Daka, Inc. v. Tyrone McCrae
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 00-CV-1270 01-CV-227 D AKA, INC., A PPELLANT, v. T YRONE M CC RAE, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (CA-7505-97) (Hon. Susan R. Winfield, Trial Judge) (Argued October 21, 2003 Decided December 24, 2003) Theodore J. Boutrous, Jr., with whom Thomas H. Dupree and Jonathan K. Tycko were on the brief, for ap pellant. Mara Verheyden-Hilliard, with whom Carl Messineo was on the brief, for appellee. Before STEADMAN, F ARRELL, and G LICKMAN, Associate Judges. F ARRELL, Associate Judge: Daka, Inc. (hereinafter Daka) appeals from a jury award to McCrae of $187,500 in compensatory damages, $4,812,500 in punitive damages, and $276,493.28 in attorneys fees and costs, based upon findings that Dak a had neg ligently supervised one of its managerial employees and had unlawfully retaliated against the plaintiff for his claims of sexual harassment by that employee. Althoug h we find no basis on which to reverse the a ward of com pensatory damages, we conclude that the award of punitive damages m ust be vacated in light of State Farm M ut. Auto. Ins. Co. v. Campbell, 2 123 S. Ct. 1513 (2003), and the case remanded for determination of a proper award in light of that decision.1 I. Daka is a corporation that provided catering and food serv ices for Howard University. In 1996, D aka hired M cCrae as th e Banqu et Chef in the catering department at the University . His imm ediate supe rvisor was Cordell Thom as, a Daka manager and the catering director. In 1997, McCrae brought suit against Daka and Ho ward U niversity alleging numerous causes of action, chief of which as relevant here were that the defendan ts (1) had cre ated a sexu ally hostile w ork enviro nment b y permitting Thom as to subject McC rae to perv asive cond itions of sexu al harassm ent ; (2) had negligently supervised Thomas in the performance of his managerial duties; and (3) had retaliated against McC rae, in violation of D.C. Code § 1-2525 (1981) (now D.C. Code § 2-1402.61 (2001)), first by effectively demoting him and then by firing him after he complained of sexual harassment by Thomas. The allegations against H oward U niversity w ere eventu ally dismissed, and at the conclusion of McC rae s case at tria l, the court dism issed the ho stile work environment claim on statute of limitations grounds, concluding that McCrae had failed as a matter of law to prove a discriminatory act by Thomas within the year preceding 1 Daka admits that its challenge to the award of attorneys fees depends entirely on the success of its attack upon the damage awards. Because we sustain the award of compensatory damages in particular, because we sustain the jury s finding of liability for statutory retaliation and reject Dak a s argum ent that no award of punitive damages was proper, we uphold the trial court s s tatutory award of attorn eys fee s. See D.C. Code § 2-1403.13 (a)(1)(E), -140 3.16 (b) (20 01); Hende rson v. Dis trict of Colum bia, 493 A.2d 982, 999 (D.C . 1985). 3 the filing of the complaint, as required by D.C. Code § 1-2556.2 Accordingly, the case was submitted to the jury on the claims only of common law negligent supervision and statutory retaliation. Regarding those claims, McCrae presented evidence which, when viewed in the light most favorable to the judgment, permitted the jury to find the following facts. As Banquet Chef McCrae was an hourly employee regularly working 65-70 hours a week.3 In that job, which required creativity in preparing meals, he supervised a staff of 20-30 employees. An array of witnesses, including McCrae, testified that Thomas would ta lk openly and repeatedly during work about his private sexual activities, hire male employees on the basis of their sexual attractiveness, and attempt to condition continued work by emplo yees on their com pliance with hi s sexua l dema nds. Specifically, McCrae, Clara Legett (an employee supervised by McCrae), and Charles Randall ( a general utility worker), testified that Thomas would boast loudly and graphically in the kitchen about his sexual exploits the night before. Randall also testified that Thomas h ad hired him by mistaking him for another applicant (Robert Floyd) whose looks Thomas admired physically, after which Thomas created a new position for Floyd and made se xual adva nces to him . Accordin g to Floyd, Th omas told him that if he cam e to 2 McCrae has not cross-appealed from the dismissal on limitations grounds. Although he asserts in footnote 40 of his brief that the d ismissal w as impro per, that asse rtion is insuffic ient to br ing the c orrectn ess of th e dism issal bef ore us. 3 The sparse evidence supporting the number of hours he worked resulted from Daka s destruction of relevant payroll records and time sheets, a destruction the trial judge found willful and caused her repeatedly to instruct the jury that it could draw an adverse inference against Daka from the loss of evidence. 4 work, looked good, and stayed close to Thomas, he would not have to do any work. Thomas s overtures to Floyd w ere so regu lar and noto rious that fellow employees called Floyd Cordell s girl. A witness for Daka, Kathy Washington, admitted that Thomas would hire men if he thought they were cute, and would give them fewer duties than other employees. McCrae testified th at early in May 1996, Thomas asked him out for dinner and drinks, and that w hen he de clined the offer Thomas began harassing him while claiming that Howard University management would protect him from any claims of sexual harassm ent. Thomas told McCrae that he was hired for the way he looked in pants, causing McCrae eventually to order chef s pants two sizes larger. On one occasion when Thomas saw McCrae yawning, he told him to be careful where you open your m outh[, because y]ou might find something in it. Thomas would also approach McCrae from behind and massage his arms and sho ulders until McC rae jerked a way; M cCrae ask ed Lege tt to change work stations with him so he could avoid this contact. At least once, Thomas rearranged things in the refrigerator and told McCrae to retrieve things from the bottom shelf, then moane d as Mc Crae ben t down, sa ying I w ould like to have some of that. Floyd testified to similar unwanted touching by Thomas. At a mid-May catering function, McCrae complained to Thomas that one of the cooks was undependable. Thomas responded by smacking McCrae in the face and telling him that the cook was going to stay because he was Thomas s baby. When the argument continued later that night, Thomas told M cCrae he wa s fired. The nex t day, Mc Crae told Victoria Cruickshank, who was Thomas s supervisor and a Daka General Manager, about 5 the incident. She at first denied knowing Thomas had fired him and told McCrae to go back and talk to Thomas about it. After he did so and Thomas rehired him, McCrae again talked to C ruickshan k, who n ow adm itted awaren ess of wh at had hap pened. L egett testified that Cruickshank was present several times when Thomas would brag about his sexual exploits: Cruickshank, R oberta McL eod (a How ard University superv isory employee), and others would sit in [Th omas s] office and . . . talk and laug h about Mr. Thomas s sexual activities . . . the night before. Legett also heard Thomas say that since Cruickshank and McLeod were his friends, they would not let anything happen to him. McLeod later stated, in front of Cruickshank, that she wasn t stupid and knew about the sexual harassment by Thomas, which had b een going on for years. McCrae further testified th at in this same May 1996 period, he no ticed that his work hours were dro pping. Le gett observ ed the dec rease and h eard M cCrae co mplain ab out it. When McCrae protested to Thomas, he replied that there was nothing McCrae could do about it because he (Thomas) was management, and Cruickshank and McLeod would not let anything happen to him. McCrae tried to meet with Cru ickshank to com plain of the harassment, but she would not set up a meeting. On August 15, 2000, he was called to a meeting with McLeod and Cruicksh ank for un related reaso ns; near the e nd of the m eeting, he told both supervisors that Thomas had been sexually harassing him, which prompted McLeod to say as mentioned ea rlier that she knew it had been going o n for years and was surprised that no one had co mplain ed earlie r. Following this meeting, McCrae made his allegations of harassment in writing. Cruickshank and McLeod began investiga ting them , but, 6 according to Charles Rand all, they asked employ ees whether McCrae had been sexually harassing anyone, rather than Thomas. To McCrae s question why [he] was being investigated instead of Mr. Thomas, Cruickshank replied that she had the authority to investigate whomever she [chose]. Mc Crae testified that his hours we re cut even more at the end of August, and co-workers Legett and Dorothy Cabell confirmed that he was receiving fewer work hours despite the availability of work. On September 18, 2000, McCrae met with Kevin Lyden, a Daka vice-president, and told him of the unwa nted touch ing [by Th omas], the staring, the retalia tion, the cuts in hours, [and] that no one wa s stopping i t. Lyden answered partly that this was a five million dollar account [with Howard University] and that he wasn t going to lose it. On September 20, Lyden met with four witnesses individually who variously described Thomas s actions, his preference for employees who were cute, and his practice of conditioning work on sexual favors. Lyden also spoke to Thomas, who denied the allegations. Lyden then form ally ended the investiga tion, writing th at he was unable to substantiate McCrae s and various other associate[d] claims of sexu al haras smen t by . . . Thom as. Also on September 20, McCrae asked Cruickshank to be transferred to the faculty dining room. On September 24, Thomas wrote to Cruickshank that he felt comp elled to relieve McC rae of his du ties at least until the fall conv ocation , if not pe rman ently. McCrae was transferred to the B ethune Anne x of Howa rd University as a cafeteria line worker in the student cafeteria. The job entailed no responsibility or managerial functions, required no creativity, and, in addition to the loss of his job title, carried with it no 7 opportun ity for overtime work. On his first day in the cafeteria, McCrae s personal workstation was broken into at the direction of Thomas (who wanted to see if any Daka items were there), and pap ers of his were taken. When McCrae wrote Cruickshank asking to be returned to the catering department ( I needed to get back to where I am the catering chef, the banquet manager, som ething th at holds a title wh e[re] I ca n mov e on . . . quickly ), Cruickshank did not respond for a month and then denied the request, saying McCrae was doing a great job in the cafeteria. Less than two weeks later, Cruickshank suspended McCrae after a dispute he had with his new supervisor, Arkel Roane, on November 18 over whether a car that had blocked a loading zone at Bethune Annex belonged to McCrae. In December, McCrae was formally terminated by Cruickshank and Lyden, ostensibly because of that gross miscond uct whic h, accordin g to the termination notice, had caus ed How ard Univ ersity to bar McCrae from w ork in its food service facilities. Roane, on the other hand, testified that the events of November 18 had been only a distraction and a little occurrence, which he did not believe sufficient to warrant termination. II. We begin with Daka s challenges to the jury s findings of liability for negligent supervision and retaliation. Regarding the first, Daka argues mainly that McCrae did not offer proof that Daka had notice of Thomas s proclivity to harass em ployees se xually before McC rae suffere d harm a s a result of that propen sity (Br. for A pp. at 19) in time, that is, for Da ka to tak e super visory m easure s to prev ent the h arm. See Brown v. 8 Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001) (quoting Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985)) (to establish negligent supervision, it is incumbent upon a party to show that an employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee ). In a case such as this, where McCrae presented evidence that he was sexually harassed by Thomas continually over a several-month period, McCrae did not have to prove Daka s knowledge of Thoma s s abusive habits before the a cts directed to McC rae began in M ay 1996. There was, in our view , sufficient evid ence for the jury to find that Daka had knowledge, actual or constructive, of Thoma s s habits well before his actions tow ard Mc Crae end ed in Au gust. 4 Thomas s supervisor, Cruickshan k, a Daka gene ral manager, was present with McLeod of Howard University when Thomas repeatedly bragged of his private sexual exploits. More tellingly, multiple witnesses testified that Thomas boasted openly and notoriously of his preference for male employees who were cute, and to his habit of favoring those among them who sta yed close to him. Cr uickshan k could be inferred to have known what McLeod (her Howard University counterpart) knew, which was that Thomas s sexual harassment of emplo yees wa s longstanding. An d, as to M cCrae, she could be in ferred to have known that when Thomas fired him in May (then reinstated him), the action reflected pique at a complaint that one of his bab[ies], another cook, was being favored over those employees who resisted his advances. Altogether, the jury could reasonably find that when Thomas told others, including McCrae, that his ties with management spe cifically 4 That conclusion would be incorrect only if no reasonable person, viewing the evidence in the light most favorable to [McCrae], could reach a verdict in favor of a finding of time ly notice . Arthur Young & Co. v. Sutherland, 631 A.2d 354 , 363 (D.C. 1993). 9 Cruickshank and McLeod w ould shie ld him from any claim of sexual harassment, he spoke accurately about Daka s knowledge of Thomas s ongoing abusive behavior. That same evidence permitted the conclusion that Daka, at the least, was negligent in not taking action to pre vent the co nduct. We further reject Daka s argument that McCrae failed to prove legally sufficient evidence of retalia tion. To prove t his statu tory vio lation, see D.C. Code § 2-1402.61 (2001), McC rae had to e stablish that (1 ) [he] was e ngaged in a protected activity, or that [he] opposed practices made unlawful by the DCHRA [District of Columbia Human Rights Act]; (2) [Daka] took an adverse personnel action against [him]; and (3) a causal connection existed betw een the tw o. Howard Univ. v. Green, 652 A.2d 41, 45 (D.C. 1994). [T]he onus is on the employee to clearly voice [his] opposition to receive the protections provided by the Act ; gen eral com plaints about workplace favoritism or other conduct not actionable under the DCHRA do not put the employer on the required notice. Id. at 48. We agree with Daka that McCrae did not voice a complaint or opposition satisfying this test until August 15, 2000, following his meeting with Cruickshank and McLeod. 5 Nevertheless, the evidence was sufficient to allow the jury to find that Daka retaliated by the twin adverse actions of transferring him in a manner effectively constitu ting a de motio n, and th en term inating h im. Daka argues that since McCrae himself requested the transfer to another department (regardless of why), his transfer to the Bethune Annex was not an adverse personnel action. 5 Wheth er actions by an emp loyee con stitute protected activity or oppositio n to unlawful practices wi thin the m eaning of the D CHR A is a q uestion of law. See CarterObayu wana v . Howa rd Univ ., 764 A.2d 779, 79 0 (D.C. 2001). 10 But the jury reasonably could find that the transfer McCrae requested was not the one he received, which was to a job as cafeteria line worker entailing no responsibility and supervision of other workers, a loss of p ay potential in the form of overtime, and a diminution of job title that adversely affected his em ployability. A transfer of that sort effectively a demotion was an adverse action with in the mea ning of the s tatute, even if McC rae s reg ular ho urs and hourly wage rate we re not re duced . See, e.g., Davis v. City of Sioux City, 115 F.3d 136 5, 1369 (8 th Cir. 1997 ); Crady v. Liberty Nat l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 199 3); see also B urlington In dus. v. Ellerth , 524 U.S. 742, 761 (1998) (reassignment w ith significantly different responsibilities may be [a] tangible employment action under Title VII). M oreover, sin ce the transfe r was pro ximate to McCrae s written complaint of August 15, and T homas wrote co ntempo raneously of his intent to relieve Mr. McCrae of his duties [temporarily], if not permanently, the jury could readily find th at retaliation wa s a facto r substa ntially co ntributin g to it. See Arthur Young & Co., supra note 4, 631 A.2d at 369-70. The same an alysis supports a jury finding that McCrae s termination was retaliatory. Daka did not call as witnesses either Cruickshank or Lyden, the two managers who made the discharge decision, and the trial judge gave a missing witness instruction not challenged here allowing the jury to infer that their testimony would not have favored Daka. Moreover, despite Daka s professed reason for the firing, supervisor Roane regarded the altercation leading to th e discharge as a mino r event that h ad not cau sed him to recommend termin ation. Against the background of Thoma s s stated intent possibly to fire McCrae, and of Cruickshank s apparent indulgence of Thoma s s abusive conduc t, the jury could reasonably find that the stated reason for the termination masked, at least partly, a 11 desire to be rid of an employee who had come forth (in McLeod s words) to rock the boat of Daka s relationship with Howard University.6 Daka next argues that McCrae presented no legally sufficient evidence of compe nsable injury for either claim submitted to the jury. Daka points out and McCrae does not dispute that the damages awarded by the jury were nearly all for emotional distress.7 It then argues, first, that McCrae could not recover emotional distress damages because he offered no proof that Daka s negligent supervision placed him in a zone of physical danger, o r exposed him to im minent risk of physical harm. For this Daka cites Williams v. Baker, 572 A.2d 1062, 1067 (D.C. 1990) (en banc) (defining the proof required to recover damages for negligent infliction of emotional distress), and language in Sowell v. Hyatt Corp., 623 A.2d 1221 (D.C. 1993), treating Williams as having made a general statement about the re quireme nts for recov ery for em otional harm . . . caused by a defendant s negligence. Id. at 1224.8 6 Indeed, as vice-president Lyden told McCrae, he was not about to lose the $5 million account. The jury c ould fairly find there had b een at best a n indifferent, a nd at wo rst a sham, investigation of McC rae s com plaints by Lyden further supporting the inference that McCrae had becom e an unwanted employee partly because of the comp laints. 7 McC rae ackno wledged in the trial court that his case involved no n-pecuniary dama ges, arguing in response to Daka s post-trial mo tions that the compensa tory award was w ell-supp orted . . . based upon multiple witnesses testifying to the distress and emotional injury that Mr. McCrae suffered. Although McCrae testified that his hours had been cut at times by Thomas (and the jury was allowed to draw an adverse inference from Daka s destruction o f his payroll re cords), M cCrae m ade no sig nificant effort to quantify any lost wages he suffered. 8 See also Washington v. John T. Rhines Co., 646 A.2d 345, 348 n.5 (D.C. 1994) (citing Sowell for the proposition that [t]his court has . . . followed Williams in cases alleg ing only negligence rather than the se parate tort of negligent infliction of emo tional distress ). 12 We reject this argument for the reason alone that Daka has no t preserved it. In moving for a directed v erdict at the clo se of Mc Crae s cas e, Daka m ade no m ention of this challenge to his proof. And, assuming (with co nsiderable g enerosity) tha t it moved at all for a directed verdict at the close of the evidence, it again did not hint there of a failure by McCrae to establish a zone of dan ger connection be tween his injuries and D aka s negligence. [T]he failure to include a particular ground in a motion for directed verdict will bar the consideration of this ground [both] in a subsequent motion for judgment notwithstanding the verd ict and on app eal. Howard Univ. v. Best, 547 A.2d 144, 147 (D.C. 1988) (Best II); see also Molo vinsky v. Fa ir Emplo yment C ouncil, 683 A.2d 142, 147-48 (D.C. 1996). Daka has not convinced us that any injustice would result from our failure to consider the issue for th e first time n ow. See Miller v. Avirom, 127 U.S. App. D.C. 367, 370-71, 384 F.2d 319, 322 (1967). Th is court has n ot had occ asion to apply the zone of physical danger test to the tort of negligent supervision,9 and certainly not where the conduct found to have been unsupervised was not negligence but intentional wrongdoing such as sexual discrimination. Resolution of that issue sh ould aw ait a case in which it has been preserved. Daka argues, further, that McCrae proved no causal connec tion betwe en his emotional distress and the retaliation found by the jury. To the contrary, McCrae presented evidence that he suffered humiliation, anxiety, and at least some physical symptoms which the jury could f airly find w ere caused by his transfer/demotion and the events lead ing to his 9 In Ryczek v. Guest Servs., Inc., 877 F. Supp. 754, 764 (D.D.C. 1995), the District Court, citing this court s decisions, applied the test to the plaintiff s claim for intentional infliction of emotional distress, but did not mention it in relation to the separate claim of negligent supervision. 13 wrongful termin ation. He felt w orthless an d doubly victimized when, in re sponse to his complaints, Daka managers first made him the focus of the investigation and then exonerated Thomas. His treatment by Thomas and Daka s seeming indifferen ce to it caused him to just start[] to lose it one day in the kitchen, until he could not breathe and paramedics had to be called. His sister testified that in the months after his demotion he became depressed and inactive; he stopped spending time with family and friends; and he became unkempt and disorganized. McCrae testified that he had trouble eating and sleeping and even thoughts of killing Thomas and of suicide. Da ka s argum ent that this did not rise to the leve l of com petent evid ence con cerning [his ] injury, quo ting Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978), is not supported by our decisions. For example, in United Mine Workers of Am. v. Moore, 717 A.2d 332 (D.C. 1998), the court upheld an award of $129,000 for emotional distress based o n a discriminatory firing under the DCHRA. The plaintiff, a female associate editor who had been discharged for no valid reason and replaced by a ma le editor, testified that because of her deep devotion and commitment to her career, her abrupt firing . . . was a traumatic event. Her husband confirmed that, as a result of the termination, she had a weakened physical appearance and was upset and shocked . . . bewildered [and] devastated ; she was lost because she was an independent perso n who had taken care of herself. Id. at 340 (internal quotation marks o mitted). W e found th is evidence of the im pact of [the plaintiff s] termination . . . on her emotional well-being adequate to sustain the trial court s refus al to set aside the verdic t. Id. at 341. Similarly, in Daka, Inc. v. Breiner, 711 A.2d 86 (D.C. 1998), in upholding c ompensatory damages for discrimination where the plaintiff testified 14 that aged-based slurs and inn uendos h ad mad e him fee l inadequ ate and inep t and his wife confirmed he had suffered mentally and physically from the humiliation, we concluded: [t]he derogatory comments to which Breiner was subjected on a regular basis . . . constitute the stuff of which a claim for humiliation and em otional harm is composed. . . . W e are satisfied that . . . the award reasonably reflected injuries which [Breiner] actually suffered despite their intangibility. Id. at 100 (citation and internal quotation marks omitted). Certainly, as Daka arg ues, courts must be on guard against fictitious and trivial claims for recovery for emotional distress (Reply Br. for App. at 3, quoting Price v. City of Charlo tte, 93 F.3 d 1241 , 1250 (4th Cir. 1996)). But the sexual harassment by an unsupervised Thomas and the retaliation by Daka that McCrae experie nced are the stuff of which a claim for humiliation and emotional harm is compo sed, and, a s in Moore and Breiner, the jury cou ld properly find that McCrae suffered actual and not speculative injury.10 III. Daka makes a single argument for a new trial, co ntending th at the trial judge erred in failing to instruct the jury on the e lements o f an unlaw ful hostile environment claim under the DCHRA as a predicate for finding Daka liable for negligent supervision of Thomas.11 10 To the extent Daka argues, not that the judge should have directed a verdict on compensatory damages, but that she should ha ve granted its motion to remit the dam ages to a lesser amo unt, we rev iew such decisions o nly for abuse of discretio n, see Safeway Stores, Inc. v. Buckmon, 652 A.2d 597, 606 (D.C. 1994) (citations omitted), and find no such abuse here. 11 A plaintiff has a viable hostile environment claim if he can demonstrate (1) that he is (contin ued...) 15 The instruction was necessary, Daka argues, even though McCrae s hostile environment claim had been dism issed on statute of limitations groun ds. Although the trial judge told the jury in defining negligent supervision that a reasonab le employ er supervisin g its employees must do so more carefully as a risk of which it knows or should know increases, she said nothing specifically about unlawful discrimination as the conduct (or risk ) that Daka allegedly had failed to prevent by its negligence. Daka cites considerab le authority for the principle that negligent supervision, while an independ ent tort directed to the conduct of the em ployer, requires logically antecedent pro of of a tort committed by the supervised employee.12 Daka is most probably right in this argument, except that it failed to preserve it in a manner enabling us to say that the judge erred in failing to accept it. At the close of the evidence the judge and the parties discussed jury instructions. Regarding negligent supervision, Daka s attorney made a single argument to the judge, namely that this count 11 (...continued) a member of a protected class, (2) that he has been subjected to unwelco me hara ssment, (3) that the harassment was based on membership in the protected class, and (4) that the harassment is severe an d pervasiv e enough to affect a term , condition, or privilege of employment. Daka, 711 A .2d at 92 . 12 See, e.g., Grego v. Meijer, Inc., 187 F. Supp. 2d 689, 694 (W.D. Ky. 2001) ( [t]he tort of negligent supervision is a second tort that derives from a tort committed by the person negligently supervised ); Schulze v. Meritor Auto., 163 F. Supp. 2d 599, 616 (W.D.N.C. 2000) (summary judgment g ranted on negligent sup ervision claim wh ere [t]here simply [was] no evidence that the acts of [the employees] were violative of state or federal law ); Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 53 (Iowa 1999) ( an employer cannot be held liable for negligent supervision . . . where the conduct that proper supervision . . . would have avoided is not actionable against the e mploye e ); see also Rogala v. District of C olumbia , 333 U.S. A pp. D.C . 145, 15 7 n.9, 16 1 F.3d 44, 56 n .9 (1998) ( In order to prevail on a negligent retention claim, plaintiffs must first prove that [the employ ee] was n egligent an d must the n prove th e additiona l element o f negligent retention. ). 16 was duplicative of the sexual harassment claim so that, with the latter count out of the case, McCrae could not come in the back door and call the harassment something else, i.e., negligent supervision. Whatever the reason why, counsel argued, McCrae s sexual harassment claim h ad faile d[,] . . . [a]nd where [it] failed, so to[o] m ust his d uplicativ e . . . claim [ have] f ailed, 13 otherwise the court would be in the position of instructing the jury not to consider the sexual h arassme nt, then hav ing to charg e [it] as to what sexual harassment is. The judge s simple answer no elicited no further comm ent from Dak a s counsel. As mentioned, the judge then instructed the jury on negligent supervision without referring to the alleged sexual harassment. When finished, she asked w hether either party had something to say other than renewing objections, and Daka s counsel replied: [A]gain, I d object to the charge on negligence insofar as it relieves the plaintiff of the burden of showing severe and pervasive und er the sexua l harassm ent [sic] and permits an award just on dam ages. Da ka now argues that th is objection satisfied the requirement of Super. C t. Civ. R. 51 that a party object to the failure to give an instruction . . . before the jury retires to consider its verdict stating distinctly the matter o bjected to and the grounds of the objectio n (em phasis a dded). W e do not agree. While the objection re ferenced a basic element of a hostile w ork place environment claim , see not e 11, supra, it was not cle arly distinct from Daka s earlier objection to any instruction on negligent supervision once sexual harassm ent had been re move d from the case . See Ceco Corp. v. Coleman, 441 A.2d 940, 947 (D.C . 1982) (R ule 51 requ ires an objec tion to be called to the attention of the 13 Daka has abandoned on appeal this argument that dismissal of the hostile environm ent claim re quired dism issal of the neg ligent superv ision claim a s well. 17 trial court in such manner as to clearly advise it as to the question of law involved ). An objection to any instruction on negligent supervision and disagreement with the form of the instruction given are very different question[s] of law, and in a context where Daka had neither proposed a written instruction on the tort embodying the elements of sexual harassment nor argued orally for one when the instructions were discussed, it would be inconsistent with the rule s concern for fairness to the court and the parties, Miller, 127 U.S. App. D.C. at 370, 384 F.2d at 322, to say that Daka clearly voiced a request for incorporation when it objected. In any case, the most Daka can arguably claim that it preserved is a request for the jury to be told it must decide whether Thomas s harassment was severe or pervasive enough to create a work environmen t abusiv e to em ployee s, see Ha rris v. Fo rklift Sys., Inc., 510 U.S. 17, 22 (1993), rather than one marre d by m erely of fensive beha vior, id. at 21, or a few isolated instances . . . and genuinely trivial occurrences. Howard Univ. v. Best, 484 A.2d 958, 980 (D.C. 1984) (Best I). On the re cord we have sum marized , it is quite inconceivable that a jury would have put Thomas s abusive behavior in the latter category. Having credited McCrae s claims of retaliation by managers who evidence showed were willing to close their eyes to the abuses, this jury obviously found those depredations severe enough to alter the conditions of Mc Crae s employm ent. In sh ort, a retrial with instructions explicitly asking for an assessm ent of Tho mas s co nduct w ould be a pointless ac t. 18 IV. We turn, then, to Daka s challeng es to the award of punitive damages. It first argues that McC rae sough t punitive da mages p artly on the basis of Daka s wealth, ye t failed to establish the company s net worth as required by our decisions in such a case; and that he also failed to prove that Daka s conduct was characterized by malice. For both reasons, Daka contends that McCrae was entitled to no punitive damages at all. Second, it argues that the award of $4,812,500 in punitive damages was constitutionally excessive in light of Supreme Court decisions, chiefly State Farm Mut. Auto. Ins. Co., supra. We reject the argume nts in favor of no punitive damages, but are persuaded by the constitutional argum ent. A. Daka concedes that evidence of a corporate defendant s net worth is not always a prerequisite to an award of pun itive dam ages. See Jemison v. National Baptist Convention, 720 A.2d 275, 284 (D.C. 199 8); Town Ctr. Mgmt. Corp. v. Chavez, 373 A.2d 238, 246 (D.C. 197 7). Althou gh proof o f a defenda nt s ability to pay m ust be show n sufficiently to prevent an award of punitive damages so great as to exceed the boundaries of punishment and lead to bankruptcy, Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 941 (D.C . 1995), our decisions have reserved the requirement that a plaintiff firmly establish[] the defendant s net worth i.e., the amou nt by wh ich its assets ex ceed its liabilities at the time of trial to ca ses specifica lly where a plaintiff invokes the defendant s wealth, id. at 941 n.19, 942; and even then net worth is only one of several considerations relevant to a 19 punitive dama ges con sideratio n. 14 Whether McC rae invok ed Dak a s wealth a s a basis for the punitive award is the issue on which the parties disagree. Daka argues that when McCrae placed in evidence two of the company s financial statements one showing assets and liabilities for 1999, the other, less clearly, similar numbers for the years 1996 through 1998 he unm istakably raised Daka s wealth as an issue, but in a manner unexplained by exper t testimony concernin g net worth and the meaning of the numbers. See Chatman v. Lawlor, 831 A.2 d 395, 40 3 (D.C. 20 03) ( Un der the circu mstance s of this case, the [plaintiffs] at a minimum should have called appellant s accountant to testify [as to net worth], with accompanying documentary evidence, unless of course [the defendan t] was willing to stipulate to an amount. ). McCrae, on the other hand, contends that he did not seek punitive damages based upon [Daka s] wealth, but rather upon the magnitude of its conduct evincing malice; the financial statements were introduced only as . . . limit[ing evidence], to provide guidance [for the jury] to make a rational decision [and] avoid an improperly large aw ard (Br. for Appe llee at 45). Whether a defenda nt s wealth has been put in issue su fficiently to req uire proof of net worth as the gauge of ability to pay is a murky inquiry, one likely to produce disagreement of the kind shown here. In Jonathan Woodner Co., the answer was easy 14 [T]o sustain an award of punitive damages, the plaintiff must prove, by a preponderance of the evide nce, that the d efendant c omm itted a tortious act, and by clear and convincin g evidenc e that the act w as accom panied by conduct a nd a state of mind evincing malice or its equivalent. Jonathan Woodner Co., 665 A.2d at 938. The notion that net worth is indeed the proper measure of a corporation s ability to pay punitive damages has recently been c riticized. See Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 677-78 (7th Cir. 2003) (Posner, J.) ( [N]et worth is not the correct measure of a corporation s resources. It is an accou nting artifact tha t reflects the allocation of owne rship between equity and debt claimants. A firm financed largely by equity investors has a large net worth (= the value of the equity claims), while the identical firm financed largely by debt may hav e only a small net w orth because accou ntants treat debt as a liability. ). 20 because from the v ery start the pla intiffs told the jury that the defen dant was worth in excess of a hundred million dollars and that the primary factor for it to consid er would be evidence of the assets o f the compan y; further, the jury was clearly instructed [by the court] to focus upon the net worth of the defendants, although as we ultimately determined the proof o f that m easure was in adequ ate. Id. at 941. See also Chatman, 831 A.2d at 402-03 (proof of net worth required because plaintiffs counsel had asked that defendant whether she hadn t amassed a fairly large sum of money at this time and whether her husba nd s estate w as[n t] in exc ess of ten m illion dollars when he passed [away] ). McC rae asse rts, by co ntrast, that his closing argume nt never mentione d Daka s financial statements and focused all but entirely on the array of conduct by Daka demon strating ma lice or reckles s indifferenc e on its part. We will assume with Daka that McCrae invoked the company s wealth within the meaning of Jonathan Woodner Co., and will assume further (albeit generously) that the financial statements, without more, did not meet the standard established by that decision for proving net worth. Even so, we conclude that Daka is not entitled to judgment as a matter of law on punitive d amages, wh ich is the sole relief it requests for the inadequate proof. As in Jonathan Woodner Co. and Chatman, McCrae presented evidence through the financial statements that Daka had some ability to pay, Chatman, 831 A.2d at 403 (empha sis added); Jonathan Woodner Co., 665 A.2d at 940 ( barely sufficient evidence permitted some awa rd of punitive damages based upon the defendants ability to pay ). 15 15 Daka s 1990 financial statement, for example, stated an amount for total assets that equaled the company s total liability and equity for the year, listing the shareholders[ ] equity as a figure substantially in the millions of dollars. Daka does not dispute the authenticity of the numbers in either of the statements, only their sufficiency to establish its (contin ued...) 21 Although in each of those cases the proof of net worth was inadequate to sustain the sum of punitive damages awarded, the relief we ordered in each was a retrial of punitive damages, id., or (in Chatman, which was a nonjury trial) a remand for a de novo determination of [the defendant s] net worth. 831 A.2d at 404. But Daka, as we pointed out, has not requested a new trial o n punitive damages, asserting instead in both its opening and reply briefs that it is entitled to ju dgment as a matter of law on plaintiff s punitive damage claim, a co ntention w e reject. W e will not make the lesse r argum ent for it. W e are especially unwilling to require the expenditure of further resources that a new trial would require given our ho lding in part IV .B., infra, on Daka s constitutional claim, which will resu lt in a siza ble dow nward redeter minati on of th e punitiv e dam ages aw ard. It remain s for us, in this part, to reject Daka s argument that McCrae failed as a matter of law t o prov e malic e or its eq uivalen t. See no te 14, supra. The trial judge, who was considerably better positioned than are w e to assess the gravity of D aka s wrongdoing, wrote in a post-trial order: The evidence was ove rwhelm ing that Da ka flagrantly ignored plaintiff s pleas for help in the work place; [and] that the wrongdoing inflicted upon the plaintiff was severe and was exacerbated by the defendant s failure to conduct even a rudimentary investigation into the allegations of harassment. As such, the jury could reasonably conclude that the company s conduct was as outrageous as that of the principal actor, Cordell Thomas. . . . The sham investigation by the company and the jury determination that plaintiff s termination was retaliatory was sufficient to support the jury s conclusion that defendant s conduc t was m alicious and motivated by ill will. 15 (...continued) net worth without further explanation. 22 Even if we were not as convin ced as the trial judge that Daka and its predatory manager were in pari delicto , the evidence of malice or reckless indifference on Daka s part was fully sufficient to sustain an a ward o f punitiv e dam ages. See, e.g., Blackmon v. Pinkerton Sec. & Investigative Servs., 182 F.3d 629, 635-37 (8th Cir. 1999) ( malice or reckless indifference to plaintiff s rights found where corporation conducted inadequate and half-hearted investigation into plaintiff s complaints; retaliated against plaintiff by reprimanding, demoting and terminating her; and attempted to escape legal liability by soliciting information against plaintiff to prove that s he caused the harassm ent); Baty v. Willamette, Inc., 172 F.3d 1232, 1244-45 (10th Cir. 1999) (punitive damages affirmed on finding of sufficient evidence of malice or reckless indifference, where management conducte d sham investigation and cond oned har assmen t); Jackson v. City of Albuquerque, 890 F.2d 225, 229 (10th Cir. 1989) (punitive damages supported by evide nce where defendant conducted a sham investigation and solicited witnesses against plaintiff); Bruso v. United Airlines, Inc., 239 F.3d 848, 861 (7 th Cir. 2001 ) (abuse of d iscretion to disallow punitive damages under Title VII where there is evidence of a sham investigation to discredit plaintiff and protect m anagemen t).16 B. Daka contends that the punitive damages awarded were grossly excessive and therefore deprived it of constitutional due process, especially in light of State Farm Mut. 16 Daka makes no argument that punitive damages may not be based on acts or omissions underlying a tort su ch as neg ligent supervision requiring proof only of negligence; nor did it ask for an instruction to this effect or for a bifurcation of punitive damages as to the separate torts of retaliation and negligent supervision. We therefore do not con sider this issue oth er than a s discus sed in n ote 24, infra. 23 Ins. Co. v. Campbell, supra (hereafter State Farm ), which was decided after the trial of this case.17 On this issue, Daka is correct. Although the facts establis hed by the jury s verdict justified a significant award of punitive damages, the sum awarded reflecting a ratio of 26:1 to the compensatory damages award lacked the reasonableness and proportionality required of a punitive damages award. 1. In State Farm, the Court reaffirmed its prior teaching that, [w]hile States enjoy considerab le discretion in deducing when punitive damages are warranted, due process prohibits the imposition of grossly ex cessive or arbitrary punishm ents on a tortfeasor, State Farm, 123 S. Ct. at 1520, and specifically requires any such award to compo rt with the principles set forth in [BMW of N orth Am., Inc. v. Gore, 517 U.S. 559 (1996)]. Id. at 1525. To decide whether an award is constitutional, a reviewing court must apply three guidepos ts : (1) the degree of reprehensibility of the defen dant s miscond uct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or impos ed in comp arable c ases. 17 Daka also makes no argument of excessiveness that might be based on District of Colum bia comm on law . See D aka, Inc . v. Breiner, 711 A .2d at 10 4 (Stea dman , J., concurring in part and dissenting in part); Bowden v. Caldor, Inc., 710 A.2d 267, 277-78 (Md. 1998). 24 Id. at 1520 (citing Gore, 517 U .S. at 575 ). Further, app ellate courts m ust cond uct de novo review of a trial court s application of [the guidepo sts] to the jury award. Id. at 1520. Exacting appellate review ensures that an award of punitive damages is based upon an application of law, rather than a decisionmaker s caprice. Id. at 1520-21 (citation and internal quotation marks o mitted). The Court granted certiorari in State Farm to decide whether an award of $145 million in punitive damag es was constitutionally exc essive, where the jury had awarded $1 million in compe nsatory damages for a year and a half of emotional distress stemming from State Farm s refusal to provide insu rance cov erage for an automo bile acciden t in which the plaintiff-policyholders had been involved . Id. at 1516, 1524. After applying each of the Gore guideposts, the Court concluded that, while an award of punitive damages at or near the amount of compensatory damages likely would have been justified, [t]he punitive award of $145 million . . . was neither reasonable nor proportionate to the wrong committed and thus was an irrational and arbitrary deprivation of [State Farm s] property. Id. at 1526. The phrase reasonable and proportionate (or a close variant of it) appears four times in the Court s opinion, and McCrae and Daka differ in assessing the relevance of State Farm to this case partly by which of these adjectives they think predominates in the Court s analys is. McCrae stresses the Court s discussion of reprehensibility [t]he most important indicium of the reasonableness of a punitive damage award, id. at 1521 (quoting Gore, 517 U.S . at 575) (emphasis added) and sees the decision primarily as rejecting, as unreasonable, the plaintiffs use of [the] c ase . . . as a platform to expose, and 25 punish, . . . State Farm s operations throughout the country rather than its conduct toward the plaintiffs that harmed [them]. Id. at 1521, 1523. Du e process, the Cou rt explained, does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties hypothetical claims against a defendant under the guise of repreh ensibility analys is. Id. at 1523. McCrae is correct that this concern with improper use of out-ofstate conduct and more broadly conduct that [bears] no relation to the [plaintiffs ] harm as a basis for pun itive dam ages, id. at 1522, 1523, has little relevance to the case before us. Nevertheless, as Daka counters, to fo cus only o r inordinately on that part of the opinion ignores critical instruction the Court gave regarding the other Gore factors, principally the disparity between compensatory damages and a punitive damages award. As it had been in the past, the Court was unwilling to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. Id. at 1524. It explained, however, that [o]ur jurisprudence and the principles it has now established demonstrate . . . that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. Id. The Court cited its earlier conclusion in Pacific M ut. Life Ins. Co. v. H aslip, 499 U.S. 1, 23-24 (1991), that an award of more than four times the amoun t of comp ensatory d amage s might be close to the lin e of constitutio nal impropriety, and its reference to that 4-to-1 ratio again in Gore, as well as its allusion there to a long legislative history . . . providing for sanctions of double, treble, or quadrup le damag es to deter and punish. Id. The Court found it obvious that [s]ingledigit multipliers ar e more lik ely to com port with d ue proces s, while still achieving the 26 State s goals of deterrence and retribution, than awards such as, in this case, o f 145 to 1. Id. Furthermore, it explained, [w]hen compensatory damages are substantial, then a lesser ratio, perhap s only equ al to compensatory damages, can reach the outermost limit of the due process guarantee. Id.18 It noted that [t]he compensatory award in this case was substantial; the Campbells were awarded $1 million for a year and a half of emotional distress. Id. Moreover, the harm did not arise from some physical assault or trauma; there were no physical injuries, and the Campbells suffered on ly minor e conom ic injuries. Id. at 1525 . Lastly, The compensatory damages for the i njury su ffered h ere . . . likely were based on a component which was duplicated in the punitive award. Much of the distress was caused by the outrage and humiliation the Campbells suffered at the actions of their insurer; an d it is a major role of pun itive dama ges to condemn such conduct. C ompensatory damages, how ever, already contain this pun itive elem ent. See R ESTATEMENT (S ECOND) OF T ORTS § 908, Comment c, p . 466 (1977) ( In many cases in which compensatory damages include an amount for emotional distress, such as humiliation or indignation aroused by the defendant s act, there is no clear line of demarcation between punishment and compensation and a verdict for a specified amo unt frequen tly includes e lements of both ). Id. The Court mentioned this last factor again in holding that [a]n application of the Gore guidepos ts to the facts of this case, especially in light of the substantial com pensatory damages awarded (a portion o f which c ontained a punitive elem ent), likely would justify a 18 Conversely, ratios greater than those we have prev iously uph eld may compo rt with due process where a particularly egregious act has resulted in only a small amount of economic damages. 123 S. Ct. at 1524 (quoting Gore, 517 U.S. at 582). 27 punitive damages award at or near the amount of compensatory damages, but could not justify as either re asonab le or pro portion ate the a ward o f $145 million . Id. at 1526 . 2. This case, of course, does not present the staggering ratio of 145:1 that made State Farm neither close nor difficult on whether the punitive damages award satisfied due process. Id. at 1521 . More over, D aka makes no serious claim that the conduct on which the award was b ased incorporated o ther parties hypothetical claims against a defendant under the guis e of rep rehens ibility an alysis. Id. at 1523.19 And factors the Su preme Co urt cited as indicia of reprehensibility speak in fav or of a significant punitive dam ages award here: Daka s c onduct, the jury reasonably could find , evinced an indifference to o r a reckless disregard of the health at least the psychological health of McCrae and other Daka em ployees; an d the cond uct, including successive acts of retaliation, involved repeated actions rather than a n isolate d incide nt. Id. at 1521. But the size of the aw ard nevertheless is excessive under State Farm s teaching. The 26:1 ratio here exceeds a single-digit ratio significant[ly] ; and it is far beyond both the 4:1 ratio the Court had said in Gore might be close to the line of constitutional impropriety and the traditional statutory double, treble, or quadruple damages which the Court found instructive as a measure in State Farm. 19 Id. at 1524. Moreover, McCrae was awarded substantial Although Daka cites McCrae s post hoc reliance on this court s decision upholding the judgment against Daka in Daka v. Breiner, supra, as well as a consent judgment against Daka for discrimination in a case in the United States District Court, the jury in this case did not learn of those judgments. 28 compensatory damag es for appro ximately six months of emotional distress20 an award, we note, almost nineteen times greater than the compensatory damages awarded for similar emotional injury in Daka, Inc. v. Breiner, supra. Further, McCra e proved at best minor econom ic injuries (without quantifying them) in the form of overtime lost as a result of his transfer to the cafeteria , and his injurie s were ess entially emotional, not arising from physical assault or trauma. Finally, as in State Farm, [m]uch of [McCrae s] distress was caused by the outrage and humiliation [he] suffered at the actio ns of [T homa s and D aka], conduct which the compensatory award already partly condemn[ed]. Id. at 1524-25. Apply ing the third Gore factor the difference between the punitive damages award and civil penalties authorized or imposed in comparable cases reinforces the conclusion that the award here was excessive. In State Farm, the Court found that [t]he most relevant civil sanction under Utah state law for the wrong done to the Campbell s appears to be a $ 10,000 fine for a n act of f raud, 21 an amount dwarfed by the $145 million punitive damages award. Id. at 1526. In our case, the most relevant civil penalty ap pears to be the gradation of monetary penalties permitted by the DCHRA (over and above compensatory damages), most pertinently D.C. Code § 2-1403.13 (E-1)(iii), which allows the Human Rights Commission upon finding that a respondent has been adjudged to have committed 2 or more unlawful discriminatory practices during a 7-year period to impose a penalty of $50,000. We do not suggest, any more than did the Supreme C ourt, that a 20 The emotional distress might have continued meaningfu lly beyond M cCrae s termination if the firing cau sed him a loss of employment or reduced earnings in a new job, but McCra e presented no evide nce of either. 21 The Campbells had sued State Farm for bad faith, fraud, and intentional infliction of emotio nal distre ss. State Farm, 123 S. Ct. at 1518. 29 penalty such as this approaches the limit of what a civil jury could award in punitive damages, but the fact re mains tha t it bears no relationship to the $4 million award here. In the comparable case of Daka v. Brein er, the award of punitive damages we sustained for similar workplace discrimination resulting in similar emotional distress w as $39 0,000. See 711 A.2d at 88. Althou gh McC rae argues that the chief relevance of that decision is that the same defendant Daka had not learned its lesson, even accepting that proposition,22 the disparity between that award and the present one remains enormous. 23 For these reasons , we will vacate the award of punitive damages and remand the case to the trial court with directions to reduce the award of punitive damages to a sum consistent with the principles expressed by State Farm and in this opinion. Although that determination (should either party challenge it) will again be subject to the [e]xacting appellate review State Farm requires of any punitive damages award, we choose not to forgo the advantages of having the trial judge, who had the opportunity to observe the trial as it unfold[ed], Davis v. United States, 564 A.2d 31, 41 (D.C. 1989) (en banc), make the determination in the firs t instanc e. See Lively v. Flexible Pa ckaging Ass n , 830 A.2d 874, 896 (D.C. 2003) (en banc) (remanding for reconsideration by the trial judge of the reasonableness of a combined punitive damag e award of $535 thousand where several bases for liability had been removed from the case). In light of the principles discussed, 22 Our decision sustaining the verdict in that case (though not the verdict itself) was rendered after the conduct of Daka at issue in this case. 23 Of course, as the Supreme Court pointed out in State Farm, see note 18 , supra, a large ratio of punitive to comp ensatory dama ges may be a cceptable where the plaintiff s injury was slig ht but th e defen dant s c onduc t particu larly egr egious . See, e.g., Mathias v. Accor Econ. Lodging, Inc., supra note 14, 347 F.2d at 677, 678 (under State Farm, punitive damages award of $186,000 on top of compensatory damages of $5,000 was justified where defend ant s conduct wa s outrageous but plaintiff s harm was difficult to quantity). 30 however, we wish to make plain that an a ward in this case that multiplies the sum awarded for compensatory damages by more than a factor of five will bear a very heavy burden of justification.24 Unlike in the usual case wh ere a remittitur is ordered, it will be unnecessary here for the trial judge to give McCrae the option of accepting the remitted amount or a new trial on punitive damages. 25 That is because the amount to be determined by the judge is the constitutional maximum which the jury could properly award, an amount that its actual award has alre ady ex ceede d. See Johansen v. Combustion Eng g, Inc., 170 F.3d 1320, 1331-32 (11th Cir. 19 99); Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1049 (8th Cir. 2002). McCrae, in a word, does no t need the op tion of a new trial at which to receive a lesser s um of punitiv e dam ages th an he h as alrea dy rece ived. 24 Beyond the factors already discusse d, the trial judge should consider the fact that Daka has been awarded substantial statu tory attorneys fees. Se e note 1 , supra. In applying due process analysis u nder State Farm, one court has pointed to an award of attorneys fees in a sex ual discrim ination case as includ[in g] a certain p unitive elem ent and to that extent as favoring a lesser rather than greater award of punitive damages. Parrish v. S ollecito, 280 F. Supp. 2d 1 45, 164 (S.D.N .Y. 2003). Relevant also is that Daka s liability for any damages was based partly on a finding of negligence (i.e., negligent supervision), a degree o f culpability o rdinarily insu fficient to support punitive da mages a t all. Of course , in assessing p unitive damages here the jury may have v iewed Daka s fault as going w ell beyo nd sim ple neg ligence , see not e 14, supra; but still, the element of unintentional wrongdoing inherent in one of the twin bases for the defend ant s liab ility is a fac t to be tak en into a ccoun t. 25 Notwithstanding the partial relationship between the compensatory damag es reflecting emotio nal distre ss a nd pun itive dam ages di scusse d earlier , see State Farm, 123 S. Ct. at 152 4, the two w ere not inex tricably intertw ined here su ch that a reduction in the amount of punitive damages req uires retrial of the compensa tory damages at M cCrae s election. 31 V. The judgment of the Super ior Court is a ffirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. So ordered.
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