SHOCKING TO THE CONSCIENCE:  SIX FIGURE PUNITIVE DAMAGES AWARDS IN EMPLOYMENT DISCRIMINATION CASES

 

Robert S. Mantell

Rodgers, Powers & Schwartz, LLP

111 Devonshire Street, Suite 400, Suite 500

Boston, MA  02108

(617) 742-7010

RMantell@TheEmploymentLawyers.com

© October 2002

 

 

            A survey of punitive damage awards for employment discrimination claims in Massachusetts and the First Circuit has yielded several interesting points.

1.         Punitive Damages are Almost Always Awarded if Liability is Found

            In cases in which the jury was permitted to award punitive damages, only one case was found in which a jury failed to award punitive damages after concluding that employment discrimination took place.  Plaintiff’s lawyers should feel confident that a jury will award punitive damages if liability is found.

2.         Punitive Damages Will Likely be Awarded in an Amount of $100,000 or Higher

 

            Of the sixty-six cases with awards of punitive damages, the award in forty of those cases was in the amount of $100,000 or greater.

            Narrowing that inquiry to jury verdicts in c. 151B, Title VII and ADA claims (excluding other claims such as section 1983 claims against individuals), of forty-nine instances in which punitive damages were awarded, a whopping thirty-seven of those cases awarded punitive damages in the amount of $100,000 or greater.  Thus, if a c. 151B violation is found, the punitive damages will likely be awarded in a very substantial amount.

3.         When Punitive Damages are Awarded in the Amount of $100,000 or Higher, There is a Great Likelihood That Either the Award Will be Reduced, the Underlying Finding of Liability Will be Reversed, or a New Trial Will be Ordered

 

            Employment discrimination plaintiffs succeeding in obtaining large punitive damages awards at trial are having a hard time defending these awards at the post-trial and appellate levels. 

            In the context of six figure punitive damages, it appears that the jury is usually "wrong."  Of the forty cases in which the trier of fact awarded punitive damages of $100,000 or greater, the amount was cut, limited by a damages cap, or the underlying finding was subject to reversal and/or remand, or the jury verdict was otherwise altered to the plaintiff's detriment in twenty-three cases.  Thus, only XX.X% of those cases have so far been allowed to stand unaltered.  Those statistics could get worse, as some of the successes are being challenged. 

4.         When Punitive Damages are Awarded in an Amount Less Than $100,000, There is Only a Small Likelihood That Either the Award Will be Reduced, the Underlying Finding of Liability Will be Reversed, or a New Trial Will be Ordered

 

            Of the thirty-one cases awarding less than $100,000 in punitive damages (or none), the awards and underlying judgments have so far been permitted to stand in twenty-five cases.  Thus, when punitive damages are low or non-existent, the chance that the verdict will be left untouched rises to XX.X%.

5.         Judicial Hostility to Punitive Damages?

            The bare statistics indicate that a case with a low punitive damages award stands a much greater likelihood of being affirmed than a case with a high award.  Does this indicate a judicial intolerance of high punitive damages?  Not necessarily.

            It should be remembered that sometimes damage awards must be reduced based on grounds not relating to judicial discretion, such as application of the Title VII damages cap.  Defendants have a greater incentive to vigorously appeal high awards.  Moreover, very high awards may exceed Constitutional or statutory standards of fairness and due process.  Therefore, it should be expected that cases with high punitive damages will be permitted to stand with less frequency than those with low damages. 

On the other hand, one must be concerned with a system of justice when the primary factfinder is deemed wrong in a large majority of a certain category of cases.  Jury determinations are supposed to be sacrosanct, and subject to rare interference.  See Moose v. MIT, 43 Mass. App. 420, 427 (1997).  Judicial interference with jury verdicts awarding substantial punitive damages (the majority of all successful discrimination claims) is the norm and certainly is not rare. 

The two possible areas of fault are as follows:  [1] that juries are incapable of appropriately considering these types of cases, or [2] that judges are applying an overly heavy hand in reviewing such cases.  Regardless of which type of fault is the controlling or greater culprit, each has very disturbing implications.  They are at odds with our constitutional system of justice which holds the right to a jury trial as sacred.

Those believing that a high award may prompt greater appellate scrutiny may want to consider asking for less from the jury, in weaker cases.  Lawyers are encouraged to review the raw data below to form their own opinions on the extent of judicial hostility toward punitive damages. 

6.         Despite the Fact that Six Figure Punitive Awards are Usually Not Permitted to Stand, so Many Juries have Awarded High Punitive Awards That it Should be Easier to Convince a Judge That a High Award Properly Reflects the Judgment of the Community

 

            Such a large number of cases have been reported with substantial awards of punitive damages that attorneys are now in a very strong position to argue that future large verdicts are reasonable and properly reflect the appropriate common sense judgment of the factfinder.  Plaintiffs’ lawyers seeking to uphold sizable punitive damages should not ignore the cases that on first blush go against their position, because the award has been reduced, remanded, or vacated.  Massachusetts and First Circuit juries are speaking loudly and clearly that punitive damages awards in the six figures are reasonable, balanced, and proportionate remedies for violations of civil rights laws.  As reported above, thirty-seven of the forty-nine c. 151B, Title VII and ADA cases awarding punitive damages included awards of $100,000 or greater.  It is important that judges be educated as to what juries are generally awarding in these types of cases, so that they can make informed decisions as to what is beyond the bounds. 

6.         Raw Data Supporting Conclusions

Case

Amount of Punitive Damages Awarded By Factfinder

If Jury Verdict Was Altered by Court

If Jury Verdict Was Left Undisturbed

 

 

 

 

Edwards v. MBTA, C.A. No. 99-0458-F, Suffolk ss. jury verdict, July 8, 2001

$7,000,000

 

Case settled with post-trial motions pending

 

 

 

 

Clifton v. MBTA, Consolidated Memorandum of Decision and Order on Post-Trial Motions, C.A. No. 95-2686-H, Suffolk, ss, Gants, J., February 3, 2000 (c. 151B race harassment case)

$5,000,000

Remittitur granted in the amount of $500,000.  Adjustment not accepted and on appeal.

 

 

 

 

 

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 206 (1st Cir. 1987) (Section 1981 race discrimination)

$3,000,000

Award was deemed excessive and reduced to $300,000

 

 

 

 

 

Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826-7 (1997) (c. 151B handicap claim)

$2,500,000

Remanded to Trial Court to analyze amount in light of due process principles.  On remand, Trial Court remitted award to $900,000

 

 

 

 

 

Hill v. Belmont Springs, 31 M.L.W. 263 (Oct. 2002) (c. 151B handicap discrimination)

$2,000,000

 

October 2002 jury verdict

 

 

 

 

New Boston Select Group v. DeMichele, 15 Mass. L. Rptr. No. 20, 473 (January 13, 2003) (c. 151B retaliation for termination, stoppage of benefits, and initiation of retaliatory lawsuit for misrepresentation and breach of fiduciary duty)

$1,500,000

 

October 2002 jury verdict, affirmed after post trial motions

 

 

 

 

Massachusetts State Police (c. 151B claim by four women challenging maternity policy)

$1,000,000

 

October 2002 jury verdict

 

 

 

 

Handrahan v. Red Roof Inns, Inc., 43 Mass. App. 13 (1997) (c. 151B handicap claim)

$1,000,000

Trial Court found award excessive and reduced it to $100,000; lower amount upheld by Appeals Court

 

 

 

 

 

Daigle v. Rudomin, Memorandum and Order Pursuant to Rule 1:28, 94-P-1848, 41 Mass. App. 1110 (1996) (unpublished) (c. 151B sexual harassment claim)

$750,000

 

Appeals Court upheld award, despite closing argument requesting a

“huge” award

 

 

 

 

Abramian v. President & Fellows of Harvard College, 9 Mass. L. Rptr. No. 25, 563 (April 19, 1999), affirmed in part and vacated in part, 432 Mass. 107 (2000) (c. 151B national origin and retaliation claim)

$750,000 for each of two counts

Trial Court ordered new trial solely on issue of punitive damages, on grounds that jury instructions did not require the finding that Harvard’s conduct was outrageous.  Moreover, Trial Court ruled that only a single punitive award would be permitted, and the two awards would not be cumulated.  The SJC affirmed the requirement for a new trial on punitive damages and on the national origin discrimination claim

 

 

 

 

 

Walsh v. Carney Hospital Corporation, Memorandum and Order on Defendants’ Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial or Remittitur, C.A. No. 94-2583, Norfolk, ss., Cowin, J., June 10, 1998 (perceived homosexuality discrimination case)

$650,000

 

Appeal pending

 

 

 

 

Romano v. U-Haul International, 233 F.3d 655 (1st Cir. 2000) (Title VII and Maine Human Rights Act sex discrimination claim)

$625,000

Reduced to $285,000 by District Court to comply with Title VII damages cap

 

 

 

 

 

Fontaine v. Ebtec Corp., 415 Mass. 309 (1993) (c. 151B age claim)

$600,000

Vacated because no punitive damages may be awarded in a c. 151B age discrimination claim, and because amendment providing for the damages is not retroactively applied

 

 

 

 

 

Hart v. City of Peabody, 5 Mass. L. Rptr. No. 10, 221, 223 n.2 (June 10, 1996) (c. 151B claim)

$500,000

 

Unappealled

 

 

 

 

Quint v. A.E. Stanley Mfg. Co., 172 F.3d 1 (1st Cir. 1999) (ADA claim for termination of employee with carpal tunnel syndrome)

$420,000

reduced to $300,000 in light of statutory cap, even though court found the award proper

 

 

 

 

 

Carey v. Mt. Desert Island Hospital, 156 F.3d 31 (1st Cir. 1998) (Title VII gender claim)

$400,000

Reduced in light of statutory cap

 

 

 

 

 

Zimmerman v. Direct Federal Credit Union, 2000 U.S. Dist. LEXIS 17107 (D. Mass. November 16, 2000) (c. 151B retaliation claim), aff'd 262 F.3d 70 (1st Cir. 2001)

$400,000

 

Affirmed by First Circuit

 

 

 

 

Sampaio v. Agar Supply Company, Inc., Memorandum of Decision and Order of Defendant’s Motion for Judgment Notwithstanding the Verdict, and in the Alternative for a New Trial, C.A. No. 91-8389, Suffolk, ss., Barrett, J., August 12, 1993 (c. 151B age/national origin claims)

$350,000

A new trial on liability and damages was ordered based in part on the assumption that the jury’s punitive damages award of $350,000 was based partly on prejudicial statements made by Plaintiff’s counsel.

 

 

 

 

 

Dalrymple v. Town of Winthrop, 50 Mass. App. 611 (2000) (c. 151B gender and retaliation claim)

$300,000

 

Upheld on appeal where award was similar to the award of compensatory damages and jury instructions were proper

 

 

 

 

Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205, 1214-5 (1st Cir. 1995) (Title VII sex discrimination and retaliation)

$300,000

Vacated because no compensatory or nominal damages were awarded

 

 

 

 

 

Contardo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 753 F. Supp. 406 (D. Mass. 1990) (c. 151B)

$250,000

 

Damages awarded by Judge, not jury

 

 

 

 

Babyak v. Smith College, 30 M.L.W. 3753, reverse discrimination gender claim (2001)

$250,000 for gender claim, $250,000 for later retaliatory conduct

 

Jury award, appeal contemplated

 

 

 

 

Criado v. IBM Corp., 145 F.3d 437, 440 (1st Cir. 1998) (ADA wrongful termination)

$250,000

With $200,000 compensatory damages awarded, punitive damages reduced in light of $300,000 damages cap

 

 

 

 

 

Marcano-Rivera v. Pueblo International, Inc., 232 F.3d 246 (1st Cir. 2000) (handicap discrimination under ADA and Local Law 44)

$225,000, awarded by Judge, pursuant to Puerto Rico law requiring doubling of compensatory damages awarded by jury

Judge would not permit jury to consider question of punitive damages under ADA, although judge later doubled the compensatory award under P.R. law, as there was insufficient evidence to prevail under Kolstad inquiry; verdict vacated with respect to claim brought by employee's husband

 

 

 

 

 

Sprague v. United Airlines, Inc., Findings of Fact, Conclusions of Law and Order for Judgment, August 7, 2002 (ADA)

$200,000

 

Awarded by Judge

 

 

 

 

Saltzberg v. Medical Weight Loss Center, Suffolk, ss., C.A. No. 97-05310B, 27 M.L.W. 2287 (June 14, 1999) (sexual harassment)

$200,000

 

Jury Verdict

 

 

 

 

Dartt v. Browning-Ferris Industries, Inc., 427 Mass. 1, 16-17 (1998), motion for reconsideration pending (c. 151B handicap discrimination)

$175,000

Vacated because termination based on handicap was not an outrageous act warranting punitive damages

 

 

 

 

 

Nardone v. Patrick Motor Sales, Inc., 1994 WL 902899 (Mass. Super. Nov. 3, 1994) (c. 151B), affirmed 40 Mass. App. 1118 (1996), see also 46 Mass. App. 452 (1999)

160,000

 

Jury verdict

 

 

 

 

MacCormack v. Boston Edison Co., 423 Mass. 652 (1996) (c. 151B retaliation)

$150,000

Vacated because claim as whole was dismissed as lacking adequate supporting evidence

 

 

 

 

 

Doty v. Sewall, 908 F.2d 1053, 1056, 1062 (1st Cir. 1990) (suit of union member against a union based on LMRDA violations)

$150,000

 

Upheld

 

 

 

 

Izen v. Toshiba America Consumer Products, Inc., an unpublished opinion noted at 132 F.3d 20 (1st Cir. 1997) (c. 151B retaliation claim)

$150,000

Vacated because Judge withheld constructive discharge question from the jury

 

 

 

 

 

McMillan v. MSPCA, 140 F.3d 288, 307 (1st Cir. 1998) (c. 151B sex discrimination)

$135,662 against employer and $171,200.00 against individual

Vacated because salary disparity was not egregious violation warranting punitive damages

 

 

 

 

 

Bandera v. City of Quincy, C.A. No. 00-11375-MBB (c. 151B gender discrimination) (D. Mass. 2002)

$135,000

 

Jury Verdict

 

 

 

 

DeMichele v. Guardsmark, Inc., Order, C.A. No. 90-10975, Tsoucalas, J., June 15, 1993 (c. 151B handicap discrimination claim)

$125,000

Vacated because amendment authorizing punitive damages was not retroactive

 

 

 

 

 

Bogan v. Scott-Harris, 118 S. Ct. 966 (1998) (Section 1983 free speech claim)

$120,000 against Mayor

Vacated based on legislative immunity

 

 

 

 

 

Belanger v. Saint-Gobain Industrial Ceramics, Inc., 9 Mass. L. Rptr. No. 26, 581 (April 26, 1999)

108,000

 

Two sexually harassing comments support award

 

 

 

 

Bain v. City of Springfield, 424 Mass. 758, 769 (1997) (c. 151B retaliation claim)

$100,000

Punitive damages award alone was vacated and remanded for retrial, based on introduction of prejudicial evidence

 

 

 

 

 

Conetta v. National Hair Care Centers, Inc., 236 F.3d 67, 71 (1st Cir. 2001) (Title VII and R.I. Gen. Laws § 42-112-1 sexual harassment and retaliation claims)

$100,000

Magistrate did not have authority to assess damages and enter judgment on default case.  District Court damages assessment awarding $0 in punitive damages upheld

 

 

 

 

 

Morrison v. Carleton Woolen Mills, Inc., 108 F.2d 429, 432, 440 & n. 6 (1st Cir. 1997) (sexual harassment)

$100,000

Underlying harassment claim was not supported by sufficient evidence, and punitive award was excessive based on weakness of the sexual harassment alleged

 

 

 

 

 

Hogan v. Bangor and Aroostook R. Co., 61 F.3d 1034, 1037 (1st Cir. 1995 (ADA claim)

$100,000

Vacated in light of statutory damages cap

 

 

 

 

 

Beaupre v. Cliff Smith & Associates, 50 Mass. App. 480 (2000) (c. 151B sexual harassment suit)

$87,500

 

Awarded against individual

 

 

 

 

In re C.F. Smith & Assoc., Inc., 235 B.R. 153, 157 (Bkrtcy. D. Mass. 1999) (c. 151B sexual harassment claim based on retaliation of jilted lover/President)

$87,000

 

awarded against harasser/Pres. but not against the company

 

 

 

 

Dichner v. Liberty Travel, 141 F.3d 24, 33 (1st Cir. 1998) (c. 151B handicap discrimination)

$75,000

 

Intent to discriminate as to violate c. 151B is sufficient to justify punitive award

 

 

 

 

Hernandez v. Winthrop Printing Co. 99-588 G (c. 151B retaliation claim) (May 2002 jury verdict in Superior Court)

$70,000

 

jury verdict

 

 

 

 

Wennick v. Polygram, D. Mass. 2000 (disability discrimination)

$60,000

 

Jury award upheld after post-trial motions

 

 

 

 

Lizzotte-Muise v. Video Merchandisers, C.A. No. 97-4055, Middlesex ss., (c. 151B pregnancy discrimination)

$50,000

 

Jury award upheld after post-trial motions

 

 

 

 

DiMarco-Zappa v. Cabanillas, 238 F.3d 25 (1st Cir. 2001) (42 U.S.C. § 1983 action for discriminatory provision of real estate licensing examination toward English speaking citizens of the United States)

$50,000

 

Judicial award of punitive damages against individuals were not excessive

 

 

 

 

Bishop v. Bell Atlantic Corp., 299 F.3d 53 (1st Cir. 2002) (Maine Human Rights Act)

$50,000

vacated based on lack of evidence of adverse action and causation

 

 

 

 

 

Brown v. Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987) (racially discriminatory or retaliatory terminations in violation of 42 U.S.C. § 1981)

$50,000

 

Upheld because terminations were outrageous conduct

 

 

 

 

Miller v. Town of Hull, Mass., 878 F.2d 523, 528, 534 (1st Cir. 1989) (§ 1983 political discrimination claims)

$43,700

 

Upheld

 

 

 

 

Rodriguez Rodriguez v. Munoz Munoz, 808 F.2d 138 (1st Cir. 1986) (§ 1983 wrongful termination case)

$40,000

Vacated based on qualified immunity

 

 

 

 

 

Fishman v. Clancy, 763 F.2d 485, 489 (1st Cir. 1985) (claim for firing and harassing a teacher in violation of 42 U.S.C. § 1983)

$39,000 and $26,000

 

Upholding awards against individuals as high but not shocking

 

 

 

 

Acevedo-Diaz v. Aponte, 1 F.3d 62 (1st Cir. 1993) (§ 1983 wrongful termination cases)

$25,000

 

Reinstated

 

 

 

 

Draper v. Centennial Healthcare Corp., Memorandum of Decision and Order on Defendants' Motions for Judgment Notwithstanding the Verdict and Motions for a New Trial, C.A. No. 00-2180, Middlesex, ss., Brassard, J., October 19, 2001 (sexual harassment)

$25,000

 

Judgment affirmed by trial judge after post-trial motions

 

 

 

 

Melnychenko v. Raab, Findings, Rulings and Order for Judgment, C.A. No. 91-876, Ford, J., October 31, 1993, at 22, affirmed, 424 Mass. 285 (1997) (c. 151B same sex sexual harassment case)

$20,000

 

Award of Judge, not jury

 

 

 

 

Conway Chevrolet Buick, Inc. v. Travelers Indem. Co., 136 F.3d 210, 213 (1st Cir. 1998) (reporting jury verdict for Title VII  sexual harassment action)

$20,000

 

Trial court denied a JNOV motion

 

 

 

 

Powell v. Pittsfield, 2002 U.S. Dist. LEXIS 15552 (D. Mass. August 21, 2002) (§ 1983 retaliation claim)

$10,000

 

Award of Judge, not jury, against individual

 

 

 

 

Acosta-Sepulveda v. Hernandez-Purcell, 889 F.2d 9, 13 (1st Cir. 1989) (§ 1983 wrongful termination case)

$10,000

 

Upheld

 

 

 

 

Campos-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999) (§ 1983 and retaliation case)

$10,000 awarded for § 1983 claim

 

Upheld despite lack of compensatory damages, and despite numerous challenges to sufficiency of evidence and propriety of damages

 

 

 

 

Lynch v. City of Boston, 180 F.3d 1 (1st Cir. 1999) (§ 1983 wrongful termination)

$10,000

Reversed, because underlying conduct did not constitute

§ 1983 violation

 

 

 

 

 

Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 267 (1st Cir. 1987) (§ 1983 wrongful termination)

$10,000

 

Upheld

 

 

 

 

Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir. 1977) (discriminatory transfer violation of § 1983).

$10,000

Award of Judge vacated due to lack of aggravating circumstances

 

 

 

 

 

Burroughs v. Hogg Robinson, Inc., C.A. No. 95-6723, Suffolk ss., May 16, 1997 (c. 151B age discrimination wrongful termination claim on which jury was permitted to award punitive damages)

$10,000

 

Jury Verdict, without appeal or post-trial motions

 

 

 

 

Provencher v.. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5 (1st Cir. 1998) (Title VII retaliation claim)

$8,000

 

Upheld, despite lack of compensatory damages

 

 

 

 

Lopes v. Town of Mattapoisett, C.A. No. 00-CV-11970 (D. Mass.) (Section 1983 jury verdict in April 2002)

$2,500, $1,500 and $200 against individuals

 

Jury Verdict

 

 

 

 

Yung v. Revelation Bra Co., 7 Mass. L. Rptr. No. 6, 121 (August 18, 1997) c. 151B handicap discrimination and coercion case)

$2,166.98

Punitive award was vacated as plaintiff had not shown that she was a qualified handicapped individual

 

 

 

 

 

Lipchitz v. Raytheon, 434 Mass. 493 (2001) (c. 151B sex discrimination)

$0

Jury failed to find conduct was egregious; therefore, no second, bifurcated trial was held on punitive damages.  $500,000 in compensatory damages was reduced by trial judge, and later, a new trial was ordered for failure of the jury instructions to clearly include the requirement that the termination would not have occurred but for discrimination

 

 

 

 

 

Dahill v. Boston Police Department, C.A. No. 98-11441 (2002 jury verdict) (c. 151B handicap discrimination

$0

 

Judge refused to permit jury to award punitive damages; case settled while post-trial motions were pending

 

 

 

 

Weber v. Community Teamwork, Inc., 1998 Mass. Super. LEXIS 90, p. 57; vacated in part and affirmed in part, 434 Mass. 761 (2001)

$0

In jury waived trial--Judge Hamlin refused to award punitive damages.  However, SJC later vacated the underlying finding of discrimination

 

 

 

 

 

Clockedile v. New Hampshire Department of Corrections, 245 F.3d 1 (1st Cir. 2001) (Title VII retaliation claim)

$0

 

First Circuit reinstated verdict despite employee's failure to file retaliation allegation with the EEOC.  No punitives may be awarded against a governmental entity

 

 

 

 

O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) (Title VII sexual harassment claim)

$0

 

First Circuit fully reinstated jury verdict with $275,000 award of compensatory damages; no punitives may be awarded against a governmental entity under Title VII

 

 

 

 

Michel v. Factory Mutual Engineering Corp., 9 Mass. L. Rptr. No. 9, 200 (December 21, 1998)

$0

 

No punitives awarded by Judge because conduct occurred prior to punitive damages amendment

punitiveartic3