’s left for us to do under the BMW regime?”
In this case, the $300,000 reward was reached when a district court judge reduced a jury’s award of nearly $870,000, citing the statutory cap.
The state of Arizona and mill worker Angela Aguilar in 2008 sued Asarco, a copper and molybdenum mining and refining company. Aguilar alleged a supervisor made unwanted sexual advances and coworkers had scrawled pornographic drawings in the portable toilet she used, including one drawing that made a specific reference to her, she alleged.
When she complained to her supervisors, they handled it with a “flippant” attitude, and ultimately mistreated her based on her gender and set her up to get fired, her complaint alleged.
A jury returned a verdict against Asarco on the sexual harassment claims in April 2011, awarding the plaintiffs $868,750 in punitive damages and $1 in nominal damages. However, the jury found that Asarco’s firing of Aguilar was not retaliatory and awarded her no compensatory damages, court documents said.
A judge later reduced the punitive damages to the statutory cap of $300,000 and awarded Aguilar more than $350,000 in attorneys fees, according to court documents.
Asarco appealed the case, arguing in its opening brief filed in February 2012 that the award was improper, citing the Gore case, which held that punitive damages grossly disproportionate to actual damages would be constitutionally excessive except in “all but the rarest of cases.”
The three-judge Ninth Circuit panel in October 2013 vacated and remanded the lower court’s punitive damages decision, saying the district court may order a new trial unless the plaintiff accepts a remittitur to $125,000. The panel affirmed the court’s decision to award attorneys’ fees.
Both parties petitioned in January for an en bane review of the decision.
On Wednesday, plaintiff attorney Eric Schnapper of the University of Washington School of Law said Title VII should be applied to this case instead of Gore, since the statute spells out the limits clearly.
Schnapper said that if the court does rely on Gore, it wouldn’t make sense to base punitive damages on a ratio of actual damages in the case that such damages are tiny or nonexistent.
He also attacked Asarco’s contention that the statutory maximum should be reserved for only the worst cases.
“This isn’t like a [criminal] sentencing statute that says you get 15 to 25 years for bank robbery, so that the worst bank robbery is 25 years and you work down from that,” Schnapper argued.
In cases like this, he contended, jurors settle on an award and the judge should simply cap it at the Title VII maximum if the jury’s award exceeds it.
Asarco is represented by Catherine Christine Burns, Benjamin J. Naylor and David T. Barton of BurnsBarton PLC.
Angela Aguilar is represented by Jenne S. Forbes of Waterfall Economids Caldwell Hanshaw & Villamana PC and Eric Schnapper of the University of Washington School of Law.
The state of Arizona is represented by assistant attorneys general Ann Ruth Hobart and Leslie Ross.
The case is State of Arizona v. Asarco LLC, case number 11-17484, in the U.S. Court of Appeals for the Ninth Circuit.
–Editing by Richard Mcvay.