En Banc 9th Circuit to Weigh Miner’s Damages

(CN) - The full 9th Circuit will consider the amount of punitive damages a female miner should receive for being sexually harassed by her supervisors, the appellate court said Friday.

A federal jury in Arizona awarded Angela Aguilar $1 in nominal and more than $800,000 in punitive damages in 2011, finding that she had been harassed by male supervisors while working at ASARCO's Mission complex, a huge, open-pit copper mine south of Tucson.

The District Court later reduced the jury's award to $300,000 to comply with the statutory maximum, and the 9th Circuit cut it down to $125,000 on appeal in 2013.

The three-judge appeals panel based its reduction on a punitive-to-nominal ratio of 125,000-to -1 set down in 2008 in Abner v. Kansas City Southern Railroad Co. -- the "highest ratio we could locate among discrimination cases," according to the panel.

"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," Judge Diarmuid O'Scannlain wrote. "But this does not change the fact that a 300,000 to 1 ratio raises our 'judicial eyebrows."

Both sides filed petitions for review before an 11-judge, en banc panel, which the appeals court agreed to convene in a brief order published Friday. The previous opinion is no longer valid as precedent.

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