December 7, 2021

Volume XI, Number 341


December 06, 2021

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Puerto Rican Employer Saves $3.5 Million in Punitive Damages due to Anti-Discrimination and Anti-Retaliation Policies

On January 7, 2015, the U.S. District Court for the District of Puerto Rico issued an opinion overturning a jury’s $3.5 million punitive damages award for retaliation claims brought under Title VII and Puerto Rico law, finding that the defendant employer had demonstrated that it had made good faith efforts to implement anti-discrimination and anti-retaliation policies Wirshing v. Banco Santander de Puerto Rico, et al. Policies. , No. 3:11-cv-02073-GAG (D.P.R. Jan. 7, 2015).

Plaintiff Rose Marie Wirshing worked as a Product Manager at Banco Santander beginning in 2007.  In this lawsuit, she alleged that her direct supervisor sexually harassed her, and that such harassment continued despite complaints she made to Human Resources. Wirshing also alleged that following her complaint, she was subjected to a campaign of retaliation, including threats that she would lose her job.  A jury found in favor of Wirshing, and awarded her $351,018.34 in compensatory damages and $3.5 million in punitive damages.

On defendant’s post-trial motion for a remittitur, the court upheld the compensatory damages award (allocating all but $1 of the award to Wirshing’s claim under Puerto Rico law in order to comply with the cap on damages under Title VII) and vacated the punitive damages award.  As to punitive damages, the court found that a punitive damages award was not warranted because defendant exercised good faith efforts to implement anti-discrimination and anti-retaliation policies.  Although the jury had found that defendant’s policies were ineffective, the court noted that the “ineffectiveness of Defendant’s policy . . . cannot alone demonstrate a lack of good faith justifying an award of punitive damages.”  As evidence of defendant’s good faith efforts, the court pointed to the fact that defendant’s policies were given to new employees, republished annually, and refreshed through annual trainings, as well as evidence of its procedures for handling complaints and its thorough investigations of plaintiff’s complaints.  According to the court, defendant “did more than merely publish an official policy and passively implement such in an attempt to comply with Title VII’s requirements.”

While the appropriateness of punitive damages will turn on the specific facts of the case, the Wirshing decision highlights the importance of having anti-discrimination and anti-retaliation policies in place; providing a complaint procedure for employees to follow; and ensuring that employees receive training on the policies.

© 2021 Proskauer Rose LLP. National Law Review, Volume V, Number 20

About this Author

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

Kristine K. Huggins, labor, employment law, discrimination, harassment, FINRA

Kristine K. Huggins is an associate in the Labor & Employment Law Department. She represents clients in a range of employment litigation matters in federal and state court, including claims alleging unlawful discrimination, harassment, retaliation, and breach of contract. Kristine has also represented clients in matters before the U.S. Equal Employment Opportunity Commission, the Financial Industry Regulatory Authority (FINRA) and the U.S. Department of Labor Office of Federal Contract Compliance Programs. In addition, Kristine regularly advises clients on general...