March 13, 2009 – Jackie Akins v. United Steel Workers of America, AFL-CIO, CLC, Local 187, No. 27,132

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: March 13, 2009
NO. 27,132
JACKIE AKINS,
Plaintiff-A ppellee/Cross-A ppellant,
V.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO, CLC, LOCAL 187,

Defendant-A ppellant/Cross-A ppellee.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Gary L. Clingman, District Judge

Martin Law Firm
Lane T. Martin
W. T. Martin, Jr.
Carlsbad, NM

for Appellee/Cross-A ppellant

Y outz and Valdez, P.C.
Shane C. Y outz

Albuquerque, NM

USW Associate General Counsel
Bruce Fickman

Pittsburgh, PA
for A ppellant/Cross-A ppellee

OPINION
KENNEDY, Judge.
{1} 	In this case, we determine that there is no need to address the first-impression
question of choosing which statute of limitations applies to civil suits between public
employees and their unions. 	The options rest between the six-month statute of
limitations for prohibited practices under the Public Employee Bargaining Act (the
PEBA) and the four-year catch-all statute of limitations applied by the district court
to this common-law suit for breach of a union’s duty of fair representation (the DFR).
Determining that the six-month statute of limitations does not apply retroactively in
this case, we affirm the district court’s application of the four-year common-law
statute of limitations. Proceeding to the merits of the claim, we hold: (1) the district
court’s award of both compensatory and punitive damages against the Union was
proper; and (2) the district court’s refusal to allow either evidence of or a jury
instruction concerning intentional infliction of emotional distress was proper. 	We
affirm.
BACKGROUND
{2} 	Plaintiff Jackie Akins was a public employee who worked for the City of
Carlsbad from 1992 until 2002. During that time, Defendant United Steelworkers of
America, AFL-CIO, Local 187 (the Union) was the recognized collective bargaining

2
representative for a unit of city employees that included Plaintiff. On March 22, 2004,
Plaintiff filed claims against both the City of Carlsbad and the Union for breach of the
DFR, intentional infliction of emotional distress, and prima facie tort. 	Plaintiff’s
claims stemmed from allegations that he was subjected to hostile working conditions
created by coworkers who harassed him and racially discriminated against him by
refusing to speak English to him and subjecting him to racial slurs. 	Pursuant to a
stipulated partial dismissal with prejudice, the district court ordered the claims against
the City of Carlsbad dismissed. Concerning the claims against the Union, the district
court granted summary judgment in the Union’s favor on Plaintiff’s claims of
intentional infliction of emotional distress and prima facie tort and on one of two
grievances under the claim of breach of the DFR, dismissing the other entirely.
{3} 	Plaintiff’s remaining claim of breach of the DFR was premised on allegations
that the Union failed to properly process a grievance for racial discrimination.
Plaintiff claimed that as an employee of the City of Carlsbad and a member of the
Union, he was exposed to racial discrimination when his coworkers repeatedly
referred to him as “pinche miyate,” which in Spanish means “fucking nigger.” He
also claimed that his coworkers and supervisor refused to speak English to him,
alienating him and further frustrating his efforts to do his job. 	He approached the
president of the Union on the matter and was told that “he was the wrong color” and

3
that “he needed to learn to speak Spanish.”
{4} 	In its motion for summary judgment on the DFR claim, the Union argued that
Plaintiff was barred by the six-month statute of limitations as well as by a lack of
factual support. 	The district court held that Plaintiff brought his DFR claim as a
common law action, not pursuant to the PEBA, and that it was therefore subject to the
four-year statute of limitations under NMSA 1978, Section 37-1-4 (1953) (the statute
of limitations for actions “founded upon accounts and unwritten contracts; those
brought for injuries to property or for the conversion of personal property or for relief
upon the ground of fraud, and all other actions not herein otherwise provided for”)
(emphasis added).
{5} 	Following a jury trial on whether the Union breached its DFR, the district court
entered judgment in favor of Plaintiff for $1,661.60 in actual damages and $30,000.00
in punitive damages. Both the Union and Plaintiff appealed. The Union argues that
the district court erred by: 	(1) applying the four-year rather than the six-month
limitation period to the DFR claim, (2) allowing the jury to consider punitive
damages, and (3) failing to reduce the amount of the punitive damages. 	As cross-
appellant, Plaintiff argues that the district court erred by neither allowing evidence at
trial of intentional infliction of emotional distress nor tendering to the jury an
instruction on intentional infliction of emotional distress. We address the four issues.

4
DISCUSSION
1. 	Statute of Limitations
{6} 	We first address the dispositive issue raised in the Union’s appeal: whether the
six-month rather than the four-year statute of limitations should have governed the
claim by Plaintiff against the Union for breach of the DFR. If the former applies, the
Union prevails, and the entire case is barred; if the latter applies, we reach the merits
of the case. Because the facts relevant to the limitation period are undisputed, with
the issue instead being a legal issue as to which limitation period is applicable, this
Court reviews de novo whether the district court correctly applied the law to the
undisputed facts. See Haas Enters., Inc. v. Davis, 2003-NMCA-143, ¶ 9, 134 N.M.
675, 82 P.3d 42. For the reasons set out below, Plaintiff’s argument persuades us that
the six-month statute of limitations adopted under the PEBA does not retroactively
apply to this case. 	Our holding effectively short-circuits the question of which
limitations period otherwise governs, and it demands that we reach the merits of the
case.
Six-Month Limitation Period Should Have a Limited Retroactive Effect
{7} 	The question of the proper statute of limitations in a suit for breach of the DFR
is an issue of first impression in New Mexico. Plaintiff argues that because a breach
of a union’s DFR is not a “prohibited practice” under the PEBA, he could not have

5
anticipated that he was subject to the PEBA’s six-month limitation period for
prohibited practices. In addition, he argues that adoption of a six-month limitation
period would divest him of a judgment vindicating rights that he vigorously fought to
defend. Conversely, the Union argues that retroactive versus prospective analysis is
not necessary because application of the PEBA’s six-month limitation period is not
a “new rule” of law subject to such an analysis. 	Instead, it maintains that “New
Mexico law had already formulated its response to the limitations question” because
it is well settled by DelCostello v. International Brotherhood of Teamsters, 462 U.S.
151, 169, 172 (1983), that claims of breach of the DFR under the National Labor
Relations Act (NLRA) are subject to a six-month statute of limitations. The Union
also maintains that New Mexico case law directs this Court to interpret the PEBA
consistently with federal interpretations of the NLRA.
{8} 	We begin by reiterating that this case deals with a public employee and
collective bargaining in the public sector. In Callahan v. New Mexico Federation of
Teachers-TVI, 2006-NMSC-010, ¶ 25, 139 N.M. 201, 131 P.3d 51, our Supreme
Court was quite clear when it held that remedies against unions for breach of the DFR
are not available to employees within the dispute-resolution provisions of the PEBA
because breach of the DFR is not specifically listed as a prohibited practice under the
Act. Id. ¶¶ 25, 29.

6
{9} 	Despite statements in federal cases that the DFR is a “statutory duty” of the
NLRA under 29 U.S.C. § 158(b) (1974), see Vaca v. Sipes, 386 U.S. 171, 176-77
(1967), our Supreme Court has not brought the DFR actions into New Mexico’s
statutory fold. Furthermore, the Court has not discussed the applicability of the PEBA
statute of limitations when an employee exercises his right to remove himself from the
jurisdiction of the National Labor Relations Board and proceeds in a state court. Our
holding here concerns only the retroactive applicability of the PEBA’s six-month
statute of limitations.
{10} 	The NLRA does not govern collective bargaining in the public sector.
Nevertheless, our case law also instructs us to look to the NLRA for guidance in
interpreting the PEBA statutory provisions that are substantially identical to
provisions in the NLRA. See Las Cruces Prof’l Fire Fighters v. City of Las Cruces,
1997-NMCA-031, ¶ 15, 123 N.M. 239, 938 P.2d 1384 (stating that “we should
interpret language of the PEBA in the manner that the same language of the NLRA
has been interpreted, particularly when that interpretation was a well-settled,
long-standing interpretation of the NLRA at the time the PEBA was enacted”);
Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 18, 125 N.M.
401, 962 P.2d 1236 (same). Because of our holding on the issue of retroactivity in
this case, we do not reach the first impression question of which statute of limitations

7
the NLRA demands in the DFR case, and we do not consider whether and to what
extent the NLRA impacts the DFR cases under the PEBA and Callahan.
Retroactivity
{11} 	Upon the Union’s refusal to file his grievance, Plaintiff transferred to another
department and waited nearly thirty-six months to file suit in late March 2004. This
was over twenty months after he left his employment in early July 2002. The six-
month limitation period was subsequently adopted as a regulation under Prohibited
Practices Proceedings, Part 3 of Chapter 21 in Title 11 of the New Mexico
Administrative Code, 11.21.3.9 NMAC (3/15/2004). The history at the end of Part
3 provides that the predecessor to Part 3 was repealed on July 1, 1999, and that no new
regulations were in effect until March 15, 2004. As a result, Plaintiff filed his March
22, 2004 complaint only seven days after the limitation period first took effect. Also,
to the extent that Callahan suggests that we apply any standard rooted in the NLRA,
Callahan itself was not decided until after Plaintiff could have filed a timely
complaint under the six-month limitation period.
{12} 	Beavers v. Johnson Controls World Services, Inc., 118 N.M. 391, 398, 881 P.2d
1376, 1383 (1994), provides that there is “a presumption that a new rule adopted by
a judicial decision in a civil case will operate retroactively.” 	However, such a
presumption “can be overcome by an express declaration, in the case announcing the

8
new rule, that the rule is intended to operate with modified or selective (or even,
perhaps, pure) prospectivity.” 	Id. 	Beavers also provides that such a presumption
“may be overcome by a sufficiently weighty combination of one or more” of the
factors set forth in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Beavers, 118 N.M.
at 398, 881 P.2d at 1383; see Whenry v. Whenry, 98 N.M. 737, 739, 652 P.2d 1188,
1190 (1982) (adopting the approach of Chevron Oil); Walker v. Maruffi, 105 N.M.
763, 769, 737 P.2d 544, 550 (Ct. App. 1987) (relying on the factors in Chevron Oil
to determine whether the statute of limitations should be given only prospective
effect).
{13} 	In Chevron Oil, the United States Supreme Court described the following
factors, which Whenry quoted:
First, the decision to be applied nonretroactively must establish a
new principle of law, either by overruling clear past precedent on which
litigants may have relied, or by deciding an issue of first impression
whose resolution was not clearly foreshadowed.
Second, . . . “we must . . . weigh the merits and demerits in each
case by looking to the prior history of the rule in question, its purpose
and effect, and whether retrospective operation will further or retard its
operation.”
Finally, we . . . weigh[] the inequity imposed by retroactive
application, for “[w]here a decision of this Court could produce
substantial inequitable results if applied retroactively, there is ample
basis in our cases for avoiding the ‘injustice or hardship’ by a holding of
nonretroactivity.”

9
Beavers, 118 N.M. at 398, 881 P.2d at 1383 (quoting Whenry, 98 N.M. at 739, 652
P.2d at 1190); see also Stein v. Alpine Sports, Inc., 1998-NMSC-040, ¶¶ 8-9, 126
N.M. 258, 968 P.2d 769 (applying the Chevron Oil factors to determine whether the
presumption of retroactivity was overcome).
{14} 	While New Mexico case law clearly put litigants on notice that the PEBA
unions are held to the same implied statutory DFR as are NLRA private-employee
unions, the PEBA claims remain distinct from statutes administering private-sector
labor relations. 	Breach of the DFR does not dictate a plaintiff’s action within the
administrative framework because the PEBA does not specify breach of the DFR as
a prohibited practice. 	Callahan, 2006-NMSC-010, ¶¶ 24, 29. 	In looking to the
NLRA, as the Union urges us to do, we observe that claims against a union by an
employee for breach of the DFR in the private sector are subject to a six-month statute
of limitations applicable to unfair labor acts. DelCostello, 462 U.S. at 169. Callahan
is silent on the procedural application of federal labor statutes to breach of the DFR.
Whether Callahan foreshadowed an application of DelCostello to public-sector DFR
cases is a question that is compounded by the fact that the NLRA’s limitation period
is a result of statutory enactment by Congress, while in New Mexico the limitation

1 See generally 12 A.L.R. 5th 950, § 2 (1993) (providing that most state courts decline
to extend the DelCostello holding to public sector employees by analogy).
10
period is an administrative prescription. 1
{15} 	In assessing prospective or retroactive application of the six-month limitation
period under the first Chevron Oil factor, we consider the relationship in time between
a new regulation replacing clear past precedent and the timetable of this case. The
PEBA delegated rule-making power to the Public Employee Labor Relations Board.
NMSA 1978, § 10-7E-9 (2003). 	This legislative delegation of rule-making power
presumably resulted in the enactment of the six-month limitation period by regulation
11.21.3.9 NMAC that took effect on March 15, 2004. 	Because the predecessor
regulation was repealed nearly five years earlier and was not replaced until seven days
before Plaintiff filed his complaint on March 22, 2004, Plaintiff’s reliance on the four-
year limitation period under Section 37-1-4 was reasonable. Retroactive application
of the six-month limitation period to when Plaintiff was first aware of his DFR claim
in 2002 would have obligated him to file it well before the regulation that adopted the
six-month limitation period even took effect—or before the statute had authorized it.
Accordingly, we do not believe that New Mexico attorneys were on notice by the time
of its enactment of the possible new administrative limitation period for breach of the
DFR claims under the PEBA; the authorities summarized above suggest that such

11
enactment cannot be used to foreclose judicial review of a claim. Cf. Jones v. Consol.
Freightways Corp., 776 F.2d 1458, 1463 (10th Cir. 1985) (holding that clear past
precedent existed prior to DelCostello which an employee could justifiably have relied
upon for the state limitations period in a private-sector NLRA action against the
employer for breach of the DFR).
{16} 	Under the second Chevron Oil factor, we observe that DelCostello and the
policy justifications underlying its holding foreshadowed the argument that a six-
month statute of limitations might apply in DFR cases. DelCostello, 462 U.S. at 167-
68, 171. 	The same policy grounds are also present in a PEBA dispute: 	namely,
balancing interests in allowing an employee to set aside what he views as an unjust
grievance procedure under the collective bargaining system while simultaneously
promoting stable bargaining relationships for all through “relatively rapid final
resolution” of labor controversies. Id. We note, however, that in DelCostello, union
members brought suits for breach of the DFR against their unions and employers
under federal labor statutes. No federal statutes of limitation applied directly to the
cases, and the Supreme Court was called upon to decide whether to apply the NLRA’s
six-month statute of limitation by analogy or to apply state statutes of limitation. Id.
at 154-55. The Court chose the former, reasoning that the drafters of state statutes of
limitation rarely, if ever, devise their rules with “national interests in mind” and that

12
state law should not “interfere with the implementation of national [labor] policies.”
Id. at 161 (internal quotation marks and citation omitted). Such considerations find
little traction upon our facts and are easily distinguishable. Here, the Union asks us
to apply the PEBA’s six-month statute of limitations for prohibited practices to a
claim of breach of the DFR. It relies on DelCostello in its argument that the PEBA’s
“similarity” to the NLRA demands such a result. 	Id. 	But the Union’s reasoning
overlooks the fact that our PEBA does not recognize a claim for breach of the DFR.
Such reasoning further ignores the fact that DelCostello dealt with a direct conflict
between state and federal law on a claim arising under federal law. Plaintiff’s claim
involves no such facts. Instead, he asks us to decide between two state law statutes
of limitation and on the issue of retroactivity. We thus hold that DelCostello does not
restrain our decision today.
{17} 	The third Chevron Oil factor argues in favor of limiting the retroactive
application of the six-month limitation period because strict application would
produce inequitable results under the circumstances of this case. 	Retroactive
application of the six-month limitation period beginning when Plaintiff first became
aware of his DFR claim in 2002 would have obligated him to file his claim one-to-two
years before the enactment of New Mexico’s six-month limitation period. 	Such a
result seems patently unfair. In and of itself, it constitutes a valid basis for concluding

13
that Plaintiff had at least six months, beginning at the enactment of 11.21.3.9 NMAC,
in which to file his complaint in district court. See also Coachella Valley Mosquito
& Vector Control Dist. v. Cal. Pub. Employment Relations Bd., 112 P.3d 623, 635-36
(Cal. 2005) (holding that only a prospective application of the administratively
prescribed statute of limitations such that the limitation period “commences on the
effective date of the statute, rather than on the date the cause of action accrued” would
be fair). 	Because we thus limit the six-month limitations period from applying to
Plaintiff’s DFR claims here, Plaintiff’s DFR claim was timely; it was filed in the
district court within six months of the effective date of the six-month limitation
period.
{18} 	As applied to the facts of this case, we hold that retroactive application of the
six-month statute of limitations as prescribed by regulation is unwarranted, and we
affirm the district court. We now turn to the merits of Plaintiff’s appeal.
2. 	Jury’s Consideration of Punitive Damages
{19} 	The Union argues that punitive damages are not a proper remedy in a case for
breach of the DFR and contends that the district court erred by allowing the jury to
consider punitive damages. 	We review de novo whether the district court applied
correct principles of law in allowing punitive damages. See Martinez v. Martinez, 93
N.M. 673, 676, 604 P.2d 366, 369 (1979). For the reasons which follow, we hold that

14
punitive damages may be recovered in a case for breach of the DFR when a union’s
harmful conduct is sufficiently outrageous, and that there was no error in allowing the
jury to consider punitive damages in this case.
{20} 	The Union recognizes that “a duty of fair representation claim against a public-
sector union is necessarily a matter of state law” but asks us to use federal law in our
analysis. The Union asks us to adopt the rule pronounced in International Board of
Electrical Workers v. Foust, 442 U.S. 42, 51-52 (1979), and to altogether reject
punitive damages as an available remedy. On the other hand, the concurring opinion
in Foust gives solid reasons for limiting the scope of this holding and expresses the
view that in a proper case, punitive damages are recoverable. “If a union’s conduct
should reveal intentional racial discrimination, deliberate personal animus, or
conscious infringement of speech and associational freedoms,” there is no reason that
a punitive award cannot be justified. 	Foust, 442 U.S. at 60 (Blackmun, J.,
concurring). “Punitive damages in such an exceptional case will serve at least to deter
egregious union conduct[.]” 	Id. 	Justice Blackmun was not alone in his belief that
punitive damages should be available against a labor union under the right
circumstances. Prior to Foust, several federal jurisdictions held that punitive damages
could constitute an appropriate remedy against labor unions. 	Harrison v. United
Transp. Union, 530 F.2d 558, 563-64 (4th Cir. 1975) (holding that punitive damages

15
are available against a labor union in the DFR cases); Butler v. Local Union 823, Int’l
Bhd. of Teamsters, 514 F.2d 442, 454 (8th Cir. 1975) (indicating that punitive
damages are available against a labor union guilty of “outrageous or extraordinary
conduct”), overruled on other grounds by United Parcel Serv., Inc. v. Mitchell, 451
U.S. 56, 60 (1981); Int’l Bhd. of Boilermakers v. Braswell, 388 F.2d 193, 199-201 (5th
Cir. 1968) (holding that punitive damages are available against a union under the
Labor-Management Reporting and Disclosure Act of 1959). 	We note that Foust’s
majority holding does not control our decision.
{21} 	Foust held that punitive damages may not be awarded against a union in a cause
of action arising under federal labor law. Foust, 442 U.S. at 51-52; see also Vaca, 386
U.S. at 195-98. 	In this case, we decide only whether punitive damages may be
awarded against a labor union where the plaintiff’s cause of action arises under state
common law and includes egregious racial discrimination. Unlike Foust, in which the
DFR claim involved a breach of statutory duty, id. at 46-47, the New Mexico Supreme
Court held in Callahan that breach of the DFR is not a statutory cause of action
arising under the PEBA. Callahan, 2006-NMSC-010, ¶ 3. The Court concluded that
in Vaca, the DFR arose directly from federal laws like the NLRA and the RLA.
Callahan, 2006-NMSC-010, ¶¶ 3, 12. On the other hand, “a claim against a union for
breach of [the] duty of fair representation does not fall within the ‘prohibited

16
practices’ of [the] PEBA I.” Id. ¶ 24. For these reasons, it is apparent that federal law
does not preempt a cause of action for breach of the DFR. 	Other courts have also
recognized the DFR as an individual right, not a right to be preempted by the NLRA
or other federal labor statutes. See Norton v. Adair County, 441 N.W.2d 347, 350, 355
(Iowa 1989); Lewis, 750 F.2d at 1376.
{22} 	By virtue of its collective bargaining provision, the duty of fair representation
was created “as a bulwark to prevent arbitrary union conduct against individuals
stripped of traditional forms of redress by the provisions of federal labor law.” Vaca,
386 U.S. at 182. 	A union “has a duty to represent fairly the interests of all of its
members in any dealings with the employer resulting from its exclusive right to
represent all bargaining-unit members.” Lewis, 750 F.2d at 1376. “A breach of the
duty of fair representation is proved only by facts that establish the union ‘acted
arbitrarily, fraudulently or in bad faith.’” Granberry v. Albuquerque Police Officers
Ass’n, 2008-NMCA-094, ¶ 6, 144 N.M. 595, 189 P.3d 1217 (quoting Callahan, 2006-
NMSC-010, ¶¶ 3, 15). “[M]ere negligence on the part of [the] union is not enough.”
Granberry, 2008-NMCA-094, ¶ 7 (first alteration in original) (internal quotation
marks and citation omitted). “[A]bsent justification or excuse, a union’s negligent
failure to take a basic and required step, unrelated to the merits of the grievance, is a
clear example of arbitrary and perfunctory conduct which amounts to unfair

17
representation.” Howse v. Roswell Indep. Sch. Dist., 2008-NMCA-095, ¶ 8, 144 N.M.
502, 188 P.3d 1253 (alteration in original) (internal quotation marks and citation
omitted).
{23} 	The holding in Foust was the result of the Supreme Court’s concern that
excessive punitive awards would damage national labor policy by undermining the
effectiveness of unions as collective bargaining agents. Foust, 442 U.S. at 50-51. The
Court opined that the financial instability that could result from such punitive awards
might ultimately damage employees, “whose welfare depends upon the strength of
their union.” Id. at 51. We agree in principle that the interests of union members to
organize is valuable and must be protected. We are convinced that New Mexico’s
system for awarding punitive damages provides protection to union members by
operating as a deterrent to the type of outrageous behavior displayed by Defendant in
this case.
{24} 	Therefore, we are persuaded by the concurring opinion in Foust that punitive
damages awards can serve a legitimate deterrent purpose in “those rare cases where
the union’s conduct can truly be described as outrageous” or where motivated by
“intentional racial discrimination.” 	Id. at 60. This reasoning is consistent with the
general policy in New Mexico for allowing punitive damages. 	“New Mexico law
allows a plaintiff who establishes a cause of action in law to recover punitive damages

18
as long as the wrongdoer’s conduct is willful, wanton, malicious, reckless, oppressive,
or fraudulent and in bad faith.” Bogle v. Summit Inv. Co., 2005-NMCA-024, ¶ 28, 137
N.M. 80, 107 P.3d 520. Additionally, in a case such as this, actual damages may be
hard to quantify, especially if the plaintiff continues to work in the hostile
environment, but punitive damages would serve the ultimate goal of deterring such
detestable behavior. See State Farm Mut. Auto. Ins. Co. v. Maidment, 107 N.M. 568,
571, 761 P.2d 446, 449 (Ct. App. 1988) (“New Mexico has long recognized that
punitive damages are assessed to punish . . . and not to compensate for loss by a
plaintiff.”).
{25} 	New Mexico is not alone in awarding punitive damages against a labor union
for breach of the DFR, although we remain one of the few states to have made a
decision on the issue. In Norton, the district court refused to issue the plaintiff’s jury
instruction on punitive damages for breach of the DFR. Norton, 441 N.W.2d at 363.
The Iowa Supreme Court reversed, holding that “punitive damages against a union are
permissible upon proof of actual or legal malice.” 	Id. 	The court noted that district
courts are fully capable of applying standards to “prevent improper punitive awards
that would unfairly harm the collective interests of union members.” Id. The court
went on to conclude that “allowing punitive damages against a union under the proper
circumstances will promote the members’ interest in fair representation by punishing

19
the union for its misconduct and by deterring future wrongdoing.” Id. We agree with
Norton.
{26} 	The actions of the Union in this case, as reflected in the jury’s verdict,
demonstrate such conduct as referred to in Norton. 	After being subjected to overt
racism in the workplace, Plaintiff called upon the Union to file a grievance, and it
refused to do so. Plaintiff was the only African-American working in his department
at the City of Carlsbad. 	His coworkers refused to speak English to him and his
supervisor would only issue orders in Spanish, a language that he did not speak.
When he complained to his supervisor that he could not speak or understand Spanish,
his supervisor nevertheless continued to give orders in Spanish. When Plaintiff asked
the Union to file a grievance on his behalf, he was told by the Union president that he
was the “wrong color” and that he “needed to learn to speak Spanish.” Eventually,
after repeated attempts to have a grievance filed on his behalf, Plaintiff left his job.
Such conduct, particularly that conduct directed toward Plaintiff’s race, is sufficiently
reprehensible to allow the issue of punitive damages to be considered by the jury. To
the extent that a union member refers to another member by the term “nigger” or is
allowed such use by a union official, any policy reasons that might otherwise insulate
the union from punitive damages evaporate.
{27} 	We agree with the concurring opinion in Foust that “[t]he appropriate remedy

20
for a breach of a union’s duty of fair representation must . . . vary with the
circumstances of the particular breach.” 	Foust, 442 U.S. at 53 (Blackmun, J.,
concurring) (quoting Vaca, 386 U.S. at 195). A court seeking “a remedy to match the
union’s wrong” must be allowed to deploy the full “panoply of tools traditionally used
by courts to do justice between [the] parties.” Id. Punitive damages constitute one of
these tools. 	And in cases of “intentional racial discrimination, deliberate personal
animus, or conscious infringement of speech [or] associat[ed] freedoms,” no principle
of labor policy stands in the way of such an award. Id. at 60. Courts should allow the
issue of punitive damages to go forward against a union where appropriate, and when
the union’s activities are merely negligent, the union has no cause for worry. “No
court . . . has ever held that negligence can form the basis for a proper punitive
damages award.” Id. at 61. We agree.
{28} 	For the above reasons, we hold that punitive damages may be awarded against
a union in a common law DFR action where its actions are wilful, wanton, malicious,
reckless, oppressive, or fraudulent and in bad faith. We affirm.
3. 	Whether the Jury’s Award of Punitive Damages Was Excessive
{29} 	We turn now to whether the amount of punitive damages awarded by the jury
was excessive. 	The Union argues that the district court should have reduced the
amount and that the court misapplied the law that limits the amount of punitive

21
damages relative to compensatory damages.
{30} 	“In New Mexico, the rule has been that a punitive damages award will be
upheld if substantial evidence supports the jury’s finding.” 	Aken v. Plains Elec.
Generation & Transmission Coop., 2002-NMSC-021, ¶ 17, 132 N.M. 401, 49 P.3d
662. We review the reasonableness of a punitive damages award de novo. Chavarria
v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 36, 140 N.M. 478, 143 P.3d 717.
“Under de novo review, we are to make an independent assessment of the record.”
Aken, 2002-NMSC-021, ¶ 19.
{31} 	In assessing the propriety of punitive damages awards, we apply the guideposts
laid out by the United States Supreme Court in BMW of North America, Inc. v. Gore,
517 U.S. 559, 574-75 (1996): “(1) the reprehensibility of the defendant’s conduct
. . . ; (2) the relationship between the harm suffered and the punitive damages award;
and (3) the difference between the punitive damages award and the civil and criminal
penalties authorized or imposed in comparable cases.” Chavarria, 2006-NMSC-046,
¶ 36 (citing Aken, 2002-NMSC-021, ¶ 20).
{32} 	The 	first 	and 	most 	important 	guidepost 	we 	apply 	is 	the 	severity 	or
reprehensibility of the defendant’s conduct. Id. ¶ 37; State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 419 (2003) (citing Gore, 517 U.S. at 575). The relevant
factors in making this determination—the type of harm inflicted; whether the conduct

22
was repeated or isolated; and whether the harm was intentionally malicious,
misleading, or deceitful, or merely accidental in nature, Campbell, 538 U.S. at 419
(citing Gore, 517 U.S. at 576-77)—are all present in this case.
{33} 	The facts in this case demonstrate that the Union’s failure to represent Plaintiff
was particularly reprehensible. 	As we have stated above, Plaintiff was the only
African-American in his Union, and he neither spoke nor understood Spanish.
Despite this, his coworkers refused to speak English in his presence, and Plaintiff’s
supervisor provided instructions predominantly in Spanish that were likewise
incomprehensible to him. 	Plaintiff’s coworkers repeatedly referred to him as a
“pinche miyate,” which in Spanish translates to “fucking nigger.” 	When Plaintiff
complained to the Union and asked that a grievance be filed, the Union president
informed Plaintiff that he “needed to learn to speak Spanish” and that he was “the
wrong color.” 	Furthermore, although the specific harm caused to Plaintiff was
singular—the other breach of the DFR having been dismissed on summary judgment
grounds—the conduct that precipitated the harm was repeated in nature. Only after
his coworkers had repeatedly referred to him using racial epithets did he seek redress
through the Union’s grievance system. Similarly, Plaintiff’s coworkers and supervisor
had refused to use English in his presence for some time prior to his complaint.
Finally, the Union president’s reply to Plaintiff’s complaint both compounded the

23
racist insult and indicated the intentional nature of the Union’s refusal to represent
Plaintiff. The display of such racial animus is always inexcusable, but in the context
of a union’s duty of fair representation it is particularly so. See Jolley v. Energen Res.
Corp., 2008-NMCA-164, ¶ 38, 145 N.M. 350, 198 P.3d 376 (holding that punitive
damages may properly reflect the degree of reprehensibility of the defendant’s
conduct).
{34} 	Second, we must consider the ratio of punitive damages to compensatory
damages. 	Chavarria, 2006-NMSC-046, ¶ 38; Aken, 2002-NMSC-021, ¶ 23. 	This
criterion “represents a different vantage point on the punitive damages award, and
considers the plaintiff’s injury.” Aken, 2002-NMSC-021, ¶ 23. “[I]n New Mexico,
where there is no rational relationship between the alleged acts [of the defendant] and
the amount . . . sought in punitive damages, the award may be found excessive.” Id.
(second and third alterations in original) (internal quotation marks and citation
omitted). However, the general rule in New Mexico is that a punitive damages award
can be justified “even when supported only by an award of nominal damages.”
Sanchez v. Clayton, 117 N.M. 761, 767, 877 P.2d 567, 573 (1994).
{35} 	We note that the United States Supreme Court has repeatedly refused to
embrace an absolute rule on a proper ratio for punitive damages awards. In Campbell,
the Court made its position explicit. “We decline again to impose a bright-line ratio

24
which a punitive damages award cannot exceed.” 	Campbell, 538 U.S. at 425.
Nevertheless, the Court has outlined rough limits. In Gore, it invalidated a ratio of
500 to 1, and in Campbell, it struck down a ratio of 145 to 1. Campbell, 538 U.S. at
426 (holding that “we have no doubt that there is a presumption against an award that
has a 145-to-1 ratio”); Gore, 517 U.S. at 582-83. Similarly in Pacific Mutual Life
Insurance Co. v. Haslip, 499 U.S. 1, 23-24 (1991), the Court stated that a ratio of 4
to 1 “[did] not cross the line into the area of constitutional impropriety.”
{36} 	New Mexico has also refused to set an absolute limit on the ratio for a punitive
damages award. 	As the New Mexico Supreme Court held in Chavarria, “the
relationship between punitive and compensatory damages is but one of the factors we
consider in assessing the constitutionality of a punitive damages award.” Chavarria,
2006-NMSC-046, ¶ 36. 	Assessing the ratio of punitive damages to compensatory
damages is “a somewhat imprecise inquiry.” Bogle, 2005-NMCA-024, ¶ 35. Courts
must conclude that the amount of punitive damages is related to the injury and does
not 	“manifest 	passion 	and 	prejudice 	rather 	than 	reason 	or 	justice.” 	Aken,
2002-NMSC-021, ¶ 23 (quoting Chavez-Rey v. Miller, 99 N.M. 377, 379, 658 P.2d
452, 454 (Ct. App. 1982)); Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 53,
127 N.M. 47, 976 P.2d 999 (same).
{37} 	Plaintiff was awarded $1,661.60 in compensatory damages and $30,000.00 in

25
punitive damages, resulting in a ratio of approximately 18 to 1. Admittedly, such a
ratio analyzed in isolation from the facts might seem to enter “into the area of
constitutional impropriety.” See Haslip, 499 U.S. at 23-24. But as we stated above,
these inquiries are by their nature imprecise, having no rigid benchmarks. We rely,
then, on the maxim that punitive damages are appropriate even in the absence of an
award of compensatory damages when “the conduct of the wrongdoer warrants [it] in
order to deter clearly unacceptable behavior.” Madrid v. Marquez, 2001-NMCA-087,
¶ 3, 131 N.M. 132, 33 P.3d 683. Because of the reprehensible nature of the Union’s
conduct and the presence of racial animus, we hold that the ratio in this case
“comport[s] with due process” as in Chavarria. Our Supreme Court could have been
writing about the instant case when it stated: “Given the truly reprehensible behavior
in this case, the relatively low compensatory damage award, and the intangible nature
of the harm that [the plaintiff] suffered, we believe that a substantial punitive damages
award was appropriate.” Chavarria, 2006-NMSC-046, ¶ 38.
{38} 	The final criterion we consider in reviewing the reasonableness of punitive
damages is the difference between the punitive damages award and the civil and
criminal penalties authorized or imposed in comparable cases. Id. ¶ 36. This “third
guidepost has been criticized as ineffective and very difficult to employ.” Aken, 2002-
NMSC-021, ¶ 25. We note that racial discrimination cases arising under Title VII and

26
other statutes have allowed for punitive damages in excess of $30,000.00, but such
penalties are of little assistance in a breach of the DFR case. 	Here, as in other
instances where Gore’s third guidepost has been treated, a survey of civil and criminal
penalties is of little assistance in conceptualizing the harmful conduct at issue.
Because of our analysis of the first two guideposts, we refuse to upset the jury’s
finding of punitive damages in this case. 	The district court’s refusal to reduce
punitive damages was thus not erroneous.
4. 	District Court’s Rulings on Plaintiff’s Emotional Distress Theory
{39} 	On cross-appeal, Plaintiff claims the district court committed reversible error
by not allowing evidence of emotional distress as a result of racial discrimination at
his job with the City of Carlsbad and refusing to give an emotional distress instruction
to the jury. We address each in turn.
A. 	Exclusion of Evidence of Emotional Distress
{40} 	We review a district court’s decision to admit or exclude evidence for abuse of
discretion. 	Coates, 1999-NMSC-013, ¶ 36. The appellate court presumes that the
district court is correct and that the burden is on the appellant to clearly demonstrate
the district court’s error. Farmers, Inc., v. Dal Mach. & Fabricating, Inc., 111 N.M.
6, 8, 800 P.2d 1063, 1065 (1990). 	“The determination of relevancy, as well as
materiality, rests largely within the discretion of the [district] court.” 	Griffin v.

27
Guadalupe Med. Ctr., Inc., 1997-NMCA-012, ¶ 14, 123 N.M. 60, 933 P.2d 859. “An
abuse of discretion occurs when the ruling is clearly against the logic and effect of the
facts and circumstances of the case. 	We cannot say the [district] court abused its
discretion by its ruling unless we can characterize it as clearly untenable or not
justified by reason.” State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)
(internal quotation marks and citations omitted).
{41} 	The district court’s decision to exclude evidence of emotional distress in this
case cannot be characterized as “clearly untenable or not justified by reason.” Id. A
cause of action for intentional infliction of emotional distress against a labor union
must involve acts or omissions of agents or officials of the union. Witt v. Roadway
Express, 136 F.3d 1424, 1431 (10th Cir. 1998). In his original complaint, Plaintiff
alleged that his supervisor and coworkers intentionally caused him emotional distress
when they racially derided him and spoke to him in Spanish. 	The district court
dismissed Plaintiff’s claim on an order of summary judgment, finding that Plaintiff
presented no evidence that his supervisor or coworkers were either agents or officials
of Defendant Union. 	Having dismissed Plaintiff’s cause of action for emotional
distress, the district court refused to admit evidence of emotional distress damages.
Its decision was not clearly untenable. Had Plaintiff alleged that the actions of the
Union president or some other official were the cause of his emotional distress, our

28
decision today might be different. 	Instead, Plaintiff’s complaint claims that the
intentional infliction of emotional distress perpetrated by his supervisor and coworkers
was “fostered” and “sanctioned” by the Union. 	The district court determined that
under these facts summary judgment should be granted to the Union, and Plaintiff
does not argue the propriety of this order, choosing instead to argue the issues of
evidence and jury instructions. Having granted summary judgment on the matter, the
district court did not abuse its discretion in refusing to retry the issue. We affirm the
decision of the district court.
1. 	District Court’s Refusal to Tender Emotional Distress Jury Instruction
{42} 	“‘The propriety of denying a jury instruction is a mixed question of law and fact
that we review de novo.’” State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185
P.3d 355 (quoting State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d
438)). If a legal theory is supported by the evidence, a party is entitled to have the
jury instructed on that theory. Thompson Drilling, Inc. v. Romig, 105 N.M. 701, 705,
736 P.2d 979, 983 (1987). 	We have concluded that the district court properly
dismissed the issue of emotional distress on summary judgment. 	Accordingly, its
refusal to give an instruction on emotional distress was proper and we affirm.
CONCLUSION
{43} 	For the foregoing reasons, we affirm the decision of the district court in

29
applying the four-year statute of limitations to Plaintiff’s claim through our holding
that the six-month statute of limitations in the PEBA is not retroactive. Likewise, we
affirm the district court’s awards of both compensatory and punitive damages, its
decision to exclude evidence of emotional distress damages at trial, and its refusal to
give a jury instruction on intentional infliction of emotional distress.
{44} 	IT IS SO ORDERED.
________________________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

MICHAEL E. VIGIL, Judge

30