Wednesday, August 7, 2019

This is how retaliation cases work under the discrimination laws

What does it take to win a retaliation claim under the employment discrimination laws? This case tells you how it's done, and what judges do post-trial when the losing defendant challenges the verdict. The short answer is that judges are reluctant to throw out jury verdicts.

The case is Tulino v. City of New York, a Southern District of New York case issued on August 1. I assisted in representing the plaintiff post-verdict. You can read about the $1.25 million pain and suffering verdict at this link.

Plaintiff was sexually harassed by her male supervisor, Ali, who "cultivated an inappropriately close relationship with her and became angry and resentful when Tulino tried to distance herself from him," writes Judge Rakoff in the post-trial Rule 50 decision. On November 12, 2014, after she and Ali got into an argument, Tulino said she would report him to the internal EEO office because of his harassment. Afterward, Ali told Tulino to turn in her Blackberry, switched her to a different desk and assigned another coworker as a "backup" for Tulino's work. Moreover, "a great deal of her work was reassigned to" that backup worker. Five days after the November 12 EEO conversation, Tulino sent an email to Ali, the EEO office and HR stating that Ali was retaliating against her. The jury found that the City agency plaintiff worked for, through Ali, had in fact retaliated against her, awarding her $500,000 in damages for the retaliation.

The City next challenged the verdict under Rule 50(b), claiming there was not enough evidence for plaintiff to win the retaliation claim. Under the New York City Human Rights Law, the jury may find retaliation if management's response to the plaintiff's protected activity would deter a reasonable employee from complaining again about discrimination. As Judge Rakoff notes, these motions are hard to win. The losing party has to show there was "a complete absence of evidence" to support the verdict.

The City argued that the jury could not find that Tulino had actually "opposed" discrimination on November 12, 2014 because her testimony that she told Ali that she was going to report his discrimination to the EEO office is contradicted by a tape recording Tulino made of the conversation, in which she mentioned going to EEO "but does not clearly indicate she will do so to report Ali's discrimination." Instead, Judge Rakoff states, the recording says Tulino said she would "go to EEO" unless Ali agreed to "tell her what's happening." This argument is not enough to vacate the retaliation verdict. The district court notes that "the recording does not appear on its face to capture the entirety of the conversation, so there is no inherent contradiction between plaintiff's testimony and the recording." Moreover, "Plaintiff specifically testified that she told Ali she would be reporting him to EEO, and that Ali responded by saying 'You're finished. You're finished.'" All of this speaks to the plaintiff's credibility. That is for the jury, not a trial court post-verdict, especially since the City did not make this point in summation to the jury. "The Court is extremely reluctant to discard a jury verdict based on a credibility argument that defendants apparently determined was not worth even presenting to the jury."

As for the damages, judge feel more comfortable reducing large jury verdicts than vacating the verdicts outright. While the jury awarded Tulino $500,000 in pain and suffering for the retaliation, the district court reduces that portion of the award to $250.000. Along with the $1 million in pain and suffering for the sexual harassment, the total award is $1.25 million.

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