Legal Memorandum: Punitive Damages for an Employee in LA

Issue: What is the range and factors that affect jury verdict recoveries for an employee for punitive damages in the 5th Circuit.

By far one of the most unpredictable,*FN1 financial exposures an employee faces is a punitive damages award.  Such awards are commonplace in unlawful termination cases brought under § 1983, § 1981, Title VII, and other antidiscrimination laws.  Based on the assumption that an employee has carried his burden of proof that an employer intentionally and maliciously terminated him in violation of his First Amendment rights, he can expect the verdict to contain a considerable punitive damages award.  Wilson’s $300,000 to $400,000 estimate is not without merit.  There are, however, mitigating factors that should minimize the punitive damages award.

The factors for the jury to consider when granting punitive damages are:  (1) the degree of reprehensibility of the employer’s act; (2) the disparity between the harm to the plaintiff and the punitive damages award; and (3) the difference between the punitive damages and the civil penalties authorized.  BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).  The Supreme Court also has provided five aggravating factors for consideration when evaluating how reprehensible the defendant’s conduct was:

1. physical, as opposed to economic, harm to the plaintiff;
2. reckless disregard or indifference to the health or safety of others on the part of the defendant;
3. financial vulnerability of the plaintiff;
4. repeated actions as opposed to an isolated incident; and
5. intentional malice, trickery, or deceit, as opposed to mere accident.

See State Farm Mut. Auto. Ins. Co. v. Campbell,