Tuesday, May 28, 2013

Court of Appeals throws out Title VII retaliation verdict

The Court of Appeals has thrown out a Title VII retaliation verdict, ruling that the plaintiff did not engage in protected activity under the statute.

The case is Rosioreanu v. City of New York, a summary order decided on May 13. This case is unusual for a couple of reasons. Although the district court said that she had difficulty with the English language and said a few inappropriate (but harmless) things at trial, the plaintiff tried and won this case pro se, and she also argued the appeal without a lawyer. What's also unusual is that the Court of Appeals (Cabranes, Leval and Parker) vacates a jury verdict in a summary order, suggesting this is a routine non-event.

Plaintiff convinced a jury that a co-worker treated her poorly because she was a woman. It all happened when she went to Kingston, N.Y., for a meeting. According to the district court,

After four months on the job, plaintiff began working on a project related to the watershed division's billing system. (Tr. 32.) On November 7, 2001, plaintiff went to a meeting in Kingston, New York to present her proposal to change the billing system to the director in charge. (Tr. 32-33, 258.) Plaintiff was scheduled to attend the meeting with Mahaney. (Tr. 32.) However, as plaintiff could not drive and Mahaney could not attend the meeting, Muzaffar Jamal, a co-worker within the Engineering Audit Office, was sent with plaintiff to the Kingston meeting. (Tr. 33; Ex. 5.1.) Plaintiff and Jamal arrived at the meeting more than one hour late because Jamal worked on his private engineering business while plaintiff waited in the car on the way to the meeting. (Tr. 33.) During the meeting, Jamal "improperly and rudely interfered with [plaintiffs] presentation in a very unprofessional and arrogant fashion." (Tr. 33.) Plaintiff testified that she "firmly believe[s] that he behaved in this particular manner also because I am a woman" and that "if I was a man he will never have doing his personal business with me in the car." (Tr. 106, 313.)

After plaintiff complained about Jamal's rude behavior, management retaliated against her. To win a retaliation case, the plaintiff has to show that management subjected her to an adverse action because she complained in good faith about gender discrimination in the workplace. The jury awarded plaintiff damages in the amount of $100,000. The district court denied the city's Rule 50 motion to throw out the verdict. The Second Circuit agrees that plaintiff did not complain in good faith about sex discrimination when she complained about Jamal, and that plaintiff was only complaining about a male co-worker who treated a female colleague rudely. That means management has free reign to treat plaintiff any way that it wanted, and her Title VII verdict is gone. Here is how the Court of Appeals sees it:

no evidence presented at trial permitted a jury reasonably to infer that the City had notice (or should have had notice) that Rosioreanu believed that the conduct of which she complained was based on her sex. As the District Court noted, Rosioreanu had not “explicitly refer[red] to gender” or sex discrimination in those complaints, nor was any “quintessentially gender-based conduct” involved. Put another way, Rosioreanu’s complaints could easily have described a conflict between co-workers of any sex¯regardless of the presence or absence of discriminatory animus¯and, in these circumstances, we cannot agree with the District Court that the jury could infer that Rosioreanu’s complaints related to sex discrimination as a matter of “credibility.”


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