Metropolitan News-Enterprise


Friday, May 27, 2016


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C.A. Affirms $16.3 Million Age Discrimination Award

In Excess of $13 Million in Punitive Damages to Go to Employee Fired by Staples Subsidiary


By a MetNews Staff Writer


The Court of Appeal for this district yesterday upheld a $16.3 million judgment—comprised of $3.2 million in compensatory damages and slightly more than $13 million in punitive damages—in favor of a man found to have been fired because of his age.

The punitive damage award is against a subsidiary of Staples, Inc., while the balance of the award is against both the subsidiary and Staples.

The jury voted to award an even higher amount—22.8 million in punitive damages—but Los Angeles Superior Court Judge Mark V. Mooney struck their $9.8 million exemplary-damages award against the parent company.

Los Angeles Superior Court Judge Amy D. Hogue, sitting on assignment, wrote the unpublished opinion for Div. Three.

She declared that there was ample evidence that the new manager of the plant at which plaintiff Bobby Dean Nickel facilities manager was on a quest to cut costs by getting rid of older, higher paid employees and replacing them with younger part-time and temporary employees.

Nickel was fired for stealing a 68-cent bell pepper from the company cafeteria. His testimony, which was corroborated, was that it was customary to take food after-hours and pay for it later, which he had done in the past.

He was 64 at the timer of his July 29, 2011 firing.

Three ‘Guideposts’

Hogue said the “guideposts” in determining if a punitive-damage award is excessive have been articulated by the U.S. Supreme Court as being:

“(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.”

The jurist wrote that “[t]he degree of reprehensibility is the most important guidepost in the analysis.”

Examining the various factors indicative of reprehensibility, she pointed out that the termination of employment and “being a thief” caused Nickel emotional harm, resulting physical harm; the employer “was indifferent to or recklessly disregarded Plaintiff’s health and well-being during the events leading up to and including his termination”; Nickel was “financially vulnerable” and was unable to find work; there was discriminatory treatment prior to the termination in the form of “write-ups” for alleged misconduct; and the defendant evinced “intentional malice.”

As to the last factor, she said:

“[T]he harm here can reasonably be construed to be the result of intentional malice, as Staples sought to reduce the cost of its operations by systematically removing older, higher-paid employees, specifically Plaintiff in this case, through discriminatory disciplinary actions.  A group of managers participated in the final decision to terminate Plaintiff’s lengthy and successful employment at the La Mirada facility over a bell pepper, despite the confusion surrounding whether Plaintiff had actually stolen it and whether he had permission to take food and pay for it later.  In so doing, Staples rendered Plaintiff jobless and incapable of obtaining new employment due to his now-tarnished professional reputation.  In addition, the record indicates that the discriminatory firing was undertaken in order to reduce overhead costs and make Staples more profitable.”

Not Excessive

Responding to Staples’ contention that the punitive-damage award was out of line with the compensatory damages, Hogue pointed to a 2005 California Supreme Court case in which it was said that “ratios between the punitive damages award and the plaintiff’s actual or potential compensatory damages significantly greater than nine or 10 to one are suspect.”

She noted that in the present case, “the punitive award was about four times the compensatory damages and not presumptively unconstitutional.”

Hogue said the award “appears supported by the evidence, especially given the reprehensibility involved.”

With respect to the third “guidepost”—a comparison of the punitive-damage award to potential civil penalties—she wrote:

“As there is no maximum civil penalty to which we can compare the jury’s punitive award, this guidepost is ‘essentially irrelevant’ and cannot inform our due process analysis.”

The case is Nickel v. Staples Contract & Commercial, Inc., B257420.

Keith A. Jacoby and Janel R. Ablon of Littler Mendelson represented Nickel. Mark E. Haddad and Aimee G. Mackay of Sidley Austin were appellate counsel for Staples.


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