State of Arizona v. Asarco LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ARIZONA; TERRY L. No. 11-17484

GODDARD, Attorney General for the

State of Arizona; ARIZONA D.C. No.

DEPARTMENT OF LAW, Civil Rights 4:08-cv-00441-

Division, MWB

Plaintiffs-Appellees,

ANGELA AGUILAR, OPINION

Intervenor-Plaintiff–Appellee,

v.

ASARCO LLC,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Arizona

Mark W. Bennett, District Judge, Presiding

Argued and Submitted En Banc

June 18, 2014—Seattle, Washington

Filed December 10, 2014

Before: Sidney R. Thomas, Chief Judge, and Stephen

Reinhardt, Alex Kozinski, Barry G. Silverman, Ronald M.

Gould, Marsha S. Berzon, Richard R. Clifton, N. Randy

2 STATE OF ARIZONA V. ASARCO

Smith, Mary H. Murguia, Morgan Christen, and Jacqueline

H. Nguyen, Circuit Judges.

Opinion by Chief Judge Thomas

SUMMARY*

Title VII / Punitive Damages

Affirming the district court’s judgment, the en banc court

held that a $300,000 punitive damages verdict, in a Title VII

sexual harassment case in which only nominal damages were

awarded, comported with due process.

The en banc court concluded that punitive damages

awards conferred under 42 U.S.C. § 1981a, which imposes a

$300,000 cap on compensatory and punitive damages,

comport with due process because the statute’s provisions

meet the constitutional concerns underlying BMW of N. Am.,

Inc. v. Gore, 517 U.S. 559 (1996). The en banc court stated

that the statute provides specific notice of proscribed conduct.

It specifies the maximum amount of damages that can be

awarded, and incorporates both specified compensatory and

punitive damages within the cap. The $300,000 dollar

amount of the cap provides an extremely limited potential for

recovery, and has not been changed, nor been adjusted for

inflation, since its adoption in 1991. As a result, and due to

the circumstances of this case, including the fact that the jury

awarded only nominal, and not compensatory damages, the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

STATE OF ARIZONA V. ASARCO 3

en banc court declined to rigidly apply Gore’s three

guideposts to the award in this case. The en banc court

affirmed the district court’s conclusion that the punitive

award was made in conformance with the statute and was not

otherwise in violation of due process.

The en banc court held that the district court did not abuse

its discretion in admitting evidence of sexually explicit

graffiti.

The en banc court held that the district court did not abuse

its discretion in awarding attorneys’ fees to the plaintiff.

COUNSEL

David T. Barton (argued), Eric B. Johnson, and Brian A.

Howie, Quarles & Brady LLP, Phoenix, Arizona, for

Defendant-Appellant.

Thomas C. Horne, Ann Hobart, and Leslie Ross, Assistant

Attorneys General, State of Arizona Department of Law,

Civil Rights Division, Phoenix, Arizona, for Plaintiff-

Appellee State of Arizona.

Eric Schnapper (argued), University of Washington Law

School; Jenne S. Forbes, Waterfall, Economidis, Caldwell,

Hanshaw & Villamana, P.C., Tucson, Arizona, for

Intervenor-Plaintiff Appellee.

Julie L. Gantz (argued), Attorney, P. David Lopez, General

Counsel, Lorraine C. Davis, Acting Associate General

Counsel, Jennifer S. Goldstein, Acting Assistant General

Counsel, Equal Employment Opportunity Commission,

4 STATE OF ARIZONA V. ASARCO

Washington, D.C., for Amicus Curiae United States Equal

Employment Opportunity Commission.

OPINION

THOMAS, Chief Judge:

This appeal presents the question of whether a $300,000

punitive damages verdict, in a Title VII sexual harassment

case in which only nominal damages were awarded, comports

with due process. Given the statutory scheme that governs

punitive damages in Title VII cases and the circumstances of

this case, we conclude that the award does not violate due

process. We affirm the judgment of the district court.

I

ASARCO, LLC (“ASARCO”) operates the Mission Mine

complex in Sahuarita, Arizona, near Tucson. Mission Mine

includes a copper mine from which copper ore is extracted

and a mill facility in which the ore is crushed, filtered, and

refined. Angela Aguilar worked at the Mission Mine

complex from December 2005 through November 2006. She

started as a mill laborer and became a car loader operator in

March 2006. A month later, she then became a filter operator

in the filter plant and two months later, a rod and ball mill

person. Aguilar alleges that during her time at ASARCO, she

was subjected to sexual harassment, retaliation, intentional

infliction of emotional distress, and was constructively

discharged from her employment.

The State of Arizona filed suit against ASARCO under

the Arizona Civil Rights Act in Pima County Superior Court,

STATE OF ARIZONA V. ASARCO 5

alleging harassment, disparate treatment, and retaliation

against Aguilar. Aguilar subsequently filed her own lawsuit

against ASARCO, alleging harassment, constructive

discharge, and retaliation under Title VII. The proceedings

were consolidated and removed to the United States District

Court for the District of Arizona.

After an eight-day trial, the jury found ASARCO liable on

Aguilar’s sexual harassment claims, in violation of 42 U.S.C.

§ 2000e-2, but not on her constructive discharge or retaliation

claims. The jury awarded no compensatory damages, but

awarded $1 in nominal and $868,750 in punitive damages.

The jury was instructed on the standard for granting punitive

damages found in 42 U.S.C. § 1981a(b). Following the

judgment, ASARCO filed a renewed motion for judgment as

a matter of law, contending, in part, that the punitive damages

award was unconstitutionally excessive. In the alternative, it

urged the court to grant a new trial because of evidentiary

errors.

The district court rejected the motion for judgment as a

matter of law. Applying the due process analysis in BMW of

North America, Inc. v. Gore, 517 U.S. 559 (1996), it

concluded the punitive damages award was not

unconstitutional but, given the $300,000 cap on

compensatory and punitive damages found in

§ 1981a(b)(3)(D), reduced the award to $300,000. The court

also rejected ASARCO’s new trial motion, and granted

Aguilar’s request for injunctive relief, directing ASARCO to

update its harassment policies. Finally, the court granted

Aguilar’s motion for attorneys’ fees and costs, in the total

amount of $350,902.75.

6 STATE OF ARIZONA V. ASARCO

ASARCO timely appealed, arguing that the district court

erred by refusing to reduce the punitive damages award

further, by admitting evidence of other employees who

witnessed pornographic graffiti, and by awarding Aguilar

attorneys’ fees. A three-judge panel of this court affirmed the

district court as to the evidence and attorneys’ fees, but

vacated the $300,000 punitive damages award. Applying the

three factors found in Gore, the panel majority concluded that

while ASARCO’s conduct was reprehensible, the ratio of

300,000 to 1 between the punitive and nominal damages

awards was excessive. Arizona v. ASARCO LLC, 733 F.3d

882, 885–92 (9th Cir. 2013). Citing to the highest ratio it

could locate among discrimination cases, 125,000 to 1 in

Abner v. Kansas City S. R.R. Co., 513 F.3d 154, 164 (5th Cir.

2008), the majority reduced the award to $125,000.

ASARCO, 733 F.3d at 891–92. Dissenting in part, Judge

Hurwitz stated that he would affirm the entire $300,000

judgment in light of the applicable statutory cap, which

provides employers with notice of the penalties they could

face for Title VII violations. Id. at 892–93 (Hurwitz, J.,

concurring in part and dissenting in part).

Upon the majority vote of the active, non-recused judges

of the court, we agreed to rehear this case en banc. Arizona

v. ASARCO LLC, 755 F.3d 1044 (9th Cir. Feb. 28, 2014). We

have jurisdiction under 28 U.S.C. § 1291. We apply “a de

novo standard of review when passing on district courts’

determinations of the constitutionality of punitive damages

awards.” Cooper Indus. v. Leatherman Tool Grp., Inc.,

532 U.S. 424, 436 (2001). Even when a defendant makes a

constitutional challenge to a punitive damages award,

however, we defer to the district court’s “findings of fact

unless they are clearly erroneous.” Id. at 440 n.14.

STATE OF ARIZONA V. ASARCO 7

II

Applying Gore, ASARCO argues that the district court

erred in upholding the jury’s punitive damages award, which

the court then reduced to $300,000 because of the statutory

cap on damages contained in § 1981a. At oral argument,

ASARCO argued the award should be reduced far below the

$125,000 awarded by the three-judge panel, an amount which

it contends is still constitutionally excessive. ASARCO also

argues the award should be reduced below the $2500 per

offense punitive damages amount awarded in Mendez v.

County of San Bernardino, 540 F.3d 1109, 1120–23 (9th Cir.

2008).

A

In Gore, the Supreme Court altered the legal punitive

damages landscape, applying the Due Process Clause of the

Fourteenth Amendment to a state court’s $2 million punitive

damages award (accompanying a $4000 compensatory

damages award) arising from state common law claims, and

concluding that the punitive damages amount was “grossly

excessive” and therefore unconstitutional. 517 U.S. at

565–67, 574–75. To assess the constitutionality of a state

common law punitive damages award, the Court in Gore

employed three guideposts, which it later summarized in

State Farm Mutual Automobile Insurance Co. v. Campbell,

538 U.S. 408, 418 (2003), as follows: “(1) the degree of

reprehensibility of the defendant’s misconduct; (2) the

disparity between the actual or potential harm suffered by the

plaintiff and the punitive damages award; and (3) the

difference between the punitive damages awarded by the jury

and the civil penalties authorized or imposed in comparable

cases.” Id. (citing Gore, 517 U.S. at 575).

8 STATE OF ARIZONA V. ASARCO

Under Gore and State Farm, the most important

guidepost is reprehensibility. State Farm articulated several

factors courts could consider in assessing the egregiousness

of a defendant’s conduct:

the harm caused was physical as opposed to

economic; the tortious conduct evinced an

indifference to or a reckless disregard of the

health or safety of others; the target of the

conduct had financial vulnerability; the

conduct involved repeated actions or was an

isolated incident; and the harm was the result

of intentional malice, trickery, or deceit, or

mere accident.

Id. at 419.

As for the second factor–the disparity between the harm

suffered by the plaintiff and the punitive damages award–the

Court has repeatedly eschewed the adoption of a “bright-line

ratio which a punitive damages award cannot exceed.” Id. at

425. Nevertheless, the Court has noted that, “in practice, few

awards exceeding a single-digit ratio between punitive and

compensatory damages, to a significant degree, will satisfy

due process.” Id. The Court also cautioned, however, that a

higher ratio may be appropriate where the conduct is

especially egregious, but results in minimal economic

damages. Id. (citing Gore, 517 U.S. at 582, for the

proposition that economic awards may be small because the

injury is hard to quantify or detect).

Gore is undeniably of some relevance in this context.

See, e.g., Cooper Indus., 532 U.S. at 441–43 (applying Gore

to a due process challenge to punitive damages awarded in a

STATE OF ARIZONA V. ASARCO 9

federal Lanham Act suit); Payne v. Jones, 711 F.3d 85,

96–106 (2d Cir. 2013) (assessing a non-constitutional claim

that a punitive damages award was excessive by, in part,

looking to the Gore factors). Indeed, it is conceivable that

even awards conferred under a carefully crafted statutory

scheme governing punitive damages could fail to comport

with due process.

Still, this case presents a different question than the

Supreme Court considered in Gore. Here, Aguilar has

asserted a claim under a statute, Title VII, which includes a

carefully crafted provision, § 1981, that imposes a cap on

punitive damages. The landscape of our review is different

when we consider a punitive damages award arising from a

statute that rigidly dictates the standard a jury must apply in

awarding punitive damages and narrowly caps hard-to-

quantify compensatory damages and punitive damages. See

Abner, 513 F.3d at 16 (noting that, through § 1981a,

“Congress has effectively set the tolerable proportion” in

Title VII cases and that, because the statutory cap does not

offend due process, “the three-factor Gore analysis” is

irrelevant); see generally Joseph A. Seiner, Punitive

Damages, Due Process, and Employment Discrimination,

97 Iowa L. Rev. 473, 490–94 (2012) (arguing that, after

Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), and in

light of § 1981a, courts need not reach “the due process issues

raised in Gore and State Farm when addressing employment

discrimination claims brought under Title VII”).

B

In resolving ASARCO’s due process challenge in the

Title VII context, we start with the constitutional concerns

underlying the Court’s due process analysis in Gore and State

10 STATE OF ARIZONA V. ASARCO

Farm. First and foremost, the Court developed the Gore

doctrine out of a concern that a defendant “receive fair notice

not only of the conduct that will subject him to punishment,

but also the severity of the penalty” that may be imposed.

Gore, 517 U.S. at 574. The Court was also interested in

avoiding arbitrary, biased, or ill-informed deprivation of

property of defendants by juries when the statute or common

law did not provide sufficient safeguards. State Farm,

538 U.S. at 416–18. The Court sought to uphold the

deterrence function of punitive damages awards, while

policing awards that exceed an amount necessary to deter

future wrongdoing. Gore, 517 U.S. at 584.

In Gore, the Court also discussed the reasoning

underlying each of its three guideposts. The Court noted that

its reprehensibility guidepost attempts to align the punitive

damages award with the severity of the wrongful act. Id. at

575–77. As for the ratio guidepost, the Court declined to

apply a bright line rule, while acknowledging the general goal

of making punitive damages proportional to the actual injury

suffered. Id. at 582. The Court noted that the ratio could be

higher if “the injury is hard to detect or the monetary value of

noneconomic harm might [be] difficult to determine,” and

that the general aim of the ratio guidepost is

“reasonableness.” Id. at 582–83 (internal quotation marks

omitted); see also State Farm, 538 U.S. at 425 (“[R]atios

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.’”

(quoting Gore, 517 U.S. at 582)). Finally, in articulating its

third guidepost, directing courts to take into account

analogous civil or criminal penalties for comparable

misconduct, the Court highlighted the importance of

according “substantial deference to legislative judgments

STATE OF ARIZONA V. ASARCO 11

concerning appropriate sanctions for the conduct at issue.”

Gore, 517 U.S. at 583 (internal quotation marks omitted).

An exacting Gore review, applying the three guideposts

rigorously, may be appropriate when reviewing a common

law punitive damages award. However, when a punitive

damages award arises from a robust statutory regime, the

rigid application of the Gore guideposts is less necessary or

appropriate. Thus, the more relevant first consideration is the

statute itself, through which the legislature has spoken

explicitly on the proper scope of punitive damages.

In some instances, a statute may leave gaps, or room, for

the common law to shape the scope of punitive damages

awards, within the boundaries of due process. See, e.g.,

Exxon, 554 U.S. at 514–15 (adopting, in the area of federal

maritime law, a 1 to 1 ratio between compensatory and

punitive damages). But here, the statutory scheme leaves

little to the imagination. Cf. id. at 516–17 (Stevens, J.,

concurring in part and dissenting in part) (arguing that, since

federal maritime law is largely statutory, Congress’s decision

“not to restrict the availability of a particular remedy favors

adherence to a policy of judicial restraint,” and implicitly

stating that the role of the court is equally, if not more,

limited when Congress has reined in a remedy explicitly).

When we examine § 1981a, it becomes readily apparent

why awards under the statute comport with due process.

First, the statute clearly sets forth the type of conduct, and

mind-set, a defendant must have to be found liable for

punitive damages. 42 U.S.C. § 1981a(b)(1) (“A complaining

party may recover punitive damages under this section

against a respondent . . . if the complaining party

demonstrates that the respondent engaged in a discriminatory

12 STATE OF ARIZONA V. ASARCO

practice or discriminatory practices with malice or with

reckless indifference to the federally protected rights of an

aggrieved individual.”).

Second, the statute sets a cap on certain types of

compensatory damages, combined with punitive damages.

42 U.S.C. § 1981a(b)(3) (capping the “sum of the amount of

compensatory damages awarded under this section for

pecuniary losses, emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and other

nonpecuniary losses,” along with punitive damages). The cap

tops out at $300,000 for employers having more than 500

employees, like ASARCO. Id. § 1981a(b)(3)(D). The cap

drops down to as low as $50,000 for employers with more

than 14, but fewer than 101, employees. Id.

§ 1981a(b)(3)(A).

These two aspects of the statute address Gore’s concern

that defendants be on notice of what conduct might make

them liable for punitive damages and the extent to which they

might be held liable. The punitive damages provision

codified at § 1981a was enacted in 1991. Since that time,

employers have been on notice regarding the type of conduct

that could subject them to liability, the level of mental

culpability or intentionality required, and the dollar amount

to which they could be subjected, if they violate the law.

Seiner, supra, at 492 (noting that “the [punitive damages

award] amendments to Title VII have been in place for two

decades” and that “[e]mployers are on notice, then, that if

they intentionally discriminate . . . they can be subjected to

the punitive penalties set forth in” § 1981a).

Moreover, the statute dramatically reduces the chance of

random, arbitrary awards, because the statute articulates the

STATE OF ARIZONA V. ASARCO 13

degree of culpability that a defendant must have before being

subject to liability and restricts damages awards to a range

between $0 and $300,000. Cush-Crawford v. Adchem Corp.,

271 F.3d 352, 359 (2d Cir. 2001) (“To the extent that courts

worried about unleashing juries to award limitless punitive

damages in cases where no harm had occurred, this concern

is eliminated by the imposition of the statutory caps.”).

Similarly, the odds of over-deterrence are low, given the

statute’s narrow circumscription of punitive damages awards.

In sum, the general constitutional concerns underlying Gore

are addressed by the provisions of § 1981a.

The same is true of Gore’s guidelines. Section 1981a

satisfies Gore’s concern that conduct must be reprehensible

by imposing an intent requirement that ensures jurors

understand that only certain negative conduct should be

penalized. In addition, the statutory scheme provides that

conduct in violation of the statute, which subjects the

employer to compensatory damages, does not necessarily

compel a punitive damages award. 42 U.S.C. § 1981a(b)(1)

(establishing an explicit requirement that punitive damages be

awarded only if the defendant acted “with malice or with

reckless indifference to the federally protected rights of an

aggrieved individual”).

Gore’s ratio analysis has little applicability in the Title

VII context because § 1981a governs punitive damages.

When a statute narrowly describes the type of conduct subject

to punitive liability, and reasonably caps that liability, it

makes little sense to formalistically apply a ratio analysis

devised for unrestricted state common law damages awards.

That logic applies with special force here because the statute

provides a consolidated cap on both compensatory and

punitive damages. See id. § 1981a(b)(3) (applying the cap to

14 STATE OF ARIZONA V. ASARCO

the sum of punitive damages and certain compensatory

damages). Under a Gore ratio analysis, the amount

constitutionally available for a punitive damages award

increases proportionately to the harm. But § 1981a(b)(3)

produces the opposite result: as the award for specified

compensatory damages increases, the amount available for a

punitive damages award decreases—the greater the harm, the

less the punitive damages award. By establishing a

consolidated damages cap that includes both specified

compensatory and punitive damages, Congress supplanted

traditional ratio theory and effectively obviated the need for

a Gore ratio examination.

In addition, as the Fifth Circuit noted in Abner, 513 F.3d

at 163, Title VII violations often result in injuries that are

“difficult to quantify in physical terms.” When only nominal

damages are awarded, application of a Gore ratio analysis is

not appropriate. Id. at 164 (concluding that in punitive

damages cases where quantifiable compensatory damages are

so impossible to calculate that only nominal damages are

awarded, “a ratio-based inquiry becomes irrelevant”).

“Nominal damages are not intended to compensate a

plaintiff for injuries, nor to act as a measure of the severity of

a defendant’s wrongful conduct.” Cummings v. Connell,

402 F.3d 936, 945 (9th Cir. 2005). Because nominal damages

measure neither damage nor severity of conduct, it is not

appropriate to examine the ratio of a nominal damages award

to a punitive damages award.1 Saunders v. Branch Banking

1

In Mendez, we applied the ratio analysis despite the jury awarding only

nominal and punitive damages, and no compensatory relief. 540 F.3d at

1117, 1120–23 (mentioning the difficulty of applying the Gore ratio

analysis when only nominal damages were awarded). The suit in Mendez

STATE OF ARIZONA V. ASARCO 15

& Trust Co. of Va., 526 F.3d 142, 154 (4th Cir. 2008) (noting

that “when a jury only awards nominal damages . . . a

punitive damages award may exceed the normal single digit

ratio because a smaller amount would utterly fail to serve the

traditional purposes” of punitive damages awards and stating

that, in this case, the court would “not rely upon the

challenged ratio” but instead compare this award “to other

cases involving similar claims” (internal quotation marks

omitted)); Williams v. Kaufman Cnty., 352 F.3d 994, 1016 &

n.76 (5th Cir. 2003) (stating that “any punitive damages-to-

compensatory damages ‘ratio analysis’ cannot be applied

effectively in cases where only nominal damages have been

awarded”); Romanski v. Detroit Entm’t, LLC, 428 F.3d 629,

645 (6th Cir. 2005) (noting that in a § 1983 unlawful arrest

case, the “plaintiff’s economic injury was so minimal as to be

essentially nominal” and that in such a case, the Supreme

Court’s precedent “on the ratio component of the

excessiveness inquiry—which involved substantial

compensatory damages awards for economic and measurable

noneconomic harm—are therefore of limited relevance”

(footnote omitted)).

Further, in this case, the nominal damages were capped.

The jury was instructed that it could not award more than $1

in nominal damages. When compensatory or nominal

damages are subject to a cap, there is no meaningful way to

apply a Gore ratio analysis because the true harm is not

measured.

arose under a different statutory scheme, however, since the case involved

a 42 U.S.C. § 1983 suit. Id. at 1117. To the extent Mendez conflicts with

this decision, we overrule it.

16 STATE OF ARIZONA V. ASARCO

Gore’s third guidepost bolsters our conclusion that

punitive damages awards conferred under the statutory

scheme in this case do not violate due process. The purpose

of the third guidepost is deference to reasoned legislative

judgments. Gore, 517 U.S. at 583. Here, Congress has made

a reasoned judgment not simply as to analogous criminal or

civil penalties, but as to punitive damages awarded in cases

like the one at hand. We need not search outside the statutory

scheme Congress enacted for legislative guidance in other

contexts.

Finally, we see no reversible error in the district court’s

conclusion that the record evidence justified a punitive

damages award under the statute. As the Fifth Circuit noted

in Abner, just because damages awards conferred under a

certain statutory scheme comport with due process and Gore

does not mean our constitutional analysis is at an end. We

still must assess whether the district court was correct in

concluding that the award met the requirements of the

statutory scheme. Abner, 513 F.3d at 164 (concluding, in a

Title VII hostile work environment case, that the statutory

scheme in § 1981a comports with due process and that the

court need not apply Gore’s guideposts, but also stating that,

“[a]ccepting this analysis makes the sufficiency of the

evidence to support the statutory threshold a determinant of

constitutional validity”).

In its post-trial motions, ASARCO argued there was

insufficient evidence presented at trial to support a punitive

damages award under § 1981a. ASARCO claimed that even

if it was properly liable under Title VII, it still did not act

with the malice or recklessness required to award punitive

damages under § 1981a(b). The district court rejected this

argument below but ASARCO focused its appeal instead on

STATE OF ARIZONA V. ASARCO 17

the district court’s rejection of its Gore due process challenge

to the amount of the punitive damages.

Even if we assume, given ASARCO’s presentation of the

facts and its argument regarding the reprehensibility of its

own conduct, that ASARCO did not waive any challenge to

the sufficiency of the evidence supporting an award of

punitive damages, we still conclude that the district court did

not err in granting $300,000 in punitive damages. In its

decision, the district court noted that ASARCO did have an

anti-discrimination policy in force. But it also recounted

particular evidence in the record, specifically that ASARCO’s

management “did not provide prompt and effective remedial

action” when made aware of Aguilar’s complaints. Instead,

the court pointed to evidence that ASARCO “treated

Aguilar’s claims dismissively, did nothing to investigate

Aguilar’s claims, or took steps that were not reasonably

calculated to and did not stop the harassment.” The court

noted that, based on its evaluation of the evidence, ASARCO

repeatedly, over the course of months, failed to adequately

respond to discrete instances of harassment against Aguilar.

Moreover, the court reasoned, because the evidence

demonstrated that ASARCO “is a serial violator of

antidiscrimination laws” (as evidenced by the sexually

explicit graffiti targeting other employees), the deterrence

aim of punitive damages awards warranted a significant

award that would discourage future misconduct by ASARCO.

Our review of the record confirms that the district court

did not clearly err in its assessment of the facts. Indeed, there

is significant and compelling evidence that management was

aware of, and did little to resolve, lewd, inappropriate, and

sexually aggressive behavior directed to Aguilar; sexually

explicit, targeted pictures of Aguilar on the walls of the

18 STATE OF ARIZONA V. ASARCO

bathroom rented specifically for her use; and overly

aggressive management and criticism of Aguilar by

supervisors. Aguilar complained to management multiple

times. The sexually explicit graffiti in the bathroom was not

removed while she was working in the filter plant. As the

district court correctly noted, to the extent ASARCO did have

an antidiscrimination or harassment policy, the existence of

such a policy alone is not enough to save it. See Bains LLC

v. Arco Prods. Co., 405 F.3d 764, 774 (9th Cir. 2005) (“A

written antidiscrimination policy does not insulate a company

from liability [under, in Bains, 42 U.S.C. § 1981, for punitive

damages] if it does not enforce the antidiscrimination policy

and, by its actions, supports discrimination.”). Further, the

award is consistent with, and in some cases smaller than,

punitive damages awards in other Title VII and 42 U.S.C.

§ 1981 cases we have considered. See, e.g., Zhang v. Am.

Gem Seafoods, Inc., 339 F.3d 1020, 1045 (9th Cir. 2003)

(upholding a $2.6 million punitive damages award in

response in a § 1981 racial discrimination case); Swinton v.

Potomac Corp., 270 F.3d 794, 817–20 (9th Cir. 2001)

(upholding $1 million discrimination award).

In sum, we conclude that punitive damages awards

conferred under § 1981a comport with due process. The

statute provides specific notice of proscribed conduct. It

specifies the maximum amount of damages that can be

awarded, and incorporates both specified compensatory and

punitive damages within the cap. The $300,000 dollar

amount of the cap provides an extremely limited potential for

recovery, and has not changed, nor been adjusted for

inflation, since its adoption in 1991. There is nothing in our

consideration of the Gore factors that would alter that

conclusion. The record supports the district court’s

conclusion that the punitive award was made in conformance

STATE OF ARIZONA V. ASARCO 19

with the statute and was not otherwise in violation of due

process.

III

A

ASARCO also challenges the district court’s admission

of evidence of other sexually explicit graffiti in bathrooms

that was similar to the sexually explicit graffiti directed to

Aguilar.

We review “for abuse of discretion a district court’s

decision to admit evidence,” reversing only if we are

“convinced firmly that the reviewed decision lies beyond the

pale of reasonable justification under the circumstances.”

McCollough v. Johnson, Rodenburg & Lauinger, LLC,

637 F.3d 939, 953 (9th Cir. 2011) (internal quotation marks

omitted). To obtain reversal of an evidentiary ruling,

ASARCO “must show that the error was prejudicial, and that

the verdict was more probably than not affected as a result.”

Id. (internal quotation marks omitted). ASARCO argues

evidence that sexually explicit graffiti was also targeted at the

other employees was too factually dissimilar and temporally

remote from Aguilar’s experience and that, as a result, the

evidence was more prejudicial than probative under Federal

Rule of Evidence 403.

We disagree. Any prejudice to ASARCO was limited by

the circumscribed nature of the evidence and the limiting

instruction given by the district court. The evidence had

probative value in helping the jury assess whether Aguilar

had proved the elements of harassment. Moreover, contrary

20 STATE OF ARIZONA V. ASARCO

to ASARCO’s assertion, this evidence formed only a small

part of the evidence presented by Aguilar.

Thus, under our deferential standard of review, we

conclude that the district court did not abuse its discretion in

narrowly admitting this evidence. Tennison v. Circus Circus

Enters., Inc., 244 F.3d 684, 689–90 (9th Cir. 2001) (noting

that a district court “enjoys considerable discretion” in

determining whether harassment of employees other than the

victim is more prejudicial than probative).

B

Finally, ASARCO challenges the court’s decision to grant

Aguilar’s motion for $350,902.75 in attorneys’ fees and costs.

“Awards of attorney’s fees are generally reviewed for abuse

of discretion.” Thomas v. City of Tacoma, 410 F.3d 644, 647

(9th Cir. 2005). Discretionary review, however, is only

applied if the court is “satisfied that the correct legal standard

was applied and that none of the district court’s findings of

fact were clearly erroneous.” Id. Citing Farrar v. Hobby,

506 U.S. 103 (1992), ASARCO argues Aguilar is not eligible

for attorneys’ fees because she achieved little to no success

before the district court. ASARCO points out that Aguilar

only succeeded on one of her claims and that she received

nominal, but not compensatory, damages, arguing she won

little more than “the moral satisfaction of knowing that a

federal court concluded that [her] rights had been violated.”

Farrar, 506 U.S. at 114 (internal quotation marks omitted).

We conclude that the district court did not abuse its

discretion in granting the attorneys’ fees motion. First, given

the overlap between Aguilar’s harassment claim and her other

claims, ASARCO’s argument that she prevailed on merely

STATE OF ARIZONA V. ASARCO 21

one claim is incorrect. Passantino v. Johnson & Johnson

Consumer Prods., 212 F.3d 493, 517–18 (9th Cir. 2000)

(“Although Passantino did not prevail on her discrimination

claims or her claim for injunctive relief, she prevailed on her

retaliation claims, which were inextricably intertwined with

her discrimination claims.”). More importantly, even if

Aguilar was only awarded nominal, and not compensatory,

damages, any analogy to Farrar disappears because, unlike

in that case, Aguilar was awarded almost $900,000 in

punitive damages from the jury, and was ultimately granted

$300,000 in punitive damages from the district court.

Compare Farrar, 506 U.S. at 107 (noting that the jury

awarded the plaintiffs nothing). We affirm the district court’s

grant of attorneys’ fees.

IV

Because its provisions meet the constitutional concerns

underlying Gore, we conclude that § 1981a’s punitive

damages regime comports with due process. As a result, and

due to the circumstances of this case, including the fact that

the jury awarded only nominal, and not compensatory

damages, we also decline to rigidly apply Gore’s three

guideposts to the award in this case. Because the governing

statute comports with due process, the district court did not

err in concluding sufficient evidence supported a punitive

damages award of any amount in this case, and the award

here complies with the strictures of the statute, we affirm the

district court’s conclusion that the $300,000 award does not

violate due process. In addition, exercising our supervisory

power, we also conclude the award was not excessive and the

district court did not abuse its discretion in allowing it.

Finally, we affirm the district court as to the admission of

22 STATE OF ARIZONA V. ASARCO

other evidence of sexually explicit graffiti and as to the award

of attorneys’ fees.

AFFIRMED.