Angela Aguilar, Intervenor-Plaintiff, worked at the Mission Mine complex for ASARCO from December 2005 through November 2006.?? She alleges that during her time at ASARCO, she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged from her employment.? ?The State of Arizona filed suit against ASARCO under the Arizona Civil Rights

generallynotenoughtodefeatsummaryAct, and Aguilar also filed suit separately. ?The
judgment.?lawsuits were ultimately consolidated.

In response to the retaliation claim, the Court ruled that the close proximity between the protected activity and the adverse action did nothing to refute the legitimate reasons for adverse action ?even if Curley has established a prima facie case.?

The Court ruled that a plaintiff’s attack on an employer’s legitimate, nondiscriminatory reasons may sometimes defeat summary judgment without discrediting all of the employer’s stated reasons. For example, this could be true when: (1) the reasons are so intertwined that a showing of pretext as to one raises a genuine question whether the remaining reason is valid, (2) the pretextual character of one explanation is “so fishy and suspicious,” that a jury could “find that the employer?? ?(or?? ?its?? ?decisionmaker)?? ?lacks?? ?all After an eight-day trial, the jury found ASARCO liable on Aguilar’s sexual harassment claims, in violation of 42 U.S.C. ? 2000e-2, but not on her constructive discharge or retaliation claims. The jury awarded no compensatory damages, but awarded $1 in nominal and $868,750 in punitive damages. ?Because of the cap under Title VII, the punitive?? ?damages?? ?award?? ?was?? ?reduced?? ?to $300,000.?? ?On ?appeal, ?a? panel ?of ?the? Ninth Circuit affirmed evidentiary issues, and reduced the punitive damages award to $125,000 on the grounds that it was constitutionally excessive in violation of due process.?? The Court granted en banc review, and reversed the ruling on punitive damages? ?and? ?reinstated? ?the? ?full? ?amount? ?of $300,000. ?It also upheld the evidentiary rulings and award of attorney fees and costs. In ruling on the whether the punitive damages were excessive, the Court relied upon the familiar standards established in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418 (2003) and BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).?? ?The Court considered:?? (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. ?As for the disparity factor, the Court has repeatedly eschewed the adoption of a “bright-line ratio which a punitive damages award cannot exceed.” Citing State Farm, 538 U.S. at 425. Nevertheless, the Court has noted that, “in practice, few awards exceeding a single-digit ratio between punitive and compensatory? damages, ?to ?a ?significant ?degree, will satisfy due process.”? ?Id.? ?The Court also cautioned, however, that a higher ratio may be appropriate where the conduct is especially egregious, but results in minimal economic damages.? Id.

In ?applying? these ?standards, ?the ?Court distinguished between punitive damages awarded under common law, as in Gore, and punitive damages? ?awarded? ?under?? a? ?statute,? ?Title?? VII. ?When a statute narrowly describes the type of conduct ?subject ?to ?punitive? liability, ?and reasonably caps that liability, it makes little sense to formalistically apply a ratio analysis devised for unrestricted state common law damages awards. That logic applies with special force here because the statute provides a consolidated cap on both compensatory ?and ?punitive ?damages.????? ?When only nominal damages are awarded, application of a? Gore? ratio ?analysis ?is ?not ?appropriate. ?. ?. ?. Because nominal damages measure neither damage nor ?severity of ?conduct, ?it ?is ?not? appropriate ?to examine the ratio of a nominal damages award to a punitive damages award.? The en banc panel also rejected the Defendant?s sufficiency of the evidence argument: Although the Defendant? did? have ?an? anti-discrimination policy, the records revealed that: there is significant and compelling evidence that management was aware of, and did little to resolve, lewd, inappropriate, and sexually aggressive behavior directed to Aguilar; ?sexually? explicit, targeted pictures of Aguilar on the walls of the bathroom rented specifically?? for? ?her? ?use;? ?and overly?? aggressive? ?management and criticism of Aguilar by supervisors. ?Aguilar? complained to ?management?? multiple ?times. The ?sexually? explicit ?graffiti ?in the bathroom was not removed while ?she ?was ?working? in ?the filter plant.? As? the district? court correctly noted, to the extent ASARCO did have an anti- discrimination or harassment policy, the existence of such a policy alone is not enough to save it. The Court found that this evidence was sufficient to support an award of $300,000 in punitive damages despite an award of nominal compensatory damages. The Defendant also challenged the district court’s admission of evidence of other sexually explicit graffiti in bathrooms that was similar to the sexually explicit graffiti directed to Aguilar. ?The Defendant argued that the sexual graffiti was too dissimilar and therefore an abuse of discretion under Fed.R.Evid. 403.?? The Court rejected this argument, and found that the trial court had not abused its discretion.

The Ninth Circuit also affirmed the award of attorney? ?fees? ?and? ?costs? ?in? ?the? ?amount? ?of $350,902.75.? ?The Defendant argued that the amount should have been reduced because the Plaintiff ?did ?not ?succeed ?on ?all ?claims.?? ?TheCourt ?rejected ?this ?argument ?because? her successful claims and unsuccessful claims were inextricable intertwined.

Arizona v. ASARCO, LLC, 773F.3d 1050 (9th Cir.12/10/2014) (en banc)