S056700, Opinion — Hamlin v. Hampton Lumber Mills, Inc.

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Argued and submitted September 18, 2009, decision of Court of Appeals reversed;
judgment of circuit court affirmed January 6, 2011

Ken HAMLIN,
Petitioner on Review,
U.
HAMPTON LUMBER MILLS, INC.,
an Oregon corporation,
dba Willamina Lumber Company,
Respondent on Review.
(CC 040302235; CA A130213; SC S056700)
246 P3d 1121

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On review from the Court of Appeals .*

Craig A. Crispin, Crispin Employment Lawyers,
Portland, argued the cause and filed the brief for petitioner
on review.

Brenda K. Baumgart, Barran Liebman LLP, Portland,
argued the cause and filed the brief for respondent of review.
With her on the brief was Edwin A. Harnden.

Phil Goldsmith, Portland, filed the briefs for amicus
curiae Oregon Trial Lawyers Association.

Before De Muniz, Chief Justice, Durham, Balmer,
Kistler, Walters, and Linder, Justices, and Gillette, Justice
pro tempore .**

WALTERS, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.

Gillette, J. pro tempore, filed a dissenting opinion in
which Balmer, J., joined.

Appeal from the Multnomah County Circuit Court, Richard C. Baldwin,
Judge. 222 Or App 230, 193 P3d 46 (2008), on recons, 227 Or App 165, 205 P3d 70
(2009).

** Landau, J., did not participate in the consideration or decision of this case.

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527-b

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# WALTERS, J.

In this case, plaintiff was injured while working at
defendant's mill. When plaintiff was released to return to
work, defendant refused to reinstate him as required by ORS
659A.043, falsely asserting that he was a "safety risk." A jury
awarded plaintiff lost wages of $6,000 and punitive damages
of $175,000. On appeal, the Court of Appeals held that the
punitive damages award was "grossly excessive" under the
Due Process Clause of the United States Constitution and
reduced the award to a sum four times the amount of the
compensatory damages. Hamlin v. Hampton Lumber Mills,
Inc., 222 Or App 230, 238, 193 P3d 46 (2008), on recons, 227
Or App 165, 205 P3d 70 (2009). Having allowed plaintiff's
petition for review, we now reverse the decision of the Court
of Appeals and reinstate the punitive damages award.

In accordance with the jury's verdict, we state the
facts in the light most favorable to plaintiff. See Jensen v.
Medley, 336 Or 222, 226, 82 P3d 149 (2003) ("We state the
facts in the light most favorable to plaintiff, because
[plaintiff] was the prevailing party before the jury."). Defen-
dant operated a lumber mill and employed approximately
380 employees. Defendant employed plaintiff as a temporary
employee through Express Personnel Services (Express).
When plaintiff came to work at defendant's mill, defendant
did not instruct plaintiff how to "lock out" its machinery to
safely clear jams and avoid injury, nor did it issue plaintiff
the locks necessary to do so. Instead, plaintiff was instructed
to watch the other employees and to do what they did. On the
night that plaintiff was injured, defendant directed plaintiff
to stand at a specified location, which later was determined
to be unsafe. Plaintiff did as instructed, and when a board
became wedged between a conveyor belt and a bin, plaintiff
was unable to "lock out" the machinery and safely clear the
jam. One of defendant's employees told plaintiff to grab the
board, and when he attempted to do so, the machinery caught
his glove and mangled his thumb.

Plaintiff was hospitalized and unable to work for
four months. During that time, defendant twice told plaintiff
that his job was secure. Defendant did not suggest to plaintiff
or anyone else that plaintiff was a "safety risk" or that he had

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been at fault in causing his injury. Defendant prepared a
written report describing the incident in which plaintiff had
been injured. That report did not suggest that plaintiff was
responsible for his own injury or that he constituted a "safety
risk."

While he was unable to work, plaintiff filed a claim
for workers' compensation benefits, which was granted, and
a safety complaint with Oregon Occupational Safety and
Health Administration (OSHA), which was dismissed. When
plaintiff's physicians released him to resume work, plaintiff
contacted Express and sought reinstatement at defendant's
mill.

Express contacted the Oregon Bureau of Labor and
Industries (BOLI) to inquire whether a temporary employee
in plaintiff's position had reinstatement rights. Express
learned that defendant generally was required to rein-
state temporary employees, such as plaintiff, under ORS
659A.043,1 and communicated that information to defen-
dant. Defendant deliberately decided not to reinstate plain-
tiff and falsely asserted that he was a "safety risk."

Plaintiff then filed this action against defendant,
asserting (among other claims)2 a claim for failure to rein-
state under ORS 659A.043 and a claim for retaliation for fil-
ing charges with OSHA under ORS 654.062(5).3 Plaintiff

\* ORS 659A.043(1) provides:

"A worker who has sustained a compensable injury shall be reinstated by
the worker's employer to the worker's former position of employment upon
demand for such reinstatement, if the position exists and is available and the
worker is not disabled from performing the duties of such position."

2 Plaintiff asserted a total of four claims for relief against defendant: failing to
reinstate him (ORS 659A.043), retaliating against him for making a safety com-
plaint to Oregon OSHA (ORS 654.062(5)), retaliating against him for filing a work-
ers' compensation claim (ORS 659A.040), and wrongful termination. The jury
decided against plaintiff on his claims for workers' compensation retaliation and
for wrongful discharge. No issues regarding the claims other than the failure to
reinstate claim are presented on review.

3 ORS 654.062(5) provides:

"It is an unlawful employment practice for any person to bar or discharge
from employment or otherwise discriminate against any employee or prospec-
tive employee because the employee or prospective employee has:

"(a) Opposed any practice forbidden by ORS 654.001 to 654.295, 654.412
to 654.423 and 654.750 to 654.780;

"(b) Made any complaint or instituted or caused to be instituted any pro-
ceeding under or related to ORS 654.001 to 654.295, 654.412 to 654.423 and

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sought $10,968 in economic damages, $100,000 in noneco-
nomic damages, and $969,000 in punitive damages. A jury
rendered a verdict for plaintiff on his failure to reinstate
claim and awarded him lost wages of $6,000.4 The court ren-
dered a verdict for plaintiff on his OSHA retaliation claim
and awarded him lost wages of $10,000.5

The court instructed the jury that, to award punitive
damages, it must find by clear and convincing evidence that
defendant's conduct amounted to "a particularly aggravated,
deliberate disregard of the rights of others." The court per-
mitted the jury to consider various factors in determining the
amount of punitive damages to award, including "the sum of
money that would be required to discourage the defendant
and others from engaging in such conduct in the future; and
the income and assets of the defendant." The jury awarded
punitive damages of $175,000.

Defendant filed a motion for judgment notwith-
standing the verdict or for a new trial, contending that the
trial court was required to reduce the punitive damages
award to comport with the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
Specifically, defendant asserted that the punitive damages
award in this case failed to meet the constitutionality "guide-
posts" prescribed by the United States Supreme Court in
BMW of North America, Inc. v. Gore, 517 US 559, 116 S Ct
1589, 134 L Ed 2d 809 (1996), and other cases. Defendant
argued (among other things) that the ratio between the com-
pensatory and punitive damages was close to 30:1 and
greatly in excess of the single-digit ratio demanded by due

654.750 to 654.780, or has testified or is about to testify in any such proceeding;
or

"(c) Exercised on behalf of the employee, prospective employee or others
any right afforded by ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750
to 654.780."

4 The jury found that plaintiff's lost wages were $10,000, but that he had
unreasonably failed to mitigate $4,000 of those damages. The jury declined to
award noneconomic damages.

5 Unlike the jury, the court rejected defendant's argument that plaintiff had
unreasonably failed to mitigate his damages on the OSHA retaliation claim. Vio-
lation of ORS 654.062(5) does not permit an award of noneconomic or punitive
damages. ORS 659A.885(3) (authorizing punitive damages for violations of listed
statutes, not including ORS 654.062(5)).

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process. In opposing defendant's motion, plaintiff argued that
the Supreme Court expressly had declined to impose a strict
ratio and that the sum awarded by the jury was appropriate
to meet the state's interest in deterring and punishing illegal
conduct. The trial court agreed with plaintiff, concluded that
the punitive damages award "was not unconstitutionally
excessive," and entered judgment against defendant for the
full amount of damages awarded by the jury.6

Defendant appealed to the Court of Appeals, renew-
ing its assertion that the punitive damages award in this case
was so "grossly excessive" that it violated due process. The
Court of Appeals agreed. It reasoned that, measured by the
guideposts articulated in Gore and other United States
Supreme Court cases and reviewed and refined by this court
in Goddard v. Farmers Ins. Co., 344 Or 232, 179 P3d 645
(2008), the punitive damages verdict was unconstitutionally
large. Hamlin, 222 Or App at 238. The Court of Appeals
decided that defendant's actions were only moderately rep-
rehensible and had produced only economic harm, id. at 239-
41, that the nearly 30:1 ratio between punitive and compen-
satory damages was well outside the asserted 4:1 limit for
such cases, id. at 241-44, and that the third guidepost, which
examines comparable civil and criminal sanctions, was
unhelpful either way. Id. at 246-47. The court therefore con-
cluded that the constitutional limit on the punitive damages
award was four times the amount of the compensatory dam-
ages award (i.e., four times $6,000 plus prejudgment inter-
est). Id. at 250.

On review, plaintiff argues that the Court of Appeals
erred in applying the ratio guidepost too strictly. Plaintiff
contends that when, as in this case, a compensatory damages
award is small, a punitive damages award that is more than
a single-digit multiplier of the compensatory damages award

6 The trial court entered two separate "general money judgments" in this case,
one on August 25, 2005, the other on October 20, 2005. The judgments are essen-
tially identical, save for the pre- and post-judgment interest provisions. Both judg-
ments awarded plaintiff $185,000-compensatory damages of $10,000 (constitut-
ing both the $6,000 awarded by the jury on the failure to reinstate claim and the
$10,000 awarded by the trial court on the OSHA retaliation claim) and punitive
damages of $175,000. The trial court later entered a supplemental judgment
awarding plaintiff $72,506.90 in attorney fees, plus costs. Defendant does not con-
test the computation of those judgments in this court.

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is constitutionally permissible. Plaintiff also asserts that,
because defendant's conduct violated a statute, and particu-
larly a statute prohibiting discrimination against a worker,
its conduct is more than moderately reprehensible.

Before we consider the merits of plaintiff's argu-
ments, we first review the decisions of the United States
Supreme Court that discuss the limitations that the Due
Process Clause of the Fourteenth Amendment imposes on
awards of punitive damages. The Court has held that that
clause prohibits "grossly excessive" punitive damages
awards. State Farm Mut. Automobile Ins. Co. v. Campbell,
538 US 408, 416, 123 S Ct 1513, 155 L Ed 2d 585 (2003); Gore,
517 US at 568. "Grossly excessive" punitive damages awards
are awards that serve no legitimate state purpose and consti-
tute an arbitrary deprivation of property. Campbell, 538 US
at 417.

The Supreme Court has instructed courts that, to
arrive at a conclusion about whether a punitive damages
award is "grossly excessive," they are to consider three
"guideposts." See id. at 418 (summarizing guideposts); Gore,
517 US at 574-75 (noting guideposts). The first guidepost is
the degree to which defendant's conduct is reprehensible.
Campbell, 538 US at 418; Gore, 517 US at 575. The second
guidepost examines the disparity between the punitive and
compensatory damages awards, usually in the form of a ratio.
See Campbell, 538 US at 424-25; Gore, 517 US at 580 (both so
explaining). The third guidepost compares the punitive dam-
ages award to legislatively prescribed civil and criminal pen-
alties for comparable misconduct. Campbell, 538 US at 428;
Gore, 517 US at 583.

The second guidepost is the only quantitative guide-
post that the Supreme Court has announced. The Court has
suggested that, "in practice, few awards exceeding a single-
digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process[,]" Campbell, 538
US at 425. In this case, the Court of Appeals primarily relied
on the ratio between punitive and compensatory damages in
concluding that the award of punitive damages was "grossly
excessive." Hamlin, 222 Or App at 241. Because plaintiff

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challenges that analysis, we begin with the second guidepost
and its applicability in this case.

Key to understanding the second guidepost is the
Supreme Court's repeated refusal to set any "rigid bench-
mark" beyond which a punitive damages award becomes
unconstitutional. See, e.g., Campbell, 538 US at 424-25; Gore,
517 US at 582 (both to that effect). The Court has explained
that, "[i]n our federal system, States necessarily have consid-
erable flexibility in determining the level of punitive dam-
ages that they will allow[,]" and that due process permits
punitive damages that are "reasonably necessary to vindi-
cate the State's legitimate interests in punishment and
deterrence." Gore, 517 US at 568. Therefore, the Court has
concluded that "[o]nly when an award can fairly be catego-
rized as 'grossly excessive' in relation to these interests does
it enter the zone of arbitrariness that violates the Due
Process Clause of the Fourteenth Amendment." Id.

The Supreme Court also has recognized that a state
may be unable to achieve its goals of deterrence and retribu-
tion if awards of punitive damages must, in all instances, be
closely proportional to compensatory damages. In one of the
first cases to discuss constitutional limits on punitive dam-
ages, the Court used a hypothetical from a 1931 law review
article to explain why significant punitive damages may be
appropriate in some cases:

"'For instance, a man wildly fires a gun into a crowd. By
sheer chance, no one is injured and the only damage is to a
$10 pair of glasses. A jury reasonably could find only $10 in
compensatory damages, but thousands of dollars in puni-
tive damages to teach a duty of care. We would allow a jury
to impose substantial punitive damages in order to discour-
age future bad acts.' [Garnes v. Fleming Landfill, Inc., 186
W Va 656, 661, 413 SE2d 897, 902] (citing C. Morris,
Punitive Damages in Tort Cases, 44 Harv L Rev 1173, 1181
(1931)) [(hereinafter Morris)]."

TXO Production Corp v. Alliance Resources Corp, 509 US
443, 460, 113 S Ct 2711, 125 L Ed 2d 366 (1993). In the law
review article that the Court cited, Professor Morris further
described the admonitory function that tort damages-both
compensatory and punitive-serve:

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"When an act with a vicious tendency happens to result in a
small injury the 'compensatory' damages are necessarily
small. If it must follow that the punitive damages must also
be small, the total verdict might be lenient where severity is
desirable. On the other hand, if the 'compensatory' damages
are large, the defendant is severely admonished without
the addition of any punitive damages; but in such a case the
ratio test counsels large punitive damages, and may result
in over-severity entirely unnecessary for the proper work-
ing of the admonitory function [of tort law]."

Morris, 44 Harv L Rev at 1182.

To address that concern, the Supreme Court has
suggested that reviewing courts may consider not only the
compensatory damages awarded by the jury, but also the
potential harm that could have resulted from the defendant's
acts. Campbell, 538 US at 418; Gore, 517 US at 581-82; TXO,
509 US at 460-61. The Supreme Court also has stated that
higher ratios than otherwise permitted may be justified “ 'in
cases in which the injury is hard to detect' * * * , or when the
value of injury and the corresponding compensatory award
are small[.]" Exxon Shipping Co. v. Baker, 554 US 471, 494,
128 S Ct 2605, 171 L Ed 2d 570 (2008) (emphasis added).7

In this case, the Court of Appeals did not have the
benefit of the Court's decision in Exxon and cited Gore, 517
US at 582, for the proposition that, to come within the excep-
tions identified in that case, not only must the compensatory
damages be small, but a defendant's conduct also must be
"particularly egregious." Hamlin, 222 Or App at 244-45.
Although Gore identified the circumstance in which particu-
larly egregious conduct results in small compensatory dam-
ages as one in which higher ratios may be permitted, the
Court did so in the context of listing examples of the kinds of
cases in which flexibility in applying ratios was necessary. In
Gore, the Court stated:

"Indeed, low awards of compensatory damages may prop-
erly support a higher ratio than high compensatory awards,
if, for example, a particularly egregious act has resulted in

7 The Court's holding in Exxon was based on federal maritime law, but the
Court discussed the constitutional limits on punitive damages in the course of that
opinion.

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only a small amount of economic damages. A higher ratio
may also be justified in cases in which the injury is hard to
detect or the monetary value of noneconomic harm might
have been difficult to determine. It is appropriate, there-
fore, to reiterate our rejection of a categorical approach."

517 US at 582 (emphasis added). The Supreme Court's pur-
pose was to caution against the categorical use of ratios and
not, in our view, to set forth an exclusive list of exceptions to
a ratio requirement. See Williams v. Philip Morris Inc., 340
Or 35, 63, 127 P3d 1165 (2006), vac'd on other grounds, 549
US 346, 127 S Ct 1057, 166 L Ed 2d 940 (2007), on remand,
344 Or 45, 176 P3d 1255 (2008) (identifying an exception to
the general rule of single-digit ratios not listed in Gore for
cases of "extraordinarily reprehensible" behavior).8

Lower federal and state courts have ruled accord-
ingly. For example, in Saunders v. Branch Banking and
Trust Co. of VA, 526 F3d 142, 152-54 (4th Cir 2008), the
Fourth Circuit affirmed a punitive damages award of
$80,000 when the compensatory award was $1,000. The
court explained that other federal courts were in general
agreement that, in that circumstance, limiting punitive dam-
ages to a single-digit ratio would fail to serve the purposes of
punitive damages. The court stated:

"[W]hen a jury only awards nominal damages or a small
amount of compensatory damages, a punitive damages
award may exceed the normal single digit ratio because a
smaller amount 'would utterly fail to serve the traditional
purposes underlying an award of punitive damages, which

8 The dissent charges that we wrongly "truncate" the Gore exception by drop-
ping the requirement of "particularly egregious misconduct," 349 Or at 547
(Gillette, J., dissenting). However, the dissent also eliminates that requirement for
punitive damages awards under $50,000, and, notably, thus necessarily recognizes
that the Gore exceptions are not an exclusive list of the instances in which the mul-
tiplier of compensatory damages may exceed a single-digit. The difference between
the dissent and the majority is that the dissent would judicially cap punitive dam-
ages in small compensatory damage cases at $50,000. The dissent suggests a leg-
islative "solution to [the] quandary," 349 Or at 547-48, 550-51 (Gillette, J., dissent-
ing), instead of confining its inquiry to the issue presented-the constitutional
limits imposed by the Due Process Clause. The dissent's proposal is not drawn from
Supreme Court precedent; instead it conflicts with the Supreme Court's refusal to
set "rigid benchmarks" beyond which a punitive damages award becomes uncon-
stitutional. See, e.g., Campbell, 538 US at 424-25; Gore, 517 US at 582 (both to that
effect).

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are to punish and deter.' Kemp v. Am. Tel. & Tel. Co., 393
F3d 1354, 1364-65 (11th Cir 2004) (allowing punitive dam-
ages award of $250,000 accompanying compensatory dam-
ages of $115.05); see also Abner v. Kan. City S. R.R., 513 F3d
154, 165 (5th Cir 2008) (affirming punitive damages award
of $125,000 accompanying nominal damages of $1);
Mathias v. Accor Econ. Lodging, Inc., 347 F3d 672, 674-78
(7th Cir 2003) (affirming $186,000 punitive damages award
accompanying compensatory damages of $5,000); Lee v.
Edwards, 101 F3d 805, 811 (2d Cir 1996) (rejecting ratio
analysis because 'the compensatory award here was nomi-
nal, [so] any appreciable exemplary award would produce a
ratio that would appear excessive by this measure')."

Id. at 154 (brackets and emphasis in original).

Goff v. Elmo Greer & Sons Const. Co., Inc., 297
SW3d 175 (Tenn 2009), cert den, \_US\_, 130 S Ct 1910
(2010), is also illustrative. In that case, the defendant, a con-
struction company working on a highway expansion project,
intentionally buried tires and other waste under several feet
of compacted rock on the plaintiff's property. For that con-
duct, a jury awarded the plaintiff $3,305 in compensatory
damages and $1 million in punitive damages.9 On review, the
state supreme court first determined that defendant's con-
duct "d[id] not constitute an environmental hazard or
threaten the health or safety of any individual" and that the
defendant's actions did not reach the highest levels of repre-
hensibility; consequently, the ratio of 302:1 was excessive. Id.
at 195. Nonetheless, the court rejected the defendant's argu-
ment that the federal constitution requires the punitive and
compensatory damages ratio be in single digits, concluding
that such a claim "reflects an overly restrictive view that does
not comport with the Supreme Court's jurisprudence on the
subject." Id. at 194. The court determined that a punitive
damages award of $500,000 (a ratio of 151:1) was adequate to
send a "strong message." Id. at 196.

We agree that, when the compensatory damages
award is small and does not already serve an admonitory
function, the second guidepost-the ratio between punitive

9 The jury initially had awarded $2 million in punitive damages, but the trial
court reduced the award to $1 million because that was what the plaintiff had
sought in the complaint. Goff, 297 SW3d at 179.

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and compensatory damages-is of limited assistance in
determining whether the amount of a jury's punitive dam-
ages award meets or exceeds state goals of deterrence and
retribution. If we rely too heavily on the ratio between puni-
tive and compensatory damages in those circumstances, we
risk interfering with legitimate state interests by striking
down awards that are reasonably calculated to deter and
punish illegal conduct and that are, therefore, constitution-
ally permitted.

Before considering the degree to which the ratio
between the punitive and compensatory damages is a relia-
ble indicator of unconstitutionality in this case, we must
identify the damages awarded and calculate the ratio
between them. We use the $175,000 punitive damages award
as the numerator and the compensatory damages award of
$6,000, plus prejudgment interest, as the denominator. See
Goddard, 344 Or at 269-70 (prejudgment interest is consid-
ered as part of compensatory damages). For purposes of the
ratio calculation in this opinion, we estimate the amount of
prejudgment interest to be approximately $2,00010 and cal-
culate the ratio as approximately 22:1.

In deciding whether the compensatory damages
award is small, we are mindful, just as the Supreme Court
has been, that the process of identifying due process limits
demands flexibility and a consideration of the facts and cir-
cumstances that each case presents. Just as the Supreme
Court has been unwilling to draw a rigid dividing line
between constitutional and unconstitutional ratios, we are
unwilling to draw a rigid line between "small" and "substan-
tial" compensatory damages awards.

We do note, however, that we have characterized an
award of compensatory damages of less than $25,000 as "rel-
atively small" and "low." Williams, 340 Or at 60. Further-
more, a compendium of cases from other jurisdictions dem-
onstrates that courts generally hold that, in instances in
which compensatory awards are $12,000 or less, awards in
excess of single-digit ratios are not "grossly excessive." See
Lauren R. Goldman and Nicholai G. Levin, State Farm at

10 As the Court of Appeals noted, some doubt exists regarding the correct
amount of prejudgment interest. See Hamlin, 222 Or App at 243 n 6 (so indicating).

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Three: Lower Courts' Application of the Ratio Guidepost,
2 NYU J L & Bus 509, 514-15 (2005-06) (of 40 decisions in
which the compensatory damages award was $25,000 or less,
24 upheld punitive damages awards with a double-digit or
higher ratio, and 23 of those 24 involved compensatory dam-
ages awards of $12,000 or less).

In this case, $6,000 in lost wages is a relatively small
recovery that we would not expect to serve an admonitory, as
well as a compensatory, function. Defendant does not argue,
for example, that, due to its size or financial circumstances,
the compensatory damages award here had a greater effect
on it than we would anticipate that award having on a typical
employer. Evidence in the record indicates that, in the year
in which it violated ORS 659A.043, defendant employed
approximately 380 workers, that its net worth was approxi-
mately $10 million, and that its gross profit was approxi-
mately $2.8 million. We conclude, therefore, that the fact that
the ratio between punitive and compensatory damages is
greater than a single digit does not, in itself, indicate that the
punitive damages that the jury awarded were "grossly
excessive."11

11 Because we reach that conclusion, the dissent understands us to be drawing
a numerical line between "small" and "substantial" compensatory damages awards
that compels two different applications of the ratio guidepost and that, in its view,
produces anomalous results. For instance, if we were to consider a compensatory
damages award of $11,000 to be "small," but a compensatory damages award of
$12,000 to be "substantial," it would be anomalous for the former award to justify a
punitive damages award of $175,000 (a 16:1 ratio), but the latter award to justify a
punitive damages award of only $48,000 (a 4:1 ratio). We have three responses.

First, we do not intend to draw a hard and fast numerical line between "small"
and "substantial" compensatory damage awards. What is "small" will depend on
the facts and circumstances of each case and the admonitory effect of the compen-
satory damages.

Second, we see the proportionality aspect of the due process analysis as a con-
tinuum-the lower the compensatory damages, the higher the permitted ratio and,
conversely, the higher the compensatory damages, the lower the permitted ratio.
Thus, for example, if a jury were to award compensatory damages of $100, a puni-
tive damage award of 100 times that sum-an award of $10,000-could be justi-
fied. But if a jury were to award compensatory damages of $10,000, a punitive dam-
ages award of 100 times that sum-an award of $1 million-could be "grossly
excessive." Understood in that way, the difference between compensatory damages
of $11,000 and compensatory damages of $12,000 would not result in a choice
between a 16:1 or a 4:1 ratio. If a defendant's conduct caused $11,000 in compen-
satory damages and justified a punitive damages award of $175,000, neither this
court nor the Supreme Court has held that similar conduct that resulted in com-
pensatory damages of $12,000 could not justify a similar punitive damages award.

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We therefore turn to the other guideposts that the
Supreme Court has identified for assistance. The first of
those-the reprehensibility guidepost-is "[t]he most
important indicium of the reasonableness of a punitive dam-
ages award[.]'" Campbell, 538 US at 419 (quoting Gore, 517
US at 575). The Court has instructed that we determine rep-
rehensibility by considering whether

"the harm caused was physical as opposed to economic; the
tortious conduct evinced an indifference to or a reckless dis-
regard of the health or safety of others; the target of the con-
duct had financial vulnerability; the conduct involved
repeated actions or was an isolated incident; and the harm
was the result of intentional malice, trickery, or deceit, or
mere accident. * * * The existence of any one of these fac-
tors weighing in favor of a plaintiff may not be sufficient to
sustain a punitive damages award; and the absence of all of
them renders any award suspect. It should be presumed a
plaintiff has been made whole for his injuries by compen-
satory damages, so punitive damages should only be
awarded if the defendant's culpability, after having paid
compensatory damages, is so reprehensible as to warrant
the imposition of further sanctions to achieve punishment
or deterrence."

Id. at 419 (citations omitted).

In this case, the Court of Appeals concluded that two
of the five reprehensibility subfactors identified in Campbell
and Gore were present: "plaintiff was financially vulnerable,
and, to a degree, harm resulted from defendant's 'intentional
malice, trickery, or deceit.' " Hamlin, 222 Or App at 240. The
parties do not disagree, but plaintiff contends that this court
should recognize an additional reprehensibility subfactor-
defendant's violation of ORS 659A.043.

Third, when a defendant's conduct causes substantial harm, the damages
awarded generally will be different in degree from those we consider "small." In
other words, if a defendant inflicts more than minimal harm, it is likely that a
plaintiff will recover substantial compensatory damages and that a single-digit
multiplier of that award will produce punitive damages greater than or equal to
those produced by a higher multiplier of lower compensatory damages. For exam-
ple, if a defendant were to cause harm that resulted in an award of $50,000 in com-
pensatory damages, an award of four times that sum would result in punitive dam-
ages of $200,000.

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In Gore and Campbell, the Court instructed that we
gauge the constitutionality of a punitive damages award by
considering whether it is grossly excessive in relation to this
state's interests. Campbell, 538 US at 416-17; Gore, 517 US
at 568. In listing the reprehensibility subfactors that it did,
the Court recognized that states, including this state, have a
particular interest in deterring and punishing conduct
that causes its citizens physical harm, evidences a disre-
gard of their health or safety, or takes advantage of their
vulnerability.

By requiring employers to reinstate injured workers,
the Oregon legislature has protected similar societal inter-
ests in workplace safety and the welfare of its citizens. By
authorizing an award of punitive damages against employers
that breach their obligations under ORS 659A.043, the
Oregon legislature has indicated its intent to deter and
punish that conduct. By authorizing an award of noneco-
nomic damages against employers that breach their obliga-
tions under ORS 659A.043,12 the Oregon legislature also has
recognized that the harm that offending employers inflict
may be more than monetary and that a plaintiff who is not
reinstated and who is, therefore, unemployed, is in a more
vulnerable position than is a person who is employed when
he or she suffers monetary loss. A person who suffers a loss
of employment is without the present ability to earn money
to recover economic loss and to avoid further consequential
loss.

Although the Supreme Court did not specifically
identify the interests protected by ORS 659A.043 as repre-
hensibility subfactors in Campbell and Gore, we think that

22 ORS 659A.885(1) authorizes a court, in a civil action under ORS 659A.043, to
"order injunctive relief and any other equitable relief that may be appropriate,
including but not limited to reinstatement or the hiring of employees with or
without back pay."

A court is further authorized to award "compensatory damages or $200, whichever
is greater, and punitive damages[.]" ORS 659A.883(3). Compensatory damages
include both economic and noneconomic damages. See Tadsen v. Praegitzer
Industries, Inc., 324 Or 465, 928 P2d 980 (1996) (under earlier, but identical, ver-
sion of ORS 659A.885(3), plaintiff's compensatory award included both economic
and noneconomic damages); Griffin v. Tri-Met, 318 Or 500, 870 P2d 808 (1994)
(same).

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the Oregon legislature's affirmative action to protect quali-
tatively similar state interests permits us to consider defen-
dant's statutory violation in our reprehensibility analysis.
When we also recognize, as did the jury and the Court of
Appeals, that defendant's conduct included "intentional mal-
ice, trickery, or deceit," we conclude that defendant's conduct
was more than minimally reprehensible.

In reaching that conclusion, we do not mean to indi-
cate that we consider defendant's conduct to approach that of
the defendant in Williams, 340 Or at 39-43. In that case, we
considered the conduct of the defendant to be "extraordinar-
ily reprehensible" because the defendant had "engaged in a
prolonged pattern of egregious and deceitful conduct that
pose[d] an extreme threat to the health and safety of a signif-
icant segment of the population of the state[.]" Goddard, 344
Or at 258, 258 n 3 (describing conduct of defendant in
Williams). In this case, we conclude only that defendant's
conduct was sufficiently reprehensible that, in the circum-
stances presented-where the compensatory damages are
low and the ratio between the compensatory and punitive
damages is not a reliable indicator of the constitutionality of
the punitive damages award-defendant's conduct may jus-
tify an award of punitive damages in excess of a single-digit
multiplier of the compensatory damages awarded.

We next consider the third guidepost that the
Supreme Court has identified-comparable civil or criminal
sanctions. The parties do not challenge the conclusion of the
Court of Appeals that the only sanction that Oregon law pro-
vides for violation of ORS 659A.043 is a civil action against
an offending employer and that, as a result, the third guide-
post neither militates against, nor supports, a punitive dam-
ages award in excess of a single-digit multiplier of the com-
pensatory damages award. See Hamlin, 222 Or App at 247
(stating conclusion). In that circumstance, the third guide-
post does not play a significant role in our analysis.

Having decided that the punitive damages award in
this case may exceed a single-digit multiplier of the compen-
satory damages award without violating due process, we still

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must decide whether the amount of punitive damages actu-
ally awarded-$175,000-is, nevertheless, "grossly exces-
sive." In that regard, we note first that the jury's award is dif-
ferent in order of magnitude from the multimillion dollar,
three-digit multiplier, punitive damages awards that the
Supreme Court invalidated as "grossly excessive" in Gore
($2 million punitive damages award in 500:1 ratio to compen-
satory damages) and Campbell ($145 million punitive dam-
ages award in 145:1 ratio to compensatory damages). The
punitive damages award in this case is less than $200,000
and is a low double-digit (22:1) multiplier of the compensa-
tory damages award.

We also note that the amount of the punitive dam-
ages award in this case is not "grossly excessive" when meas-
ured by awards that legislatures and courts have permitted
in similar circumstances. For instance, Title VII prohibits
certain acts of discrimination in employment and authorizes
the imposition of punitive damages on a showing that the
defendant "engaged in a discriminatory practice" with "mal-
ice or with reckless indifference to the federally protected
rights of an aggrieved individual." 42 USC § 1981a(b)(1).
Title VII places limits on the total amount of compensatory
and punitive damages that may be awarded, ranging from a
limit of $50,000 for employers with fewer than 100 employees
to a limit of $300,000 for employers with 500 or more employ-
ees. 42 USC § 1981a(b)(3)(A)-(D). Title VII permits punitive
damages up to those statutory caps without regard to the
ratio between compensatory and punitive damages. For
employers like defendant, with more than 200, but less than
500 employees, the applicable limit is $200,000. 42 USC
§ 1981a(b)(3)(C). The award of punitive and compensatory
damages in this case is less than that sum.

In the following cases, appellate courts similarly
have approved punitive damages in amounts and in ratios
greater than or similar to those present in this case:
Rodriguez-Torres v. Caribbean Forms Mfg., 399 F3d 52, 56
(1st Cir 2005) (punitive damages award of $199,999; compen-
satory damages of $1, for 199,999:1 ratio in Title VII discrim-
ination claim); Romanski v. Detroit Entertainment, LLC, 428
F3d 629, 649 (6th Cir 2005), cert den, 549 US 946 (2006)
(punitive damages of $600,000; economic damages of
$279.05, for 2,150:1 ratio, for false arrest and confiscation of

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lunch voucher by casino security officer); Kemp v. American
Tel & Tel Co., 393 F3d 1354, 1365 (11th Cir 2004) (punitive
damages of $250,000; compensatory damages of $115.05, for
2,173:1 ratio, for defrauding customers); Mathias v. Accor
Economy Lodging, 347 F3d 672, 674 (7th Cir 2003) (punitive
damages of $186,000; compensatory damages of $5,000, 37:1
ratio, for bedbug-infested hotel room); Deters v. Equifax
Credit Information Services, 202 F3d 1262, 1266 (10th Cir
2000) (punitive damages of $295,000; compensatory damages
of $5,000, for 59:1 ratio, for sexual harassment claim); Goff,
297 SW3d at 196 (punitive damages of $500,000; compen-
satory damages of $3,305, for 151:1 ratio, in common-law
nuisance action); State v. Carpenter, 171 P3d 41, 66
(Alaska 2007) (punitive damages of $150,000; economic
damages of $5,042, for 30:1 ratio, in spoliation of evidence
claim); Myers v. Workmen's Auto Ins. Co., 140 Idaho 495, 95
P3d 977, 982-83 (2004) (punitive damages of $300,000;
compensatory damages of $735, for 408:1 ratio, in breach of
contract case); Craig v. Holsey, 264 Ga App 344, 590 SE2d
742 (2003), cert den, 543 US 820 (2004) (punitive damages
of $200,000; compensatory damages of $8,801 for 22:1
ratio, for car accident caused by intoxicated driver). See
also Goldman and Levin, 2 NYU J L & Bus at 550-55 (in
cases in which compensatory damages were less than
$12,000, punitive damages in double digit or greater ratio
awarded and judicially affirmed in 68% of cases; punitive
damages greater than $175,000 awarded and judicially
affirmed in 32% of cases).

In this case, the compensatory damages are small
and the ratio between the punitive and compensatory
damages-22:1-is in the low double digits. That ratio is
higher than would be constitutionally permissible if the com-
pensatory damages were more substantial, but is not so high
that it makes the award "grossly excessive." The amount of
the punitive damages award-$175,000-also is not so high
that we can say that it exceeds, rather than serves, this
state's interests in deterring and punishing the violation of
ORS 659A.043.13 We hold that the Court of Appeals erred in

13 The dissent agrees that the compensatory damages in this case are small
enough that the otherwise permissible multiplier (the dissent assumes a
permissible multiplier of three) does not establish the maximum constitutionally

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reversing the jury's punitive damages verdict, and we rein-
state it.

The decision of the Court of Appeals is reversed, and
the judgment of the circuit court is affirmed.

# GILLETTE, J. pro tempore, dissenting.

If the only issue in this case were whether a punitive
damages award of $175,000 is "grossly excessive," given
defendant's conduct and the jury's $6,000 compensatory
damages award, I would have little trouble concluding that it
is not. However, the Supreme Court has instructed us not
only that punitive damages awards that are "grossly exces-
sive" are impermissible because they violate the Due Process
Clause, see State Farm Mut. Automobile Ins. Co. v. Campbell,
538 US 408, 416, 123 S Ct 1513, 155 L Ed 2d 585 (2003), but
it also has provided "guideposts" that this court, and other
lower courts, must use in reviewing punitive damages
awards for compliance with the Due Process Clause. Id. at
418. My disagreement with the majority is based on its appli-
cation of those guideposts-or, rather, its failure to apply one
of those guideposts because of what it views as an exception
to the guidepost.

Before turning to the majority's rationale for its con-
clusion that a 22:1 ratio of punitive to compensatory damages
in this case is consistent with the Supreme Court's case law,
I pause briefly to consider this court's obligation to follow the
Court's guidance. When the Supreme Court decides a case,
its decisions almost invariably contain "explanatory lan-
guage that is intended to provide guidance to lawyers and
judges in future cases." Carey v. Musladin, 549 US 70, 79,
127 S Ct 649, 166 L Ed 2d 482 (2006) (Stevens, J., concurring
in the judgment). Lower court judges may not "discount the
importance of such guidance on the ground that it may not
have been strictly necessary as an explanation of the Court's
specific holding in the case." Id. Indeed, even when applying
its own precedents, the Court generally "adhere[s] not only to
the holdings of our prior cases, but also their explications of

permissible punitive damages award. In the dissent's view, however, the amount of
the punitive damages must be capped at $50,000. 349 Or at 551. The Due Process
Clause does not impose such a cap.

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the governing rules of law." Allegheny County v. Greater
Pittsburgh ACLU, 492 US 573, 668, 109 S Ct 3086, 106 L Ed
2d 472 (1989) (Kennedy, J., concurring in judgment in part
and dissenting in part). Thus, to my mind, when the Court
states that specific numerical ratios should be applied to
determine whether a punitive damages award exceeds con-
stitutional limits, those statements are not mere dicta, but
rather constitute binding precedent that we are obliged to fol-
low. Our federal system requires us to do what the Court
says, not only what the Court does.

To be sure, the majority does not contend that we are
free to ignore the Court's "ratio" guidepost. However, in rely-
ing on the "small" amount of compensatory damages
awarded in this case to justify departing from the numerical
standards that the Court has articulated, the majority, in my
view, improperly "discount[s] the importance of [the Court's]
guidance."

As to the substance of the majority's conclusion, it
appears to me that the majority's approach turns on two key
steps. First, it asserts that the Supreme Court has recognized
an exception to the ratio guidepost for any "small" award of
compensatory damages. Second, it concludes that any com-
pensatory damages award less than $12,000 - $25,000 is
"small."

Both conclusions are problematic. The identified
exception to the ratio guidepost is not for all "small" damages
awards, but only for those that also involve particularly egre-
gious misconduct-which is not true in this case. More
importantly, it is bad policy to allow punitive damages
awards to be open-ended below some arbitrary amount of
compensatory damages deemed "small," because it means
that many defendants who do more harm will be punished
less.

I begin with the applicable law. Briefly, the Supreme
Court has articulated three guideposts to be used to deter-
mine whether a punitive damages award exceeds the limits
of due process:

"(1) the degree of reprehensibility of the defendant's mis-
conduct; (2) the disparity between the actual or potential

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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."

Campbell, 538 US at 418; see BMW of North America, Inc. v.
Gore, 517 US 559, 574-75, 116 S Ct 1589, 134 L Ed 2d 809
(1996) (same).

My primary dispute with the majority relates to the
second of those guideposts: the relationship between punitive
and compensatory damages. The purpose of the ratio guide-
post is to "ensure that the measure of punishment is both
reasonable and proportionate to the amount of harm to the
plaintiff and to the general damages recovered." Campbell,
538 US at 426; see Gore, 517 US at 580 (noting that "[t]he
principle that exemplary damages must bear a 'reasonable
relationship' to compensatory damages has a long pedigree").
Although the United States Supreme Court has declined to
set any bright-line limits for those ratios, the Court has
expressly stated "that, in practice, few awards exceeding a
single-digit ratio between punitive and compensatory dam-
ages, to a significant degree, will satisfy due process."
Campbell, 538 US at 425; see id. ("[s]ingle-digit multipliers
are more likely to comport with due process"). And, in an
exhaustive discussion of Gore and Campbell, this court con-
cluded that punitive damage awards generally should be lim-
ited to single-digit ratios-and in cases of purely economic
injury, to a 4:1 ratio. See Goddard v. Farmers Ins. Co., 344 Or
232, 259-61, 179 P3d 645 (2008) (so explaining).

The Supreme Court has recognized three exceptions
to the ratio guidepost. See Campbell, 538 US at 425 (listing
exceptions); Gore, 517 US at 582 (same). Gore stated the only
such exception relevant to this case as follows: "[L]ow awards
of compensatory damages may properly support a higher
ratio than high compensatory awards if, for example, a par-
ticularly egregious act has resulted in only a small amount of
economic damages." 517 US at 582. The Court repeated that
exception in Campbell, directly quoting the Gore phrasing:
"[R]atios greater than those we have previously upheld may
comport with due process where 'a particularly egregious act

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has resulted in only a small amount of economic damages.'"
538 US at 425 (quoting Gore, 517 US at 582).

In this case, however, the majority truncates that
exception: It drops the requirement of "particularly egregious
misconduct" and expands the exception to reach all "small"
compensatory damage awards. The majority's support for
that proposition is a single case: Exxon Shipping Co. v. Baker,
554 US 471, 128 S Ct 2605, 171 L Ed 2d 570 (2008). See 349
Or at 534 (so stating). Exxon Shipping does not support that
conclusion, however.

Exxon Shipping's discussion of the constitutional
limits on punitive damages concerned a point of law that was
not at issue in the case.14 And while the Court omitted to
mention the "particularly egregious" requirement in the text
of the opinion, it specifically quoted the "particularly egre-
gious" requirement in a parenthetical. 554 US at 494.15 Yet
the majority necessarily concludes that the Court intended to
abolish the element. To put it bluntly, the notion that the
Supreme Court has abolished the "particularly egregious"
requirement is not a defensible reading of Exxon Shipping.

I understand the majority's motivation, however. I
believe that the majority is concerned about the conse-
quences of having the ratio guidepost apply to ordinary small
awards-and justifiably so. No matter what the tort is, if a
jury awards only $1 in nominal compensatory damages, a
single-digit ratio of punitive damages-$9-is far too low. In
such cases, the award must be greater than the single-digit
ratio approved in Gore and Campbell. We do need a solution
to that quandary.

14 See Exxon Shipping, 554 US at 501-02 ("Today's enquiry differs from due
process review because the case arises under federal maritime jurisdiction, and we
are reviewing a jury award for conformity with maritime law, rather than the outer
limit allowed by due process * * *. ").

15 The Court stated:

"Regardless of culpability, however, heavier punitive awards have been
thought to be justifiable * * * when the value of injury and the corresponding
compensatory award are small (providing low incentives to sue), see, e.g.,
[Gore, 517 US at 582] ('[L]ow awards of compensatory damages may properly
support a higher ratio * * * if, for example, a particularly egregious act has
resulted in only a small amount of economic damages') * * *. "

554 US at 494 (second alteration and second ellipsis in original; emphasis added).

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The majority's solution is effectively to presume that
the Supreme Court did not mean what it said. The majority
does not recognize, however, that doing so creates as many
problems as it solves. It is not only bad law, it is bad policy.
Let me explain. The majority, having concluded that the ratio
guidepost does not apply to any "small" compensatory dam-
ages award, then suggests that the upper end of "small"
awards is in the $12,000 - $25,000 range. 349 Or at 537-38.
From that idea, the majority leaps to the conclusion that
$8,000 in compensatory damages permits punitive damages
of at least $175,000.

But consider what would happen if this plaintiff had
suffered $12,000 in damages, not just $8,000. At that point
(or thereabouts), the ratio guidepost would kick in, and
accordingly the maximum ratio (subject to adjustment) gen-
erally would be 4:1. See Goddard, 344 Or at 260 (for cases of
purely economic injury). Therefore, the maximum constitu-
tionally permissible punishment would be limited to only
$48,000 (subject to some adjustment up or down). Similarly,
if this plaintiff had been injured $25,000, he would have been
entitled to punitive damages of only $100,000.

That point is worth emphasizing. If this defendant
had done more than triple the amount of damages in this case
($25,000), the maximum constitutionally permissible puni-
tive damages award would be reduced by over 40% from what
the majority approves here. If this defendant had done quad-
ruple the amount of damages ($32,000), the maximum per-
missible punitive damages award still would be reduced by
over 25% (to $128,000).

How could an equitable rule require a plaintiff who
suffers more harm to receive less punitive damages? How
could a fair rule permit a defendant who inflicts more harm
to be punished less? The majority's rule will effectively
reward defendants for inflicting more harm on plaintiffs,
while punishing those plaintiffs unfortunate enough to have
suffered extra harm. However well intentioned, it is a mis-
take for the majority to institutionalize that result. "[T]he
penalty scheme [wrongdoers] face ought to threaten them
with a fair probability of suffering in like degree when they
wreak like damage." Exxon Shipping, 554 US at 502.

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The majority's approach creates another problem. In
its effort to avoid punitive damages awards that are too
small, the majority instead allows punitive damages awards
that are too large. There are plenty of small torts that deserve
punitive damage awards, but not $175,000 or more. The
defendant who publicly spits in a plaintiff's face should be
punished-but $200,000 worth? Yet the majority's deferen-
tial analysis of small compensatory damage awards would
impose no real restraint on such an outcome.

For the lower half of damage awards, then, the
majority creates a topsy turvy world, in which the less harm
you do, the more you can be punished. Measured by the
actual damages that the defendants cause, the least danger-
ous defendants can be punished with constitutionally inap-
propriate punitive damages, while the more dangerous
defendants are protected by the ratio guidepost.16

16 The majority, disagreeing with my analysis, offers three responses. All of
them miss the point.

The majority first asserts that there is no "hard and fast numerical line" defin-
ing "small" compensatory damages awards. 349 Or at 538 n 11. The absence of a
"hard and fast" rule does not affect the validity of my contention. If this jury had
awarded this plaintiff more compensatory damages-which plaintiff asked the jury
to do-then this compensatory damages award would not have been "small," and
this punitive damages award would have been unconstitutional.

Second, the majority (apparently assuming for purposes of argument that
$12,000 does mark the upper limit of "small" compensatory damages awards)
asserts that if an $11,000 award would justify $175,000 in punitive damages, then
a $12,000 award would justify a comparable award. 349 Or at 538 n 11. The prob-
lem is that the majority has just denied what its opinion holds. If a $12,000 com-
pensatory damages award is not "small," then the "small compensatory damages"
exception to the ratio guidepost does not apply, by definition. The majority thus
cannot appeal to the "small compensatory damages" exception to justify a punitive
damages award of $175,000 on compensatory damages of $12,000. Such an award
is sustainable, if at all, only if some other exception applies.

Third, the majority seemingly asserts that there is no problem because, when
the compensatory damages are large enough, even those punitive damages awards
subject to the ratio guidepost will exceed the award here. "[I]f a defendant were to
cause harm that resulted in an award of $50,000 in compensatory damages, an
award of four times that sum would result in punitive damages of $200,000." 349
Or at 539 n 11. That statement is true, but beside the point. The majority's excep-
tion for "small" compensatory damages awards (below $12,000) necessarily means
that a whole range of defendants who cause more than $12,000 harm will be pun-
ished less. Indeed, at a 4:1 ratio for economic harm, a defendant would have to
inflict nearly $44,000 in damages to justify the same $175,000 punitive damages
award that the majority approves here for $8,000.

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I would propose a different solution. The key is to
recognize that some punitive damages awards are small
enough that they do not implicate substantive due process
concerns, even if the misconduct essentially resulted in no
harm to a party at all. An entire genre of court cases regu-
larly involves financial penalties that are intended to punish
and deter misconduct. Those financial penalties are familiar
to all of us: They are civil penalties and criminal fines. When
those civil penalties and criminal fines are in "ordinary"
amounts, their constitutionality is neither disputed nor
disputable.

So, too, then, with awards of punitive damages. Such
awards, when comparable in amount to civil penalties or
criminal fines already prescribed by the legislature, do not
raise any concerns about being "grossly excessive," which is
what the Gore guideposts are intended to protect against. See
Campbell, 538 US at 416-17 ("The Due Process Clause of the
Fourteenth Amendment prohibits the imposition of grossly
excessive or arbitrary punishments on a tortfeasor." (Cita-
tions omitted.)); Gore, 517 US at 562 (to the same effect).

For that reason, it would be easy for the courts to
determine whether the award was, in effect, de minimis non
curat lex.17 Awards below the de minimis amount would not
be subject to the Gore guideposts and would not require any
sort of substantive Gore/Campbell judicial review at all. And,
when the court identified an unconstitutional punitive dam-
ages award, the appropriate remittitur would never drop
below the de minimis amount.18

17 "The law does not notice or concern itself with trifling matters." Black's Law
Dictionary 1826 (9th ed 2009).

18 The majority effectively asserts that I am also recognizing an additional
"exception" to the ratio guidepost. 349 Or at 535 n 8. That misunderstands the
breadth of my argument. If it were an exception, it would apply only to the ratio
guidepost, and so courts still would have to address the other two Gore guideposts
(reprehensibility and comparable civil penalties). As I just noted, however, I would
conclude that awards below the de minimis limit are not subject to any substantive
due process review at all.

The majority's suggestion that my proposal would violate Supreme Court prec-
edent by setting "rigid benchmarks beyond which a punitive damages award
becomes unconstitutional," 349 Or at 535 n 8 (internal quotation marks and cita-
tion omitted), also misreads my argument. The de minimis award amount is not a
ceiling beyond which punitive damages may not go. It is a safe harbor against sub-
stantive due process challenges to any punitive damages award up to $50,000.

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It is worth pointing out, too, that, under my analysis,
the exception to the ratio requirement stated by the Supreme
Court-"a particularly egregious act [that] has resulted in
only a small amount of economic damages"-remains impor-
tant. There will be cases in which the de minimis award
would fail to recognize adequately how reprehensible the
misconduct was and how near plaintiff came to suffering
extraordinary damages. The example offered by the majority
perfectly illustrates how the exception applies: A defendant
who fires a gun wildly into a crowd but only does $10 worth of
damages to a pair of glasses should receive a more severe
punishment than the de minimis award. 349 Or at 533.

Based on my review of existing legislation, I would
be inclined to conclude that the de minimis amount should be
$50,000. That amount represents the maximum criminal fine
that the legislature permits to be imposed against a corpora-
tion for committing a felony. ORS 161.655(1)(a). That choice
represents a balance of factors. On the one hand, criminal
fines may be imposed only after a trial with procedural safe-
guards that are not available in civil actions; that fact would
counsel for a lower de minimis amount. See Campbell, 538
US at 428 ("Great care must be taken to avoid use of the civil
process to assess criminal penalties that can be imposed only
after the heightened protections of a criminal trial have been
observed, including, of course, its higher standards of
proof."). On the other hand, corporations can only be fined-
they face no risk of imprisonment-and the fine for corpora-
tions is well below that which may be imposed on individuals.
See ORS 161.625(1) (fines for individuals can range from
$125,000 for a Class C felony to $500,000 for murder or
aggravated murder). Furthermore, in many cases corpora-
tions represent the more dangerous civil defendants. In this
particular case, defendant is a corporation. The choice of
$50,000 thus seems reasonable and appropriate.

In this case, the jury awarded $175,000. That is well
above the de minimis amount, so we should apply the Gore
guideposts. As applied to this case, I agree with the Court of
Appeals that defendant's misconduct was not particularly
reprehensible. See Hamlin v. Hampton Lumber Mills, Inc.,
222 Or App 230, 239-41, 193 P3d 46 (2008), on recons, 227 Or
App 165, 205 P3d 70 (2009) (explaining that only two of the

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five reprehensibility subfactors exist here).19 Because this
case involved only economic harm-it is not an action for
physical injury, but for unlawful refusal to reinstate the
plaintiff to his job-I would conclude that the appropriate
ratio for punitive damages under Gore should be 3:1, or
roughly $24,000. See Goddard, 344 Or at 260 ("as a very gen-
eral rule of thumb," punitive damages awards for solely eco-
nomic injury should not significantly exceed 4:1). That
amount, however, is less than the de minimis amount of
$50,000. Accordingly, I would hold that the punitive damages
award should be subject to a remittitur of punitive damages
to $50,000.

I add one final note: a plea to the Supreme Court of
the United States. For years this court generally, and I per-
sonally, have struggled to apply Gore and Campbell faith-
fully to the cases before us. This case represents but one of
the many problems that have cropped up in the seven years
since the Court decided Campbell. The courts around are in
need of-indeed, I will assert that we deserve-further guid-
ance that only the Court can provide. Whether the Court
agrees with my analysis, or the majority, or something in
between, does not matter to me. But it would be a responsible
act of comity for the Court to say something clear to help in
future cases.

I respectfully dissent.

Balmer, J., joins in this dissenting opinion.

19 I am not persuaded by the majority's assertion that the violation of the stat-
ute at issue here represents an additional form of reprehensibility beyond the fac-
tors identified by the Supreme Court in Gore and Campbell. 349 Or at 540-41.