Petition for Writ of Certiorari — Thomas Cole, Petitioner v. Foxmar, Inc., dba Education and Training Resources

Supreme Court briefApr 5, 2024

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No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------THOMAS COLE,

Petitioner,

FOXMAR, INC., d/b/a EDUCATION AND

TRAINING RESOURCES,

Respondent.

---------------------------------♦--------------------------------On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------WILLIAM J. PETTERSEN, ESQ.

Counsel of Record

PETTERSEN LAW PLLC

1084 E. Lakeshore Dr.

Colchester, VT 05446

(802) 477-2780

pettersenlaw@gmail.com

Attorney for Petitioner

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QUESTIONS PRESENTED

The punitive damages standard set forth by this

Court in TXO Production Corp. v. Alliance Resources

Corp., 509 U.S. 443 (1993) and BMW of N. Am., Inc. v.

Gore, 517 U.S. 559 (1996) included consideration of the

potential harm to others. However, in Philip Morris

USA v. Williams, 549 U.S. 346, 355 (2007), this Court

noted it had not yet “decide[d] the question of harm to

others” and “the [Gore] opinion appears to have left the

question open.”

In the present case, the district court applied

an incorrect punitive damages standard failing to

consider the potential harm to others and overturned

an award that was fully supported under the law.

The district court ordered a new trial on damages

without issuing a remittitur, and it excluded evidence

at retrial relevant to punitive damages.

The questions presented are:

Should the potential harm to others be

considered when reviewing the reasonableness

of a punitive damages award under the Due

Process Clause?

In the alternative, does the common law or

Seventh Amendment require a trial court to

issue a remittitur prior to ordering a new trial

on damages where no evidence of passion or

prejudice by the jury exists?

QUESTIONS PRESENTED—Continued

In the alternative, is evidence that a

retaliation is part of a larger scheme to

suppress safety complaints relevant to the

issue of punitive damages?

iii

LIST OF PARTIES TO THE PROCEEDINGS

Petitioner Thomas Cole was the plaintiff before

the district court and the appellant before the Second

Circuit.

Respondent Foxmar, Inc., d/b/a Education and

Training Resources was the defendant before the

district court and the appellee before the Second

Circuit.

RELATED PROCEEDINGS

This case arises out of the following proceedings:

Cole v. Foxmar, Inc., No. 2:18-CV-00220, 2022 WL

842881 (D. Vt. Mar. 22, 2022) (judgment entered

August 2, 2021) (judgment on retrial entered

December 20, 2022).

Cole v. Foxmar, Inc., No. 23-87, 2024 WL 74902 (2d

Cir. Jan. 8, 2024).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

LIST OF PARTIES TO THE PROCEEDINGS ....

iii

RELATED PROCEEDINGS ................................

iii

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES ................................. viii

PETITION FOR A WRIT OF CERTIORARI .......

OPINIONS BELOW.............................................

JURISDICTION ...................................................

STATUTORY PROVISIONS ................................

INTRODUCTION ................................................

STATEMENT OF THE CASE..............................

Factual Background ..................................

A. Job Corps Program ..............................

B. Department of Labor ...........................

C. Retaliatory Termination ......................

D. Pattern of Suppression of Safety

Complaints ..........................................

Procedural Background .............................

REASONS FOR GRANTING THE PETITION .....

II.

This case presents an important, frequently

recurring issue which this Court has

yet to resolve with respect to punitive

damages ..................................................... 10

TABLE OF CONTENTS—Continued

Page

II.

This case provides an ideal vehicle for

reviewing the question presented ............. 15

A. The district court and Second Circuit

failed to apply the correct standard for

punitive damages ................................ 15

B. The punitive award was reasonable

under the three Gore guideposts and

was not grossly excessive .................... 16

1. Guidepost 1 ..................................... 16

i. Harm caused was physical as

opposed to economic .................. 17

ii. Indifference and reckless disregard

for the health or safety of others ..... 17

iii. The targets of the conduct had

financial vulnerability .............. 19

iv. The conduct involved repeated

actions and was not an isolated

incident ...................................... 20

v. The harm was the result of

intentional malice, trickery, and

deceit ......................................... 20

vi. The district court’s reasons for

overturning the punitive damages

award were erroneous ............... 21

2. Guidepost 2 ..................................... 24

3. Guidepost 3 ..................................... 27

C. No other issues in the case preclude

this Court from addressing this issue ..... 30

TABLE OF CONTENTS—Continued

Page

III.

The issue is fundamental to public safety ..... 31

IV.

This case presents important common

law and constitutional issues which this

Court has yet to resolve with respect to

remittitur ................................................... 33

A. The district court erred in holding the

size of the award indicated passion

and prejudice by the jury such that

remittitur was not available ............... 34

B. The district court’s failure to issue

remittitur prior to ordering a new trial

violated the Seventh Amendment ....... 35

This case presents an important, frequently

recurring issue with respect to the evidence

relevant to punitive damages .................... 37

CONCLUSION..................................................... 39

APPENDIX

United States Court of Appeals for the Second

Circuit, Opinion, January 8, 2024 ................. App. 1a

United States District Court for the District of

Vermont, Opinion and Order Denying in Part

and Granting in Part Defendant’s Motion for

Judgment as a Matter of Law or, in the

Alternative, a New Trial (Doc. 131), March 22,

2022 .............................................................. App. 12a

United States District Court for the District of

Vermont, Entry Order Denying Plaintiff ’s

Motion for Reconsideration, June 13, 2022 ... App. 62a

vii

TABLE OF CONTENTS—Continued

Page

Excerpts of Transcript of Hearing on Motions in

Limine, United States District Court for the

District of Vermont, December 12, 2022 ..... App. 72a

United States District Court for the District of

Vermont, Judgment in a Civil Action, August

2, 2021 .......................................................... App. 77a

United States District Court for the District of

Vermont, Judgment in a Civil Action,

December 20, 2022 ....................................... App. 79a

Relevant

Constitutional,

Statutory

and

Administrative Provisions ........................... App. 81a

viii

TABLE OF AUTHORITIES

Page

CASES

Adeli v. Silverstar Auto., Inc., 960 F.3d 452 (8th

Cir. 2020) .................................................................13

Am. Fin. Servs. Group v. Treasure Bay Gaming

& Resorts, No. 99CIV.1068NT, 2000 WL 815894

(S.D.N.Y. June 23, 2000)..........................................27

Anderson v. Metro-N. Commuter R.R., 493 F.

App’x 149 (2d Cir. 2012) ..........................................31

BMW of N. Am., Inc. v. Gore, 517 U.S. 559

(1996) ................. 3, 10-12, 16, 24, 26, 27, 29, 31, 38

Brink’s Inc. v. City of New York, 717 F.2d 700 (2d

Cir. 1983) .................................................................35

Burke v. Regalado, 935 F.3d 960 (10th Cir.

2019) ....................................................................13

Cabral v. U.S. Dep’t of Just., 587 F.3d 13 (1st Cir.

2009) .................................................................. 12, 13

Clark v. Chrysler Corp., 436 F.3d 594 (6th Cir.

2006) ........................................................................13

Cole v. Foxmar, Inc., No. 23-87, 2024 WL 74902

(2d Cir. Jan. 8, 2024) ...............................................13

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

532 U.S. 424 (2001) ............................................. 3, 12

Crump v. P & C Food Markets, Inc., 576 A.2d 441

(Vt. 1990) .................................................................16

Daugherty v. Ocwen Loan Servicing, LLC, 701 F.

App’x 246 (4th Cir. 2017) ........................................13

DeYoung v. Ruggiero, 971 A.2d 627 (Vt. 2009) ...........21

TABLE OF AUTHORITIES—Continued

Page

Dimick v. Schiedt, 293 U.S. 474 (1935) .......................34

Earl v. Bouchard Transp. Co., 917 F.2d 1320 (2d

Cir. 1990) .................................................................36

Ellison v. O’Reilly Automotive Stores, Inc., 463

S.W.3d 426 (Mo. App. W.D. 2015) ...........................27

Fishman v. Clancy, 763 F.2d 485 (1st Cir. 1985) .......30

Hardeman v. Monsanto Co., 997 F.3d 941 (9th

Cir. 2021) .................................................................13

Hetzel v. Prince William Cnty., Va., 523 U.S. 208

(1998) ................................................................. 35, 36

Holland v. Schwan’s Home Serv., Inc., 992

N.E.2d 43 (Ill. App. Ct. 2013) ..................................27

In re Vivendi Universal, S.A. Sec. Litig., 765

F. Supp. 2d 512 (S.D.N.Y. 2011), aff ’d sub

nom. In re Vivendi, S.A. Sec. Litig., 838 F.3d

223 (2d Cir. 2016) ....................................................31

Int’l Mins. & Res., S.A. v. Bomar Res., Inc., 5 F.

App’x 5 (2d Cir. 2001) ..............................................35

Jurinko v. Med. Protective Co., 305 F. App’x 13

(3d Cir. 2008) ...........................................................13

Klein v. Grynberg, 44 F.3d 1497 (10th Cir. 1995) .......14

Kwon v. Edson, 217 A.3d 935 (Vt. 2019) ...................28

Lynn v. TNT Logistics N. Am. Inc., 275 S.W.3d

304 (Mo. App. W.D. 2008) ........................................27

Masters v. City of Indep., Missouri, 998 F.3d 827

(8th Cir. 2021)..........................................................13

TABLE OF AUTHORITIES—Continued

Page

Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) ......... 29, 30

Motorola Credit Corp. v. Uzan, 509 F.3d 74 (2d

Cir. 2007) .................................................................28

Pennington v. Islamic Republic of Iran, No. CV

19-796 (JEB), 2022 WL 168261 (D.D.C. Jan.

19, 2022), vacated in part, No. CV 19-796

(JEB), 2022 WL 18814284 (D.D.C. May 3,

2022) ........................................................................13

Philip Morris USA v. Williams, 549 U.S. 346

(2007) ....................................................... 3, 11, 12, 14

Pulla v. Amoco Oil Co., 72 F.3d 648 (8th Cir.

1995) .................................................................. 13, 26

Purgess v. Sharrock, 33 F.3d 134 (2d Cir. 1994) .........35

Ramirez v. New York City Off-Track Betting

Corp., 112 F.3d 38 (2d Cir. 1997) .................... 34, 36

Rhone-Poulenc Agro, S.A. v. DeKalb Genetics

Corp., 272 F.3d 1335 (Fed. Cir. 2001), cert.

granted, judgment vacated sub nom. DeKalb

Genetics Corp. v. Bayer CropScience, S.A., 538

U.S. 974, 123 S. Ct. 1828, 155 L. Ed. 2d 662

(2003), and opinion modified and reinstated,

345 F.3d 1366 (Fed. Cir. 2003) ................................13

Rubinstein v. Yehuda, 38 F.4th 982 (11th Cir.

2022) ........................................................................13

Saccameno v. Ocwen Loan Servicing, LLC, 372

F. Supp. 3d 609 (N.D. Ill. 2019) ...............................27

Shortle v. Central Vermont Public Service Corp.,

399 A.2d 517 (Vt. 1979) ...........................................21

TABLE OF AUTHORITIES—Continued

Page

Smith v. Lightning Bolt Prods., Inc., 861 F.2d

363 (2d Cir. 1988) ....................................................34

Sommerfield v. Knasiak, 967 F.3d 617 (7th Cir.

2020) ........................................................................13

State Farm Mut. Auto. Ins. Co. v. Campbell, 538

U.S. 408 (2003) ............................. 3, 11, 12, 14-16, 28

Sweet v. Roy, 801 A.2d 694 (Vt. 2002) ........................16

Tri-Tron Int’l v. Velto, 525 F.2d 432 (9th Cir.

1975) ........................................................................30

TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S.

443 (1993) ...................................... 3, 10-16, 25-27, 38

U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600 (11th

Cir. 2000) .................................................................14

Vanderbilt Mortg. & Fin., Inc. v. Flores, 692 F.3d

358 (5th Cir. 2012) ...................................................13

Zakre v. Norddeutsche Landesbank Girozentrale,

344 F. App’x 628 (2d Cir. 2009) ...............................13

Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020

(9th Cir. 2003)..........................................................27

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VII ............................... 4, 33, 35, 36

STATUTES

21 V.S.A. § 210(a) ........................................................29

21 V.S.A. § 232 ........................................................28

xii

TABLE OF AUTHORITIES—Continued

Page

21 V.S.A. § 345 ........................................................29

21 V.S.A. § 397(b) .................................................... 28

21 V.S.A. § 483(l) ................................................... 22, 28

21 V.S.A. § 483(m) .......................................................29

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1332 ............................................................9

Vt. Admin. Code 13-5-13(a) ........................................29

RULES

F.R.E. 801(d)(2)(D) ......................................................39

F.R.E. 803(3)................................................................39

F.R.E. 803(4)................................................................39

F.R.E. 807 ....................................................................39

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the Second Circuit is located at

2024 WL 74902 and App. 1a-11a. The opinion of the

district court is located at 2022 WL 842881 and App.

12a-61a.

---------------------------------♦---------------------------------

JURISDICTION

The Second Circuit issued its decision on January

8, 2024. App 1a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

---------------------------------♦---------------------------------

STATUTORY PROVISIONS

The constitutional and statutory provisions

involved in the case are reproduced in the petition

appendix. App. 81a-93a.

---------------------------------♦---------------------------------

INTRODUCTION

Petitioner Thomas Cole (“Cole”) obtained a

$3,215,943 judgment at trial against Respondent

Foxmar, Inc., d/b/a Education and Training Resources

(“Foxmar”). The jury awarded $140,943 in lost wages,

$75,000 in emotional damages, and $3,000,000 in

punitive damages against Foxmar for terminating

Cole’s employment in retaliation for raising protected

safety complaints. The retaliation was part of a larger

scheme by Foxmar to suppress safety complaints at

the Northlands Job Corps Center (“NJCC”) where it

was responsible for overseeing minor and young

adult students. The scheme was financially motivated,

included top corporate officials, and involved the

suppression of safety complaints to the U.S.

Department of Labor. Students and employees were

harmed as a result and were at risk of continued

harm if the conduct were not deterred.

Foxmar moved for a new trial, which the district

court granted. The district court held emotional

damages were reasonable and lost wages would not

have warranted a new trial, except for the punitive

damages award which it held was grossly excessive,

violated due process, and precluded remittitur. Prior

to retrial, the district court granted Foxmar’s motion

to exclude evidence of its suppression of substandard

food and weapon safety complaints that had been

admitted at the first trial. A verdict was issued at

retrial in the amount of $55,000. In affirming the

district court’s decision, the Second Circuit decided

important federal questions that have not been, but

should be, settled by this Court, and has decided those

questions in a way that conflicts with the relevant

decisions of this Court.

First, this petition seeks to uphold the judgment of

the first trial. The district court erred by holding the

punitive damages award was excessive and violated

Foxmar’s due process. The district court failed to

consider the potential harm to others as required

under TXO and Gore and in so doing improperly

applied the Gore guideposts. The Second Circuit made

the same errors when it affirmed the district court’s

decision.

These errors are part of a systemic failure by

circuit courts to apply the correct legal standard for

punitive damages set forth in TXO and Gore. This

Court’s ensuing decisions in State Farm and Cooper

Industries appear to have confused lower courts

because those cases only involved, and therefore

discussed, potential harm to the plaintiff. In addition,

this Court later held in Philip Morris that the issue of

potential harm to others is still an open question. As

a result, nearly every circuit court mistakenly cites

State Farm’s potential harm to the plaintiff standard

instead of TXO’s potential harm to others standard.

The failure of lower courts to consider the potential

harm to others when reviewing punitive damages

undermines the ability of the legal system to deter

unlawful conduct and poses a significant risk to public

safety.

Second, in the alternative, this petition seeks

remittitur in the amount the district court should have

issued prior to ordering a new trial on damages. The

district court erred by holding the size of the punitive

damages award indicated passion and prejudice by the

jury such that remittitur was unavailable. This error

was a result of its failure to apply the correct punitive

damages standard and consider the potential harm to

others. Accordingly, this Court should grant certiorari

to address Question 1 and affirm the judgment of the

first trial or order remittitur, whichever it deems

should have occurred.

In addition, even if the potential harm to others

were not considered, the district court’s failure to issue

remittitur violated the common law and Seventh

Amendment. The punitive award was not so large as

to indicate passion or prejudice by the jury precluding

remittitur. Further, this Court in Hetzel held the

Seventh Amendment is violated when remittitur is

ordered without the option of a new trial. The right

to a jury trial is similarly infringed when a new trial

is ordered without the option of remittitur. This

infringement is even greater than in Hetzel because

the result of the trial is eliminated.

Third, in the alternative, this petition seeks a new

trial as a result of the district court excluding evidence

at retrial of Foxmar’s suppression of weapon and food

safety complaints that had previously been admitted

in the first trial. This was an abuse of discretion

because the evidence was relevant to the level of

reprehensibility for punitive damages.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Factual Background

A. Job Corps Program

The Job Corps program is run by the U.S.

Department of Labor.

CA2JA 505-07, 512-13.

Students attend Job Corps in order to obtain high

school equivalency and vocational training, including

urban forestry, welding, clinical and medical

assistance, culinary arts, and auto repair. CA2JA

505-06. Employees include nurses, cafeteria staff,

counselors, teachers, and vocational instructors.

CA2JA 506. Students live on campus and are sixteen

to twenty-four years old. CA2JA 243-44, 504-05.

Foxmar had been in business for over twenty-seven

years, and, at the time of trial, oversaw nine Job Corps

campuses under contracts with the Department of

Labor. CA2JA 379-80, 525-26.

B. Department of Labor

Foxmar contracted with the Department of Labor

to run the Northlands Job Corps Center (“NJCC”), the

only Job Corps in Vermont, beginning June 1, 2018.

App. 13a. The Department of Labor required that

Foxmar rehire existing non-managerial employees,

including Cole. CA2JA 588-89.

Under its contract with the Department of Labor,

Foxmar was required to maintain a clean, well

maintained, and safe environment for the students.

CA2JA 527-28, 872. The Department of Labor had the

right to rescind the contract if Foxmar breached these

provisions. CA2JA 509, 529.

C. Retaliatory Termination

Cole worked at NJCC full and part-time from

2013 until 2018. CA2JA 66-68, 704-07. At the time of

termination, he was a full-time Residential Counselor

tasked with overseeing the health and safety of students

in the dorms. CA2JA 73-75. He was fifty-seven at the

time of trial and planned to work until he was seventy.

CA2JA 64, 168.

Foxmar terminated Cole’s employment on July 27,

2018 for allegedly missing three consecutive days of

work without notice. CA2JA 774. This reason was

pretext for Foxmar’s retaliation against Cole for

complaining about its failure to provide cleaning

supplies to sanitize the dorms and its unlawful sick

leave policy. App. 12a-13a, 30a-31a, 34a-35a; and

CA2JA 76, 103-04, 115-16, 138-39.

Cole was

terminated the same week he made these complaints

and the same day he submitted them in writing.

CA2JA 98-100, 123, 770, 772.

D. Pattern of

Complaints

Suppression

Safety

Foxmar’s retaliation against Cole was part of a

larger pattern of suppressing safety complaints that

risked the health and safety of employees and

students. App. 15a-16a, 30a-31a, 38a-40a, 52a-53a.

Foxmar had a corporate culture of suppressing

legitimate complaints. App. 15a-16a, 52a-53a. Foxmar

told employees not to make any complaints to the

Department of Labor. App. 15a-16a, 30a-31a; and

CA2JA 509, 512-13, 527-29, 872.

Employees were threatened with retaliation on an

almost daily basis if they complained to anyone but

their immediate supervisor.

CA2JA 321, 324.

Foxmar’s VP/COO, who had been with Foxmar since

2004, admitted a purpose of this policy was to prevent

employees from complaining to the Department of

Labor. CA2JA 523-24. Cole violated this suppression

policy by reporting his safety complaints directly to

both the Center Director and the HR Director, not his

immediate supervisor, and he was terminated the

same week he did so. App. 15a-20a. Other employees

were reprimanded for reporting safety issues, and the

Center Director was terminated without cause after

making safety complaints. CA2JA 273-76, 280-83, 297,

324, 328-29.

By suppressing all complaints to the Department

of Labor, Foxmar was emboldened to ignore safety

complaints without consequence, many of which

related to safety issues it caused by cutting costs.

Foxmar made drastic cuts to the food budget on

campus and ignored complaints that students were

regularly falling ill from the poor food quality. CA2JA

275-77, 280-81. The food was inedible and made

students so sick they needed to go to the Wellness

Department for treatment. Id. The top cafeteria staff

made these complaints, as did the Center Director to

corporate. Id. Foxmar ignored these complaints, and

the substandard food and student illnesses were never

addressed. CA2JA 281.

Foxmar neglected to provide the cleaning supplies

necessary to sanitize the dorms, despite complaints

from Cole and other employees. CA2JA 227, 245-46,

325-27, 772. Employees were forced to buy cleaning

supplies for the students with their own money

because Foxmar failed to do so. CA2JA 327. The dorms

were dirty and in deplorable condition. CA2JA 327-28.

Foxmar directed employees not to complain about mold

in the dorms because it could be flagged as an issue by

the Department of Labor. CA2JA 328-30. At least one

student complained of respiratory issues from the

mold. CA2JA 331. The mold was never addressed. Id.

Foxmar ordered the Center Director not to report

a student with a weapon to the Department of Labor.

CA2JA 273-75. The weapon was a large knife that

required expulsion under Department of Labor rules.

CA2JA 274-75. Foxmar was paid in relation to the

number of students it had on campus. CA2JA 275.

Foxmar cut the full-time Safety Officer position

when it took over at NJCC. CA2JA 281-83. It did so

over the objection of the Center Director, who had

never seen the Safety Officer position cut in any of the

Job Corps she had worked. CA2JA 282-83.

II.

Procedural Background

Cole filed a complaint against Foxmar for

retaliation in Vermont Superior Court in November

2018. App. 12a, 21a. Foxmar removed the case to

federal court, which had subject matter jurisdiction

based on diversity of citizenship and the controversy

exceeding $75,000 exclusive of costs and interest. 28

U.S.C. § 1332. A jury returned a verdict against

Foxmar for unlawful retaliation in violation of the

Vermont Occupational Safety and Health Act

(“VOSHA”) and the Vermont Earned Sick Time Act

(“VESTA”) and awarded back pay of $55,305, front pay

of $85,638, emotional distress damages of $75,000, and

punitive damages of $3,000,000. App. 77a.

The district court, the Honorable Christina Reiss

presiding, granted Foxmar’s motion for a new trial on

damages, holding that the punitive damages were

excessive, violated due process, and required a new

trial, and that the lost wages and emotional damages

would not have required a new trial except for its

overturning of the punitive damages award. App. 47a48a, 50a-51a, 58a-61a. Prior to retrial, Foxmar filed a

motion in limine to exclude evidence relating to its

suppression of substandard food and weapon safety

complaints, which the district court granted. CA2JA

666-68, 677. A verdict was issued at retrial in the

amount of $55,000. App. 79a.

Cole timely appealed, arguing the district court

erred by ordering a new trial on damages, or, in the

alternative, erred by failing to issue remittitur prior to

ordering a new trial, or, in the alternative, erred by

excluding evidence at retrial relevant to punitive

damages. App. 3a-4a. The Second Circuit affirmed the

district court’s decision. App. 2a.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

This case presents an important, frequently

recurring issue which this Court has yet to

resolve with respect to punitive damages.

This Court has previously applied a punitive

damages standard in which potential harm to others is

relevant to the reasonableness of the award for due

process review. See TXO Prod. Corp. v. Alliance Res.

Corp., 509 U.S. 443, 460 (1993) (plurality opinion)1 (“It

is appropriate to consider the magnitude of the

potential harm that the defendant’s conduct would

have caused to its intended victim if the wrongful plan

had succeeded, as well as the possible harm to other

victims that might have resulted if similar future

behavior were not deterred.”) (emphasis added); and

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 581 (1996)

(“TXO, following dicta in Haslip, refined this analysis

by confirming that the proper inquiry is whether there

is a reasonable relationship between the punitive

damages award and the harm likely to result from the

defendant’s conduct as well as the harm that actually

While a plurality opinion, a majority of the justices agreed

potential harm to others should be considered when reviewing the

reasonableness of a punitive damages award. TXO, 509 U.S. at

460-62, 472 (SCALIA, J., joined by THOMAS, J., concurring in

judgment).

has occurred.”) (internal quotations omitted) (emphasis

in original).

The standard applied in TXO and Gore is sound

and worthy of formal adoption. Punitive damages

have always protected against the potential harm to

others because they are, by their nature, designed for

deterrence. The more harm that is likely to result from

unlawful conduct, the more deterrence is needed. This

is an elementary foundation of the legal system. The

protection of society from harm is one of the most

legitimate “state interests that a punitive award is

designed to serve.” Gore, 517 U.S. at 568.

The most important factor in analyzing the

appropriateness of a punitive award is the level of

reprehensibility, id., at 575, and reprehensibility

includes “an indifference to or a reckless disregard of

the health or safety of others.” State Farm Mut. Auto.

Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). Thus,

reprehensibility includes consideration of the potential

harm to others. See also Philip Morris USA v.

Williams, 549 U.S. 346, 355 (2007) (“actual harm to

nonparties can help to show that the conduct that

harmed the plaintiff also posed a substantial risk of

harm to the general public, and so was particularly

reprehensible.”).

Accordingly, it would be an

inherent contradiction if the potential harm to others

were relevant to reprehensibility but not the

reasonableness of the award.

However, subsequent cases in this Court have yet

to formally adopt the potential harm to others

standard applied in TXO and Gore. In Philip Morris,

this Court noted it had not “decide[d] the question of

harm to others” and “the [Gore] opinion appears to

have left the question open.” Id. Elsewhere in Philip

Morris, this Court stated, “we can find no authority

supporting the use of punitive damages awards for the

purpose of punishing a defendant for harming others.”

Id., at 353. The distinction between punishment and

deterrence is understandable, but in making this point

this Court engaged in discussion appearing to support

the plaintiff-only potential harm standard. Id. This

created an apparent split in rationale within Philip

Morris, and between Philip Morris and TXO and Gore,

meriting further clarification.

In addition, this Court’s decisions in State Farm

and Cooper Industries have added to the uncertainty

by stating a standard in which only the potential harm

to the plaintiff is considered, perhaps because harm to

others was not at issue in either case. See State Farm,

538 U.S. at 409 (“the disparity between the actual or

potential harm suffered by the plaintiff and the

punitive damages award. . . .”); and Cooper Indus., Inc.

v. Leatherman Tool Grp., Inc., 532 U.S. 424, 440 (2001)

(“the disparity between the harm (or potential harm)

suffered by the plaintiff and the punitive damages

award. . . .”).

The widespread confusion of the circuit courts is

evident from each circuit’s regular application of State

Farm’s potential harm to the plaintiff standard

instead of TXO’s potential harm to others standard.

See Cabral v. U.S. Dep’t of Just., 587 F.3d 13, 25 (1st

Cir. 2009); Zakre v. Norddeutsche Landesbank

Girozentrale, 344 F. App’x 628, 631 (2d Cir. 2009);2

Jurinko v. Med. Protective Co., 305 F. App’x 13, 25 (3d

Cir. 2008); Daugherty v. Ocwen Loan Servicing, LLC,

701 F. App’x 246, 259 (4th Cir. 2017); Vanderbilt Mortg.

& Fin., Inc. v. Flores, 692 F.3d 358, 374 (5th Cir. 2012);

Clark v. Chrysler Corp., 436 F.3d 594, 606 (6th Cir.

2006); Sommerfield v. Knasiak, 967 F.3d 617, 623 (7th

Cir. 2020); Masters v. City of Indep., Missouri, 998 F.3d

827, 840 (8th Cir. 2021); Hardeman v. Monsanto Co.,

997 F.3d 941, 977 (9th Cir. 2021); Burke v. Regalado,

935 F.3d 960, 1037 (10th Cir. 2019); Rubinstein v.

Yehuda, 38 F.4th 982, 998 (11th Cir. 2022); Pennington

v. Islamic Republic of Iran, No. CV 19-796 (JEB), 2022

WL 168261, at *5 (D.D.C. Jan. 19, 2022), vacated in

part, No. CV 19-796 (JEB), 2022 WL 18814284 (D.D.C.

May 3, 2022); and Rhone-Poulenc Agro, S.A. v. DeKalb

Genetics Corp., 272 F.3d 1335, 1350 (Fed. Cir. 2001),

cert. granted, judgment vacated sub nom. DeKalb

Genetics Corp. v. Bayer CropScience, S.A., 538 U.S. 974,

123 S. Ct. 1828, 155 L. Ed. 2d 662 (2003), and opinion

modified and reinstated, 345 F.3d 1366 (Fed. Cir. 2003).

Only the Eighth, Tenth, and Eleventh Circuits

appear to have ever correctly applied TXO’s standard.

See Adeli v. Silverstar Auto., Inc., 960 F.3d 452, 462 (8th

Cir. 2020) (determining potential harm to others too

speculative based on facts of case); Pulla v. Amoco Oil

Co., 72 F.3d 648, 660 (8th Cir. 1995) (potential harm to

The Second Circuit also applied the plaintiff-only standard

in the present case. Cole v. Foxmar, Inc., No. 23-87, 2024 WL

74902, at *2 (2d Cir. Jan. 8, 2024).

others may be considered where evidence of “a

company policy or practice as was the case in TXO” or

“any evidence rebutting assertion that this was an

isolated and rare incident”); Klein v. Grynberg, 44 F.3d

1497, 1505 (10th Cir. 1995) (potential harm to plaintiff

and others considered); and U.S. E.E.O.C. v. W&O, Inc.,

213 F.3d 600, 617, n. 7 (11th Cir. 2000) (“Testimony

showed that W&O had applied the policy to other

women and would likely have continued to apply it in

the future without this lawsuit.”).

The impact of this unresolved issue is also

evident in the disparity of citations to the competing

standards. Circuit courts have only cited TXO’s

“possible harm to other victims” standard 10 times,

and district courts 31 times, whereas those same

courts have cited State Farm’s “potential harm

suffered by the plaintiff ” standard 95 and 464 times

respectively.3 For state courts, TXO’s standard has

been cited 37 times, whereas State Farm’s standard

has been cited 489 times. These statistics further

demonstrate the confusion of the lower courts as to the

correct legal standard. This issue will be remedied

only when this Court formally adopts a standard that

considers the potential harm to others, which it

acknowledged in Philip Morris has not yet occurred.

Until then, the language in State Farm will continue

to overwhelm the punitive damages law, causing

These results were obtained through a Westlaw search

using the terms “TXO” and “possible harm to other victims.” The

second search was conducted using the terms “State Farm” and

“potential harm suffered by the plaintiff.”

misapplication by courts and misunderstanding by

parties to litigation.

This unresolved legal issue is important and

recurring because punitive damages are one of the

most widely used and essential tools of the common

law for the protection of society. This Court issued

its decision in TXO over thirty years ago, yet this issue

is still unresolved and lower courts continue to apply

an incorrect punitive damages standard. Certiorari is

necessary to remedy this longstanding issue.

II.

This case provides an ideal vehicle for

reviewing the question presented.

A. The district court and Second Circuit

failed to apply the correct standard for

punitive damages.

The district court failed to consider the potential

harm to others when it held the punitive damages

award violated Foxmar’s due process and ordered a

new trial. App. 52a-54a. In affirming the district court,

the Second Circuit also failed to consider the potential

harm to others. App. 6a-8a. Both the district court

and Second Circuit solely referenced the State Farm

standard considering potential harm to the plaintiff

and neither cited nor applied the potential harm to

others standard in TXO that Cole had argued. App.

6a-8a, 52a-54a; and Br. of Appellant at 41, 44-45.

As a result, the issue is ripe for consideration by

this Court. For the following reasons, the punitive

damages awarded by the jury were fully supported

under the three Gore guideposts, especially when

considering the potential harm to others as applied in

TXO and Gore.

B. The punitive award was reasonable

under the three Gore guideposts and

was not grossly excessive.

The district court held a retrial on punitive

damages was necessary because the jury’s award was

“grossly excessive” under Vermont law and violated

Foxmar’s due process. App. 59a-60a. The following

argument addresses why the award did not violate

Foxmar’s due process, which, in turn, similarly

demonstrates the award was not grossly excessive

under Vermont law.4

1. Guidepost 1

The first guidepost under Gore is “the degree of

reprehensibility of defendant’s misconduct,” which is

“the most important indicium of the reasonableness of

a punitive damage award. . . .” State Farm, 538 U.S. at

418-19 (quoting Gore, 517 U.S. at 575). At least four

The Vermont standard of punitive damages is more lenient

than due process review. See, e.g., Sweet v. Roy, 801 A.2d 694,

715 (Vt. 2002) (“For the same reasons that the punitive damage

award is not unconstitutional, it is also not manifestly and

grossly excessive. The amount lies within the discretion of the

jury.”); and Crump v. P & C Food Markets, Inc., 576 A.2d 441, 449

(Vt. 1990) (“the amount of the punitive damages need bear no

particular relationship to the amount of compensatory

damages.”).

out of the five reprehensibility factors were present to

a significant degree.

i. Harm caused was physical as

opposed to economic

Cole was terminated for complaining about

Foxmar’s unlawful sick leave policy, which forced

employees to work sick and while in close proximity

with minor and young adult students. App. 30a-31a.

In addition, this retaliation was part of a larger scheme

to suppress all safety complaints on campus, which

caused physical harm, as discussed in the following

subsection.

ii. Indifference and reckless disregard

for the health or safety of others

Foxmar retaliated against Cole for complaining

about its unlawful sick leave policy that risked the

health of employees and students. See supra Statement

of the Case, § (I)(C).

In addition, this retaliation was part of a larger

retaliatory scheme to suppress safety complaints on

campus and to the Department of Labor. Id., at

§ (I)(D).

Foxmar threatened its employees with

retaliation if they complained to anyone but their

immediate supervisor, and it terminated Cole when he

did so. Id. The purpose of this retaliatory scheme was

to suppress complaints on campus and to the

Department of Labor. Id.

This scheme endangered the health and safety of

both employees and students. Students were minors

and young adults who lived on campus and engaged

in vocational training including forestry, welding,

culinary arts, and auto repair. CA2JA 505. It was

important that students were provided with a safe

environment to train and live on campus, which was

required by the Department of Labor. Id., at § (1)(B).

Employees included nurses, cafeteria staff,

counselors, teachers, and vocational instructors, and it

was critical these employees felt free to report any

dangers to the health and safety of the students.

CA2JA 506. Foxmar endangered the safety of students

by prohibiting these employees from complaining

about safety issues to the Department of Labor or

anyone other than their immediate supervisor. Id., at

§ (I)(D). This was a dangerous policy for many reasons,

including the fact the Department of Labor was the

authority in charge of overseeing Foxmar’s safety

compliance, Foxmar itself did not address safety

complaints that were made, an immediate supervisor

might not be available or address a safety issue, and

the policy made it less likely employees would make

complaints.

Foxmar’s retaliatory scheme caused actual harm

to the health and safety of others, including students

regularly suffering illnesses from substandard food,

mold in the dorms and resulting student illness, lack

of cleaning supplies for sanitation, the unlawful

retention of a student with a prohibited weapon,

and the unlawful sick leave policy. Id. Foxmar

suppressed complaints about these issues and they

were never addressed. Id.

All of this evidence demonstrated Foxmar’s

retaliation against Cole was part of a larger scheme to

suppress safety complaints to the Department of Labor

that “evinced a disregard for the health and safety of

its employees and students.” App. 52a-53a.

iii. The targets of the conduct had

financial vulnerability

Cole suffered severe financial hardship as a

result of the retaliation. He needed to apply for

unemployment multiple times in the three years

following his termination. CA2JA 166. He suffered a

loss in his credit rating. CA2JA 164. He was unable

to pay rent and was behind two months at the time of

trial. CA2JA 163-64. He had to perform work for his

landlords to pay rent and had to sell personal and

family items to pay his bills. CA2JA 164-165.

Cole’s coworkers were also financially vulnerable.

Foxmar’s threats of retaliation threatened their

employment and ability to provide for themselves and

their families.

The students at NJCC were also financially

vulnerable. They were minors and young adults living

on campus away from their families, and they were

attending the Job Corps program to gain their GED

and vocational skills. CA2JA 243-44, 504-05. As a

result, they were less able to leave the Job Corps

program or to complain to address Foxmar’s conduct.

iv. The conduct involved repeated

actions and was not an isolated

incident

Foxmar’s retaliatory termination of Cole involved

repeated actions, including the deceptive acts leading

up to the termination and the attempts to cover up

the retaliation at trial. See supra Statement of the

Case, § (I)(C). The decisionmakers, including Foxmar’s

VP/COO, fabricated a reason for termination, then lied

in testimony claiming they did not know it was false at

the time of termination. App. 34a-35a; and CA2JA

418-20, 534-35, 831. The VP/COO also testified at trial

he was unaware of Cole’s safety complaints at the time

of termination in another attempt to avoid liability for

retaliation. CA2JA 397, 400, 521, 539. This testimony

was likewise proven false at trial. App. 34a-35a.

Furthermore, the retaliation was part of a larger

scheme to suppress safety complaints which involved

repeated actions for the reasons set forth in subsection

(ii) supra and subsection (v) infra.

v. The harm was the result of

intentional malice, trickery, and

deceit

Foxmar intentionally disregarded Cole’s rights

when it terminated him for raising safety complaints.

See supra Statement of the Case, § (I)(C). The

retaliation was also part of a scheme to suppress

safety complaints on campus and to the Department

of Labor. See supra Statement of the Case, § (I)(D).

This scheme was intentional, financially motivated,

and part of “a corporate culture of suppressing

legitimate complaints.” Id., at § (A)(B); and App. 53a.

For these reasons, intentional malice was involved.

See DeYoung v. Ruggiero, 971 A.2d 627, 636 (Vt. 2009);

and Shortle v. Central Vermont Public Service Corp.,

399 A.2d 517, 518 (Vt. 1979).

There was also substantial trickery and deceit.

Foxmar “ ‘fabricated grounds for termination’ in

retaliation for Cole’s VESTA complaints,” and its

VP/COO directly participated in the retaliatory

termination. App. 35a. Foxmar’s entire scheme to

suppress complaints also involved trickery and deceit

as its purpose was to conceal safety violations from the

Department of Labor, which was the governmental

agency in charge of overseeing the Job Corps program

and enforcing Foxmar’s contractual obligation to

maintain a safe environment for students. See supra

Statement of the Case, § (I)(B) and (D).

vi. The district court’s reasons for

overturning the punitive damages

award were erroneous

The district court gave the following factual

reasons it believed the punitive damages award

violated Foxmar’s due process. App. 15a-16a, 52a-54a.

Each of these reasons were erroneous, and, even if

somehow valid, in no way contradicted the strong

evidence of reprehensibility.

First, the district court erred in finding the

conduct was limited in scope. App. 52a-53a. Foxmar’s

retaliatory scheme involved its VP/COO and corporate

officials, and it affected all students and employees at

NJCC. § (II)(B)(1)(ii) and (v) supra. Foxmar was an

experienced company in the business of overseeing

Job Corps and immediately implemented the scheme

upon taking over NJCC. Statement of the Case, § (I)(A),

(D) supra. Foxmar risked the health and safety of

employees and students with the scheme. Id.; and

§ (II)(B)(1)(ii) supra. Further, students were actually

harmed as a result of the scheme, and defendant

ignored those complaints and continued with its

scheme, further demonstrating the likelihood it would

continue if not deterred. Id.

Second, the district court erred in reasoning Cole’s

probationary status or at-will status as an employee

was somehow relevant. App. 52a-53a. An employee is

protected against unlawful retaliation immediately

upon hire. There are no exceptions under VESTA’s

retaliation provision if an employee is at-will or in a

probationary period of employment. 21 V.S.A. § 483(l).

Moreover, Cole had been employed at NJCC for five

years, and the only reason he was in probationary

status of employment was because Foxmar technically

rehired him when it took over, which it was required to

do for all existing non-managerial employees at NJCC

pursuant to its contract with the Department of Labor.

CA2JA 588-89.

Third, the district court erred in crediting

Foxmar’s claim that it was trying to reestablish higher

standards at NJCC. Foxmar had an intentional scheme

of suppressing legitimate complaints concerning health

and safety issues at NJCC, which the district court

itself acknowledged. App. 15a-16a, 30a-31a, 38a-40a,

52a-53a.

Fourth, the district court erred in finding Foxmar’s

alleged “good faith mistakes” and “non-retaliatory

reasons for plaintiff ’s termination” were reasons to

overturn the punitive award. App. 53a-54a. This

finding was in direct contradiction to the verdict in the

case holding Foxmar liable for intentional retaliation

and the substantial evidence proving its proffered

reasons were false and pretextual. App. 34a-35a.

Fifth, the district court erred in finding no other

employees had been disciplined or terminated for

making safety complaints. App. 53a-54a. Other

employees had indeed been disciplined and were

relentlessly threatened with retaliation. CA2JA 321,

324, 328-29. The Center Director had also been

terminated without cause after making safety

complaints. CA2JA 273-76, 280-83, 297.

Lastly, the district court erred by reasoning

the Center Director “may have been motivated to

testify falsely because defendant terminated her

employment.” App. 53a-54a. The mere fact a witness

has been terminated by the defendant is an

insufficient reason to discredit her sworn testimony

when the jury credited it, and it is a completely

speculative basis to overturn a punitive damages

award. It was the Center Director’s duty to oversee

everything on campus, including all safety issues, and

to report those issues to Foxmar’s entire corporate

team, making her testimony particularly compelling.

CA2JA 240-42.

2. Guidepost 2

The second Gore guidepost is “the disparity

between the actual or potential harm suffered by the

plaintiff [and others] and the punitive damages

award.”5 517 U.S. at 574. “In most cases, the ratio will

be within a constitutionally acceptable range, and

remittitur will not be justified on this basis.” Id., at

583.

The actual harm suffered by Cole from the

unlawful retaliation was $140,943 in lost wages and

$75,000 in emotional damages, totaling $215,943

in compensatory damages. Cole suffered significant

financial and emotional distress as a result of the

termination. § (II)(B)(1)(iii) supra.

When considering the potential harm to others,

the reasonableness of the punitive award becomes

even more apparent. The potential harm of Foxmar’s

conduct was significant if not deterred, including

continued retaliations, suppression of safety complaints,

and ongoing safety violations risking harm to a large

The potential harm to others should be considered for the

reasons set forth in § (I) supra.

number of employees and students. These violations

included substandard food causing persistent student

illnesses, mold in the dorms and resulting student

illness, lack of required cleaning supplies, unlawful

retention of a student with a prohibited weapon, and

an unlawful sick leave policy. § (II)(B)(1)(ii) supra.

Preventing just one other retaliatory termination

would bring the ratio to 7:1 between actual and

potential harm to punitive damages. TXO, 509 U.S. at

460. This is a modest estimate of future retaliations

given the retaliatory scheme. Foxmar had a corporate

run scheme of suppressing complaints to the

Department of Labor, threatened employees on an

almost daily basis with retaliation as part of that

scheme, and retaliated against Cole as part of the

scheme. § (II)(B)(1) supra. Other employees had been

reprimanded for reporting safety issues, and the

Center Director had been terminated without cause

after making safety complaints, all within the first

year of Foxmar taking control of NJCC. A-273-76,

280-83, 297, 324, 328-29. All of this evidence provided

more than sufficient basis for the jury to determine

retaliations against employees would continue if

not deterred. In addition, when considering the

aforementioned potential harm to students, the ratio

would appear to be 1:1 or lower. Cf. TXO, 509 U.S. at

472 (SCALIA, J., joined by THOMAS, J., concurring in

judgment).

Naturally, consideration of potential harm to others

must not be overly speculative. Such consideration is

appropriate, however, in cases where there is substantial

evidence the unlawful conduct would continue and

cause future harm if not deterred. See, e.g., Gore, 517

U.S. at 579 (emphasizing “deliberate false statements,

acts of affirmative misconduct, or concealment of

evidence of improper motive, such as were present

in Haslip and TXO.”); and Pulla, 72 F.3d at 660

(likelihood of potential harm to others includes “a

company policy or practice as was the case in TXO” or

“any evidence rebutting assertion that this was an

isolated and rare incident”).

Potential harm to others was likely in this case

because the unlawful conduct was part of a larger

scheme, was financially motivated, and harmed the

health and safety of others. § (II)(B)(1) supra. When

viewed under TXO and Gore, it is clear this evidence

was sufficient to show the conduct was likely to

continue and cause potential harm to others if not

deterred. See TXO, 509 U.S. at 462; and Gore, 517

U.S. at 582. Similar to TXO, the unlawful conduct

was part of a larger scheme, was financially motivated,

and involved trickery and deceit. Id. Even more

reprehensibility and likelihood of potential harm

existed here due to the indifference and reckless

disregard to the health and safety of others. In

contrast, this case is dissimilar to Gore, where this

Court considered potential harm to others and

determined none existed. 517 U.S. at 582.

For these reasons, the size and ratio of the award

was fully supported by the reprehensibility, actual

harm, and potential harm of the unlawful conduct if

not deterred.

3. Guidepost 3

The third Gore guidepost is “the difference

between the punitive damages awarded by the jury

and the civil penalties authorized or imposed in

comparable cases.” Gore, 517 U.S. at 574.

Federal and state case law support the size and

ratio of the verdict.6 See, e.g., TXO, 509 U.S. at 460 ($10

million at 526:1 ratio for slander of title); Haslip, 499

U.S. at 1 ($1 million at more than 4:1 ratio for fraud);

Am. Fin. Servs. Group v. Treasure Bay Gaming &

Resorts, No. 99CIV.1068NT, 2000 WL 815894, at *16

(S.D.N.Y. June 23, 2000) ($5 million at 10:1 ratio for

intentional misrepresentation); Zhang v. Am. Gem

Seafoods, Inc., 339 F.3d 1020, 1044 (9th Cir. 2003) ($2.6

million at 7:1 ratio for employment discrimination);

Saccameno v. Ocwen Loan Servicing, LLC, 372 F. Supp.

3d 609, 663 (N.D. Ill. 2019) ($3 million at 6:1 ratio for

consumer fraud); Lynn v. TNT Logistics N. Am. Inc.,

275 S.W.3d 304, 310 (Mo. App. W.D. 2008) ($3,750,000

at 75:1 ratio for sexual harassment); Ellison v.

O’Reilly Automotive Stores, Inc., 463 S.W.3d 426,

441-42 (Mo. App. W.D. 2015) ($2,000,000 at 10:1 ratio

for discrimination); and Holland v. Schwan’s Home

Serv., Inc., 992 N.E.2d 43, 95 (Ill. App. Ct. 2013)

Vermont’s punitive damages standards are less stringent

than federal due process standards. Supra, n. 5. Therefore, all

case law applying those or more stringent standards put Foxmar

on notice of the severity of the penalty that could be imposed for

its conduct in Vermont. Gore, 517 U.S. at 574.

($3,600,000 at 5:1 ratio for workers’ compensation

retaliation).7

In comparison to the aforementioned cases, the

conduct in this case was of equal or greater

reprehensibility, in particular due to Foxmar’s

indifference to the health and safety of others that

was likely to continue if not deterred. Foxmar abused

the federal Job Corp program designed to assist

underprivileged youth by enforcing a retaliatory

scheme to suppress complaints about safety violations

that caused actual harm and risked continued harm

if not deterred.

Nonetheless, despite the aforementioned case law,

the district court and Second Circuit erred in holding

the individual safety fines under VOSHA and VESTA

were comparable and did not support the punitive

award. App. 7a-8a, 57a-58a. These statutory fines

were in no way comparable because they did not apply

to retaliatory termination, only to individual safety

violations. See State Farm, 538 U.S. at 418; and

Motorola Credit Corp. v. Uzan, 509 F.3d 74, 85-86 (2d

Cir. 2007). In fact, the retaliation penalties elsewhere

in those statutes specifically provided for punitive

damages without any limitation. 21 V.S.A. § 483(l);

21 V.S.A. § 397(b); 21 V.S.A. § 232; and Kwon v.

Edson, 217 A.3d 935, 945 (Vt. 2019) (damages include

punitive damages). Accordingly, the district court

improperly applied individual safety fines instead of

the punitive damages established by the legislature as

These awards are of course greater in today’s dollars.

the appropriate remedy. Gore, 517 U.S. at 583 (“a

reviewing court engaged in determining whether an

award of punitive damages is excessive should accord

substantial deference to legislative judgments concerning

appropriate sanctions for the conduct at issue.”)

(internal quotations and citations omitted).

Furthermore, even if the individual statutory fines

were somehow comparable, the district court only

compared the punitive damages to a single safety

violation. In contrast, Foxmar engaged in continuous

safety violations, including its unlawful sick leave

policy, substandard food causing student illnesses,

mold in the dorms, lack of cleaning supplies, unlawful

retention of a student with a prohibited weapon,

constant threats of retaliation against employees, and

the intentional suppression of safety complaints on

campus and to the Department of Labor. Thus, even if

proper as a metric, the individual statutory fines

supported the jury’s award of punitive damages.8

No evidence existed indicating Foxmar paid any

other civil awards or penalties for the same conduct

that would warrant a limitation of the award. Haslip,

499 U.S. at 21-22.

Lastly, Foxmar failed to present any evidence of its

finances. App. 57a. This was its burden, and its failure

to do so further conflicts with the notion the award

violated its due process. See, e.g., Mathie v. Fries, 121

VOSHA allows for fines of $127,749 per violation. 21 V.S.A.

§ 210(a). VESTA allows for fines of $5,000 per violation. 21 V.S.A.

§ 483(m); 21 V.S.A. § 345; and Vt. Admin. Code 13-5-13(a).

F.3d 808, 815 (2d Cir. 1997); Fishman v. Clancy, 763

F.2d 485, 490 (1st Cir. 1985); and Tri-Tron Int’l v. Velto,

525 F.2d 432, 438 (9th Cir. 1975).

C. No other issues in the case preclude

this Court from addressing this issue.

The district court ordered a new trial on punitive

damages, emotional damages, and lost wages. App.

60a. However, only the punitive damages award was

the cause of the new trial. The district court held the

emotional damages award of $75,000 was reasonable.

App. 47a-48a, 50a-51a. The district court held the

lost wages award of $140,943 was excessive but

would have been appropriate for remittitur except

the punitive damages award was so high it precluded

any remittitur. App. 50a-51a, 58a-61a.

Accordingly, the emotional damages and lost

wages awards in no way hinder this Court’s ability to

reverse the district court’s decision on punitive

damages. If this Court were to grant certiorari and

affirm or remit the punitive damages award, then the

emotional damages award would be affirmed and the

lost wages award would be affirmed or be remitted

per this Court’s decision, as the district court

acknowledged neither warranted a new trial.

Cole argues on appeal that the lost wages award

need not be remitted. Br. of Appellant at 15-28.

However, even if this Court were to determine it should

be remitted, such remittitur would not be significant.

For instance, in affirming the district court, the Second

Circuit focused on the fact the lost wages award was

$4,227 more than Cole’s expert estimated, which

included only $18,958 more in front pay. App. 4a-5a.

These minor computational differences were an

insufficient basis to overturn the lost wages award.

See, e.g., Anderson v. Metro-N. Commuter R.R., 493 F.

App’x 149, 153 (2d Cir. 2012); and In re Vivendi

Universal, S.A. Sec. Litig., 765 F. Supp. 2d 512, 575

(S.D.N.Y. 2011), aff ’d sub nom. In re Vivendi, S.A. Sec.

Litig., 838 F.3d 223 (2d Cir. 2016).

III. The issue is fundamental to public safety.

First, the longstanding failure of lower courts

to apply the correct punitive damages standard

considering potential harm to others endangers society

by undermining the ability of the legal system to deter

all reprehensible conduct. Punitive damages are one

of the most essential tools to protect society and “may

properly be imposed to further a State’s legitimate

interests in punishing unlawful conduct and deterring

its repetition.” Gore, 517 U.S. at 568. “In our federal

system, States necessarily have considerable flexibility

in determining the level of punitive damages that they

will allow in different classes of cases and in any

particular case.” Id. As in this case, the failure of

lower courts to consider the potential harm to others

when considering a defendant’s challenge to a punitive

damages award unduly limits the ability of the legal

system and the right of states to sufficiently deter

unlawful conduct.

Second, retaliatory terminations endanger public

safety to a degree warranting direction from this Court

that such conduct may justify higher awards and

ratios to effectuate deterrence, especially where the

retaliation is part of an intentional scheme to suppress

safety complaints. Such conduct harms the health and

safety of others, risks future harm if not deterred, has

strong financial incentives, and is difficult to catch and

prove.

Employees are particularly vulnerable to threats

of retaliation because their employment is crucial to

their livelihood and that of their family. Even the

threat of retaliation suppresses safety complaints,

and any retaliatory termination in a company has a

chilling effect on all other employees. Such retaliations

threaten public safety as employees are the individuals

most likely to notice safety issues, and they must feel

free to report those issues for the safety of all. Safety

complaints not only protect employees but all citizens

who patron or are affected by a business. This is true

whether the business is in energy, scientific research,

transportation, education, or any other industry.

As society advances, the potential harm from

safety violations is magnified as a result of the growth

of science and technology and the interconnectedness

of society. Some of the greatest risks to modern day

society stem from unsafe actions for economic gain. If

retaliations are not sufficiently deterred through

punitive damages, companies may evade compliance

with safety laws through retaliation and suppression

without fear of much more than a simple calculation

on a balance sheet—the amount of compensatory

damages times a single-digit multiplier, at most, to pay

in punitive damages. This will oftentimes be nowhere

near enough to deter a company from a retaliation

given the strong financial incentives to shirk safety

regulations and the unlikelihood they will be caught as

a result of the difficulty in catching and proving the

conduct.

For each of these reasons, the issues in this case

are important to public safety. The potential harm

to others standard must be formally adopted to

sufficiently deter all forms of reprehensible conduct,

and retaliatory terminations against safety complaints

are a particularly reprehensible form of conduct,

especially when part of a larger scheme to suppress

safety complaints.

IV. This case presents important common

law and constitutional issues which this

Court has yet to resolve with respect to

remittitur.

In the alternative, the district court erred by

ordering a new trial without issuing a remittitur. The

district court held remittitur was unavailable because

the size of the punitive damages award alone indicated

passion and prejudice by the jury. App. 58a-61a. The

Second Circuit affirmed the decision on that same

basis. App. 9a-10a. This decision violated the common

law on remittitur and the Seventh Amendment.

A. The district court erred in holding

the size of the award indicated passion

and prejudice by the jury such that

remittitur was not available.

“[F]or more than a century the federal courts have

followed the approved practice of conditioning the

allowance of a new trial on the consent of plaintiff to

remit excessive damages. . . .” Dimick v. Schiedt, 293

U.S. 474, 487 (1935). The Second Circuit follows this

approved practice. See, e.g., Smith v. Lightning Bolt

Prods., Inc., 861 F.2d 363, 375 (2d Cir. 1988). However,

“[a] remittitur should be granted only where the trial

has been free of prejudicial error.” Ramirez v. New

York City Off-Track Betting Corp., 112 F.3d 38, 40 (2d

Cir. 1997). “The cases in which the jury’s award is

seen to reflect prejudice . . . are generally limited to

those in which the remittitur granted is totally out of

proportion to the damages allowed by the district

court.” Id., at 41.

In affirming the district court, the Second Circuit

reasoned “the punitive damages award here was so

excessive that it would require a similarly out-of

proportion remittitur [such as remittiturs of $4.35

million on a $5 million award and $1.65 million on a

$1.9 million award]. . . .” App. 9a-10a. This was

erroneous. The remittiturs cited by the Second Circuit

were each an 87% decrease from the initial jury award.

In the present case, no such drastic remittitur was at

issue. Even if the district court had remitted the

punitive damages from 14:1 to as low as a 6:1 ratio, the

total award would have been $1,511,601. This would

have only been a remittitur of approximately 50%,

which is commonplace and much less than other

remittiturs regularly issued. See, e.g., Int’l Mins. &

Res., S.A. v. Bomar Res., Inc., 5 F. App’x 5, 7 (2d Cir.

2001) ($37.5 million to $1.5 million); Purgess v.

Sharrock, 33 F.3d 134, 143 (2d Cir. 1994) ($4.6 million

to $500,000); and Brink’s Inc. v. City of New York, 717

F.2d 700, 702 (2d Cir. 1983) ($5 million to $1.5 million).

For the reasons set forth in § (II) supra, the size of

the punitive damages award was nowhere near so

high as to indicate passion or prejudice given the

reprehensibility of the conduct. The district court cited

no factual support for its holding that the jury was

in any way infected with passion or prejudice. App.

58a-61a. This holding was against the aforementioned

law of the Second Circuit and remittitur should have

been issued.

B. The district court’s failure to issue

remittitur prior to ordering a new trial

violated the Seventh Amendment.

In addition, the Seventh Amendment was violated.

The Seventh Amendment prohibits a trial court from

issuing remittitur without providing the option of a

new trial. Hetzel v. Prince William Cnty., Va., 523 U.S.

208, 210-11 (1998). The same logic applies equally the

other way around. Since the Seventh Amendment

protects the right to a new trial in lieu of remittitur, it

must also protect the right to remittitur in lieu of a

new trial.9 If remittitur is not issued, the right to the

first jury trial is infringed upon. Such infringement is

even greater than in Hetzel because a new trial

without remittitur completely eliminates the damages

awarded at trial, whereas remittitur without a new

trial merely decreases those damages. Since the latter

is unconstitutional, the former must be as well, unless

the trial was infected by passion or prejudice.

Relatedly, the Second Circuit has held “district

courts should use the least intrusive standard for

calculating a remittitur” and “should remit the jury’s

award only to the maximum amount that would be

upheld by the district court as not excessive.” Earl v.

Bouchard Transp. Co., 917 F.2d 1320, 1330 (2d Cir.

1990). This remittitur requirement has the same

underlying rationale as the Seventh Amendment

requiring that a jury trial should be infringed upon to

the least degree possible. It further demonstrates that

the right to a jury trial is infringed upon where a trial

court overturns a damages award without providing

the opportunity for remittitur. Such action is akin to

offering the plaintiff a remittitur of $0 because it forces

a new trial, which violates the principle of least

intrusive remittitur.

The historic preference of remittitur over retrial is

supported by important policy considerations. Retrials

risk undermining public confidence in the judicial

In both circumstances the trial must not have been

infected by passion or prejudice. Otherwise, remittitur would be

improper. Ramirez, 112 F.3d at 40.

system by the overturning of jury verdicts and by large

disparities in verdicts. Retrials are costly to the

litigants and court system and have inherent flaws.

The defendant has a second chance to prepare evidence

and arguments knowing how the first trial proceeded.

Key witnesses may also become unavailable years

later, as occurred in this case where the HR Director

was unavailable for the retrial. In addition, retrials on

punitive damages are particularly flawed because they

relate so closely to the evidence of the liability of the

defendant. The jury that determined liability is the

jury most capable of determining punitive damages.

Remittitur also serves the important function of

ensuring litigants do not limit the relief they seek out

of fear of a large award causing a retrial. Punitive

damages are intended to protect society by deterring

dangerous conduct. However, if trial courts were

authorized to order new trials without issuing

remittitur, it would create a perverse incentive for

plaintiffs to limit the amount of punitive damages they

seek at trial in order to avoid the risk of a retrial. This

would impede the purpose of punitive damages and

the ability of the judicial system to deter unlawful

conduct.

This case presents an important, frequently

recurring issue with respect to the evidence

relevant to punitive damages.

In the alternative, the district court erred by

excluding evidence relevant to punitive damages. At

retrial, the district court granted Foxmar’s motion in

limine to exclude evidence of its suppression of

safety complaints regarding substandard food quality

causing students to regularly become sick and the

retention of a student with a prohibited weapon

against Department of Labor rules. CA2JA 666-68,

677. In excluding this evidence, the district court went

against its prior ruling that these food safety and

weapon complaints were relevant and admissible.

App. 15a-16a, 40a-42a. The disparity between the first

and second trial verdicts indicates the exclusion of the

evidence impacted the verdict.

This evidence was critical to the jury’s analysis of

punitive damages because it was relevant to the level

of reprehensibility, pattern, indifference to health and

safety, actual harm, and potential harm from Foxmar’s

retaliatory scheme. See, e.g., Gore, 517 U.S. at 575; and

TXO, 509 U.S. at 462, n. 28. However, in affirming the

district court, the Second Circuit reasoned the weapon

and food safety complaints were properly excluded

because they “were not similar to Cole’s protests about

employee sick leave.” App. 10a. This reasoning was

erroneous. To draw an analogy, if a nuclear technician

were terminated for complaining about an unlawful

sick leave policy, and the retaliation was part of a

larger scheme by the employer to suppress safety

complaints to the Nuclear Regulatory Commission,

evidence of other safety violations and suppressed

complaints would be relevant to the reprehensibility of

the conduct, including pattern, deceit, and indifference

to the health and safety of others.

The district court also erred by excluding the

food safety complaints based on Foxmar’s hearsay

objection. The prior Center Director testified students

were regularly sick from substandard food and that she

heard these complaints from the cafeteria and wellness

staff. CA2JA 274-77, 280-81. This was non-hearsay

because the statements were made on matters

within the scope of those employees’ duties. F.R.E.

801(d)(2)(D). The students’ underlying complaints of

illness qualified as exceptions for statements of a

“then-existing . . . physical condition (such as mental

feeling, pain, or bodily health)” to the cafeteria staff,

and as statements made for medical treatment to

the wellness department, and under the residual

exception. F.R.E. 803(3), (4), and 807.

---------------------------------♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

WILLIAM J. PETTERSEN, ESQ.

Counsel of Record

PETTERSEN LAW PLLC

1084 E. Lakeshore Dr.

Colchester, VT 05446

(802) 477-2780

pettersenlaw@gmail.com

Attorney for Petitioner

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

United States Court of Appeals for the Second

Circuit, Opinion, January 8, 2024 ................. App. 1a

United States District Court for the District of

Vermont, Opinion and Order Denying in Part

and Granting in Part Defendant’s Motion for

Judgment as a Matter of Law or, in the

Alternative, a New Trial (Doc. 131), March 22,

2022 .............................................................. App. 12a

United States District Court for the District of

Vermont, Entry Order Denying Plaintiff ’s

Motion for Reconsideration, June 13, 2022 ... App. 62a

Excerpts of Transcript of Hearing on Motions in

Limine, United States District Court for the

District of Vermont, December 12, 2022 ..... App. 72a

United States District Court for the District of

Vermont, Judgment in a Civil Action, August

2, 2021 .......................................................... App. 77a

United States District Court for the District of

Vermont, Judgment in a Civil Action,

December 20, 2022 ....................................... App. 79a

Relevant

Constitutional,

Statutory

and

Administrative Provisions ........................... App. 81a

App. 1a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED

FEDERAL

RULE

APPELLATE PROCEDURE 32.1 AND THIS

COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED

WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC

DATABASE

(WITH

THE

NOTATION “SUMMARY ORDER”). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE

A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 8th day of January, two

thousand twenty-four.

PRESENT:

JOSÉ A CABRANES,

RICHARD J. SULLIVAN,

MYRNA PÉREZ,

Circuit Judges.

App. 2a

THOMAS COLE,

Plaintiff-Appellant,

No. 23-87

FOXMAR, INC., d.b.a.

EDUCATION AND

TRAINING RESOURCES,

Defendant-Appellee.*

PETTERSEN,

For Plaintiff-Appellant: WILLIAM

Pettersen Law PLLC,

Colchester, VT.

For Defendant-Appellee: MICHAEL D. BILLOK (Paul

J. Buehler, on the brief ),

Bond, Schoeneck & King,

PLLC, Saratoga Springs,

NY.

Appeal from a judgment of the United States

District Court for the District of Vermont (Christina

Reiss, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the district court is AFFIRMED.

Thomas Cole appeals from the August 2, 2021

judgment of the district court following a retrial on

damages relating to Cole’s claims of retaliation under

Vermont law against his former employer, Foxmar, Inc.

* The Clerk of Court is respectfully directed to amend the

official case caption as set forth above.

App. 3a

(“Foxmar”). We assume the parties’ familiarity with

the underlying facts, procedural history, and issues on

appeal, to which we refer only as necessary to resolve

this appeal.

Foxmar is a federal contractor that operates

several Job Corps centers, which provide education

and vocational training to teens and young adults. Cole

worked at the Northlands Job Corps Center (“NJCC”)

in Vergennes, Vermont on and off for about five years.

Cole’s tenure at NJCC ended in 2018 when Foxmar

fired him days after Cole lodged several complaints

about Foxmar’s refusal to allow NJCC employees to

take sick leave. Cole ultimately sued Foxmar for

retaliatory discharge under several Vermont statutes.

After a one-week trial, the jury returned a verdict in

favor of Cole, awarding him $140,943 for back and

front pay, $75,000 for emotional distress, and $3

million in punitive damages. Foxmar promptly moved

for a new trial on damages under Federal Rule of Civil

Procedure 59, arguing that the jury awards were

excessive and unsupported by the evidence. The

district court ordered a new trial as to damages only,

without giving Cole the option to accept a lower award

via remittitur. At the retrial, the district court ruled

that it would exclude evidence that Foxmar had

suppressed food safety and weapons complaints. The

jury thereafter returned a verdict awarding Cole only

$35,000 in back pay and $20,000 in damages for

emotional distress.

Cole now appeals, arguing that the district court

erred when it (1) ordered a retrial on the grounds that

App. 4a

the jury’s initial awards for lost wages and punitive

damages were excessive, (2) ordered that retrial

without first giving Cole the option to accept a lower

damages award through remittitur, and (3) precluded

Cole from introducing evidence at the retrial that

Foxmar suppressed complaints made by others about

food safety and weapons at the camp. We address each

argument in turn.

First, we reject Cole’s argument that the district

court erred when it set aside the jury’s award for lost

wages as excessive under Vermont law. We review the

district court’s decision for abuse of discretion,

scrutinizing whether the district court wrongly applied

state damages law, made a clear error in fact, or

otherwise committed an arbitrary or unreasonable

error of judgment. See Gasperini v. Ctr. for Humans.,

Inc., 149 F.3d 137, 142 (2d Cir. 1998). We see no

reversible errors here. The district court stated the

correct legal standard for excessive damages under

Vermont law – whether the award was “grossly

excessive,” Lent v. Huntoon, 143 Vt. 539, 553 (1983) –

and proceeded to detail why the evidence at trial could

not support the jury’s speculative front-pay award, see

Haynes v. Golub Corp., 166 Vt. 228, 239 (1997) (“When

front pay is allowed, the damages must be limited to a

reasonable period of time, and the amount must not be

speculative.” (citations omitted)).

The court first noted that the jury had awarded

Cole $4,000 more in lost wages than he had asked for

– a sum that apparently included $18,958 more in

App. 5a

front pay than even Cole’s own expert had calculated.1

To reach that figure, the jury would have had to find

either that Cole would have worked at NJCC for more

than fifteen years (until he was over seventy) or that

he would have received larger raises than expected.

But, as the district court explained, neither of those

conclusions was supported by the record, indicating

that the jury had inflated its front-pay award beyond

what the evidence allowed. See id. at 238 (vacating

lost-wages award when the damages figure required

the jury to assume that the plaintiff would have

worked longer than the evidence established). Cole’s

arguments to the contrary are little more than

challenges to the district court’s assessment of the

evidence regarding the award for front pay damages,

which fall well short of showing an abuse of discretion

here. See Crawford v. Tribeca Lending Corp., 815 F.3d

121, 128 (2d Cir. 2016) (“A district court may grant a

Rule 59 motion – even if some evidence supports the

verdict – if the court determines, in its independent

judgment, that the jury has reached a seriously

erroneous result.” (alterations and internal quotation

marks omitted)).2

The jury awarded Cole $85,638 in front pay damages. Cole’s

expert calculated the award for front pay damages to be $66,680.

Cole has never argued – here or below – that the district

court erred by granting a retrial on both back and front pay as

opposed to a partial retrial on only the excessive front-pay award.

We therefore do not consider whether the district court should

have ordered a partial retrial. See Doe v. Trump Corp., 6 F.4th

400, 410 (2d Cir. 2021) (explaining that we generally do not

consider forfeited arguments).

App. 6a

Second, Cole argues that the district court erred

when it found that his punitive damages award was

so excessive that it violated the Due Process Clause.3

Because this issue involves punitive rather than

compensatory damages, we review the district court’s

ruling de novo. See Cooper Indus., Inc. v. Leatherman

Tool Grp., Inc., 532 U.S. 424, 437, 443 (2001). Under

BMW of North America, Inc. v. Gore, 517 U.S. 559

(1996), we assess the constitutionality of punitive

damages awards based on three guideposts: (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, 418 (2003) (citing Gore, 517

U.S. at 575).

The first guidepost examines whether the harm

was physical or economic, whether the defendant

behaved in a manner reckless to the health or safety

of others, whether the plaintiff was financially

vulnerable, whether the defendant’s conduct was a

repeated pattern, and whether the harm was

intentional. See id. at 419. Under that rubric, Foxmar’s

Cole also challenges the district court’s finding that the

jury’s punitive damages award was excessive under Vermont law.

We need not reach that question, because we separately find that

his punitive damages award was invalid under the Due Process

Clause.

App. 7a

conduct was insufficiently reprehensible to justify the

jury’s $3 million punitive award. Foxmar did not

“physical[ly]” harm Cole and was shown to have

suppressed complaints only in “isolated” incidents. Id.

And even if it could be argued that suppressing sickleave complaints disregarded the health of Foxmar’s

employees, there is no suggestion that such conduct

risked more than “minor injuries” as opposed to

“serious physical” ones. Stampf v. Long Island R.R. Co.,

761 F.3d 192, 209 (2d Cir. 2014).

As to the second guidepost, Cole’s multimilliondollar punitive award created an outsized “disparity”

between Cole’s compensatory and punitive damages.

State Farm, 538 U.S. at 418. Indeed, “few awards

exceeding a single-digit ratio between punitive and

compensatory damages . . . will satisfy due process.”

Id. at 425. Moreover, “[w]hen compensatory damages

are substantial, then a lesser ratio, perhaps only equal

to compensatory damages,” will comport with due

process. Id. Here, Cole received a substantial

compensatory damages award of $215,943 capped off

by a whopping $3 million punitive award, reflecting a

double-digit ratio of nearly 14 to 1.4

The final guidepost – the difference between the

punitive damages and civil penalties in comparable

cases – likewise confirms the district court’s conclusion

that Cole’s award was excessive. As the district court

The $215,943 compensatory damages total includes Cole’s

award of $75,000 for emotional distress, which the district court

left undisturbed as reasonable under Vermont law.

App. 8a

explained, the two Vermont statutes under which Cole

sued generally authorize fines of several thousand

dollars. The maximum fine under either is $126,749,

and even then only for cases of “willful[ ]” or

“repeated[ ]” offenders. Sp. App’x at 31. Remarkably,

the jury’s punitive damages award was nearly twentyfour times greater than the maximum civil penalties

to which Foxmar was subject. See Fabri v. United Techs.

Int’l, Inc., 387 F.3d 109, 126 (2d Cir. 2004).

In short, there is no real dispute that Cole’s award

was excessive to the point of violating due process.

Rarely will a defendant’s misconduct, even if

egregious, call for a double-digit punitive damages

award. See State Farm, 538 U.S. at 425. Though the

jury presumably concluded that Foxmar’s conduct was

reckless and intentional, it was far from the sort of

repeated and dangerous pattern that could justify so

large a penalty, especially when Cole also secured a

sizable compensatory award.

Third, Cole argues that the district court erred

when it granted Foxmar a new trial without first

giving Cole the opportunity to accept a lower damages

award through remittitur. As a threshold matter, Cole

argues in his reply brief that the district court was

required to offer remittitur because, under Vermont

law, trial courts must give plaintiffs the option of

accepting a lower damages award before ordering a

retrial. But Cole has forfeited that argument since he

failed to raise it in his opening brief. See Cole Br. at

57-58 (challenging remittitur without mentioning

Vermont law); see also JP Morgan Chase Bank v. Altos

App. 9a

Hornos de Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir.

2005). We therefore assume that the federal standard

for granting remittitur applies. See Stampf, 761 F.3d

at 204 (explaining that “[w]hether a new trial or

remittitur should be ordered” shall be determined “by

reference to federal standards developed under Rule

59” (quoting Gasperini v. Ctr. for Humans., Inc., 518

U.S. 415, 435 (1996)).

In our Circuit, when a district court concludes that

a damages award is excessive, it has discretion to

either grant a new trial outright or to first give the

plaintiff the option to accept a lower damages award

through remittitur. See Bracey v. Bd. of Educ. of

Bridgeport, 368 F.3d 108, 119 (2d Cir. 2004) (directing

district court to order a new trial but nevertheless

giving the district court “discretion” to offer the

plaintiff remittitur); see also Lore v. City of Syracuse,

670 F.3d 127, 176-77 (2d Cir. 2012). The district court

acted well within that discretion in declining to offer a

remittitur here. Indeed, the case law is clear that

remittitur should not be offered when the “size of a

jury’s verdict [is] so excessive as to be inherently

indicative of passion or prejudice,” such that the

“remittitur granted is totally out of proportion to the

damages allowed by the district court.” Ramirez v.

N.Y.C. Off-Track Betting Corp., 112 F.3d 38, 40-41 (2d

Cir. 1997) (internal quotation marks omitted) (citing

examples where courts improperly offered remittiturs

of $4.35 million on a $5 million jury award and $1.65

million on a $1.9 million award). Because the punitive

damages award here was so excessive that it would

App. 10a

require a similarly out-of-proportion remittitur, the

district court had good reason to order a new trial

outright.

Finally, we reject Cole’s argument that the district

court abused its discretion when it precluded Cole from

introducing evidence about Foxmar’s alleged

suppression of complaints concerning food safety and

weapons possession. “We review the district court’s

evidentiary rulings under an abuse of discretion

standard, requiring manifest error to disturb them.”

Starter Corp. v. Converse, Inc., 170 F.3d 286, 292 (2d

Cir. 1999) (internal quotation marks omitted). We see

no such error in the district court’s finding that this

evidence was unduly prejudicial under Federal Rule of

Evidence 403. Cole maintains that testimony about

these topics was relevant to punitive damages, as

suppression of complaints beyond Cole’s could

establish a pattern of misconduct warranting punitive

damages. But those complaints – which were about

students getting sick or possessing weapons – were not

similar to Cole’s protests about employee sick leave.

And as the district court explained, evidence about

these complaints risked inflaming the jury, as “pure

propensity evidence to establish that the defendant in

general is a bad employer.” J. App’x at 675. Given the

marginal relevance and high risk of prejudice, the

district court was well within its authority to exclude

testimony about these incidents.

***

App. 11a

We have considered Cole’s remaining arguments

and find them to be without merit. Accordingly, we

AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

[SEAL]

/s/ Catherine O’Hagain Wolfe

App. 12a

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

THOMAS COLE,

Plaintiff,

FOXMAR, INC., d/b/a

EDUCATION AND

TRAINING RESOURCES,

Defendant.

)

Case No.

)

2:18-cv-00220

)

) (Filed Mar. 22, 2022)

)

OPINION AND ORDER DENYING IN PART

AND GRANTING IN PART DEFENDANT’S

MOTION FOR JUDGMENT AS A MATTER OF

LAW OR, IN THE ALTERNATIVE, A NEW TRIAL

(Doc. 131)

Pending before the court is a renewed motion for

judgment as a matter of law or, in the alternative,

motion for a new trial filed by Defendant Foxmar, Inc.,

d/b/a Education and Training Resources. (Doc. 131.)

Plaintiff Thomas Cole brought this suit against

Defendant seeking damages as a result of Defendant’s

termination of Plaintiff ’s employment on July 27,

2018. The jury considered two claims: retaliation in

violation of the Vermont Occupational Safety and

Health Act (“VOSHA”), 21 V.S.A. §§ 201-32, and

retaliation in violation of the Vermont Earned Sick

Time Act (“VESTA”), 21 V.S.A. §§ 481-87, and returned

a verdict for Plaintiff on both claims. It awarded

Plaintiff $215,943 in compensatory damages,

App. 13a

comprised of $55,305 in back pay, $85,638 in front pay,

and $75,000 in emotional distress damages. The jury

also awarded Plaintiff $3 million in punitive damages,

for total damages of $3,215,943. The court entered

judgment on the verdict on August 2, 2021.

Defendant filed the pending motion on August 27,

2021. Pursuant to a stipulated briefing schedule,

Plaintiff opposed the motion on October 29, 2021, and

Defendant replied on November 29, 2021. The court

held oral argument on January 18, 2022, at which time

it took the pending motion under advisement.

Plaintiff is represented by William Pettersen, IV,

Esq. Defendant is represented by Kevin L. Kite, Esq.,

Mara D. Afzali, Esq., Michael D. Billok, Esq., and Paul

J. Buehler, III, Esq.

Factual and Procedural Background.

Defendant is a company that partners with the

U.S. Department of Labor, Office of Job Corps, and local

Workforce Investment Boards for the management

and operation of Job Corps Centers and customized

workforce development programs that serve both

youth and adults. On June 1, 2018, Defendant assumed

management of the Northland Job Corps Center

(“NJCC”) located at 100A MacDonough Drive,

Vergennes,

Vermont.

Prior

Defendant’s

management of NJCC, it was managed by Chugach

Education Services, Inc. (“Chugach”).

App. 14a

Plaintiff was hired as a Residential Counselor

(“RC”) in 2018 under Chugach’s management and was

rehired in that position when Defendant assumed

management of NJCC. As an RC, Plaintiff ’s duties

included interacting with students and overseeing

dormitory maintenance.

Defendant’s employee handbook (the “Handbook”)

identifies job abandonment as a “[d]ischargeable

[o]ffense” and contains an Attendance and Punctuality

policy which notes that “[a]bsence from work for three

(3) consecutive days without notifying your manager

or the Human Resources Department will be

considered a voluntary resignation and job

abandonment.” (Doc. 58-13 at 28, 40.) Although the

Handbook includes an “accountability schedule” that

distinguishes between minor, major, and dischargeable

offenses, it also states that gait management’s

discretion, any violation of policies or any conduct

considered inappropriate or unsatisfactory may

subject the offender to accountability action, up to and

including losing your job.” Id. at 38, 40 (italics omitted).

The Handbook further states:

Employees who do not have an individualized

written employment contract or a collective

bargaining agreement are employed at the

will of the company. This means that you are

free to quit at any time, for any reason, just as

we are free to release you from employment at

any time, for any reason with or without

notice or cause.

App. 15a

Id. at 20. Plaintiff did not have an express

individualized employment contract and was not

covered by a collaborative bargaining agreement.

In dismissing Plaintiff ’s claims for breach of

contract and breach of implied covenant of good faith

and fair dealing claim based on an alleged contract, the

court held that he was an at-will employee as a matter

of law and that the Handbook did not guarantee

progressive discipline. Cole v. Foxmar, Inc., 387

F. Supp. 3d 370, 386 (D. Vt. 2019).

On July 23, 2018, Plaintiff ’s supervisor, Angela

Mobley, assigned him to Dorm 24, which was not his

typical dormitory assignment. The students in Dorm

24 informed Plaintiff and Ms. Mobley that the

dormitory was out of sanitizer and had been for an

unknown period of time. When asked to clean the

dormitory, some of the students told Plaintiff that they

could not perform this task because they were sick.

Plaintiff testified that cleaning supplies were often

missing and RCs were forced to purchase them with

their own money.

At trial, there was evidence that Defendant

required employees to bring safety complaints only

to their direct supervisor, which Howard Harmon,

Defendant’s Executive Vice President and Chief

Operating Officer, testified was motivated in part by

a desire to limit complaints to the United States

Department of Labor (the “DOL”). Correspondingly,

employees were discouraged from making complaints

to the DOL, including with regard to an incident of a

App. 16a

student with a weapon, substandard food quality, and

mold in the dorms. There was also evidence that NJCC

experienced problems in each of these sectors, and Mr.

Harmon himself acknowledged that at the time

Defendant took over NJCC, it was a “mess.” (Tr. 645.)

On the morning of Tuesday, July 24, 2018, Plaintiff

met with Alicia Grangent, NJCC’s Center Director

responsible for overseeing the NJCC campus and the

highest-ranking on-site member of Defendant’s staff.

Plaintiff expressed his concerns about the failure to

properly supply a dormitory with cleaning supplies. He

also complained that RCs were not allowed to leave

work when they were sick, placing students and other

employees at risk. At trial, he testified inconsistently

regarding whether he discussed with Ms. Grangent the

need for sick employees to find their own replacements.

He stated that he overheard Ms. Mobley tell a sick RC

that “[w]e will find somebody so that you can go home.”

(Tr. 152.) (internal quotation marks omitted). Plaintiff

admitted that he had worked while he was sick in the

past and did not believe it was a violation of the law.

Ms. Grangent notified Ms. Mobley and Bernadette

Brookes, the Human Resources Director for NJCC,

about her meeting with Plaintiff and the substance of

his concerns. Ms. Grangent also claimed to have

alerted Defendant’s corporate officers. When Plaintiff

returned to NJCC for his afternoon shift, he saw RC

Paige Howell and another RC, both of whom were sick

and one of whom was lying on a couch in a fetal

position. Plaintiff also felt sick and decided to leave

work. On his way to Ms. Grangent’s office, Plaintiff

App. 17a

encountered Ms. Grangent on campus. They spoke

briefly, and Plaintiff informed her that he was leaving.

When Ms. Grangent asked him to wait to discuss the

matter further, he stated he needed to leave. Plaintiff

then stopped by Ms. Grangent’s office and spoke to her

assistant, Brian Lacharite, to let Mr. Lacharite know

he was leaving and would not be returning to work

that day. Mr. Lacharite testified that on more than one

occasion, Ms. Mobley informed staff to find their own

replacements if they called out sick.

Plaintiff was not scheduled to work on Wednesday,

July 25, 2018, or Thursday, July 26, 2018. On

Wednesday, July 25, 2018, Plaintiff called Defendant’s

Human Resources Department, located at its

corporate headquarters in Kentucky, and left a

voicemail indicating that he was experiencing

difficulties at NJCC and looking for assistance. He

received no response to his voicemail. He also went to

the NJCC campus to speak with Ms. Brookes. He was

unable to speak to her but spoke to her assistant, Mari

Trybendis, and explained he had safety concerns he

wanted to share, including a lack of cleaning supplies

and sick employees working.

On Thursday, Plaintiff called Defendant’s

corporate headquarters a second time and left a

voicemail stating he was having difficulties at NJCC

and was looking for assistance and direction. On the

morning of Friday, July 27, 2018, Plaintiff drafted a

letter to Ms. Brookes and at approximately 9:34 a.m.

emailed it to Ms. Trybendis and to Ms. Grangent.

Plaintiff ’s letter stated:

App. 18a

I met with Northlands Center Director on

Tuesday morning, 7/24/2018 to express my

concerns of oversight on health and wellness

related practices within the Department of

Independent Living.

In particular, I cited a willingness on the

part of the department lead to retain staff

members

for

shift

coverage

after

acknowledging that the staff member had

symptoms of diarrhea, vomiting and

dizziness.

I also spoke of reassignment the previous

evening to a dorm that could be determined

unsanitary. An address of the students by the

Independent Living Coordinator during

accountability resulted in the disclosure that

there were no cleaning chemicals on site, to

include sanitizer, and it was undetermined as

to the length of time that had passed in the

absence of proper sanitizing.

Not feeling well, I departed prior to my shift

and again alerted the Center Director to my

earlier concerns and to the presence of a staff

member laying in the fetal position on a

lounge couch at the time of their arrival for in

briefing.

I believe these conditions present an

unnecessary risk to my personal health and

wellness and negatively impact the over all

confidence in my role and presence within the

Department of Independent Living.

App. 19a

I am asking for the consideration of a job

reassignment out of the Department of

Independent Living.

(Doc. 65-3 at 1.)

On Thursday, July 26, 2018, Ms. Brookes spoke

with Ms. Mobley and told her that Plaintiff had not

contacted her regarding leaving his shift on Tuesday,

July 24, 2018. Ms. Brookes asked Ms. Mobley when

Plaintiff was scheduled to work that week, and Ms.

Mobley responded that Plaintiff missed his scheduled

shifts on Wednesday and Thursday, July 25-26, 2018,

and that he abandoned his shift on Tuesday, July 24,

2018. Because of these absences, Ms. Mobley stated she

believed Plaintiff should be terminated. Ms. Grangent

refused to approve Plaintiff ’s termination and advised

Ms. Brookes and Ms. Mobley that Plaintiff could not be

terminated for job abandonment because he had not

yet missed three days of work.

On Friday, July 27, 2018, at approximately 10:07

a.m., Ms. Brookes emailed Mr. Harmon; Ms. Mobley;

Ms. Grangent; and Scott Dunham, Defendant’s Vice

President,

Center

Operations

Support,

recommending Plaintiff be disciplined and reassigned.

She included a description of Plaintiff ’s conduct over

the course of the preceding week from Ms. Mobley in

her email. Ms. Brookes referred to the fact that when

Chugach operated the NJCC campus, Plaintiff had

been reprimanded for leaving a shift early and for

using inappropriate language with students. Ms.

Brookes wrote that Plaintiff ’s “prior behavior under

App. 20a

Chugach counts for [NJCC] as it relates to interfacing

with the students as they are still here. The

recommended write up has been discarded due to the

contract change but the behavior is still a running

commentary for [NJCC].” Cole v. Foxmar, Inc., 2021 WL

5178822, at *4 (D. Vt. Mar. 8, 2021). Ms. Grangent

replied suggesting discipline but not reassignment and

stated that Plaintiff ’s job abandonment under

Chugach “doesn’t count.” Id.

At 11:21 a.m., Mr. Harmon responded

recommending Plaintiff ’s termination but deferring to

Ms. Brookes and Ms. Grangent for the final decision.

Ms. Brookes responded at 12:12 p.m. that it had been

decided that Plaintiff should be terminated for both job

abandonment and failing to report to work for three

days.

In the afternoon of July 27, 2018, Ms. Brookes met

with Plaintiff to inform him of his termination. During

that meeting, Plaintiff asked Ms. Brookes if she had

read his letter, and she responded that she was

unaware of his letter. Defendant thereafter issued

Plaintiff a termination notice dated July 27, 2018,

which stated that Plaintiff was terminated because

he did not report for his scheduled shifts on Monday,

July 23; Tuesday, July 24; and Wednesday July 25,

2018. The termination notice was signed by Mr.

Harmon, Ms. Mobley, and Ms. Brookes.

On August 20, 2018, Plaintiff contacted Mr.

Harmon to notify him that there were errors in his

termination letter regarding his schedule. Mr. Harmon

App. 21a

told Plaintiff that he was an at-will employee and was

terminated during his probationary period and that,

for this reason, Defendant was not required to provide

him with any reason for his termination.

Ms. Grangent and Ms. Trybendis both testified

that NJCC employees who missed work for one day

without notice were not terminated. In addition, Ms.

Trybendis testified that in at least two other cases,

NJCC employees who had missed more than three

consecutive days without notice were not terminated.

Plaintiff filed a complaint in Vermont Superior

Court in November 2018, and Defendant removed the

case to this court on December 10, 2018. Plaintiff

alleged that the claimed reason for his termination

was false and pretextual and that he was actually

terminated because he complained to his supervisors

regarding health and safety violations he witnessed.

On May 16, 2019, upon Defendant’s motion, the court

dismissed Plaintiff ’s claims for wrongful termination

in violation of public policy, breach of contract, and

breach of implied covenant of good faith and fair

dealing. On March 8, 2021, the court granted in part

and denied in part Defendant’s motion for summary

judgment, dismissing Plaintiff ’s promissory estoppel

claim but allowing his claims for retaliation under

VOSHA and VESTA to proceed.

From July 26, 2021 to July 30, 2021, the court held

a jury trial, at which Plaintiff, Mr. Lacharite, Ms.

Grangent, Ms. Brookes, and Mr. Harmon testified. Ms.

Howell and Ms. Trybendis were unavailable to testify,

App. 22a

and portions of their deposition testimony were read

into the record. Economist Richard Heaps, who

testified for Plaintiff, and economist Charles Amodio,

who testified for Defendant, opined as expert witnesses

on the issues of front pay and back pay. After the close

of evidence, Defendant moved for judgment as a matter

of law, which the court denied. The jury returned a

verdict for Plaintiff on both counts.

II.

Conclusions of Law and Analysis.

A. Whether Defendant is Entitled

Judgment as a Matter of Law.

Defendant argues that it is entitled to judgment

as a matter of law in its favor on each of Plaintiff ’s

claims and on the issue of punitive damages. The court

may grant a motion for judgment as a matter of law

“[i]f a party has been fully heard on an issue during a

jury trial and the court finds that a reasonable jury

would not have a legally sufficient evidentiary basis

to find for the party on that issue.” Fed. R. Civ. P. 50.

Under this standard, a verdict may be set aside

only where there is such a complete absence

of evidence supporting the verdict that the

jury’s findings could only have been the result

of sheer surmise and conjecture, or there is

such an overwhelming amount of evidence in

favor of the movant that reasonable and fair

minded [jurors] could not arrive at a verdict

against him.

App. 23a

Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d

119, 127-28 (2d Cir. 2012) (internal quotation marks

omitted) (quoting AMW Materials Testing, Inc. v. Town

of Babylon, 584 F.3d 436, 456 (2d Cir. 2009)). The court

“must give deference to all credibility determinations

and reasonable inferences of the jury, and may not

weigh the credibility of witnesses or otherwise

consider the weight of the evidence.” Brady v. WalMart

Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008) (internal

quotation marks omitted) (quoting Caruolo v. John

Crane, Inc., 226 F.3d 46, 51 (2d Cir. 2000)).

1. Whether Defendant is Entitled to

Judgment as a Matter of Law as to

Liability.

Defendant argues that Plaintiff ’s retaliation

claims under VOSHA and VESTA fail as a matter of

law. To establish a prima facie case of retaliation, a

plaintiff must establish: (1) the plaintiff was engaged

in a protected activity; (2) the defendant knew of that

activity; (3) plaintiff suffered an adverse employment

action; and (4) a causal connection exists between

plaintiff ’s protected activity and the adverse

employment action. See Cole, 2021 WL 5178822, at

*10-11 (citing Mellin v. Flood Brook Union Sch. Dist.,

790 A.2d 408, 417-18 (Vt. 2001)). “If a plaintiff

establishes a prima facie case, the defendant must

proffer a legitimate, nondiscriminatory reason for its

actions.” Id. at 10 (citing Mellin, 790 A.2d at 418). “If

the defendant sustains this burden, the plaintiff must

prove by a preponderance of the evidence either that

App. 24a

the purported reason was a pretext for retaliation or

that the defendant had mixed motives one of which

was retaliatory and was a but-for cause its decision.”

Id.

A plaintiff may prove pretext “(1) indirectly, by

showing that the protected activity was followed

closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of

fellow employees who engaged in similar conduct; or

(2) directly, through evidence of retaliatory animus

directed against the plaintiff by defendant.” Raniola v.

Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (quoting

Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117

(2d Cir. 2000)). “Under some circumstances, retaliatory

intent may also be shown, in conjunction with the

plaintiff ’s prima facie case, by sufficient proof to rebut

the employer’s proffered reason for the termination.”

Id. (citation omitted); see also Zann Kwan v. Andalex

Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (“A plaintiff

may prove that retaliation was a but-for cause of an

adverse employment action by demonstrating

weaknesses, implausibilities, inconsistencies, or

contradictions in the employer’s proffered legitimate,

non-retaliatory reasons for its action. From such

discrepancies, a reasonable juror could conclude that

the explanations were a pretext for a prohibited

reason.”). Temporal proximity alone is insufficient to

establish pretext. See El Sayed v. Hilton Hotels Corp.,

627 F.3d 931, 933 (2d Cir. 2010) (“[W]ithout more, . . .

temporal proximity is insufficient to satisfy appellant’s

burden to bring forward some evidence of pretext.”). As

App. 25a

Plaintiff points out, he presented evidence of temporal

proximity; disparate treatment of similarly situated

employees; and weaknesses, implausibilities, and

contradictions

Defendant’s

proffered

nondiscriminatory reasons for his termination coupled

with evidence of a corporate culture of suppressing

legitimate safety complaints.

While the Vermont Supreme Court has not

addressed whether, under VOSHA or VESTA, it is

sufficient if a complainant has a good faith, reasonable

belief that the employer is committing a violation of

the law, courts have repeatedly found this satisfies

similar anti-retaliation laws. See, e.g., Treglia v. Town

of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (holding

that, under the Americans with Disabilities Act, a

plaintiff may prevail on a claim for retaliation even

when the underlying conduct complained of was not in

fact unlawful “so long as he can establish that he

possessed a good faith, reasonable belief that the

underlying challenged actions of the employer violated

[the] law”) (alteration in original); Kelly v. Howard I.

Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10,

14 (2d Cir. 2013) (holding that a plaintiff states a prima

facie claim for retaliation under Title VII “so long as

the employee has a good faith, reasonable belief that

the underlying challenged actions of the employer

violated the law”) (citation omitted); cf. Gonzalez v.

Metro-North Commuter R.R., 2020 WL 230115, at *5,

*9-10 (S.D.N.Y. Jan. 15, 2020) (granting defendant

summary judgment on plaintiff ’s retaliation claim

where he lacked a good faith belief that the concerns

App. 26a

he reported related to any unlawful activity by his

former employer).

Defendant argues that no reasonable juror could

conclude that Plaintiff engaged in a protected activity

under VOSHA or VESTA because Plaintiff failed to

establish a good faith, reasonable belief that a

violation of VOSHA or VESTA had occurred. With

regard to Plaintiff ’s VOSHA violation claims,1

Defendant argues that a temporary lack of cleaning

supplies is not a violation of the law and that

Plaintiff ’s testimony that “any workplace has a legal

violation, is breaking the law, if they are temporarily

out of cleaning supplies[,]” (Tr. 265-66), is “patently

absurd[.]” (Doc. 135 at 27.) Defendant asserts that the

reasonableness of Plaintiff ’s belief that a violation

occurred was undermined by his acknowledgment that

cleaning supplies were available in other dorms and

were provided to him when requested.

As for Plaintiff ’s VESTA claim, Defendant

contends that Plaintiff testified that he only

complained about working with sick co-workers, which

VOSHA includes numerous requirements relating to

workplace health and safety, including requirements that an

employer must not provide working conditions that are

unsanitary, hazardous, or dangerous to the health or safety of its

employees. 29 C.F.R. §§ 1925.1; 4.6. An employer must provide

employees with safe and healthful working conditions at their

workplace. 21 V.S.A. § 201. An employer must provide employees

with working conditions that insofar as practicable do not result

in the diminished health of an employee. Id. Finally, an employer

must ensure all places of employment be kept clean to the extent

that the nature of the work allows. 29 C.F.R. § 1910.141(a)(3)(i).

App. 27a

is not a violation of VESTA,2 and made no complaint

about sick employees having to find their own

replacements.3 Although Ms. Grangent testified that

Plaintiff mentioned to her “a piece about having to

find a replacement,” (Tr. 319), and Plaintiff overheard

Ms. Mobley telling another RC she needed to find a

replacement before she could go home on the day he

left his shift early, Defendant asserts that Ms.

Grangent’s testimony was impeached to an extent that

“no reasonable juror could credit her testimony.” (Doc.

135 at 31.)

Defendant further argues that no reasonable juror

could find that retaliation was a but-for cause of

Plaintiff ’s dismissal because the only evidence that

any supervisor was aware of his protected activity was

Ms. Grangent’s testimony, “and she was impeached at

trial on this very point.” Id. at 32 (emphasis omitted).

Defendant claims that the decision-makers who

terminated Plaintiff were unaware of the letter he sent

prior to his termination and were also unaware of his

call to corporate headquarters. Defendant further

challenges the sufficiency of evidence of pretext,

arguing that the irregularities and inconsistencies

surrounding

Plaintiff ’s

termination

were

“understandable” and “reasonable[.]” Id. at 36.

An employee “may use earned sick time” if “ill or injured[,]”

but this is not required. 21 V.S.A § 483(a).

VESTA provides: “An employer shall not require an

employee to find a replacement for absences, including absences

for professional diagnostic, preventive, routine, or therapeutic

health care.” 21 V.S.A. § 483(g).

App. 28a

Defendant contends “Ms. Grangent’s testimony is

essentially worthless” and “Plaintiff ’s testimony is

worthy of no weight at all[,]” while the “overwhelming

majority of the evidence presented at trial warranted

a verdict in [Defendant’s] favor.” (Doc. 140 at 34-35.)

Defendant’s arguments all depend on a re-evaluation

of the credibility of witnesses and require the court to

conclude that certain witnesses must be discredited in

whole or in part. It also asks the court to reweigh the

evidence in the light most favorable to Defendant.

On a motion for judgment as a matter of law, the

court “may not weigh the credibility of witnesses or

otherwise consider the weight of the evidence.” Brady,

531 F.3d at 133 (quoting Caruolo, 226 F.3d at 51). To do

so would intrude on the jury’s role and function. This

is not a case in which there was a “complete absence of

evidence supporting the verdict” or evidence so

unworthy of credibility that “reasonable and fair

minded” jurors could not have reached the same

liability verdict. Bucalo, 691 F.3d at 127-28 (internal

quotation marks omitted) (quoting AMW Materials

Testing, 584 F.3d 456).

For the foregoing reasons, Defendant’s motion for

judgment as a matter of law as to liability is DENIED.

2. Whether Defendant is Entitled to

Judgment as a Matter of Law as to

Punitive Damages.

Defendant argues that punitive damages are

unavailable as a matter of law and the court erred in

App. 29a

sending the issue of punitive damages to the jury. The

jury was instructed that “[i]n this case, punitive

damages pertain only to [P]laintiff ’s claim that

[D]efendant had a policy of requiring sick employees to

find their own replacements before they were allowed

to leave work.” (Tr. 903.) Defendant does not challenge

the substance of the court’s punitive damage

instructions, only the fact that they were given.

“In a diversity action, or in any other lawsuit

where state law provides the basis of decision, the

propriety of an award of punitive damages for the

conduct in question, and the factors the jury may

consider in determining their amount, are questions of

state law.” Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257, 278 (1989). Under Vermont

law, Plaintiff must prove two elements to be awarded

punitive damages “(1) wrongful conduct that is

outrageously reprehensible; and (2) malice.”

Carpentier v. Tuthill, 2013 VT 91, ¶ 12, 195 Vt. 52, 57,

86 A.3d 1006, 1011 (citing Fly Fish Vt., Inc. v. Chapin

Hill Ests., Inc., 2010 VT 33, ¶ 18, 187 Vt. 541, 996 A.2d

1167).

Defendant asserts that “the trial court must

decide whether punitive damages are warranted as a

matter of law before submitting the question to the

jury[.]” (Doc. 135 at 38.) The Vermont Supreme Court

has held that there must be “a showing that

defendants acted with actual malice” before the issue

of punitive damages may be submitted to a jury;

however, the required showing is not that punitive

damages are warranted as a matter of law. Folio v.

App. 30a

Florindo, 2009 VT 11, ¶ 44, 185 Vt. 390, 411, 970 A.2d

1230, 1245. Instead, “if there is evidence which

reasonably supports punitive damages, the trial court

must submit the issue to the jury.” Lent v. Huntoon, 470

A.2d 1162, 1171 (Vt. 1983).

Defendant contends its conduct was not

outrageously reprehensible because forcing employees

to find their own replacements is legal in thirty-four

states without paid sick leave laws4 and pales in

comparison to conduct the Vermont Supreme Court

has found outrageously reprehensible.

This determination of whether wrongful conduct

warrants punitive damages is fact-specific and must

be:

determined by reference to whether: 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.

Shahi v. Madden, 2008 VT 25, ¶ 26, 183 Vt. 320, 334,

949 A.2d 1022, 1034 (internal quotations and citations

omitted).

Evidence was presented at trial that Defendant

required sick employees to work until they found

This evidence was not introduced at trial.

App. 31a

replacements, even though they worked closely with

minor and young adult students entrusted into

Defendant’s care. In addition, there was evidence that

Defendant discouraged employees from making

complaints to the DOL about unsafe conditions or

concerning incidents at NJCC.

A reasonable juror could infer from this evidence

that Defendant had a pattern and practice of

discouraging employees from reporting health and

safety concerns and requiring employees to work

while sick and find their own replacements, which

put employees and students at risk. The question of

whether this was “wrongful conduct that is

outrageously reprehensible[,]” Carpentier, 2013 VT 91,

¶ 12, 195 Vt. at 57, 86 A.3d at 1011, was properly

submitted to the jury, which found that it was.

Defendant argues that none of the individuals

involved in Plaintiff ’s termination acted with malice,

which is “defined variously as bad motive, ill will,

personal spite or hatred, reckless disregard, and the

like.” Fly Fish Vt., Inc., 2010 VT 33, ¶ 18, 187 Vt. at 549,

996 A.2d at 1173. “[Ma]lice may arise from deliberate

and outrageous conduct aimed at securing financial

gain or some other advantage at another’s expense,

even if the motivation underlying the outrageous

conduct is to benefit oneself rather than harm

another.” DeYoung v. Ruggiero, 2009 VT 9, ¶ 27, 185 Vt.

267, 279, 971 A.2d 627, 636. A corporation may be held

liable for punitive damages if the malicious act is “that

of the governing officers of the corporation or one

lawfully exercising their authority, or, if . . . that of a

App. 32a

servant or agent of the corporation, it must be clearly

shown that the governing officers either directed the

act, participated in it, or subsequently ratified it.”

Shortle v. Cent. Vt. Pub. Serv. Corp., 399 A.2d 517, 518

(Vt. 1979).

The Vermont Supreme Court has “incorporate[d]

recklessness as a component of malice” so that

“punitive damages are not limited to intentional

egregious torts only, but can extend to egregious harm

resulting from reckless conduct amounting to malice.”

Fly Fish Vt., Inc., 2010 VT 33, ¶ 25, 187 Vt. at 553-54,

996 A.2d at 1176-77. However, “[t]hat defendants were

in wi[l]lful violation of [the law] or indifferent to

plaintiff ’s’ rights, or both, is not determinative of

malice.” Id. at ¶ 28, 187 Vt. at 555, 996 A.2d at 1177.

“[T]he reckless malfeasance or nonfeasance and its

attendant risk of harm must all be more reprehensible

than simply wrongful or illegal behavior.” Id. at ¶ 25,

187 Vt. at 553, 996 A.2d at 1176. “Misconduct

motivated by fraud, associated with traditional notions

of crimen falsi or moral turpitude or deliberately

oppressive trespass are often sustained as grounds for

punitive damages” while “strict liability offenses, such

as regulatory violations without malice or consumer

fraud without actual intent to deceive, have not been

deemed sufficient to warrant an exemplary award.” Id.

at ¶ 25 n.3, 187 Vt. at 553 n.3, 996 A.2d at 1176 n.3

(collecting cases).

Ainsworth v. Franklin Cnty. Cheese Corp., 592 A.2d

871 (Vt. 1991), is instructive. There, the plaintiff

argued that his employer had “fabricated grounds for

App. 33a

termination solely to deny plaintiff his severance

allowance” and “did so only after plaintiff had worked

in good faith to finish up his work and turn over his

position to a new manager.” Id. at 875. The employer

argued this was insufficient to show malice, but the

Vermont Supreme Court disagreed, finding “[t]his is

the type of conduct that has given rise to an award of

punitive damages in our prior cases” because it “ ‘has

the character of a willful and wanton or fraudulent

tort.’ ” Id. at 874 (emphasis omitted) (quoting Glidden

v. Skinner, 458 A.2d 1142, 1144 (Vt. 1983)) (citing

Appropriate Tech. Corp. v. Palma, 508 A.2d 724, 727

(Vt. 1986)).5 The Ainsworth court noted that “[m]alice

may be inferred from the nature of defendant’s conduct

and the surrounding circumstances” and held that “the

jury could find in this case that [the employer’s]

conduct showed a wanton disregard for plaintiff ’s

rights and was done to oppress.” Id. at 875. It

concluded “[t]here was no error in submitting the

punitive damage issue to the jury.” Id.

Plaintiff ’s theory at trial was similar to that at

issue in Ainsworth. He argued Defendant “fabricated

In Appropriate Tech. Corp. v. Palma, a “company president

knowingly misrepresented [the company’s] finances [to an

employee], and . . . such misrepresentation induced [the

employee] to leave the corporation’s employ[,]” which, in turn,

allowed the company to avoid a payout to the employee under a

stock agreement. 508 A.2d 724, 727 (Vt. 1986). The Vermont

Supreme Court affirmed the lower court’s finding that the

misrepresentation was made “in bad faith and with evil intent”

and demonstrated sufficient malice to support a punitive

damages award. Id.

App. 34a

grounds for [his] termination” in reckless disregard

of his rights. Id. The grounds Defendant gave for

terminating Plaintiff were demonstrably false, and

although Defendant contended this was a mere

mistake, Plaintiff claimed it was a deliberate and

malicious falsehood intended to punish him for his

safety complaints. He pointed out that although Ms.

Brookes claimed to have called him several times,

Defendant lacked phone records that supported this

claim. In addition, the parties cross-designated

portions of the deposition of Ms. Trybendis, wherein

she testified that other employees who had missed

three or more days of work were not terminated.

The master schedule and time records in

Defendant’s possession contradicted its stated reasons

for termination. In addition, Defendant’s former

supervisory employee, Ms. Grangent, testified that she

raised concerns that the stated grounds for Plaintiff ’s

termination were false and alerted management to

Plaintiff ’s safety complaints in a conference call with

corporate officers, including Mr. Harmon, prior to

Plaintiff ’s termination. While Mr. Harmon testified

that he did not realize the termination notice had

errors in it until a week after Plaintiff ’s termination,

he also testified to having a telephone conversation

prior to Plaintiff ’s termination about the need to pay

Plaintiff for his work on Tuesday, although the

termination notice stated he had missed work that day.

The evidence at trial included an email received by Mr.

Harmon prior to Plaintiff ’s termination which showed

that Plaintiff had worked on Monday and Tuesday. Ms.

App. 35a

Grangent testified that she refused to sign the

termination notice because it was false and claimed

Defendant nonetheless knowingly authorized the

termination to proceed.

A reasonable juror could “infer[ ] from the nature

of [D]efendant’s conduct and the surrounding

circumstances” that Defendant “fabricated grounds for

[Plaintiff ’s] termination” in retaliation for Plaintiff ’s

VESTA complaints. Ainsworth, 592 A.2d at 875; see

also Williams v. Regus Mgmt. Grp. LLC, 836

F. Supp. 2d 159, 174 (S.D.N.Y. 2011) (“The factfinder

may disbelieve the defendant’s explanation either

because the facts underlying the explanation are false

or because the explanation is weakened by

inconsistencies or logical flaws.”). The evidence further

reasonably supported a conclusion that Mr. Harmon, a

corporate officer, “either directed the act, participated

in it, or subsequently ratified it.” Shortle, 399 A.2d at

518. In turn, a reasonable juror could conclude that

Defendant committed “a wi[l]lful violation of law in

reckless disregard of [P]laintiff ’s rights” under

VESTA, Fly Fish Vt., Inc., at ¶ 29, 187 Vt. at 555, 996

A.2d at 1178, with misrepresentations that had “the

character of fraud[.]” Follo, 2009 VT 11, ¶ 48, 185 Vt. at

413, 970 A.2d at 1246. This evidence was sufficient to

support the jury’s conclusion that Defendant acted

with “bad motive [and] ill will” in terminating Plaintiff.

Fly Fish Vt., Inc., 2010 VT 33, ¶ 18, 187 Vt. at 549, 996

A.2d at 1173. The jurors were properly instructed

regarding the legal standard for punitive damages and

“are presumed to [have] follow[ed] [the court’s]

App. 36a

instructions.” Zafiro v. United States, 506 U.S. 534, 540

(1993) (internal quotation marks omitted) (quoting

Richardson v. Marsh, 481 U.S. 200, 211 (1987)).

Because there was “evidence which reasonably

supports punitive damages,” there was no error in

submitting the issue to the jury. Lent, 470 A.2d at 1171.

For this reason, Defendant’s renewed motion for

judgment as a matter of law as to punitive damages is

DENIED.

B. Whether Defendant is Entitled to a

New Trial.

Defendant contends that even if it is not entitled

to judgment as a matter of law in its favor, it is entitled

to a new trial. “It is well established that the trial judge

enjoys ‘discretion to grant a new trial if the verdict

appears to [the judge] to be against the weight of the

evidence[.]’ ” Lore v. City of Syracuse, 670 F.3d 127, 17677 (2d Cir. 2012) (first alteration in original) (quoting

Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 433

(1996)). “A district court may grant a Rule 59 motion—

even if some evidence supports the verdict—if the

court determines, ‘in its independent judgment, [that]

the jury has reached a seriously erroneous result or

[its] verdict is a miscarriage of justice.’ ” Crawford v.

Tribeca Lending Corp., 815 F.3d 121, 128 (2d Cir. 2016)

(quoting Nimely v. City of New York, 414 F.3d 381, 392

(2d Cir. 2005) (alterations in original)).

App. 37a

1. Whether the Verdict as to Liability Was

Against the Weight of the Evidence.

Defendant contends the jury’s verdict as to the

VOSHA and VESTA retaliation claims was against the

weight of the evidence because Plaintiff ’s witnesses

were not credible. In considering a motion for a new

trial, “a trial judge should not be quick to revisit a

jury’s credibility determinations, and must proceed

‘with caution and great restraint’ when asked to do so.”

Id. at 128 (quoting Raedle v. Credit Agricole Indosuez,

670 F.3d 411, 418 (2d Cir. 2012)). In this case, the

credibility determinations by the jury were not so

“seriously erroneous” that they resulted in a

“miscarriage of justice.” Id. (quoting Nimely, 414 F.3d

at 392). The court therefore declines to exercise its

discretion to order a new trial on this basis.

2. Whether the Presentation of Allegedly

Inadmissible Evidence Warrants a

New Trial.

Defendant argues that the jury was presented

with inadmissible evidence from witnesses Ms. Howell

and Ms. Grangent. Plaintiff introduced this evidence

as admissions by a party opponent, pointing out that

Fed. R. Evid. 801(d)(2)(D) does not require an employee

to have speaking authority as a prerequisite to a party

admission. See Advisory Committee’s Notes on Fed. R.

Evid. 801(d)(2)(D) (“Since few principals employ

agents for the purpose of making damaging

statements . . . [the rule] favors admitting statements

related to a matter within the scope of the agency or

App. 38a

employment.”). Defendant nonetheless contends the

evidence was irrelevant and unduly prejudicial.

To support a motion for a new trial, the

introduction of evidence must have been “a clear abuse

of discretion” and “so clearly prejudicial to the outcome

of the trial” that the court is “convinced that the jury

has reached a seriously erroneous result or that the

verdict is a miscarriage of justice.” Nimely, 414 F.3d at

399 (quoting Luciano v. Olsten Corp., 110 F.3d 210, 217

(2d Cir. 1997)). The court must be “especially loath to

regard any error as harmless in a close case, since in

such a case even the smallest error may have been

enough to tilt the balance.” Id. at 400 (internal

quotation marks omitted) (quoting Hester v. BIC Corp.,

225 F.3d 178, 185 (2d Cir. 2000)).

Under Fed. R. Evid. 404(b), evidence of other

crimes, wrongs, or acts are “not admissible to prove a

person’s character in order to show that on a

particular occasion the person acted in accordance

with the character[,]” but “may be admissible for

another purpose, such as proving motive, . . . intent, . . .

plan, . . . [or] absence of mistake[.]” Fed. R. Evid.

404(b)(1)-(2). “The Second Circuit evaluates Rule

404(b) evidence under an ‘inclusionary approach’ and

allows evidence ‘for any purpose other than to show a

defendant’s . . . propensity.’ ” United States v. Garcia,

291 F.3d 127, 136 (2d Cir. 2002) (citations omitted).

Ms. Howell testified that on one occasion she was

asked to find her own replacement when she was

absent due to illness for her autoimmune disease. She

App. 39a

stated that she and other RCs raised complaints to

Defendant regarding a lack of cleaning supplies and

mold in the dorms. She claimed felt threatened by

Ms. Mobley’s statements that employees would be

disciplined and reprimanded for missing work and

that these types of statements continued even after

Defendant terminated Ms. Mobley. Ms. Howell

conceded that neither she nor her fellow RCs were

disciplined for their complaints although they were

told that they needed to be “more responsible” and

respect their supervisors. (Tr. 397-98.) They were also

told that it was their fault Ms. Mobley was terminated

and they “needed to stop making petulant complaints

and acting like children[.]” Id.

Because Ms. Howell was unavailable to testify, a

portion of her deposition testimony was admitted

over Defendant’s objection based on the court’s ruling

that Ms. Howell’s testimony was relevant to

Defendant’s retaliatory intent. Defendant argues this

testimony was not probative, lacked foundation, and

was especially prejudicial as Ms. Howell was not

subject to cross-examination at trial, although

Defendant’s counsel questioned her at deposition and

cross-designated portions of her deposition to be read

to the jury.

Prior acts of an employer are admissible for

the purpose of establishing or negating

discriminatory intent because “discrimination

analysis must concentrate not on individual

incidents, but on the overall scenario. . . .

What may appear to be a legitimate

App. 40a

justification for a single incident of alleged

harassment may look pretextual when viewed

in the context of several other related

incidents.”

Solomon v. Uniondale Union Free Sch. Dist., 2007 WL

608137, at *4 (E.D.N.Y. Feb. 16, 2007) (alteration in

original) (quoting Raniola, 243 F.3d at 622). Ms.

Howell corroborated Plaintiff ’s claim that Defendant’s

employees were expected to work when they were sick

and faced disciplinary action if they failed to do so.

The prejudicial impact of this testimony was minimal

as Defendant’s own employee, Mr. Lacharite, testified

that this was also his understanding. The probative

value of this evidence substantially outweighed any

unfair prejudice as it went to the heart of Plaintiff ’s

VOSHA and VESTA claims.

Defendant seeks a new trial with regard to Ms.

Grangent’s testimony about food quality, mold, student

behavioral issues, and the discouragement of reports

to the DOL, which Defendant argues are “far afield of

the issues at trial” and were inadmissible propensity

evidence under Federal Rule of Evidence 404(b). (Doc.

135 at 46.) Ms. Grangent’s testimony, however, was

probative of the context in which Plaintiff ’s alleged

protected activity took place and admissible on the

issue of retaliatory intent. It was limited in scope, and

the court prohibited Plaintiff from expanding this

evidence further. (Tr. 360-65.)

In any event, Ms. Grangent’s testimony did not

solely favor Plaintiff as she admitted that, although

App. 41a

she received a variety of employee complaints, none of

those individuals were terminated for making them.

Defendant argued to the jury that the lack of cleaning

supplies on a single occasion or working while sick

were de minimis events that did not warrant a finding

of liability or damages. Plaintiff was entitled to

demonstrate that these issues were part of a broader

pattern and culture of disregard for employee and

student well-being and unsanitary conditions. See

United States v. Robinson, 702 F.3d 22, 37 (2d Cir.

2012) (holding other acts are admissible if they “arose

out of the same transaction or series of transactions as

the [claims] . . . or if it is necessary to complete the

story of the [claims] on trial”) (quoting United States v.

Carboni, 204 F.3d 39, 44 (2d Cir. 2000)).

The challenged testimony was also admissible

with regard to Plaintiff ’s punitive damages claim, for

which a jury may consider whether “the conduct

involved repeated actions or was an isolated incident.”

Shahi, 2008 VT 25, ¶ 26, 183 Vt. at 334, 949 A.2d at

1034. Evidence that Defendant “had committed

similar acts in the past against others” was therefore

relevant. Carpentier, 2013 VT 91, ¶¶ 17, 23, 195 Vt. at

59-60, 62, 86 A.3d at 1012, 1014; see also Sweet v. Roy,

801 A.2d 694, 710 (Vt. 2002) (holding other bad act

evidence “was admissible on whether to award

punitive damages and on the amount of any punitive

damages”) (citing Devine v. Rand, 38 Vt. 621, 626-27

(1866)); accord BMW of N. Am., Inc. v. Gore, 517 U.S.

559, 577 (1996) (holding “evidence that a defendant

has repeatedly engaged in prohibited conduct while

App. 42a

knowing or suspecting that it was unlawful would

provide

relevant

support”

finding

reprehensibility); TXO Prod. Corp. v. All. Res. Corp.,

509 U.S. 443, 462 n.28 (1993) (noting that “the

existence and frequency of similar past conduct” is

relevant to punitive damages).

In closing arguments, Plaintiff ’s counsel referred

to Ms. Howell’s and Ms. Grangent’s testimony only

in the context of retaliatory animus and punitive

damages. Because the challenged evidence was

properly admitted, relevant, and not unfairly

prejudicial, its presentation to the jury does not merit

a new trial.

3. Whether An Improper Closing

Argument Warrants a New Trial.

Defendant contends that a new trial is warranted

because Plaintiff ’s counsel was allowed to propose a

punitive damages amount for the first time in rebuttal.

At trial, Defendant objected because it would not have

an opportunity to respond to this amount. The court

allowed Plaintiff ’s counsel to request a specific

punitive damages amount and instructed the jury that

“the [D]efendant had no opportunity to address it.”

(Tr. 876.) Defendant declined the opportunity to offer

a sur-rebuttal argument. (Tr. 882.) In its own closing

argument, Defendant told the jury Plaintiff spent “a

lot of time talking about punitive damages. Big dollar

signs[,]” and that Plaintiff was asking for Defendant to

be “punished by paying [Plaintiff ] a massive windfall

App. 43a

. . . [which] doesn’t even merit any consideration.”

(Tr. 864-65.)

“[W]hen the conduct of counsel in argument

causes prejudice to the opposing party and unfairly

influences a jury’s verdict, a new trial should be

granted.” Pappas v. Middle Earth Condo. Ass’n, 963

F.2d 534, 540 (2d Cir. 1992) (citations omitted).

“Obviously not all misconduct of counsel taints a

verdict to such a degree as to warrant a new trial.” Id.

(citing Matthews v. CTI Container Transp. Int’l Inc.,

871 F.2d 270, 278 (2d Cir. 1989)). In the context of

the entire trial, some issues can be “dealt with by the

trial court’s rulings and curative instructions.” Id. But

“the bounds of counsel’s advocacy are circumscribed

by considerations of the prejudice it might engender.”

Id. at 539 (collecting cases).

In general, rebuttal is “an opportunity to respond

to the defense’s arguments in summation[.]” United

States v. Faisal, 282 F. App’x 849, 850 (2d Cir. 2008)

(citing United States v. Rubinson, 543 F.2d 951, 966

(2d Cir. 1976)). Plaintiff ’s claim for punitive damages

was asserted throughout the trial and in his initial

summation, although no dollar amount was requested

until his rebuttal. The Second Circuit “has not adopted

a ban on suggestions of damage amounts[,]” although

it has “expressed concern that lawyers may influence

juries unduly when they mention particular damage

awards.” Ramirez v. New York City Off-Track Betting

Corp., 112 F.3d 38, 40 (2d Cir. 1997) (citing Mileski v.

Long Island Rail Road Co., 499 F.2d 1169, 1172-74 (2d

Cir.1974)). The concern is that “[a] jury with little or no

App. 44a

experience in such matters, rather than rely upon its

own estimates and reasoning, may give undue weight

to the figures advanced by plaintiff ’s counsel,

particularly if he conveys the impression (as

frequently happens) that he speaks on the basis of

extensive trial experience.” Mileski, 499 F.2d at 1172.

Plaintiff ’s counsel stated:

3-1/2 million. That’s what Mr. Cole requests in

this case for punitive damages. Is that enough

to deter a company like [Defendant]? I don’t

know. You use your own judgment. Maybe it’s

too much. I don’t know. Mr. Cole requests 3-1/2

million in order to deter this conduct. Please

feel free to make your own determination on

that and the other damages.

(Tr. 877.)

While the court perhaps should have “specifically

caution[ed] the jury that the dollar figures advanced

by counsel do not constitute evidence but merely

represent argument which the jury is free to disregard

in its deliberations[,]” Mileski, 499 F.2d at 1174,

Defendant did not request this type of curative

instruction, and the court’s contemporaneous

instruction that Defendant had no opportunity to

respond to this amount alerted the jury that Plaintiff ’s

figure was merely a suggestion. Defendant proposed no

further curative instructions and was offered an

opportunity for sur-rebuttal but declined it. See

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1282

(11th Cir. 2008) (holding defendant was not prejudiced

where plaintiff “did not argue punitive damages in his

App. 45a

first closing argument but raised the issue in

rebuttal” because defendant “could have requested a

sur[-]rebuttal, but . . . failed to request an opportunity

to respond on this issue”). The court’s jury instructions

made clear that counsel’s arguments and statements

were not evidence. Against this backdrop, Plaintiff ’s

counsel’s “summation was not so outrageous, [n]or

[was] the [court’s] failure to [further] caution the jury

with respect to it so fundamental an error, as to

mandate [a new trial].” Mileski, 499 F.2d at 1174.

4. Whether the Jury’s Award of

Emotional Damages Was Excessive.

Pursuant to Fed. R. Civ. P. 59, the court has

discretion to “overturn[ ] verdicts for excessiveness

and order[ ] a new trial without qualification, or

conditioned on the verdict winner’s refusal to agree to

a reduction (remittitur).” Lore, 670 F.3d at 177

(alterations in original) (internal quotation marks

omitted) (quoting Gasperini, 518 U.S. at 433).

In considering motions for a new trial and/or

remittitur, “[t]he role of the district court is to

determine whether the jury’s verdict is within

the confines set by state law, and to determine,

by reference to federal standards developed

under Rule 59, whether a new trial or

remittitur should be ordered.”

Stampf v. Long Island R.R. Co., 761 F.3d 192, 204 (2d

Cir. 2014) (alteration in original) (quoting Gasperini,

518 U.S. at 435).

App. 46a

The jury awarded $75,000 in emotional distress

damages, which Defendant argues were “garden

variety,” meaning “the evidence of emotional harm is

limited to the plaintiff ’s testimony, which describes

his or her injuries in vague or conclusory terms, and

fails to relate the severity or consequences of the

injury. These claims typically lack extraordinary

circumstances and are not supported by medical

testimony.” Sooroojballie v. Port Auth. of New York &

New Jersey, 816 F. App’x 536, 546 (2d Cir. 2020)

(citation omitted). Citing non-controlling decisions,

Defendant asserts “garden variety” emotional distress

claims merit awards of $35,000 or less absent

exceptional circumstances. See, e.g., Najnin v. Dollar

Mountain, Inc., 2015 WL 6125436, at *3 (S.D.N.Y.

Sept. 25, 2015) (“ ‘Garden variety’ emotional distress

claims lacking extraordinary circumstances and

without medical corroboration generally merit $5,000

to $35,000 awards. Cases with evidence of debilitating

and permanent alterations in lifestyle may merit

larger awards.”) (citation omitted).

While Plaintiff ’s emotional distress claims are

indisputably of the “garden variety,” the cited cases

are not dispositive. The Second Circuit has affirmed

awards of $125,000 for emotional damages “where

the evidence of emotional distress consisted only of

testimony

establishing

shock,

nightmares,

sleeplessness, humiliation, and other subjective

distress[.]” Lore, 670 F.3d at 177 (internal quotation

marks and citations omitted) (collecting cases).

App. 47a

Moreover, Vermont law is relevant to the

excessiveness determination. See Stampf, 761 F.3d at

204 (quoting Gasperini, 518 U.S. at 435) (holding

district courts must “determine whether the jury’s

verdict is within the confines set by state law”). Under

Vermont law, “an award of damages where exact

computation is impossible” must be upheld “[u]nless

grossly excessive[.]” Lent, 470 A.2d at 1172. The

Vermont Supreme Court has held that it is not possible

to place an exact “monetary value on a person’s sense

of dignity[.]” In re Est. of Peters, 765 A.2d 468, 477

(Vt. 2000). “Calculating damages is the jury’s duty,”

and considering the evidence, “the size of the verdict

alone does not show that the award was entirely

excessive.” Id. at 478 (internal quotation marks and

citations omitted). Although the jury’s award of

emotional damages was substantial, it was not so

excessive that it warrants a new trial.

5. Whether The Jury’s Awards of Back

Pay and Front Pay Were Excessive

and Unsupported By the Evidence

at Trial.

Defendant gains greater traction with its

argument that the jury’s awards of back pay and front

pay were excessive and unsupported by the evidence

at trial. The jury awarded Plaintiff back pay of $55,305

and front pay of $85,638, for a total of $140,943.

Plaintiff had requested a total of $136,716.

App. 48a

In evaluating whether compensatory damages are

excessive under Vermont law, the court “must consider

the evidence in the light most favorable to the damages

found by the jury and uphold the verdict if there was

evidence reasonably supporting it.” Sweet, 801 A.2d at

713. “The general rule for determining damages is that

the jury should estimate the amount within reasonable

limits based upon the evidence before it. Thus, if there

is evidence from which an estimation may be made

with reasonable certainty, a jury has the authority to

make an assessment.” In re Grievance of Brown, 2004

VT 109, ¶ 26, 177 Vt. 365, 375, 865 A.2d 402, 410

(internal quotation marks and citations omitted)

(quoting Benoir v. Ethan Allen, Inc., 514 A.2d 716, 719

(Vt. 1986)). “When front pay is allowed, the damages

must be limited to a reasonable period of time, and the

amount must not be speculative.” Haynes v. Golub

Corp., 692 A.2d 377, 383 (Vt. 1997) (citations omitted).

An award of back pay and front pay may be “too

speculative because it exceed[s] the amount claimed by

plaintiff[.]” Id. In this case, the award of back pay and

front pay exceeded the amount claimed by Plaintiff

and cannot be explained by an adverse tax offset or

Plaintiff ’s post hoc justifications. For example,

Plaintiff suggests that the jury could have concluded

that his salary would have risen higher than the 2.5%

estimated by his expert witness because his expert

witness testified his estimate was conservative.

Plaintiff further argues the jury could have decided

that he would have worked his way up to a higher wage

because a document in evidence listed a maximum

App. 49a

salary for his position higher than his actual salary.

Alternatively, the jury could have decided Plaintiff

would have been promoted to a position with higher

pay based on testimony from Defendant’s expert that

another employee in his position had been promoted.

The mere speculative possibility of a higher salary or

promotion, however, does not provide “reasonable

certainty” of the dollar amount awarded. In re

Grievance of Brown, 2004 VT 109, ¶ 26, 177 Vt. at 375,

865 A.2d at 410 (internal quotation marks and

citations omitted) (quoting Benoir, 514 A.2d at 719).

Defendant contends it was not reasonable for the

jury to award front pay until Plaintiff reached the age

of seventy in 2033 because turnover of RCs at NJCC

was rampant, Plaintiff worked for Defendant for only

a short while and was still in probationary status,

Plaintiff asked for reassignment to a lower-paying

position, and Plaintiff has never held long-term

employment. See Havill v. Woodstock Soapstone Co.,

2004 VT 73, ¶ 29, 177 Vt. 297, 309, 865 A.2d 335, 344

(“[T]he length of employment prior to termination is a

factor bearing on the determination that a front pay

damage award is reasonable and not too speculative.”).

Defendant proffered evidence that prior to his

employment at NJCC, Plaintiff changed jobs on

average once every three years. After his termination,

he changed jobs on average every three months.6

As Defendant points out, there was also evidence that

Plaintiff failed to mitigate his damages, including leaving two

managerial positions with allegedly comparable pay and benefits.

See Bergerson v. New York State Off of Mental Health, Cent. New

App. 50a

In addition, Defendant elicited evidence that

Plaintiff ’s expert witness had not reviewed

Defendant’s contract to operate NJCC and therefore

made assumptions about raises and the duration of

Plaintiff ’s employment that were inconsistent with

that contract.7 Plaintiff counters it was reasonable for

the jury to conclude he would stay at NJCC until age

seventy because his RC position was the best-paying

job he had ever had, was within his chosen profession

and consistent with his educational background, and

he had no incentive to leave.

The court agrees with Defendant that no rational

view of the evidence supports a conclusion that

Plaintiff would have worked at NJCC until he was

seventy. He was sufficiently dissatisfied with his role

as RC to ask for reassignment prior to his termination.

Moreover, nothing in his work history either before or

after his employment with Defendant supported a

conclusion that he would have remained in the same

position throughout his career. There was also

evidence that Plaintiff failed to mitigate his damages

York Psychiatric Ctr., 526 F. App’x 109, 111 (2d Cir. 2013) (“A

plaintiff who, for personal reasons, resigns from or declines a job

substantially equivalent to the one [he or] she was denied has not

adequately mitigated damages. But an employee need not go into

another line of work, accept a demotion, or take a demeaning

position, and a voluntary quit does not toll the back pay period

when it is motivated by unreasonable working conditions or an

earnest search for better employment[.]”) (internal quotation

marks and citations omitted).

Defendant’s contract to run NJCC was guaranteed for only

three years with a three-year renewal period. After five years,

DOL was required to put the contract out to bid.

App. 51a

by resigning from two positions that would have

reduced his damages. More importantly, the awards of

back pay and front pay awarded were not supported by

the evidence and were more than Plaintiff requested,

which, alone, reflects a “seriously erroneous result[.]”

Crawford, 815 F.3d at 128 (quoting Nimely, 414 F.3d at

392). Although the court could order remittitur rather

than a new trial on the issues of back pay and front

pay, the jury’s grossly excessive punitive damages

award renders remittitur inappropriate.

6. Whether the Jury’s Award of Punitive

Damages Was Excessive.

A punitive damages verdict may be set aside “only

if it is ‘manifestly and grossly excessive.’ ” Sweet, 801

A.2d at 715 (quoting Crump v. P & C Food Mkts., Inc.,

576 A.2d 441, 450 (Vt. 1990)). “Grossly excessive” is the

same language used by the Supreme Court to evaluate

whether punitive damages are so excessive that they

violate the Due Process Clause. See State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003)

(“The Due Process Clause of the Fourteenth

Amendment prohibits the imposition of grossly

excessive or arbitrary punishments on a tortfeasor.”);

Gore, 517 U.S. at 568 (“Only when an award can fairly

be categorized as ‘grossly excessive’ in relation to these

interests does it enter the zone of arbitrariness that

violates the Due Process Clause of the Fourteenth

Amendment.”). The Vermont Supreme Court has

applied the Supreme Court’s framework in reviewing

punitive damages awards. See Carpentier, 2013 VT 91,

App. 52a

¶¶ 19-25, 195 Vt. at 60-63, 86 A.3d at 1013-14; but see

Sweet, 801 A.2d at 446-47 (maintaining the Vermont

standard is more deferential to the jury).

Three guideposts assist in the determination of

whether a punitive damages award is grossly

excessive: “(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.” Campbell, 538 U.S. at 418. “[T]he

most important indicium of the reasonableness of a

punitive damages award is the degree of

reprehensibility of the defendant’s conduct.” Gore, 517

U.S. at 575. As to reprehensibility, the court must

consider whether:

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.

Campbell, 538 U.S. at 419; accord Shahi, 2008 VT 25,

¶ 26, 183 Vt. at 334-35, 949 A.2d at 1034.

In this case, Defendant harmed Plaintiff

economically, not physically, although its conduct

App. 53a

evinced a disregard for the health and safety of its

employees and students. There was also evidence of a

corporate

culture

suppressing

legitimate

complaints, and thus sufficient reprehensibility to

support a punitive damages award.

On the other hand, Defendant’s conduct was

limited in scope and duration, Plaintiff was a

probationary employee, and Defendant was in the

process of trying to reestablish higher standards at a

facility which it recently took over and conceded was a

“mess.” (Tr. 645.) Defendant pointed out that it was

Plaintiff ’s responsibility as an RC to ensure there were

sufficient cleaning supplies and further argued

Plaintiff ’s conduct in leaving his shift and a dormitory

of students unattended at a time when NJCC was

understaffed posed its own safety risks. In addition,

although Plaintiff proffered sufficient evidence of

malice to submit the question to the jury, Defendant

countered with evidence of good faith mistakes in

Plaintiff ’s termination notice coupled with evidence

that Plaintiff ’s employment status was at will.

Defendant presented evidence of non-retaliatory

reasons for Plaintiff ’s termination, including

abandonment of his shift and prior discipline while

NJCC was operated by Chugach. It proffered evidence

that notwithstanding claims about a culture of

suppressing complaints, there was no evidence that

other employees had been disciplined or terminated on

that basis. Finally, Defendant presented evidence that

Ms. Grangent, Plaintiff ’s primary witness against

App. 54a

Defendant, may have been motivated to testify falsely

because Defendant terminated her employment.

On balance, Defendant’s conduct does not support

the amount of punitive damages awarded, which

reflects a high degree of reprehensibility and virtually

no mitigating circumstances. As media outlets

reported, this was one of the largest employment

verdicts in Vermont history, see Doc. 135 at 60

(collecting news articles), even though the facts and

circumstances of this case did not shock the conscience

or fall so far outside accepted norms that they

mandated severe punishment and substantial

deterrence.

The ratio of punitive to compensatory damages in

this case, 13.9 to 1, also supports a conclusion that the

jury’s punitive damages award was excessive. While

there is no “bright-line ratio which a punitive damages

award cannot exceed . . . in practice, few awards

exceeding a single-digit ratio between punitive and

compensatory damages, to a significant degree, will

satisfy due process.” Campbell, 538 U.S. at 425.

Vermont law does not “impos[e] a ratio requirement[,]”

in part because to do so “would improperly hamper the

punitive function of the award[,]” Pezzano v. Bonneau,

329 A.2d 659, 661 (Vt. 1974); however, the Vermont

Supreme Court has considered the ratio to be a

relevant metric in determining whether punitive

damages are excessive. See Carpentier, 2013 VT 91,

¶ 24, 195 Vt. at 62, 86 A.3d at 1014 (considering ratio

between compensatory and punitive damages “to the

extent . . . relevant”); Appropriate Tech. Corp., 508 A.2d

App. 55a

at 727 (holding that “[p]unitive damages need not

bear any relationship to the underlying compensatory

damage award” but the ratio of compensatory damages

to punitive damages is “[n]evertheless” relevant in

determining whether punitive damages award should

be vacated on appeal). “Single-digit multipliers are

more likely to comport with due process,” although:

ratios greater than [single digits] may

comport with due process where a

particularly egregious act has resulted in only

a small amount of economic damages. . . . The

converse is also true, however. 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.

The precise award in any case, of course, must

be based upon the facts and circumstances of

the defendant’s conduct and the harm to the

plaintiff.

Campbell, 538 U.S. at 425 (internal quotation marks

and citations omitted).

In cases in which the Vermont Supreme Court

has upheld ratios greater than a single digit, the

compensatory damages have been relatively small

and the conduct “particularly egregious[.]” Id.

(internal quotation marks omitted). For example, in

Sweet v. Roy, the Vermont Supreme Court upheld a

10-to-1 ratio where compensatory damages were

$10,000. 173 A.2d at 715. In Sweet, the jury found

defendants had attempted “to evict plaintiff by force or

App. 56a

other self-help means” and there was evidence that

defendants were engaged in a longstanding and

ongoing campaign of self-help evictions in the trailer

park they owned, which included throwing rocks

through trailer doors, pouring water in fuel lines,

breaking windows, and cutting electrical lines. Id. at

699-700. The Vermont Supreme Court found the jury

“faced a strong need to fashion a punitive damage

award that would deter defendants’ ongoing illegal

conduct and scheme and prevent further harm to park

residents. In addressing this need, it had compelling

evidence that a smaller punitive damage award, levied

in 1986, had not deterred the misconduct.” Id. at 715.

The only case Plaintiff cited in which the Vermont

Supreme Court upheld a ratio greater than 13.9-to-1

is Pezzano v. Bonneau, in which the ratio was 25 to 1.

329 A.2d at 660. However, there, the compensatory

damages were only $300 and, in addition to

maliciously converting the plaintiff ’s car, the

defendant falsely told police that the plaintiff stole the

car and was dealing drugs. Id.

In this case, the amount of compensatory damages

was “substantial,” but unsupported by the evidence

and in excess of the amount Plaintiff requested. This

alone suggests the jury made decisions based on

factors external to the evidence presented. In turn,

Defendant’s reprehensible conduct was limited in time

and scope and was not apparently part of a broader

context of disciplining or terminating employees with

retaliatory intent. Campbell, 538 U.S. at 425. The jury

was not presented with any evidence that prior

App. 57a

adverse verdicts had failed to deter Defendant’s

conduct.

The third factor is “the difference between the

punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases.”

Campbell, 538 U.S. at 418. The parties both cite what

they consider comparable cases, primarily in federal

courts, but “on the issue of excessiveness, comparing

punitive damage awards in other cases where

employers were found liable for discrimination and/or

retaliation, is of limited utility because a wide range of

awards have been upheld.” Mugavero v. Arms Acres,

Inc., 680 F. Supp. 2d 544, 589-90 (S.D.N.Y. 2010) (citing

Hill v. Airborne Freight Corp., 212 F. Supp. 2d 59, 77

(E.D.N.Y. 2002) (collecting cases upholding punitive

awards between $10,000 and $1.25 million) (alteration

omitted)).

As Plaintiff observes, Defendant could have

proffered evidence of its financial status and chose not

to do so. This lack of evidence, however, only goes so far.

It does not mean the jury’s punitive damages award is

not cabined by any restraints. A relevant metric in this

case is the civil penalties authorized by VOSHA and

VESTA. See Campbell, 538 U.S. at 418. An employer

who violates VESTA “shall be fined not more than

$5,000.00.” 21 V.S.A. § 345; see also 21 V.S.A. § 483(m)

(“An employer who violates [VESTA] shall be subject

to the penalty provisions of [21 V.S.A. § 345].”); Vt.

Admin. Code 13-5-13(a) (“An employer who violates

[VESTA] shall be fined not more than $5,000.00 per

violation.”). An employer who “willfully or repeatedly

App. 58a

violates” VOSHA “may be assessed a civil penalty of

not more than $126,749.00[.]” 21 V.S.A. § 210. The

jury’s punitive damages award dwarfs these civil

penalties which reflect the Vermont Legislature’s

determination of an appropriate punishment.

“Punitive-damage awards are subject to

constitutional scrutiny because due process demands

‘that a person receive fair notice not only of the conduct

that will subject him to punishment, but also of the

severity of the penalty that a State may impose.’ ”

Shahi, 2008 VT 25, ¶ 25, 183 Vt. at 334, 949 A.2d at

1033 (quoting Gore, 517 U.S. at 574). Here, the jury’s

award of $3 million in punitive damages was so

“manifestly and grossly excessive[,]” Sweet, 801 A.2d at

715 (internal quotation marks omitted) (quoting

Crump, 576 A.2d at 450), under both Vermont law and

the Due Process Clause, that it must be set aside.

Although the court is reluctant to intrude upon the

province of the jury, it must do so when necessary to

prevent “a miscarriage of justice” that would

undermine confidence in the courts. Crawford, 815

F.3d at 128 (quoting Nimely, 414 F.3d at 392). The

jury’s award of punitive damages was beyond “the

outermost limit of the due process guarantee[,]”

Campbell, 538 U.S. at 425, and Defendant is therefore

entitled to a new trial on the issue of punitive

damages.

App. 59a

7. Whether the Court Should Order

Remittitur.

“If a district court finds that a verdict is excessive,

it may order a new trial, a new trial limited to

damages, or, under the practice of remittitur, may

condition a denial of a motion for a new trial on the

plaintiff ’s accepting damages in a reduced amount.”

Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d

Cir. 1995) (citing Phelan v. Loc. 305 of the United Ass’n

of Journeymen & Apprentices of the Plumbing &

Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir. 1992)).

“[W]hether a new trial or remittitur should be ordered”

is to be determined “by reference to federal standards

developed under Rule 59[.]” Stampf, 761 F.3d at 204

(quoting Gasperini, 518 U.S. at 435).

“A remittitur should be granted only where the

trial has been free of prejudicial error.” Ramirez, 112

F.3d at 40 (citing Werbungs Und Commerz Union

Austalt v. Collectors’ Guild, Ltd., 930 F.2d 1021,

1027-28 (2d Cir. 1991)). “If, instead, the record

establishes that the jury’s verdict on damages was not

only excessive but was also infected by fundamental

error, remittitur is improper” and the court should

order “a new trial on damages.” Id. In some cases, “the

size of a jury’s verdict may be so excessive as to be

‘inherently indicative of passion or prejudice’ and to

require a new trial.” Id. at 4041 (citing Auster Oil &

Gas, Inc. v. Stream, 835 F.2d 597, 603 (5th Cir. 1988)).

“The cases in which the jury’s award is seen to

reflect prejudice, however, are generally limited to

App. 60a

those in which the remittitur granted is totally out of

proportion to the damages allowed by the district

court”; for example, where the “district court ordered

$4.35 million remittitur after jury awarded $5 million”

or where the “district court ordered $1.65 million

remittitur after jury awarded $1.9 million[.]” Id. at 41

(citing Auster Oil & Gas, Inc., 835 F.2d at 603; Wells v.

Dallas Indep. Sch. Dist., 793 F.2d 679, 683-84 (5th Cir.

1986)).

Because of the grossly excessive award of punitive

damages in this case, coupled with awards of back pay

and front pay unsupported by the evidence, any

remittitur ordered by the court may be “totally out of

proportion to the damages allowed[.]” Id. Remittitur is

thus inappropriate, and the court must hold a new

trial.

While Rule 59 “permits partial retrial of distinct

issues, . . . the trial court must examine whether a

jury’s award of damages and its finding of liability are

sufficiently separate to allow a partial new trial[.]”

Akermanis v. Sea-Land Serv., Inc., 688 F.2d 898, 906

(2d Cir. 1982) (citing Gasoline Prods. Co. v. Champlin

Refin. Co., 283 U.S. 494, 500 (1931) (“Where the

practice permits a partial new trial, it may not

properly be resorted to unless it clearly appears that

the issue to be retried is so distinct and separable from

the others that a trial of it alone may be had without

injustice.”)). Liability in this case is sufficiently distinct

from damages that a new trial limited to the issu

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