Perkins et al v. Federal Fruit & Produce Company, Inc. et al
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR REMITTITUR. Defendants' 174 Motion for Remittitur of the Jury Verdict Pursuant to Fed. R. Civ. P. 59(e) is denied without prejudice. By Judge James A. Parker on 5/14/13.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge James A. Parker, sitting by designation
Civil Case No. 11-cv-00542-JAP-KLM
RICHARD PERKINS, and
FEDERAL FRUIT & PRODUCE COMPANY, INC.,
a Colorado corporation, and
MICHAEL MARTELLI, individually,
MEMORANDUM OPINION AND ORDER
DEFENDANTS’ MOTION FOR REMITTITUR
After a trial on May 16-25, 2012, Defendants Federal Fruit & Produce Company, Inc.
(FFP) and Michael Martelli (Martelli) filed DEFENDANTS’ MOTION FOR A REMITTITUR
OF THE JURY VERDICT PURSUANT TO FED. R. CIV. P. 59(e) (Doc. No. 174) (Motion for
Remittitur) asking for an order of remittitur of damages, or, in the alternative, a new trial on
damages. Because the Motion is premature as to some of the damages awards, the Court will
deny the Motion in part without prejudice.1 However, as to the damage awards that remain
unchanged, the Court will grant the Motion for Remittitur in part. Prior to this Memorandum
Opinion and Order, the Court ruled on two other post trial motions: DEFENDANTS’ MOTION
FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO FED. R. CIV. P. 50(b) (Doc.
No. 163) (Motion for Judgment as a Matter of Law) and DEFENDANTS’ MOTION FOR
RECONSIDERATION AND TO VACATE TRIAL AND JUDGMENT IN FAVOR OF
PERKINS AND MILLER (1) BECAUSE OF IRREGULARITIES; (2) FOR LACK OF
JURISDICTION; (3) PURSUANT TO THE COURT’S INHERENT POWERS OR RULE 59
OR 60, AND/OR FOR A NEW TRIAL PURSUANT TO RULE 59 (Doc. No. 164) (Motion for
Reconsideration). In these rulings, the Court has set aside some damage awards and the Court
has ordered a new trial on some claims and damage awards.
Defendants assert that the Motion for Remittitur is premature because until the Court
rules on the other two motions, there is no final judgment on damages. Noting that Plaintiffs
disagree with Defendants’ assessment, Defendants state that they have filed the Motion for
Remittitur to preserve their right to remittitur. Defendants correctly assert that the Motion for
Remittitur is premature if the jury’s verdict and damage awards are altered in the Court’s rulings
The Court has also considered PLAINTIFFS’ RESPONSE IN OPPOSITION TO
MOTION FOR REMITTITUR OF THE JURY VERDICT (Doc. No. 180) (Response) and
Defendants have filed DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE IN
OPPOSITION TO MOTION FOR REMITTITUR OF THE JURY VERDICT (Doc. No. 185)
(Reply). The Court requested and has received supplemental briefing and the Court has
considered that briefing as well. See DEFENDANTS’ SUPPLEMENTAL BRIEF IN
RESPONSE TO THE COURT’S REQUEST FOR ADDITIONAL ANALYSIS ON PUNITIVE
DAMAGES ISSUES (Doc. No. 188); PLAINTIFFS’ SUPPLEMENTAL BRIEF RE:
COURTROOM MINUTES DATED NOVEMBER 19, 2012 (DOC. NO. 186) (Doc. No. 189);
and DEFENDANTS’ REPLY IN SUPPORT OF SUPPLEMENTAL BRIEF IN RESPONSE TO
THE COURT’S REQUEST FOR ADDITIONAL ANALYSIS ON PUNITIVE DAMAGES
ISSUES (Doc. No. 190).
on the Motion for Judgment as a Matter of Law and on the Motion for Reconsideration. To date,
the Court has denied Defendants’ Motion for Judgment as a Matter of Law and has partially
granted Defendants’ Motion for Reconsideration. The Court will enter an Amended Judgment
reflecting those rulings and will enter a Second Amended Judgment after Perkins indicates
whether he will accept remittitur or opt for a new trial on damages.
I. The Post Trial Rulings on Defendants’ Motion for Judgment as a Matter of Law and
Defendants’ Motion for Reconsideration
The jury returned a verdict and awarded compensatory and punitive damages in favor of
Perkins on all of his claims against FFP under Title VII and against FFP owner, Martelli, under
42 U.S.C. § 1981 for (1) disparate treatment based on race; (2) discriminatory discharge from his
employment; and (3) retaliatory discharge. On Perkins’ disparate treatment claims, the Court
upheld the jury’s original verdicts and awards. On Perkins’ disparate treatment claim against
FFP, the Court has upheld the award of $10,000 in compensatory damages and $65,000 in
punitive damages. On Perkins’ disparate treatment claim against Martelli, the Court has upheld
the award of $10,000 in compensatory damages and $65,000 in punitive damages.
On Perkins’ discriminatory and retaliatory discharge claims, the Court has determined
that the compensatory damages awarded for Perkins’ emotional distress against both FFP and
Martelli are duplicative because the awards allow Perkins to recover more than once for the
emotional distress he experienced after his employment was terminated. The Court has
determined that the jury’s award of $50,000 in compensatory damages for Perkins’ emotional
distress against FFP on Perkins’ retaliatory discharge claim represents the appropriate amount of
damages for Perkins’ post discharge emotional distress. Because the other awards of emotional
distress damages, $5,000 against FFP for discriminatory discharge and $15,000 against Martelli
for discriminatory discharge, are duplicative of the $50,000 award, the Court has subsumed
those awards into the $50,000 award. In addition, because the decision to discharge Perkins was
made collectively by FFP owner Martelli and Perkins’ FFP supervisor Angel Mondragon
(Mondragon), the Court has determined that Martelli is jointly and severally liable with FFP for
$15,000 of the $50,000 award.
On Perkins’ retaliatory discharge claim against FFP, the Court has ordered a new trial on
the amount of compensatory damages for lost wages and benefits. The other awards on Perkins’
retaliatory discharge claim against FFP remain essentially unchanged: (1) $50,000 in
compensatory damages for emotional distress ($15,000 of which is joint and several with
Martelli); and (2) $350,000 in punitive damages. A new trial on liability and damages has been
ordered on Perkins’ retaliatory discharge claim against Martelli; thus, the award of $50,000 in
compensatory damages for emotional distress and the award of $150,000 in punitive damages
against Martelli have been set aside. See MEMORANDUM OPINION AND ORDER ON
DEFENDANTS’ MOTION FOR RECONSIDERATION AND TO VACATE TRIAL AND
JUDGMENT AND/OR FOR A NEW TRIAL.
Although the Court has found the awards for Perkins’ emotional distress caused by his
discharge to be duplicative, the punitive damages awards for discriminatory discharge remain
unchanged: (1) $65,000 in punitive damages against FFP; and (2) $65,000 in punitive damages
The jury returned a verdict in favor of Miller on his Title VII and § 1981 claims against
FFP and Martelli for retaliatory discharge. The Court has ordered a new trial on Miller’s
damages, both compensatory and punitive, as to both of his claims. Therefore, the Motion for
Remittitur is premature as to all awards of damages on Miller’s claims.
II. Motion For Remittitur Is Ripe Only As To Some, But Not All, of Perkins’ Claims
Only the damage awards on two of Perkins’ claims are unaltered by the Court’s post trial
rulings: (1) the award of $10,000 in compensatory damages and $65,000 in punitive damages on
Perkins’ disparate treatment claim against FFP; and (2) the award of $10,000 in compensatory
damages and $65,000 in punitive damages on Perkins’ disparate treatment claim against FFP. In
the MEMORANDUM OPINION AND ORDER ON DEFENDANTS’ MOTION FOR
JUDGMENT AS A MATTER OF LAW, the Court held that these awards are not duplicative
because Perkins proved that he suffered emotional distress caused by disparate discipline
imposed by Perkins’ FFP supervisor Mondragon. Perkins also proved that he suffered emotional
distress from Martelli’s treatment of Perkins on March 11, 2009 when Martelli angrily ordered
Mondragon to write up the nigger, referring to Perkins. Since these awards are unaltered, they
are ripe for consideration of remittitur; thus, the Court will address only those awards. As for the
other damage awards, the Motion for Remittitur is premature and will be denied without
prejudice. See Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 27 (1st Cir. 2006) (vacating
district court’s order reducing compensatory damages, remanding so that court may issue order
allowing remittitur or new trial, and refusing to address constitutionality of punitive damage
award because, upon remand, plaintiff might opt for a new trial and “it would be premature . . .
to approve a punitive damages award based on the compensatory award from the first trial”).
FFP is a produce distributing company located in Denver, Colorado that offers same-day
delivery of produce to restaurants, grocery stores, military bases, and nursing homes. (Doc. No.
184-2.) Perkins, an African-American, was employed at FFP as a truck driver from October 3,
2008 to May 12, 2009. The jury found that Perkins was subjected to disparate treatment at FFP,
that Perkins was discharged based on his race, and that Perkins was discharged in retaliation for
his complaints and Union grievances about race discrimination. During his employment at FFP,
Perkins was a member of the Teamsters Union, and from February 2008 until May 2009, Perkins
was a Union steward. Perkins’ immediate supervisor was Mondragon. Martelli, one of FFP’s
owners, managed the daily operations at the FFP warehouse. The Court’s opinions on
Defendants’ other two post trial motions have a more complete summary of the evidence at trial;
thus, the Court will summarize the evidence only as to four significant incidents.
The first significant incident occurred on February 28, 2009, when Perkins received a
disciplinary write up for sitting in his truck with Gary Moore (Moore), another AfricanAmerican truck driver, while their paperwork was being completed for that day’s deliveries. (Tr.
Ex. D FFP 00167.) For this and all subsequent write ups, Perkins submitted Union grievances
complaining of unfair treatment, and in some of the grievances, Perkins complained about racial
discrimination. (See Trial Ex. D.)
The second incident occurred on March 2, 2009, just after Perkins became a Union
steward. Perkins and other Union stewards had a meeting with Mondragon and another FFP
supervisor. Perkins testified that at the meeting he generally complained to Mondragon about
working conditions. Perkins testified that he also specifically complained about the February 28,
2009 write up he and Moore received which Perkins claimed showed racial bias because other
employees, who were Latinos, were not written up for the same conduct. Perkins testified that,
in response, Mondragon stated that Perkins and Moore were written up because “they were
black.” (Tr. 983:2-6 .) Mondragon testified that race discrimination was not discussed at the
meeting and denied saying that Perkins and Moore were written up because they were black.
The third incident occurred during the early morning hours of March 11, 2009. Martelli
arrived at FFP around 5:30 am and noticed Perkins and another truck driver, Robert VillaMoreno (Moreno), talking to each other in the parking lot during their pre-trip truck inspections.
Martelli confronted Perkins and Moreno telling them to “cut out the bullshit and get back to
work.” (Tr. 272:22-25.) Perkins, who then walked into the warehouse, and Miller, who was
already inside the warehouse, testified that as Martelli walked into the office area of the FFP
warehouse, Martelli yelled to Mondragon, “I am fucking tired of that nigger and Mexican[,]” and
that Martelli loudly ordered Mondragon to “write up the nigger and fire the spick.” (Tr.
1014:16-20; Tr. 147:19-149:16; Tr. 201:1-8.)
The fourth significant incident occurred two months later. On May 10, 2009, Mondragon
wrote up and fired Perkins for “unknown whereabouts for 3+ hours” because Perkins returned
late from a delivery only 6-8 miles from the FFP warehouse. After getting a statement from the
person who received Perkins’ sole delivery that day and a statement from another FFP employee
who observed Perkins’ truck out of the delivery area, Mondragon determined that Perkins’
explanation about his whereabouts was unacceptable and dishonest. Martelli approved of
Mondragon’s decision to fire Perkins, and Perkins was discharged on May 12, 2009.
IV. Standard of Review
In determining whether to grant a motion for remittitur, a court must review the jury’s
verdict to determine if substantial evidence supported the amount of damages awarded. O’Gilvie
v. Int’l Playtex, Inc., 821 F.2d 1438, 1448 (10th Cir. 1987). If the court finds that insufficient
evidence exists, or that the amount of damages was a product of jury passion or prejudice, the
court then may determine a reasonable amount as the plaintiff’s damages and allow the plaintiff
to remit the excess over that amount. See Malandris v. Merrill Lynch, Pierce, Fenner &Smith,
Inc., 703 F.2d 1152, 1168 (10th Cir. 1981) (en banc) (plurality opinion), cert. denied,464 U.S.
824 (1983) and Hughes v. Regents of the Univ. of Colo., 967 F. Supp. 431, 437 (D. Colo. 1996)
(explaining that regarding remittitur, the court must determine whether there is a rational
relationship between the specific injury sustained and the amount of damages awarded). A
remittitur of damages, however, may not be entered without the plaintiff’s consent. Id. at 439.
Should the plaintiff not consent to remittitur, the court must order a new trial on damages. Id.
B. Punitive Damages
The Supreme Court has established three “guideposts” for determining the
reasonableness of punitive damages: (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. State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003); BMW of North America, Inc. v. Gore, 517
U.S. 559, 575-76 (1996). The Supreme Court has identified several “reprehensibility” factors
relevant to punitive damages claims: (1) whether the harm caused was physical as opposed to
economic; (2) whether the tortious conduct evinced an indifference to or a reckless disregard of
the health or safety of others; (3) whether the target of the conduct had financial vulnerability;
(4) whether the conduct involved repeated actions or was an isolated incident; and (5) whether
the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm,
538 U.S. at 419.2
“A chronology of the Supreme Court’s and the United States Court of Appeals for the
Tenth Circuit’s case law on the constitutional limitations on punitive damages reveals an
increasingly restrictive view of punitive damages awards that greatly exceed compensatory
damages.” Guidance Endodontics, LLC v. Dentsply Intern., Inc., 791 F. Supp. 2d 1026, 1033 (D.
N.M. 2011). “When compensatory damages are substantial, then a lesser ratio [of punitive to
compensatory], perhaps only equal to compensatory damages, can reach the outermost limit of
the due process guarantee.” Id. (quoting State Farm, 538 U.S. at 425). The Court in Guidance
Endodontics, stated that under the holding of Exxon Shipping Co. v. Baker, 554 U.S. 471, 513
(2008), “it may be difficult to justify under the Due Process Clause more than a one to one ratio
in cases involving substantial compensatory, purely economic damages.” Id. See also Jones v.
United Parcel Service, 674 F.3d 1187, 1192 (10th Cir. 2012) (concluding that punitive damages
in the amount of $2 million was unconstitutionally excessive in light of a compensatory award of
On November 19, 2012 oral argument was held on Defendants’ post-trial motions. The
Court asked the parties to submit supplemental briefing on three issues related to punitive
(1) Under the State Farm reprehensibility factors, can emotional distress be considered a
physical harm or a purely economic harm?
(2) Does the reprehensibility factor considering the health and safety of others include
consideration of the health and safety of the plaintiff bringing the claim?
(3) Are large punitive damages awards more acceptable in cases involving race
discrimination as opposed to other forms of discrimination, such as gender, disability, or
(Tr. Nov. 19, 2012 106:2-14.) The parties timely submitted their supplemental briefs, and the
Court has considered the arguments in this ruling. See DEFENDANTS’ SUPPLEMENTAL
BRIEF IN RESPONSE TO COURT’S REQUEST FOR ADDITIONAL ANALYSIS ON
PUNITIVE DAMAGES ISSUES (Doc. No. 188); PLAINTIFFS’ SUPPLEMENTAL BRIEF RE:
COURTROOM MINUTES DATED NOVEMBER 19, 2012 (Doc. No. 189); and
DEFENDANTS’ REPLY IN SUPPORT OF SUPPLEMENTAL BRIEF IN RESPONSE TO
THE COURT’S REQUEST FOR ADDITIONAL ANALYSIS ON PUNITIVE DAMAGES
ISSUES (Doc. No. 190).
$630,307 and remanding to district court with instruction to enter punitive damage award equal
to the compensatory damage award).
A. Are Punitive Damages Excessive?
Defendants argue that the total awards of punitive damages against FFP and Martelli,
when compared with the total awards of compensatory damages, were excessive. Although they
disagree with Defendants on the reasonableness of the awards in this case, Plaintiffs do not
challenge the basic structure of Defendants’ argument. However, the case law instructs courts to
compare punitive damage awards separately and independently as between defendants and as
between claims. See Applied Capital, Inc. v. Gibson, No. 04 CV 0098, 2008 WL 4821336, *1718 (D. N.M. May 28, 2008) (awarding and analyzing punitive damages separately against each
defendant). Hence, the Court will examine the punitive damages awarded against FFP as
compared to the compensatory damages awarded against FFP separately from its examination of
the punitive damages awarded against Martelli in comparison with the compensatory damages
awarded against Martelli. U.S. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1261 (10th
Cir. 1988)(holding that liability for punitive damages is several and independent) implied
overruling on other grounds as recognized by Anixter v. Home–Stake Prod. Co., 77 F.3d 1215,
1231 (10th Cir. 1996)).
On Perkins’ disparate treatment claim against FFP, the jury awarded punitive damages in
the amount of $65,000 and compensatory damages of $10,000, which yields a 6.5 to 1 ratio of
punitive to compensatory damages. The same ratio applies to the punitive damages compared to
compensatory damages awarded against Martelli on Perkins’ disparate treatment claim.
Defendants assert that under the three guideposts of Gore and State Farm, discussed supra at pp.
8-9 of this opinion, the amount of punitive damages awarded against FFP and against Martelli is
In considering the first and most important Gore factor bearing upon the reasonableness
of a punitive damages award—the degree of reprehensibility of Defendants’ conduct—the first
two considerations weigh decisively against a finding of extreme reprehensibility, as Perkins’
harm was not physical and neither Mondragon nor Martelli exhibited a disregard for Perkins’ or
other employees’ health or safety. To the extent that the remaining considerations demonstrate
the reprehensibility of Defendants’ actions, and therefore support awards of punitive damages,
those concerns can be adequately accounted for in this case by permitting reduced awards. The
second Supreme Court guidepost, the ratio of actual harm to punitive damages, also supports a
reduction, as does the third factor, which compares the award with awards from comparable
cases or what is authorized by a relevant statute. After weighing all these considerations, the
Court concludes that remittitur of the punitive damages awarded is appropriate under the
1. Degree of Reprehensibility of Defendants’ Actions
The reprehensibility of the conduct at issue is “[p]erhaps the most important indicium of
the reasonableness of a punitive damages award.” Gore, 517 U.S. at 575. Defendants contend
that neither Mondragon’s nor Martelli’s conduct merits “. . . the excessive punitive damages the
jury awarded,” since they never engaged in violent conduct. (Mot. at 16) In Gore, the Supreme
Court noted that damages for nonviolent conduct should be lower than damages for violent
conduct. Id. at 576-77 (noting that BMW’s fraud was of a non-violent nature). Furthermore,
Defendants assert, even if the issue is whether the harm that resulted from a defendant’s actions
was “physical” rather than economic, Perkins’ “garden variety emotional distress is not
considered a physical injury” in the relevant case law. See DEFENDANTS’ SUPPLEMENTAL
BRIEF IN RESPONSE TO THE COURT’S REQUEST FOR ADDITIONAL ANALYSIS ON
PUNITIVE DAMAGES ISSUES (Doc. No. 188) (Defendants’ First Supp. Brief at 4-7) and
DEFENDANTS’ REPLY IN SUPPORT OF SUPPLEMENTAL BRIEF IN RESPONSE TO
THE COURT’S REQUEST FOR ADDITIONAL ANALYSIS ON PUNITIVE DAMAGES
ISSUES (Doc. No. 190) (“Defendants’ Second Supp. Brief”). Defendants further argue that no
evidence “support[s] the contention that Defendants acted with reckless disregard for [Perkins’
or other employees’] health or safety,” under the second reprehensibility factor, nor is there
evidence that Defendants’ conduct was part of “a pattern of discriminatory conduct,” under the
fourth factor. (Rem. Mot. at 16.) Finally, Defendants contend, as they did in the Motion for
Judgment as a Matter of Law, that “the evidence did not support the jury’s findings that
Defendants acted with malice or reckless indifference to Plaintiffs’ federally protected rights,”
thus not satisfying the fifth reprehensibility factor. (Id.)
Plaintiffs respond, “[t]here was significant evidence from which the [j]ury could have
found ‘reckless indifference’ or ‘malice,’ . . . [so] the punitive damage award is not
unreasonable.” (Resp. at 15.) Additionally, Perkins contends that Defendants’ conduct met all
the reprehensibility factors: Perkins’ injuries included physical symptoms such as depression;
Defendants’ conduct rose to the level of reckless disregard or malice for Perkins’ well-being;
Perkins was financially vulnerable; there was evidence regarding repetition of Defendants’
conduct; and the jury found that Defendants acted with malice or reckless indifference to
Perkins’ federally protected rights. (Id. at 17.)
After weighing the relevant reprehensibility factors, the Court believes that Defendants’
conduct supports awards of punitive damages on Perkins’ disparate treatment claims. However,
the Court agrees with Defendants that the awards exceed the bounds of reasonableness. As to
the first reprehensibility factor, the Supreme Court’s words point to actual violent conduct. See
Gore, 517 U.S. at 576-77. In the State Farm case, the Supreme Court rephrased the factor as
addressing “physical as opposed to economic harm” to the plaintiff. 538 U.S. at 419. However,
the meaning is the same: the factor looks to whether or not the defendant’s conduct aimed at or
resulted in serious physical injury to the plaintiff. Id. In this case, Defendants did not use
violence, and Defendants’ conduct, while resulting in emotional distress, did not cause physical
injury. See Thomas v. iStar Fin., Inc., 652 F.3d 141, 148 (2d Cir. 2010) (holding that even
though the evidence supported damages for emotional pain and suffering due to racial
discrimination, it was “clear that [the defendant’s] conduct did not result in physical injury to
[the plaintiff].”). Though Perkins presented evidence of his emotional distress, it is not properly
considered “physical.” The Court does not discount the anxiety and depression that Perkins
suffered as a result of disparate treatment while he worked at FFP, but this type of emotional
distress is not the kind of “physical harm” that the first reprehensibility factor addresses since it
did not result from violence or threats of violence by Defendants. See Swinton v. Potomac Corp.,
270 F.3d 794, 818 (9th Cir. 2001) (explaining that in the “hierarchy of reprehensibility,” acts and
threats of violence are at the top).
Furthermore, Defendants’ conduct “evinced no indifference to or reckless disregard for
the health and safety of others.” BMW, 517 U.S. at 559-60. As with the first reprehensibility
factor, the second one is clearly aimed at addressing situations involving physical injuries or
violent actions. Although FFP’s conduct, through Mondragon and Martelli’s conduct may have
been insensitive to the emotional toll their actions would take on Perkins, their conduct does not
equate to indifference to his health and safety. Thomas, 652 F.3d at 148; MacMillan v.
Millennium Broadway Hotel, 873 F. Supp. 2d 546, 566 (S.D. N.Y. 2012).
The other factors in the reprehensibility analysis weigh in favor of Perkins and against
Defendants. Perkins was comparatively financially vulnerable since Defendants had the ability
to terminate Perkins’ employment. However, under the Collective Bargaining Agreement,
Perkins was afforded some protection through the grievance process. Defendants’ words and
actions display a degree of malice or hostility toward Perkins. It was no accident that Martelli,
Mondragon, and Stan Kouba, spoke to and acted toward Perkins in the way they did. Martelli
loudly uttered humiliating racial epithets, Mondragon disparately disciplined Perkins, and Stan
Kouba, another FFP owner, accused Perkins of playing the “race card” when Perkins complained
about racial discrimination one month before Perkins was fired.
Finally, the Court’s evaluation of reprehensibility is influenced somewhat by a belief that
racial discrimination is more egregious than other types of discrimination. Defendants argue that
the“Congress [has] elected not to set race apart from gender, disability, religion, color, or
national origin in terms of available remedies . . . .” (Defendants’ First Supp. Brief at 11.)
However, the Court is not convinced that the equality of remedies for different forms of
discrimination means that all forms of discrimination are alike in terms of reprehensibility. As
the Ninth Circuit noted, “the reprehensibility of the fraudulent business practices at issue in
[Gore and State Farm] is different in kind from the reprehensibility of intentional discrimination
on the basis of race or ethnicity. . . . Although Gore held that “purely economic” harms are less
likely to warrant substantial punitive damages awards, . . . intentional discrimination is a
different kind of harm, a serious affront to personal liberty.” Zhang v. Am. Gem Seafoods, Inc.,
339 F.3d 1020, 1043-44 (2003). The Court agrees with the statements made in Sherman v.
Kasotakis, 314 F. Supp. 2d 843 (N.D. Iowa 2004), “[w]hile this case is not one in which the
‘highest’ threshold of reprehensibility is present (i.e. acts and threats of violence), . . . the
degradation of an individual in this fashion based solely on their race in today’s society certainly
falls, in this court’s view, in the upper echelon of reprehensible conduct.” Id. at 872-73. Though
it is not the deciding factor, the special egregiousness of racial discrimination supports the
Court’s conclusion the Defendants’ conduct was sufficiently reprehensible to warrant punitive
2. Disparity Between Harm Suffered and Punitive Damage Award
Gore’s second guidepost addresses the disparity between the harm suffered by the
plaintiff (as measured by compensatory or other damages) and the amount of punitive damages.
See Gore, 517 U.S. at 580-83. The Supreme Court has indicated that “few awards exceeding a
single-digit ratio between punitive and compensatory damages . . . will satisfy due process.”
State Farm, 538 U.S. at 425. However, because the reason for and size of punitive damages
must depend on each case’s circumstances, the Supreme Court has been “reluctant to identify
concrete constitutional limits on the ratio between harm . . . to the plaintiff and the punitive
damages award.” Id. at 424. As the Tenth Circuit recently noted, “the [Supreme] Court has
made clear that the amount of compensatory damages awarded plays a role in determining
whether a punitive damage award is appropriate. ‘When compensatory damages are substantial,
then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit
of the due process guarantee.’” Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1207 (10th
Cir. 2012), cert. denied, 133 S. Ct. 413 (2012) (citing State Farm, 538 U.S. at 424). In Jones, the
Tenth Circuit reduced punitive damages from a slightly over 3:1 punitive-to-actual damages
ratio to a 1:1 ratio in part because the plaintiff’s actual damages of $630,307 were substantial.
Although Perkins’ punitive damages compared to compensatory damages are a single
digit ratio, 6.5 to 1, it is a high single digit ratio, especially given the Supreme Court’s and Tenth
Circuit’s recent moves to enforce much smaller, even 1:1, ratios. See Exxon Shipping Co. v.
Baker, 554 U.S. 471, 515 (2008); Jones, supra. Therefore, the Court believes that the ratio of
punitive damages to compensatory damages is excessive and supports remittitur.
3. Difference Between This Punitive Damages Award and Comparable
The final Gore guidepost asks courts to compare punitive damages with statutory civil
penalties, if any, for the relevant conduct. See Gore, 517 U.S. at 583-85. The point is to defer to
prior legislative determinations of what are the appropriate sanctions for certain kinds of
conduct. See id. at 583 (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492
U.S.257, 301 (1989) (O’Connor, J., opinion concurring in part and dissenting in part)). The
maximum amount of compensatory and punitive damages that can be awarded under Title VII
for violations by an employer of FFP’s size is $50,000. 42 U.S.C. § 1981a(b)(3)(A). Although
the Court is only looking at the awards on one of Perkins’ claims, it is clear that the jury awarded
far more than $50,000 on all of Perkins’ claims. Accordingly, the third guidepost warrants a
reduction in punitive damages.
In sum, the Court finds that the punitive damages awards against FFP and Martelli of
$65,000, an amount 6.5 times the compensatory damages awarded, $10,000, are unreasonable.
The Court believes that an award twice the amount of the compensatory damages would be
appropriate; therefore, the Court will order remittitur of all punitive damages above $20,000 on
Perkins’ claim of disparate treatment against FFP. Likewise, the Court will order remittitur of
all punitive damages above $20,000 on Perkins’ claim of disparate treatment against Martelli.
Perkins may consent to the remittitur and accept the amount of $20,000 against FFP for punitive
damages and the amount of $20,000 against Martelli on these disparate treatment claims. If
Perkins refuses to consent, a new trial will be held. Hughes, 967 F. Supp. at 439.
IT IS ORDERED that the DEFENDANTS’ MOTION FOR A REMITTITUR OF THE
JURY VERDICT PURSUANT TO FED. R. CIV. P. 59(e) (Doc. No. 174) is granted in part and
denied in part as follows:
1. By May 31, 2013, Perkins may either accept the remitted amount of $20,000 in
punitive damages on his disparate treatment claim against FFP or opt for a new trial on
compensatory and punitive damages on this claim.
2. By May 31, 2013, Perkins may either accept the remitted amount of $20,000 in
punitive damages on his disparate treatment claim against Martelli or opt for a new trial
on compensatory and punitive damages on this claim.
3. In all other respects, the DEFENDANTS’ MOTION FOR A REMITTITUR OF THE
JURY VERDICT PURSUANT TO FED. R. CIV. P. 59(e) (Doc. No. 174) is denied
SENIOR UNITED STATES DISTRICT JUDGE
Entered this 14th day of May, 2013.
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