is signed a the maximum amount of punitive damages to a case which was not anywhere near the top of the punitive damages scale that was sure you were right the jury award was more than what the court admitted to the three hundred to evaluate punitive damages to make sure that they have a reasonable stance or not the question and that's the question answer i mean that the question is does that duty exist where congress has spoken yes why why well because in every title seven case  why shouldn't we just say look whatever the supreme court said the b m w in those cases applies to an open ended determination by jury when there's no limit no limit whatsoever and it's unfair to heal people in the court suggested that's what we're going to do or anybody thinks i'm doing i'm just saying assume that that's a possibility what what is in a case like exxon which will now say that where there is no cap that seven statutory schemes that's the limit here it is this is the range in which this court needs to evaluate this case you need to look at it understanding that three hundred thousand dollars is the maximum amount under the statutory scheme that can be  and that does score provide that's not provided by the statutory scheme what gore provides is some guideposts by which the court can analyze the case can look at the case given the elements that the court has said are relevant to a punitive damage award to determine whether or not this case is among the most reprehensible or not given that gore did not even address the case with the state law and state punitive damages why is the even appropriate for us to use go well ok that's that's important though because it is part of due process is notice and an employer in this in this circuit understands what its potential exposure is based upon the conduct and the bureaucrats right in this case can't be the three hundred thousand dollars i'm sure you could apply to three hundred thousand dollars and obviously you have a big issue here why isn't every employer on notice that three hundred thousand dollars is that every employer is on notice that three hundred thousand dollars is the cap what what do we need to cut it's more there's an important difference between a cap and the court's role in evaluating punitive damages caps as this is the maximum amount possible but the courts rule is to examine the case of the gore guideposts or for that matter under the federal common law with say sky's the limit in this case the jury awards almost a million dollars and we look at every saying you know there's a sofa and whatever and let's say we come up and say well no that's a  have us do which says look at the spectrum of egregiousness you have to say three hundred thousand dollars at the very upper limit well i guess it really doesn't matter where you apply go doesn't matter quite a bit because if you say the worst you can do is three hundred thousand dollars and everything a has to be less so maybe this is another worse case but if you say the worst could be much higher and then you set the limit after you  in certain cases i could understand why that would be true yes and that's the importance of reviewing each case on its facts that's the importance of this role this court what's your best curious when you say you know this is sort of compared to our cases this is out of line  he brought a night section one thousand and one in title seven claimed he had significant racist names directed toward him when he complained about it he was given a disciplinary warning and after that he complained again and he was fired and that if you compare this case to mendez which is another good example of a punitive damages case out of the circuit then you'll find that the facts in this case are less egregious than those and as a result this case should fall somewhere below that that is what that was  case it's a novel damages case in that case the court determined a twenty five hundred dollars award was appropriate for a five hundred dollars to one is the ratio and it should be same for the same argument should apply here when looking at mendez it's tough to have a question for you when you talk about multiples you say in that case it was twenty five hundred to one you're making a multiple of punitive versus compensatory damages correct but if it's nominal damages why should we at all consider multiple theory of the supreme court's precedents of for example when a number of damages some jurisdictions b one one penny whether in one day it could be resolved that does that mean that a one hundred dollars unit of damage award would be like a ten thousand to one ratio it does anderson and the supreme court has made it clear that it's not a bright line test to be the ratio is simply a tool to use to compare cases to cases compare apples to apples if you will and because that's because peter damages awarded based upon the gravity of the offense and so you can't compare the damages in this case for example sense for several reasons the first of which is that it rewards the plaintiff who has suffered the least amount of harm and it punishes the defendant who has caused the least amount of harm there's a great line out of judge posner's decision in the last case which the state relies upon where he says if you if you tell robbers that the penalty for robbery is death then there's absolutely no deterrence for the robber to not kill people on his way out the door to eliminate the witnesses well if you tell employers judge posner sounds just like  absence of compensatory damages under title seven i think the case on that is develop to the point where yes i think we have to recognize that even when there are no damages an employer can be subject to damages so given that under title s right now i think in our view i think the courts what the court really said about the ratio is that it's a relationship test that helps courts evaluate what the relationship is between punitive damages and actual damages and all the court has said really is that there needs to you're suggesting counsel that's what i'm asking you all respond to i see i see that is correct but of course in that case if there are a large compensatory damages in the damages are going to be proportionally small necessarily h counsel is there anything in the supreme court's precedent that would suggest that we could just ask whether the amount of damages is fairly proportionate to bad conduct or culpable conduct that was found by the jury not at all i think that's it i think that is what the supreme court is saying is that you just need to evaluate the culpable conduct and determine whether or not this award is proportionate to the conduct is so should well it is true that in a time of some cases you're going to have to look at the three hundred thousand dollars as the cap and that's true in all the cases and that's what you want to look at as the worst behavior that's right that's what we're suggesting because every that's a different answer than when you can in title seven it is three hundred thousand dollars it's the cap on what the amount can be and so in order to compare the case is fairly going to have to recognize that the most you can ever award entire seven cases three hundred thousand dollars so where does this case that within that scale if i believe that the degree reprieve reprehensible early is bad here and i find that the third factor has also been complied with since there is a cap and i can't really determine what to do regarding compensatory damages or nominal damages so i don't think second factor is really something i can weigh very well can i still say that the district court made the right decision because a relates to the third factor i'm giving it deference on the second factor i don't know for sure so now i'm trying to weigh all the factors together and i say hey based on the first and third factor it seems to me i have to firm the district court well is there anything wrong with that analysis given what exxon valdez said that i can't be rigid or exclusive in my application of the factors yes because the second factor is an important factor that requires that there be there is nothing that says the second factor is more important than the others in fact it says quite the opposite the first factor is the most important correct reprehensible it is the most important i would agree with that if i manage to reserve the balance of my time for just a second well if you just answer the question yes the first factor is the most important reprehensible it isn't most important but there is no authority out there for just jettison the second factor but it has to be applied in the way it was intended which is to look at it as a reasonable relationship between the amount of discussing we don't argue that it should do so just because there's a statute there are aspects of this particular statute that are congruity with the constitutional concerns set out in the b m w line cases and  that makes looking to the statute the right way to resolve this the first guidepost in the in the b m w cases is the reprehensible of the conduct the statute here expressly limits in a couple of ways has has made clear that has some real teeth and that's that certainly is closely tied to the stand in the first guy placed secondly the third guy post fits perfectly here the third guy post is to look to the proportionality as is normally understood applying it to a no damage or can normal damage case would would simply wipe out the other factors because and that was essentially the view and danced by the defendant in a lower case where there was reprehensible conduct but very little or no damage would be exactly in that in that category suite was never said that when you have very low damages cases you throw out scheme context when you have statutory caps i mean let's say you have a you think that's a cap on compensatory damages the ratio series really doesn't work in that because you're not measuring harm you're measuring  meaningfully apply the factors i think you would there be circumstance in which that problem could arise i don't think it's presented here if you had a situation where there was a cap once on constitutional interest first amendment things that are sometimes translated into emotional distress damages but that's not exactly the not that's not  category i don't believe so in b m w and so are the supreme court repeatedly said that the proportionality analysis doesn't necessarily apply or applying the same way when the harm is involves statutory caps and that's that's exactly right that's one of the other reasons why we think it makes sense to use the title seven regime because in addition to addressing the first and third guy post it provides exceptionally clear notice i mean if it really knows what they're dealing with here more than they would if they went out with a copy of b m w and state farm and try to figure out what was going to happen to really really know it back to judgment yes question and in this particular context why doesn't title seven supplanting or i'm not saying that in dollars in a particular ok somebody might argue the gore factors would need to be considered but a cap of this nature i think you're telling us that more factors have been satisfied i think so that's why i answered it in the way will have something to do with what you need to deter the conduct and has the supreme court ever applied its ratio or personality analysis to nominal damage no your honor if it hasn't come up  i might address one other question that came up with you with regard to title seven it's our understanding that the cap doesn't there is not a compression rule here the cap the three hundred thousand dollars is not the camp would have been a fifty thousand perfect sense based perfect census says if you have a larger workforce we're going to hit you harder because it's going to make it's going to make or make it more likely that you're going to modify your that particular way i think but if i change that i change the idea it seems to me the district court used the gore factor should it and the district court was trying to use the garb actors and make some determinations based on the gore factors and i'm to give some deference to the district court at least as to its factual determination when the district court found that and i quote a particularly egregious act happened here there resulted in only a small amount of economic damages is that a factual determination i think it it could have an appropriate i mean very in mind that the decision in cooper with which this course familiar i'm very in mind the decision in minde is right it seems to me i record suggested that maybe even the determination by the district court was  question of as to those particular solutions i think that would be for going too far i think it would i think be appropriate to give some weight in light of the courts in the yard with a record the judge would  wrong the panel tried to deal with this by coming up with some other number not the traditional single digit number and they came up with a number of one hundred twenty five thousand to one  we don't think that's an appropriate solution to this problem the numbers are obviously nothing like what the course normally do the number that the panel picked was based somewhat on happenstance on the verdict for more i mean i just eat it and then they pull that number out of a hat i mean if you were to start looking for numbers in you know four or five but this is i don't know that's essentially the problem that if you're going to engage in this go on alan says and we do know that we have to do it in certain cases right you have to come up with a number have you have essentially there's nothing there's no natural law that dictates a number right so what's wrong with one hundred twenty five damages but i'm kept compensatory damages that was vetoed by president bush so the current statute is a compromise that the congress worked out and i agree with the judges that i mentioned that it it seems a little twisted in a way that the more that you're harmed the less that you will get punitive damages but there are some damages that are outside the cap like cuny ery damages past peculiarity damages so if you have three nervous breakdowns and you have medical evidence of that you are actually outside the cap there's also things like back pay and reinstatement injunctive relief that are outside the cavs so so actually  of the cap and again it all goes to notice so that a defendant knows exactly what they will be on the hook for if they meet the threshold standard which is not necessarily an easy standard to meet and the standard  itself is this concept of notice and all i'm saying is that the supreme court mind of the b m w like cases assume that stands are correct and you are also correct that the gore cases are all economic involved a federal common law not a statute but maritime law and there are the court didn't go to the core factors at all here you have a statute and i feel i'm sure you all know that gore was most concerned with notice does the person know the defendant know what is prohibited and do they know what the penalty is going to be if they gauge in that behavior so all those factors are just ways to tease out whether the defendant had that but i've never seen a case to talk about any kind of sliding scale under title seven if you meet the requirement if you meet that malice and reckless and different standard and then the you're liable for that was about a promotion and that a woman was denied and then she received a promotion two months later because there wasn't a sense that i understand that but that doesn't answer the question i mean the place councilman argument that we need to apply some supp in looking at the comparative conduct for the four years and charming well in this case here's what happened one month with wayne johnson and looking at the facts the sort of test against other cases  for example was a quid pro quo type of sexual harassment situation so will place that a little bit higher on the scale so maybe that should be closer to the three hundred thousand dollars cap but something less than that might might warrant a reduction o just may be appropriate that come in the terms of the analysis in the government so the commission issued guidance following the enactment of the one nine hundred ninety one civil rights act and in our guidance we go through i think it's seven factors that looks at to help decide whether the defendant had acted with malice or reckless disregard for the federally protected rights terminations and other factors just wasn't tested here that overturning that finding as a find there i want to just make clear that it's if you're talking about due process concerns anything within that half would be constitutional but there may be other reasons to lower the amount under the cap if there is an evidentiary issue where it doesn't justify the damages that the jury had awarded but you know the jury is not informed there is a cap so in typical cases they will award something over the cap and then it will be lowered to that house but it's a judge certainly has discretion to lower it within the cap looking at some of the factors that we have in our guidance that are very similar to the gores and state farm's sort of idea about reprimands ability how long how bad was the discrimination how long did it go on what did the defendant do once it found out about it all these kinds of things and they're very you know a typical run up to a review that an overall or with some difference well factual findings are usually reviewed for abuse of discretion but the finding on whether the damages award is constitutional revenue is reviewed do novo as the supreme court has found but the issue again it's not that you can never reduce an award of punitive damages but the question is is it a constitutional review under the proper standard and it may not affect it in some cases but the more exacting standard could have an effect but the factual findings of the court are relevant i mean that's sort of a mix question i and to reserve the maximum cap for that and it strikes me that the court is in no position to do that with this kind of a statute because we couldn't do that if we won actually it seems to me because again we are plaintiff has suffered and can compensatory damages and as a result low punitive damages that are allowable that's the statutory scheme we have to live with but in this case with cases like it where there are no or lot commenced compensatory damages what's the court's obligation and is that in every case that the courts of appeal have an obligation to examine the punitive damages and determine if there are reasonable under the circumstances that's the advantage of what a court can do a court can look carefully at the facts and determine in this case are punitive damages of thank you the reason why we're asking you that is because i'll give you one example the district court concluded that our efforts to remedy this harassment were were weak at best and that's just simply not correct if you look carefully at the factual see th admitted we're not asking you to construe the facts in a way that's inconsistent with her testimony look at her testimony she admitted that the graffiti was painted over before she went on leave that she saw it only three to five times she admitted that wayne johnson starts talking to her and asking now for dates as soon as management talked to him and she admitted that his soon as she complained about the want us to go back and look at all the facts of the case and make a judgment as a court of appeals that these these facts don't really weren't even three have what i'm saying is that even on its best day even if you accept all the facts as the plaintiff has alleged them what you have here is a case where an employee was asked out on dates by a supervisor she complained about it in company stop it an employee who saw graffiti on three to five occasions and never reported it but it was actually ultimately pain it was painted over before she left an employee who didn't get along with the supervisor and the company as a result removed him as her supervisor that's that's the best case and what i'm saying is there are worse cases out there and there will be worse cases you'll have to decide and when you get those worst cases simple requirements of fairness require that employers understand that if if if that i'm not subject to the highest award you can award three hundred thousand dollars unless i think gauged in the most egregious conduct that's what we're saying you've got to leave some room at the top of the scale which goes to three hundred thousand dollars for cases that are going to be worse because you're going to see them and you have them  light of the facts of this case and in light of the damages that she suffered so yes when asked to breach this we agreed it should be reduced further what should the damages of would be in this case the punitive damages awarded in this case should be something less than