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2 PJI 10.1 | PUNITIVE DAMAGES¹

If you have awarded compensatory or nominal damages,² you may also award punitive damages to [plaintiff] under some circumstances. To obtain punitive damages, [plaintiff] must prove by a preponderance of the evidence³ that in [specify adverse action], [defendant]⁴ either knew that its actions violated federal law or acted with reckless or callous⁵ indifference to that risk.⁶ If [plaintiff] satisfies this requirement, it is entirely up to you whether or not to award punitive damages. But it should be presumed that [plaintiff] has been made whole by compensatory damages, so you should award punitive damages only if [defendant’s] culpability is so reprehensible as to warrant further sanctions to achieve punishment or deterrence.<sup>7

8</sup>{The [protected characteristic] discrimination here was on the part of [identify individual(s)]. You may hold [defendant] liable in punitive damages for [his/her/their] conduct only if you find that [defendant] ratified or authorized [his/her/their] actions or that [he/she/they] committed the wrongful conduct while [he/she/they] [was/were] (a) serving in a managerial capacity⁹ and (b) acting within the scope of [his/her/their] employment. In deciding whether [identified individual(s)] [was/were] serving in a “managerial capacity,” you should consider the type of authority [defendant] gave [him/her/them] and the amount of discretion [he/she/they] possessed in what was to be done and how it was to be accomplished. A managerial employee is one who supervises other employees and has responsibility for and authority over a particular aspect of the employer’s business. An employee must be important, but need not be top management or an officer to be acting in a managerial capacity. Conduct is within the “scope of employment” if the conduct is the kind of activity the employee was hired to perform, occurs substantially within the authorized time and space limits and was motivated at least in part by the purpose to serve [defendant].}<sup>10

11</sup>{However, if you determine that [his/her/their] [protected characteristic] discrimination was contrary to [defendant]’s good faith efforts to comply with the federal law forbidding [protected characteristic] discrimination, [plaintiff] is not entitled to punitive damages. In determining the good faith of [defendant], you may consider whether, before the conduct in question, [defendant] instituted policies prohibiting discrimination, and trained its personnel to ensure equal treatment of [appropriate category, e.g., women]. On this issue of good faith, the defendant bears the burden of proof.}

If you decide to award punitive damages, the amount¹² to be awarded is within your sound discretion. The purpose of a punitive damage award is to punish a defendant or deter a defendant and others from similar conduct in the future. Factors you may consider include, but are not limited to, the nature of [defendant]’s conduct (how reprehensible or blameworthy was it),¹³ the impact of that conduct on [plaintiff], the ratio between the actual compensatory damages and the punitive damages,¹⁴ the relationship between [plaintiff] and [defendant], the likelihood that [defendant] or others would repeat the conduct if the punitive award is not made, and any other circumstances shown by the evidence, including any mitigating or extenuating circumstances that bear on the size of such an award.¹⁵ You may determine reprehensibility by considering whether the harm was physical as opposed to economic; whether the conduct showed indifference to or disregard for the health or safety of others; whether the target of the conduct has financial vulnerability; whether the conduct involved repeated actions¹⁶ or was an isolated instance; and whether the harm was the result of intentional malice, trickery, deceit, or mere accident.¹⁷

Footnotes

¹ This instruction is for Title VII, ADA, § 1981, and § 1983 cases. Use Instruction 9.2 for ADEA cases and Instruction 9.4 for Equal Pay Act cases. Punitive Damages are available under 42 U.S.C. § 1981 for racial discrimination, under 42 U.S.C. § 1981a for discrimination prohibited under Title VII and Subchapter I of the Americans with Disabilities Act, and under 42 U.S.C. § 1983 for civil rights discrimination. 42 U.S.C. §§ 1981, 1981a(a), 1983 (2001); Iacobucci v. Boulter,193 F.3d 14, 25-26 & n.7 (1st Cir. 1999) (§ 1983) (holding case law decided under § 1981a applicable to § 1983 Punitive Damages awards); McKinnon v. Kwong Wah Rest.,83 F.3d 498, 507 (1st Cir. 1996) (Title VII) (“[Section 1981a] permits courts to award damages in cases of intentional discrimination... in the same circumstances as such awards are permitted under 42 U.S.C. § 1981 for race discrimination.”). Punitive Damages are not available under § 202 of the ADA, 42 U.S.C. § 12132 (public entity discrimination), § 504 of the Rehabilitation Act, 29 U.S. C. § 794(a) (discrimination by entities that receive federal funding), or Title VI of the Civil Rights Act, 42 U.S.C. § 2000d (racial discrimination in federally funded programs and activities). Barnes v. Gorman,536 U.S. 181, 189-90 (2002).

In any event, Punitive Damages generally are not available against a government, government agency, or a political subdivision. 42 U.S.C. § 1981a(b)(1) (2001); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270-71 (1981) (holding that Punitive Damages are not available in a § 1983 action against a municipality, and noting that similar immunity applied to “other units of state and local government”); Heritage Homes of Attleboro, Inc. v. Seekonk Water Dist.,670 F.2d 1, 1-4 (1st Cir. 1982) (applying the City of Newport holding to § 1981 actions).

The First Circuit has suggested that in the small percentage of mixed motives cases where there is no direct, “unequivocal evidence that the defendant acted at least in part out of a reprehensible motive such as racial or gender discrimination or a clear-cut desire to punish free speech,” “no evidence show[ing] that [the defendant] had any conscious purpose to violate the law,” nor “circumstances [that] are vivid or egregious” because the plaintiff’s “behavior over a substantial period would have given the most tolerant of employers reasons... to be rid of him,” an award of Punitive Damages “would be wrong and close to a miscarriage of justice.” Broderick v. Evans,570 F.3d 68, 74-75 (1st Cir. 2009) (describing the § 1983 employment retaliation case as “very difficult... , prolonged by the lengthy [acrimonious] history between the parties” and affirming a district court’s refusal to submit Punitive Damages to the jury even though “[a]t first blush,... a jury could infer that [an improper retaliatory] purpose... is inherently wicked or reckless”).
² “[T]he law of this circuit is that no Punitive Damages may be awarded in a Title VII case in the absence of an award of compensatory damages or of nominal damages.” Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 237 (1st Cir. 2006). But the First Circuit has recognized that other circuits disagree and has held that this rule does not apply in a § 1983 case. De Jesus Nazario v. Morris Rodriguez,554 F.3d 196, 205 (1st Cir. 2009); see also Cortes-Reyes v. Salas-Quintana,608 F.3d 41, 53 (1st Cir. 2010) (“In a § 1983 action, a jury may properly award Punitive Damages even if it awards no nominal or compensatory damages.”). The First Circuit has not addressed the question in a § 1981 case. Azimi, 456 F.3d at 238.
³ In Pacific Mutual Life Insurance Co. v. Haslip,499 U.S. 1, 23 n.11 (1991), the Supreme Court declined to impose the clear and convincing evidence standard on state Punitive Damages.
⁴ This sentence should be modified as appropriate to satisfy the First Circuit’s view that “the inquiry should focus on the acting party’s state of mind.” Romano v. U-Haul Int’l,233 F.3d 655, 669 (1st Cir. 2000)
⁵ The propriety of the term “callous indifference” may be debated. The statute refers only to “malice” and “reckless indifference” when authorizing Punitive Damages. 42 U.S.C. § 1981a(b)(1) (2001) (providing for Punitive Damages when defendant “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual”); see also Romano v. U-Haul Int’l,233 F.3d 655, 669 (1st Cir. 2000) (Title VII); Marcano-Rivera v. Pueblo Int’l, Inc., 232 F.3d 245, 253-54 (1st Cir. 2000) (ADA) (discussing only “malice” and “reckless indifference”). However, the Supreme Court and the First Circuit have both stated that Congress modeled the Punitive Damages language of § 1981a on the language used in Smith v. Wade,461 U.S. 30 (1983) (§ 1983). see Kolstad v. American Dental Ass’n,527 U.S. 526, 535-36 (1999) (Title VII); Iacobucci v. Boulter,193 F.3d 14, 26 n.7 (1st Cir. 1999) (§ 1983); see also McKinnon v. Kwong Wah Rest.,83 F.3d 498, 507 (1st Cir. 1996) (Title VII) (“The legislative history of the Section notes: Plaintiff[s] must... establish[] that the employer acted with malice or reckless or callous indifference to their rights... to recover Punitive Damages.” (citations omitted)). Smith used the term “callous” as well as “reckless.” Not surprisingly, then, several First Circuit cases have continued to use the “callous indifference” language, despite its absence from the language of § 1981a. Dimarco-Zappa v. Cabanillas,238 F.3d 25, 37 (1st Cir. 2001) (§ 1983) (citing Smith v. Wade,461 U.S. 30, 56 (1983)); Iacobucci, 193 F.3d at 26 (same). There is no indication in the language of any of these opinions that the use or omission of the word “callous” was conscious or significant. Instead, the courts all emphasize the importance of finding that the defendant acted in disregard of a “subjective consciousness” of the risk that his or her conduct might violate federal law. Therefore, in order for a party to object to the use (or omission) of the word “callous” from a jury instruction, that party would have to distinguish cases like Smith, Dimarco-Zappa, and Iacobucci that used the words “reckless” and “callous” Seemingly interchangeably.
⁶ This is a subjective standard, focused on the actor’s state of mind. Powell v. Alexander,391 F.3d 1, 15 (1st Cir. 2004). Moreover, the federal law in question must be the one on which the plaintiff obtained a liability verdict, not some other federal law. Id. at 18 (where claim was for a First Amendment violation, a defendant’s knowledge that her actions might violate the ADA not enough). Evidence of egregious or outrageous acts is not sufficient, but it may be probative if it demonstrates awareness of the risk that the conduct would violate federal law. Id. at 19.
⁷ This language comes from State Farm Mutual Auto Ins. Co. v. Campbell,538 U.S. 408, 419 (2003). The question of reprehensibility is for the jury. see Philip Morris USA v. Williams,549 U.S. 346, 355 (2007); McDonough v. City of Quincy,452 F.3d 8, 24 (1st Cir. 2006).
⁸ The next two bracketed paragraphs of this instruction are for vicarious liability cases. Romano v. U-Haul Int’l, 233 F.3d 655 (1st Cir. 2000) (Title VII), describes Kolstad v. American Dental Ass’n,527 U.S. 526 (1999) (Title VII), as permitting vicarious liability for Punitive Damages in four situations:

(1) when the agent has been authorized by the principal to commit the misconduct in question;
(2) when the principal recklessly employed the unfit agent;
(3) when the agent, acting in a managerial capacity, committed the misconduct within the scope of employment; or,
(4) when the agent’s bad act was subsequently approved the by principal.


233 F.3d at 669. The instruction deals only with situations (3) and (4), the ones most likely to arise. It also reflects the Romano description of a Kolstad limitation: “absolving an employer from liability for Punitive Damages if a good-faith effort to comply with the requirements of Title VII is made.” Id. According to Romano, this is an affirmative defense where the defendant bears the burden of proof: “We hold that a written non-discrimination policy is one indication of an employer’s efforts to comply with Title VII. But a written statement, without more, is insufficient to insulate an employer from punitive damage liability. A defendant must also show that efforts have been made to implement its anti-discrimination policy, through education of its employees and active enforcement of its mandate.” Id. at 670 (citations omitted); see also Kolstad, 527 U.S. at 544-46 (outlining the justification for the “good faith effort” safe harbor).

The First Circuit has not addressed the issue of whether Punitive Damages are appropriate where the harassment was by a coworker. The circuits that have addressed this issue have permitted the availability of Punitive Damages where the harassment was inflicted by a coworker. see Swinton v. Potomac Corp.,270 F.3d 794, 811 (9th Cir. 2001), cert. denied, 122 S. Ct. 1609 (2002) (in coworker harassment case the court found that employer failed to implement its antidiscrimination policy in good-faith where employee charged with carrying out the policy failed to take corrective action after employee complained of harassment. The court opined that: “[the employer] made a considered judgment to place responsibility for reporting on an employee’s direct supervisor. It could well have required some other supervisor or manager further up the chain to be the point of contact.”); Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1271 (10th Cir. 2000) (plaintiff sexually harassed by co-workers complained to manager designated to receive such reports, but manager failed to act on those complaints, and court held that employer could be liable for Punitive Damages and not avail itself to Kolstad’s “good faith” defense because the very person the company entrusted to act on complaints of harassment failed to do so). But see Cooke v. Stefani Mgt. Servs., Inc., 250 F.3d 564, 568-69 (7th Cir. 2001) (where sexual harasser was plaintiff’s direct supervisor court refused to allow Punitive Damages because “common sense should have led [plaintiff] to report the harassment to someone superior to [her harassing supervisor] in the chain of command” even though harassment policy directed to report incidents of harassment to manager).
⁹ Kolstad v. American Dental Ass’n,527 U.S. 526 (1999) (Title VII), said that there is “no good definition” of this term, that it involves “a fact-intensive inquiry,” quotes a treatise that “[i]n making this determination, the court should review the type of authority that the employer has given to the employee, the amount of discretion that the employee has in what is done and how it is accomplished” and concludes by saying: “Suffice it to say here that the examples provided in the Restatement of Torts suggest that an employee must be ‘important,’ but perhaps need not be the employer’s ‘top management, officers, or directors,’ to be acting ‘in a managerial capacity.’” Id. at 543 (discussing the problem of trying to define “managerial capacity”); see also 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), at 183-89 (4th ed. 2000); 2 J. Kircher & C. Wiseman, Punitive Damages: Law and Practice, § 24:05, at 24-19 to 24-24 (2000) (formerly edited by, and cited in Kolstad as, J. Ghiardi & J. Kircher); Restatement (Second) of Torts § 909 (1977); Restatement (Second) of Agency § 217C (1957). We have used the Kolstad language, along with language from In re Exxon Valdez, 270 F.3d 1215, 1233, 1235-36 (9th Cir. 2001), aff’d by an equally divided court, Exxon Shipping Co. v. Baker,128 S. Ct. 2605 (2008), involving Punitive Damages for a federal maritime tort, concluding that Kolstad has overcome the First Circuit’s earlier diffidence about this portion of the Restatement. see CEH, Inc. v. F/V Seafarer,70 F.3d 694, 705 (1st Cir. 1995).
¹⁰ This definition comes from Kolstad v. American Dental Ass’n,527 U.S. 526, 543-44 (1999) (Title VII) (approving Restatement formulation).
¹¹ This bracketed paragraph should only be used in cases where the employee who committed the wrongful conduct was serving in a managerial capacity. In cases where the employer ratified or authorized the discriminatory actions, this defense is not available. see Kolstad v. American Dental Ass’n,527 U.S. 526, 542-45 (1999) (Title VII).
¹² Under § 1981a, the total damages available (including both punitive and other damages) are limited according to the number of employees employed by the defendant. 42 U.S.C. § 1981a(b)(3). However, the section also provides that “the court shall not inform the jury of [these] limitations.” Id. § 1981a(c)(2).
¹³ Méndes-Matos v. Municipality of Guaynabo,557 F.3d 36 (1st Cir. 2009).
¹⁴ State Farm Mutual Auto Ins. Co. v. Campbell,538 U.S. 408, 425 (2003), states that few awards exceeding a single-digit ratio will satisfy due process and that anything over 4 to 1 “might be close to the line of constitutional impropriety.”
¹⁵ With all the attention the Supreme Court has given to the constitutionality of Punitive Damages under state law, apart from Kolstad v. American Dental Ass’n,527 U.S. 526 (1999) and Exxon Shipping Co. v. Baker,128 S. Ct. at 2631-33 (under federal maritime law, “where the tortious action was worse than negligent but less than malicious,” a 1:1 ratio between punitive and compensatory damages “is a fair upper limit”), it has had little to say about the standards used in federal law cases either as a matter of constitutional law or under its supervisory powers. The general focus of Supreme Court cases on the topic of Punitive Damages, State Farm Mut. Auto. Ins. Co. v. Campbell,538 U.S. 408 (2003); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); BMW of North America, Inc. v. Gore,517 U.S. 559 (1996); Honda Motor Co. v. Oberg,512 U.S. 415 (1994); TXO Production Corp. v. Alliance Resources Corp.,509 U.S. 443 (1993); Pacific Mut. Life Ins. Co. v. Haslip,499 U.S. 1 (1991); Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989); Bankers Life & Casualty Co. v. Crenshaw,486 U.S. 71 (1988), has been on the standards of appellate review for punitive damage awards, not the standards (if any) that should guide jurors. Appellate courts are instructed to consider “(1) the degree of the defendant’s reprehensibility or culpability; (2) the relationship between the penalty and the harm to the victim caused by the defendant’s actions; and (3) the sanctions imposed in other cases for comparable misconduct.” Leatherman, 532 U.S. at 425 (citations omitted); accord BMW, 517 U.S. at 574-75. As the First Circuit noted in Zimmerman v. Direct Federal Credit Union,262 F.3d 70 (1st Cir. 2001) (Title VII):
BMW furnishes three general guideposts for conducting such a review: (1) What is the degree of reprehensibility of the defendant's conduct? (2) What is the ratio between the compensatory and Punitive Damages? (3) What is the difference between the punitive damage award and the civil penalties imposed for comparable conduct? Id. at 81 (citing BMW, 517 U.S. at 575). The first two standards are reflected in the jury instruction. We have not incorporated the third — the sanctions imposed in other cases — on the reasoning that it is more a subject for judicial, not jury, determination. In theory, however, evidence could be introduced concerning other sanctions for a jury to consider. The instruction also directs the jury to consider “other mitigating or extenuating circumstances” bearing on the appropriate size of a punitive damage award. The Supreme Court implicitly approved such an instruction in TXO Prod. Corp., Inc. v. Alliance Resources Corp.,509 U.S. 443, 463-64 n.29 (1993).
¹⁶ Conduct affecting non-parties is relevant to determining reprehensibility only if it is “misconduct of the sort that harmed” the plaintiff. State Farm Mutual Auto Ins. Co. v. Campbell,538 U.S. 408, 410 (2003). In State Farm, the Supreme Court said that, where the plaintiffs did not present evidence of conduct by the defendant similar to the conduct that harmed them, the conduct that harmed them was “the only conduct relevant to the reprehensibility analysis.” Id. Therefore, if the jury has heard evidence of dissimilar conduct affecting non-parties, it should be instructed that it may not consider that conduct in assessing reprehensibility.
¹⁷ This list of factors comes directly from State Farm Mutual Auto Ins. Co. v. Campbell,538 U.S. 408, 418-19 (2003), where the Court reiterated that degree of culpability is the most important factor. State Farm also said: “A jury must be instructed, furthermore, that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred.” Id. at 421. Such an instruction will ordinarily not be pertinent in a federal law claim. On the other hand, the principles of Philip Morris USA v. Williams,549 U.S. 346 (2007), may be relevant to a federal claim. Philip Morris held that Punitive Damages could not be used “to punish for harm caused strangers,” i.e., for injuries inflicted upon nonparties, but that harm to other victims could be used “to determine reprehensibility.” Id. at 346. The Court did not suggest how a jury instruction could be crafted to make a jury understand such a fine distinction, and Seemed to be more concerned with matters of evidence and argument. The pattern instruction here does focus on reprehensibility. Possibly a sentence should be added to the effect: “You must not, however, increase any award for damages you believe were caused to others than [the plaintiff].” Although Philip Morris may be limited because it was concerned with Fourteenth Amendment due process limitations on a state’s power (and the concern that one state’s policy not be imposed on other states through a punitive damage award for consequences in other states), the Court also reasoned from broader principles that could apply to the Fifth Amendment as well: the principle against “punishing an individual without first providing that individual with ‘an opportunity to present every available defense’”; the concern for adding “a near standardless dimension to the Punitive Damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate”; and “no authority supporting the use of Punitive Damages awards for the purpose of punishing a defendant for harming others.” Id. at 354. We have not listed the defendant’s wealth as a factor. Although the Supreme Court has never actually prohibited consideration of wealth, there are expressions of concern. see State Farm, 538 U.S. at 427 (“The wealth of a defendant cannot justify an otherwise unconstitutional Punitive Damages award.”), and 417 (“‘the presentation of evidence of a defendant’s net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences,’” quoting Honda Motors Co. v. Oberg,512 U.S. 415, 432 (1994)). see also TXO Prod. Corp. v. Alliance Res. Corp.,509 U.S. 443, 489-95 (1993) (O’Connor, J., dissenting).