                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


STATE OF ARIZONA; TERRY L.                No. 11-17484
GODDARD, Attorney General for the
State of Arizona; ARIZONA                    D.C. No.
DEPARTMENT OF LAW, Civil Rights           4:08-cv-00441-
Division,                                     MWB
                 Plaintiffs-Appellees,

ANGELA AGUILAR,                             OPINION
     Intervenor-Plaintiff–Appellee,

                  v.

ASARCO LLC,
           Defendant-Appellant.


      Appeal from the United States District Court
               for the District of Arizona
      Mark W. Bennett, District Judge, Presiding

                  Argued and Submitted
        June 12, 2013—San Francisco, California

                 Filed October 24, 2013
2               STATE OF ARIZONA V. ASARCO

Before: Diarmuid F. O’Scannlain and Andrew D. Hurwitz,
 Circuit Judges, and James K. Singleton, Senior District
                        Judge.*

              Opinion by Judge O’Scannlain;
 Partial Concurrence and Partial Dissent by Judge Hurwitz


                           SUMMARY**


            Employment Law / Punitive Damages

   The panel vacated the district court’s award of punitive
damages in a Title VII sexual harassment suit where the jury
awarded no compensatory damages and only one dollar in
nominal damages.

    The panel held that although the degree of
reprehensibility of the defendant’s conduct supported a
substantial punitive damages award, and the district court’s
$300,000 award matched the Title VII damages cap, the
award was constitutionally excessive in light of the fact that
the ratio of punitive to compensatory damages was 300,000
to 1. The panel held that the highest punitive award
supportable under due process was $125,000 because it was
the highest award that maintained the required “reasonable
relationship” between compensatory and punitive damages,


    *
   The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              STATE OF ARIZONA V. ASARCO                      3

and nonetheless was on the order of the damages cap in Title
VII and proportional to the reprehensibility of the defendant’s
conduct. The panel ordered that on remand, the district court
could order a new trial unless the plaintiff accepted a
remittitur to $125,000.

    Concurring in part and dissenting in part, Judge Hurwitz
agreed with the majority that the defendant’s conduct was
reprehensible and warranted punitive damages. He also
agreed with the majority that a single-digit ratio between
punitive and compensatory damages was not constitutionally
mandated. Judge Hurwitz wrote that he nonetheless would
affirm the district court’s judgment in its entirety because the
punitive damages award fell within the statutory cap on
damages in Title VII.


                         COUNSEL

David T. Barton, Quarles & Brady LLP, Phoenix, Arizona,
argued the cause and filed a brief for the appellant. With him
on the briefs were Eric B. Johnson and Brian A. Howie,
Quarles & Brady LLP, Phoenix, Arizona.

Jenne S. Forbes, Waterfall, Economidis, Caldwell, Hanshaw
& Villamana, P.C., Tucscon, AZ, argued the cause and filed
a brief for appellees. With her on the briefs were Thomas C.
Horne, Ann Hobart and Leslie Ross, Assistant Attorneys
General, Phoenix, Arizona.
4             STATE OF ARIZONA V. ASARCO

                         OPINION

O’SCANNLAIN, Circuit Judge:

    We must decide whether the Constitution permits a six-
figure punitive damage award in a sexual harassment suit
where the jury awarded no compensatory damages and only
one dollar in nominal damages.

                              I

    ASARCO is a large copper mining and refining company.
One of its many facilities is the Mission Mine Complex,
located in Sahuarita, Arizona, about thirty miles south of
Tuscon. This facility includes both a mine and a mill, where
copper ore is crushed, filtered and refined.

    Angela Aguilar began working at the Mission mill facility
on December 19, 2005. Including a leave of absence, Aguilar
worked at the mill facility until November 8, 2006. During
that time, Aguilar alleges that she was subjected to sexual
harassment, retaliation, and constructive discharge.

                              A

     The first alleged occurrence of sexual harassment began
on March 19, 2006, when Aguilar became a car loader at the
filter plant. Her supervisor in this role was Wayne Johnson.
Johnson was a large man—6'2" and about 350 pounds—and
according to Aguilar he made it known “at the start” that he
was romantically interested in her. Aguilar testified that
Johnson asked her out in some fashion “every day” and
refused to train or to help her when she rejected him. Aguilar
also claimed at trial that Johnson, when she asked for help,
                STATE OF ARIZONA V. ASARCO                           5

would “stand[] right on top” of her and press up against her.
She claimed that she was afraid that Johnson might rape her.1

    According to Aguilar, her complaints about Johnson
initially fell on deaf ears. She stated at trial that she
complained to ASARCO’s Human Resources Department
(“HR”) about Johnson’s behavior several times and was told
that there “is nothing [ASARCO] could do” and that Aguilar
had to “handle it [herself].” The mill manager, Sam
Lawrence, acknowledged that Aguilar complained to him
about Johnson. Lawrence stated that he told Johnson to end
his advances, and a week later, upon learning that Johnson
had not stopped, threatened him with disciplinary action and
the loss of his job. To “get away from” Johnson, Aguilar
eventually bid for, and received, a promotion to another crew,
where she started working on April 23, 2006.

                                  B

    While Aguilar was working at the filter plant, there was
no functioning women’s restroom in the building. ASARCO
had rented a portable toilet, a “porta-potty,” for Aguilar’s use.
According to Aguilar, immediately after the toilet was put up,
it was vandalized with pornographic graffiti directed at her.
Even after the toilet was replaced, the graffiti was apparently
replicated on the replacement. Aguilar claimed that she
reported the graffiti to the HR department, to mill supervisor


  1
    ASARCO characterizes Aguilar’s interactions with Wayne Johnson
quite differently. It highlights that, when Aguilar met with HR about
Johnson, contemporaneous notes of that meeting reveal that Aguilar told
HR that Johnson “ha[dn’t] touched her” and was “a complete gentlemen.”
It also points out that Aguilar wrote, in December 2006 notes, that
Johnson’s behavior was a “small problem.”
6                STATE OF ARIZONA V. ASARCO

Gary Schwartzberg, and to mill manager Sam Lawrence.
There is no evidence that the situation was promptly
remedied and photos show that visible pornographic graffiti
remained on the toilet as late as 2007.2

                                    C

    On June 18, 2006, Aguilar became a rod and ball mill
person, which took her from the filter plant to the main mill
building. In Aguilar’s crew was Julio Esquivel, a
“distributed control systems operator.” Although he was not
her direct supervisor, Aguilar reported to him and he
maintained some authority over her day-to-day work.

    Before Aguilar even had started in her new position,
Esquivel warned, “your ass is mine” and told her that he
would be spending more time with her than his “lady.”
According to Aguilar, Esquivel was often giving her
conflicting orders, snapping his fingers at her, telling her to
“watch herself,” yelling at her, and threatening her with
termination. ASARCO responded to this testimony at trial by
attempting to show that, as awful as Esquivel was toward
Aguilar, it was not motivated by her sex but instead by his
general boorishness.

    As a result of Esquivel’s reputation as a “rude bully” who
“yelled at everybody,” at least one manager at ASARCO did
not feel the need to act in response to Aguilar’s complaints.
In July, Aguilar asked for a leave of absence to deal with
personal problems relating to the custody of her children.
She took that leave in September of 2006 and did not return

 2
   The graffiti in the 2007 photographs is pornographic, but it is partially
painted over and does not appear to be the graffiti described by Aguilar.
                STATE OF ARIZONA V. ASARCO                             7

until November 1st. When she returned, she was placed on
a different crew. Aguilar worked four more days and then
quit ASARCO for good.

                                   D

    On March 21, 2008, Arizona filed suit in Pima County
Superior Court against ASARCO on behalf of Aguilar and the
state. Aguilar later filed her own suit, alleging sexual
harassment under Title VII, retaliation and constructive
discharge, relying on the same underlying facts. These
proceedings were consolidated and removed to the United
States District Court for the District of Arizona.

    Aguilar’s allegations were tried over eight days. The jury
found ASARCO liable on the sexual harassment claims but
not on the constructive discharge or retaliation claims.
Critically, the jury did not find any compensatory damages
for Aguilar, instead awarding her one dollar in nominal
damages for the sexual harassment claim. The jury also
awarded her $868,750 in punitive damages.

    ASARCO moved for judgment as a matter of law or, in
the alternative, for a new trial, arguing that the punitive
damages awarded were statutorily and unconstitutionally
excessive.3 The district court ordered that the punitive
damages be reduced to $300,000, which is the statutory
maximum under Title VII for an employer of ASARCO’s
size. 42 U.S.C. § 1981a(b)(3)(D). However, the district court


 3
   ASARCO also raised several other issues on appeal, which we address
in a memorandum disposition filed concurrently with this opinion. In that
memorandum disposition, we also address whether the district court erred
in awarding attorneys fees to Aguilar.
8             STATE OF ARIZONA V. ASARCO

held that these damages were not constitutionally excessive,
and declined to reduce them any further.

    ASARCO timely appealed.

                               II

     In 1996, the seminal Supreme Court case BMW of North
America, Inc. v. Gore, 517 U.S. 559 (1996), changed the
landscape of the law of punitive damages. Gore held that a
punitive damages award which was grossly excessive could
violate “[e]lementary notions of fairness enshrined in our
constitutional jurisprudence.” Id. at 574. In Gore, the
Supreme Court laid out three “guideposts” for determining
excessiveness: (1) “the degree of reprehensibility of the
defendant’s conduct”; (2) “[the] ratio to the actual harm
inflicted on the plaintiff”; and (3) “civil or criminal penalties
that could be imposed for comparable misconduct.” Id. at
575–83. These guideposts need not be “rigidly or exclusively
applied”; they merely provide a framework and must be
viewed in the context of the case. In re Exxon Valdez,
472 F.3d 600, 613 (9th Cir. 2006). Our analysis in this case
is further guided both by the only other Ninth Circuit case to
address the Gore guideposts where the jury had only awarded
nominal damages, Mendez v. County of San Bernardino,
540 F.3d 1109 (9th Cir. 2008), and by cases which have
considered the Gore guideposts in the context of
discrimination suits.

    We review the district court’s application of these
principles to the jury’s award de novo. Id. at 1120. The
district court’s findings of fact, however, are reviewed for
clear error. Id.
              STATE OF ARIZONA V. ASARCO                      9

                               A

    “Perhaps the 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. In determining the reprehensibility of conduct, the
Court has instructed lower courts to 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.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
419 (2003). On appeal, ASARCO attempts to run through
each State Farm “subfactor” and to demonstrate that each one
militates toward reduced reprehensibility. In evaluating these
factors, we are cognizant that the goal is to place ASARCO’s
conduct “along a scale, with acts and threats of violence at the
top . . . and finally, [with] acts of omission and mere
negligence [at the bottom].” Mendez, 540 F.3d at 1120
(quoting Swinton v. Potomac Corp., 270 F.3d 794, 818 (9th
Cir. 2001)) (internal quotation marks omitted). In making
this determination, we are bound by the district court’s
findings of fact unless clearly erroneous. See Mendez,
540 F.3d at 1120.

   On the first subfactor, ASARCO argues that the lack of
damages indicates that its conduct caused no harm, much less
10            STATE OF ARIZONA V. ASARCO

any physical harm. We reject this attempt to smuggle the
inquiry for the second Gore guidepost into the first. State
Farm’s direction to look at physical versus economic harm
calls for us to examine the type of conduct at issue, not the
magnitude of harm inflicted. In other words, State Farm’s
first prong stands for the uncontroversial prospect that a
defendant who has risked physical harm to a plaintiff has
generally committed more reprehensible conduct than one
who has risked only economic harm. When understood this
way, ASARCO’s conduct plainly falls into a more serious
category than mere economic harm. This court has
previously noted that “intentional discrimination” is a
“serious affront to personal liberty” and should be considered
high on the reprehensibility scale. Zhang v. Am. Gem
Seafoods, Inc., 339 F.3d 1020, 1043 (9th Cir. 2003) (citing
Romano v. U-Haul Int’l, 233 F.3d 655, 673 (1st Cir. 2000)
(finding that a plaintiff’s termination on the basis of her sex
was “more reprehensible than would appear in a case
involving economic harms only”)).

    With regard to the second subfactor, ASARCO further
relies on the jury’s failure to award compensatory damages to
argue that the district court clearly erred in finding
“indifference or reckless disregard for Aguilar’s health and
safety.” But indifference or recklessness with regard to a risk
is entirely consistent with no damages, if that risk simply
failed to materialize. There is ample evidence in this case to
support the district court’s finding, such as Johnson’s daily
advances, the targeted pornographic graffiti, and Esquivel’s
verbal abuse. The evidence further supports the district
court’s observation that ASARCO repeatedly failed to
remedy these situations. Thus, we disagree that the lack of
damages renders the district court’s finding on this factor
clearly erroneous.
               STATE OF ARIZONA V. ASARCO                      11

    ASARCO argues that the third State Farm
subfactor—financial vulnerability—has no relevance unless
ASARCO targeted Aguilar because of such vulnerability.
This argument relies upon a misreading of In re Exxon
Valdez, 472 F.3d at 617. That case addressed Exxon’s
reprehensibility with regard to the 1989 Exxon-Valdez oil
spill. The court held that Exxon’s reprehensibility was not
increased by this factor simply because financially vulnerable
subsistence fishermen were affected. Id. at 616–17. As the
court stated, there must be “some element of intent to harm
particular individuals or categories of individuals.” Id. at
617. In this case Exxon’s requirement of “intent to harm” is
met. Aguilar was the target of intentional sexual harassment;
she was not a bystander affected by an outpouring of general
negligence like the fishermen in Exxon-Valdez. Indeed, in
order to award punitive damages under Title VII, the jury
necessarily found that ASARCO acted “with malice . . . [or]
with reckless indifference to the federally protected rights of
[Aguilar].” ASARCO is right to a limited extent: Aguilar’s
financial vulnerability is not as significant as it would be if it
had been directly exploited, as in a fraud case. But it is still
relevant that Aguilar was an individual employee of limited
means subject to the recklessness or malice of a large
corporate bureaucracy. See Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261 (11th Cir. 2008) (considering financial
vulnerability prong in Title VII suit for racial discrimination
and retaliation); Bains LLC v. Arco Prods. Co., 405 F.3d 764,
775 (9th Cir. 2005) (considering financial vulnerability prong
in suit by Sikh-owned corporation for racial discrimination).

    ASARCO challenges the district court’s conclusion, on
the fourth State Farm subfactor, that ASARCO’s conduct
“involved repeated actions,” alleging that the “three
incidents” involving different personnel are facially
12            STATE OF ARIZONA V. ASARCO

insufficient to “label a defendant a recidivist.” ASARCO
clouds the waters by characterizing this inquiry as being
about “recidivism”; State Farm makes clear that this sub-
factor goes to establishing the uncontroversial prospect that
“isolated incidents” are less reprehensible than “conduct
involv[ing] repeated actions.” State Farm, 538 U.S. at 419.
There was nothing “isolated” about the conduct here, which
involved repeated harassment by Wayne Johnson,
pornographic graffiti which was not addressed, and cruel
treatment by Esquivel over a lengthy period. Aguilar made
repeated complaints which, as the district court found, went
repeatedly unaddressed.

    Finally, ASARCO even attempts to argue that its conduct
did not involve “intentional malice, deceit, or trickery.” This
argument is in the face of the jury’s finding, noted above, that
ASARCO acted “with malice . . . [or] with reckless
indifference to the federally protected rights of [Aguilar]” and
the district court’s finding that “ASARCO acted with a higher
level of indifference, if not malice.” ASARCO again relies
on Exxon-Valdez, where the court concluded that Exxon’s
reckless conduct “did not result in intentional damage to
anyone” and that this subfactor “militate[d] against viewing
Exxon’s misconduct as highly reprehensible.” In re Exxon-
Valdez, 472 F.3d at 618. But, as the district court’s findings
reveal, ASARCO’s conduct toward Aguilar was targeted,
worse than reckless, and served no possible productive
purpose. See Bains, 405 F.3d at 775 (“An Exxon oil tanker
that performs a socially valuable task can accidently run
aground . . . . By contrast there can be no excuse for
intentional, repeated [] harassment.”). Exxon-Valdez does not
help ASARCO. This factor also supports substantial
damages.
              STATE OF ARIZONA V. ASARCO                   13

    Our analysis of each subfactor reveals that the district
court did not err in concluding that ASARCO’s conduct
supports the imposition of a very large punitive award.
Indeed, many other cases involving lengthy periods of
harassment and discrimination have noted that similar
conduct is highly reprehensible along these dimensions. See,
e.g., EEOC v. AutoZone, Inc., 707 F.3d 824, 839 (7th Cir.
2013) (weighing all five subfactors against employer who
discriminated against disabled employee); Bains, 405 F.3d at
775; Goldsmith, 513 F.3d at 1283 (concluding employer
conduct “was sufficiently reprehensible to support an award
of punitive damages because the harm suffered by [plaintiff]
was not purely economic, [plaintiff] was financially
vulnerable, and the racially offensive comments and conduct
were not isolated.”); Zhang, 339 F.3d at 1044 (“We have no
trouble concluding that the corporate defendants’
discrimination against Zhang was sufficiently
reprehensible.”); Swinton, 270 F.3d at 818 (“In sum, we have
no trouble concluding that the highly offensive language
directed at Swinton, coupled by the abject failure of Potomac
to combat the harassment, constitutes highly reprehensible
conduct.”). We conclude that substantial punitive damages
are constitutionally acceptable in this case.

                              B

    We next turn to the second Gore factor. And although we
concluded that ASARCO’s arguments regarding its
reprehensibility are without merit, its arguments about this
Gore factor stand on stronger ground. The Supreme Court
has noted that “[punitive] damages must bear a reasonable
relationship to compensatory damages.” Gore, 517 U.S. at
580 (internal citations and quotation marks omitted). Further,
the Court has stated that “few awards exceeding a single-digit
14              STATE OF ARIZONA V. ASARCO

ratio between punitive and compensatory damages . . . will
satisfy due process.” State Farm, 538 U.S. at 425.
Nonetheless, the Court has steadfastly refused to create a
bright-line ratio and has emphasized that a higher ratio is
justified when “a particularly egregious act has resulted in
only a small amount of economic damages.” Id.

    The district court in this case approved a punitive award
with a ratio of 300,000 to 1.4 If allowed, it would surely be
among the highest (if not the highest) ratio approved since
Gore changed the landscape and the highest ratio we could
locate in a survey of discrimination cases.5 The highest ratio

  4
    We evaluate the ratio with regard to $300,000, rather than with regard
to the $868,750 that the jury awarded. Other courts have done the same.
See, e.g., AutoZone, Inc., 707 F.3d at 839–40 (utilizing reduced $200,000
figure for ratio rather than $500,000 awarded by jury); MacGregor v.
Mallinckrodt, Inc., 373 F.3d 923, 933 (8th Cir. 2004) (utilizing reduced
$300,000 figure for ratio rather than $829,197 awarded by jury); Romano,
233 F.3d at 673 (utilizing reduced $285,000 figure for ratio rather than
$650,000 awarded by jury).
     5
     See AutoZone, Inc., 707 F.3d at 839–40 (upholding a $200,000
punitive damages award and a $100,000 compensatory damages award);
Trickey v. Kaman Indus. Techs. Corp., 705 F.3d 788, 804 (8th Cir. 2013)
(upholding a $500,000 punitive damages award and a $100,000
compensatory damages award); Equal Employment Opportunity Comm’n
v. Fed. Express Corp., 513 F.3d 360, 377–78 (4th Cir. 2008) (upholding
a $100,000 punitive damages award and an $8,000 compensatory damages
award); Goldsmith, 513 F.3d at 1283 (upholding a $500,000 punitive
damages award and a $54,321 compensatory damages award); Tisdale v.
Fed. Express Corp., 415 F.3d 516 (6th Cir. 2005) (upholding a $100,000
punitive damages award and a $15,000 compensatory damages award);
MacGregor, 373 F.3d at 933 (upholding a $300,000 punitive damages
award and a $170,803 compensatory damages award); Zhang, 339 F.3d at
1044 (upholding a $2,600,000 punitive damages award and a $360,000
compensatory damages award); Bogle v. McClure, 332 F.3d 1347, 1362
(11th Cir. 2003) (upholding a $13,300,000 punitive damages award and
                 STATE OF ARIZONA V. ASARCO                            15

among these cases is the 125,000 to one ratio approved by the
Fifth Circuit in Abner v. Kansas City Southern Railroad Co.6
That is less than half of the ratio at issue here.

    It seems clear, based on the analysis of the State Farm
subfactors, that this is a “particularly egregious act.” State
Farm, 538 U.S. at 425. But even “particularly egregious
acts” are subject to the requirement of reasonableness. The
Supreme Court has repeatedly emphasized the importance of
the ratio inquiry and we cannot cast it aside. Gore, 517 U.S.
at 583 (calling a 500 to 1 ratio “breathtaking” and stating that
it rightly “raise[d] a suspicious judicial eyebrow”); State


a $3,500,000 compensatory damages award); Swinton, 270 F.3d at 819
(upholding a $1,000,000 punitive damages award and a $35,600
compensatory damages award); Zimmerman v. Direct Fed. Credit Union,
262 F.3d 70, 82 (1st Cir. 2001) (upholding a $400,000 punitive damages
award and a $200,000 compensatory damages award); Hampton v. Dillard
Dep’t Stores, 247 F.3d 1091, 1117 (10th Cir. 2001) (upholding a
$1,100,000 punitive damages award and a $56,000 compensatory damages
award); Romano, 233 F.3d at 673 (upholding a $285,000 punitive
damages award and a $15,000 compensatory damages award); Equal
Employment Opportunity Comm’n v. W&O, Inc., 213 F.3d 600, 617 (11th
Cir. 2000) (upholding a $300,000 punitive damages award and a
$36,257.13 compensatory damages award); Deters v. Equifax Credit Info.
Servs., Inc., 202 F.3d 1262, 1273 (10th Cir. 2000) (upholding a $295,000
punitive damages award and a $5,000 compensatory damages award);
Shea v. Galaxie Lumber & Constr. Co., 152 F.3d 729, 736 (7th Cir. 1998)
(upholding a $2,500 punitive damages award and a $1 compensatory
damages award).
  6
     The Fifth Circuit has specifically rejected the applicability of the
“ratio” prong of Gore in any case involving nominal damages. See
Williams v. Kaufman Cnty., 352 F.3d 994, 1016 (5th Cir. 2003) (“[A]ny
punitive damages-to-compensatory damages ‘ratio analysis’ cannot be
applied effectively in cases where only nominal damages have been
awarded.”). This is not the rule in the Ninth Circuit, see Mendez v. County
of San Bernardino, 540 F.3d 1109 (9th Cir. 2008).
16               STATE OF ARIZONA V. ASARCO

Farm, 538 U.S. at 426 (“courts must ensure that the measure
of punishment is both reasonable and proportionate . . .”).
But knowing that the ratio guidepost must inform our analysis
does not tell us what ratio would be appropriate in a given
case.

    So although we conclude that the requirement of a
reasonable relationship between compensatory and punitive
damages suggests that these damages should be reduced, a
third Gore factor must be considered before we can make a
final determination.

                                    C

    The third Gore factor asks us to compare the punitive
damages award to “civil or criminal penalties that could be
imposed for comparable misconduct.” Gore, 517 U.S. at 583.
The district court below relied on Zhang v. American Gem
Seafoods, Inc., 339 F.3d 1020 (9th Cir. 2003), and Swinton v.
Potomac Corp., 270 F.3d 794 (9th Cir. 2001), and held that
it was appropriate to treat Title VII’s damages cap as “a
legislative judgment similar to the imposition of a civil fine.”
Zhang, 339 F.3d at 1044. Although both Zhang and Swinton
were § 1981 cases rather than Title VII cases, the district
court saw them as standing for the idea that punitive awards
below the statutory cap are generally constitutionally
reasonable.7

 7
   Along similar lines, the Fifth Circuit upheld a $125,000 punitive award
in a case involving race-based hostile work environment claims where the
plaintiffs were only awarded $1 in nominal damages, primarily on the
basis of the existence of Title VII’s statutory cap. Abner v. Kansas City
S. R.R. Co., 513 F.3d 154, 164 (5th Cir. 2008). According to the court in
that case, “the combination of the statutory cap and [the] high threshold
of culpability” confined any award to a level tolerated by due process. Id.
                STATE OF ARIZONA V. ASARCO                            17

    ASARCO argues that the statutory cap is not a relevant
“civil penalty” by which to benchmark the punitive award in
this case and that “constitutional questions [cannot] turn on
congressional judgments.” Williams v. ConAgra, 378 F.3d
790, 798 (8th Cir. 2004). These arguments miss the mark.
First, this is clearly a relevant “civil penalty”: the existence of
a statutory cap gives defendants “fair notice . . . of the
severity of the penalty that a State may impose.” Gore,
517 U.S. at 574. Second, Gore’s guidepost specifically
directs courts to look at comparable civil and criminal
penalties. This rule necessarily ensures that constitutional
questions turn in part on congressional judgments.

    Williams, which struck down a $6,063,750 punitive
damages award as unconstitutionally excessive, is not to the
contrary. With respect to the third Gore guidepost, Williams
only suggested that the Title VII cap might not represent an
appropriate benchmark with respect to an award in a § 1981
case. However, this is a genuine Title VII case. The
$300,000 damages cap surely represents an example of a
“legislative judgment[] concerning appropriate sanctions for
the conduct at issue.” Gore, 517 U.S. at 583 (quoting
Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc.,
492 U.S. 257, 301 (1989) (O’Connor, J., concurring in part
and dissenting in part)). We agree with the district court that
this factor weighs in favor of damages at least on the order of
the statutory cap.


According to the court, the only way a Title VII award could offend due
process would be if the statutory cap itself offended due process. Id.
Although certainly the statutory cap and the high threshold of culpability
impact our Gore analysis, no authority supports the Fifth Circuit’s
conclusion that Gore is rendered extraneous by the existence of these
factors in Title VII.
18            STATE OF ARIZONA V. ASARCO

                               D

    Given ASARCO’s highly reprehensible conduct and the
presence of a comparable civil penalty in the form of the Title
VII damages cap, we conclude that the Constitution does not
bar the imposition of a substantial punitive award in this case.
But this does not change the fact that a 300,000 to 1 ratio
raises our “judicial eyebrow[s].” Gore, 517 U.S. at 583.

    In Mendez v. County of San Bernardino, the only other
Ninth Circuit case to address the Gore guideposts where only
nominal damages were awarded, the court held a $250,000
award excessive. Mendez, 540 F.3d at 1122–23. The
defendant in that case, an officer, was found to have
recklessly disregarded the constitutional rights of a Spanish-
speaking woman when he took advantage of her poor grasp
of English and railroaded her into consenting to a search of
her home. Id. at 1116. Mendez was awarded only $1 on each
of her false arrest and illegal search claims but $250,000 in
punitive damages against the officer. The court relied heavily
upon the second Gore guidepost in striking down the award,
noting that the $250,000 figure was “staggering” in light of
the lack of actual damages. Id. at 1122.

    Importantly, the court in Mendez approved the district
court’s remittitur of Mendez’s award to $5,000—a 2,500 to
one ratio, because Mendez involved well in excess of the
traditional ten to one that the Supreme Court has approved.
Id. This provides us with at least some guidance as to how to
reduce this award, and ASARCO argues that we should
follow Mendez’s ratio and remit punitive damages in this case
to $2,500.
              STATE OF ARIZONA V. ASARCO                    19

    We disagree. The court in Mendez noted substantially
less reprehensibility than there was in this case: the court
concluded that the officer’s conduct was closer to mere
accident than to malice, the conduct was an isolated incident,
and the conduct posed no risk to Mendez’s health or safety.
Id. at 1121. Here, all of those factors are reversed, so it
stands to reason that ASARCO’s conduct supports a higher
ratio of damages. Furthermore, the third Gore guidepost was
of no help in Mendez, while here it weighs in favor of a larger
award. Finally, Mendez noted the importance of an award
“sufficient to deter [defendants] from engaging in similar
conduct in the future.” Id. at 1122. A $2,500 award would
clearly be insufficient to deter ASARCO in this case, even
considering the award of $350,903 in attorneys’ fees.

    Although we think a ratio higher than 2,500 to one is
called for by ASARCO’s conduct, the $300,000 awarded was
nonetheless excessive. As we indicated above, no court in a
discrimination case has ever upheld a ratio of punitive
damages to compensatory damages greater than 125,000 to 1.
Many discrimination cases have struck down awards as
constitutionally excessive with substantially smaller ratios.
See Thomas v. iStar Fin., Inc., 652 F.3d 141, 149–50 (2d Cir.
2011) (holding that a $1.6 million punitive damages award,
in comparison to a $280,000 compensatory damages award,
violates due process); Mendez-Matos v. Mun. of Guaynabo,
557 F.3d 36, 55 (1st Cir. 2009) (holding that a $350,000
punitive damages award, in comparison to a $35,000
compensatory damages award, violates due process); Bains,
405 F.3d at 776–77 (holding that a $5 million punitive
damages award, in comparison to a $50,000 compensatory
damages award, violates due process); Williams, 378 F.3d at
798 (holding that a $6,063,750 punitive damages award, in
comparison to a $600,000 compensatory damages award,
20            STATE OF ARIZONA V. ASARCO

violates due process); Lincoln v. Case, 340 F.3d 283, 294 (5th
Cir. 2003) (holding that a $100,000 punitive damages award,
in comparison to a $500 compensatory damages award,
violates due process); Ross v. Kan. City Power & Light Co.,
293 F.3d 1041, 1049 (8th Cir. 2002) (holding that a $120,000
punitive damages award, in comparison to a $6,000
compensatory damages award, violates due process);
Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392,
408 (5th Cir. 2000) (holding that a $750,000 punitive
damages award, in comparison to a $2,500 compensatory
damages award, violates due process).

    Our task in reducing the award is not easy. No bright line
ratio has been set by the Supreme Court for cases which are
“particularly egregious.” State Farm, 538 U.S. at 425. Since
nothing compels a particular dollar figure, we conclude that
the highest punitive award supportable under due process is
$125,000, in accord with the highest ratio we could locate
among discrimination cases. Abner, 513 F.3d at 164. We
think this is the highest award which maintains the required
“reasonable relationship” between compensatory and punitive
damages. Gore, 517 U.S. at 580. This award is nonetheless
on the order of the damages cap in Title VII and proportional
to the reprehensibility of ASARCO’s conduct.

                             III

   We conclude that the punitive damages award of
$300,000 is outside of constitutional limits, so it must be
             STATE OF ARIZONA V. ASARCO                   21

vacated. On remand, the district court may order a new trial
unless the plaintiff accepts a remittitur to $125,000.

   Each party shall bear its own costs on appeal.

   VACATED AND REMANDED for proceedings
consistent with this opinion.



HURWITZ, Circuit Judge, concurring in part and dissenting
in part:

    Judge O’Scannlain’s majority opinion ably navigates the
doctrinal shoals created by the Supreme Court’s
constitutionalization of punitive damages. I agree with the
majority that ASARCO’s conduct was reprehensible and
warranted punitive damages. I also agree with the majority
that a single-digit ratio between punitive and compensatory
damages is not constitutionally mandated in cases involving
nominal damages. I differ from my shipmates only as to the
final port of call. Rather than reduce the punitive damages
award to $125,000, I would affirm the judgment below in its
entirety because the award falls within the statutory cap on
damages in Title VII.

    In BMW of North America, Inc. v. Gore, the Supreme
Court held that a punitive damages award violates due
process if it is “grossly excessive” in relation to the
government’s interests in punishing unlawful conduct and
deterring its repetition. 517 U.S. 559, 568 (1996). The Court
explained that the Due Process Clause of the Fourteenth
Amendment limits punitive damages awards because
“[e]lementary notions of fairness . . . dictate that a person
22            STATE OF ARIZONA V. ASARCO

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.” Id. at 574.

    A properly instructed jury awarded one dollar in nominal
damages and $868,750 in punitive damages against ASARCO
for its reprehensible conduct. The trial judge then reduced
the total award—as required by Title VII—to $300,000,
42 U.S.C. § 1981a(b)(3)(D), but declined to reduce the award
further. The issue is thus whether the $299,999 punitive
damages award “can fairly be categorized as ‘grossly
excessive’ in relation to the” government’s interests in
punishment and deterrence such that “it enter[s] the zone of
arbitrariness that violates the Due Process Clause of the
Fourteenth Amendment.” Gore, 517 U.S. at 568 (internal
quotations omitted). I cannot so conclude.

    The majority, although properly rejecting a single-digit
ratio test in a case with nominal damages, nonetheless
concludes that it must apply some sort of ratio analysis to
comply with Gore. It then finds guidance in a Fifth Circuit
opinion which upheld an award of one dollar in nominal
damages and $125,000 in punitive damages to plaintiffs who
suffered racial discrimination in the workplace. Abner v.
Kan. City S. R.R. Co., 513 F.3d 154, 157 (5th Cir. 2008).

    Abner does provide important guidance, but quite
different than that discerned by the majority. The Fifth
Circuit concluded in that case that ratio analysis should not
apply because, in Title VII cases, Congress has cabined
“discretion in the amount of the award in the most direct
manner possible”: It placed a cap on the permissible
aggregate of compensatory and punitive damages. Id. at 163.
As that court recognized, the issue in a Title VII case is
             STATE OF ARIZONA V. ASARCO                   23

therefore not the ratio between punitive and compensatory
damages, but instead “if the statutory cap itself offends due
process.” Id. at 164.

    Two of our sister circuits have held that the $300,000
statutory cap in Title VII obviates any due process concerns
when the plaintiff has proven egregious conduct. Id. (“[T]he
combination of the statutory cap and high threshold of
culpability for any award confines the amount of the award to
a level tolerated by due process.”); Cush-Crawford v. Adchem
Corp., 271 F.3d 352, 359 (2d Cir. 2001) (“We hold that in
Title VII cases . . . punitive damages may be awarded within
the limits of the statutory caps if the defendant has been
shown to have acted with a state of mind that makes punitive
damages appropriate . . . .”). I agree.

     Mendez v. County of San Bernardino, 540 F.3d 1109 (9th
Cir. 2008), upon which the majority relies, is not to the
contrary. In Mendez, the district court found a $250,000
punitive damages award grossly excessive when only one
dollar in nominal damages was awarded on the plaintiff’s
§ 1983 false arrest and illegal search claims. Id. at 1122.
This court approved the district court’s remittitur of
Mendez’s award to $5,000. Like Abner, Mendez stands for
the proposition that single-digit ratio analysis is not a
talisman in civil rights cases involving nominal damages.
But, unlike this case and Abner, the statute at issue in
Mendez, 42 U.S.C. § 1983, has no cap on punitive damages.
Mendez therefore does not instruct us that ratio analysis is
required in Title VII cases.

    Gore explained that “a reviewing court engaged in
determining whether an award of punitive damages is
excessive should accord substantial deference to legislative
24            STATE OF ARIZONA V. ASARCO

judgments concerning appropriate sanctions for the conduct
at issue.” 517 U.S. at 583 (internal quotations omitted).
Thus, a relevant civil penalty provides the notice necessary to
allow a punitive damages award. Id. at 574. The majority
correctly concludes that the Title VII damages cap is “clearly
a relevant ‘civil penalty.’” Majority Op. at 17 (internal
quotations omitted); see Zhang v. Am. Gem Seafoods, Inc.,
339 F.3d 1020, 1045 (9th Cir. 2003) (holding that Title VII’s
damages cap is “a legislative judgment similar to the
imposition of a civil fine”). This case is therefore analytically
no different than if Title VII gave the trial court the power to
impose a fine not to exceed $300,000 upon finding egregious
conduct. A defendant receiving a fine within the statutory
limits could hardly complain of a due process violation
because of the absence of notice.

     And, although I agree with the analysis in Abner, I find it
problematic that the majority believes that the ceiling of
constitutionally acceptable punitive damages in Title VII
cases has somehow forever been fixed by that opinion.
Would a different result be mandated if the Fifth Circuit in
Abner had upheld a jury award of the full $300,000 allowed
by Title VII? Abner simply affirmed a jury award of
$125,000 in exemplary damages. It did not hold that this
award was the maximum permissible under the Constitution,
let alone that it was forever fixing the constitutional ratio for
punitive damage awards.

    Of course, even absent due process concerns, a district
court should reduce a punitive damages award if unsupported
by the evidence. But the district judge declined to do that
here, and the majority does not suggest he erred on that score.
I would therefore leave the trial court’s considered judgment
undisturbed, and affirm the judgment below.
