Fired Teamster wins $6.6 Million from UPS?

Y. Peter Kang
Portfolio Media. Inc.
April 28, 2015
View the original piece

Law360, Los Angeles (April 23, 2015, 8:16 PM ET) -- The Ninth Circuit affirmed a lower court’s punitive damages award of $6.6 million to a former employee of United Parcel Service Inc. who had alleged wrongful termination in connection with a previously filed overtime class action suit, ruling that the evidence was sufficient to support the jury’s verdict.

Former employee Michael Marlo filed suit against UPS in 2008 alleging wrongful termination in retaliation for filing a 2003 class action against the company for unpaid overtime. UPS contends that it fired Marlo because of an abusive confrontation he had with a customer. A jury sided with Marlo in 2012, awarding him $2.2 million in compensatory damages and an additional $16 million in punitive damages, later reduced to $6.6 million.

On appeal, UPS challenged the punitive damages award, saying the evidence was insufficient to support the jury’s finding that Tim Robinson, the vice president and district manager who fired Marlo, was a “managing agent” of UPS.

A three-judge Ninth Circuit panel disagreed, ruling 2-1 in favor of Marlo.

“Viewing the evidence in the light most favorable to Marlo, as we must … we conclude that the evidence was sufficient to support the jury’s verdict,” the panel wrote in the five-page unpublished opinion. “The evidence showed that Robinson was the highest-ranking supervisor in a 7,000-employee district that covered a vast geographic area.”

Robinson viewed part of his role as maintaining company culture, the Ninth Circuit said, and that he had viewed Marlo’s overtime class action as a threat to company culture which also had a negative effect on employee morale.

“The jury could thus reasonably conclude that Robinson’s decision to terminate Marlo was a policymaking decision aimed at protecting the company ‘culture,’” the panel states. “We also conclude that Robinson’s conduct was sufficiently reprehensible to qualify for punitive damages under California law. The award, as reduced by the district court, was not unconstitutionally excessive.”

Thursday’s order makes the case the largest punishment ever upheld on appeal in California in a single-employee wrongful termination case, as stated by UPS in its opening brief to the Ninth Circuit.

In a one-sentence dissenting opinion, U.S. District Judge James G. Carr, sitting by designation, said he was “aware of my lesser familiarity with California law relating to managing agents.”

A UPS spokeswoman told Law360 on Thursday that it was disappointed with the ruling and is currently mulling its options.

“UPS has a strong compliance program that includes professional conduct, anti-harassment and no-retaliation policies,” spokeswoman Susan Rosenberg said.

A representative for Marlo did not immediately respond to a request for comment Thursday.

U.S. Circuit Judges Andrew J. Kleinfeld and Jacqueline H. Nguyen sat on the panel that wrote Thursday’s opinion, along with U.S. District Judge James G. Carr.

Marlo is represented by John Furutani of Furutani & Peters LLP and Mark Christopher Peters of Duckworth Peters Lebowitz Olivier LLP.

UPS is represented by Elena R. Baca of Paul Hastings LLP, Elizabeth A. Brown of Grube Brown & Geidt LLP and Mark A. Perry of Gibson Dunn & Crutcher LLP.

The case is Michael Marlo v. United Parcel Service Inc., case number 12-57170, in the U.S. Court of Appeals for the Ninth Circuit.

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