Jury verdict in racial harassment case is upheld on appeal

The Court of Appeals has ruled that a jury properly found that a Port Authority employee suffered racial harassment. But the Court has reduced the $2.16 million pain and suffering award to $250,000.

The case is Sooroojballie v. Port Authority of New York & New Jersey, a summary order issued on June 4. I briefed the appeal. Marjorie Mesidor, Esq., tried the case and argued the appeal.

Defendants argue that the district court improperly allowed plaintiff to introduce evidence of counseling memos and other time-barred adverse job decisions in proving that he endured a hostile work environment. In addition to several racist comments that plaintiff's supervisor directed toward him, this supervisor issued a series of negative write-ups and otherwise denied him certain employment opportunities within the Port Authority. These evidentiary submissions included incidents that took place more than 300 days before plaintiff filed an EEOC charge. But while these incidents may have been time-barred for purposes of prevailing on this incidents as adverse actions, the Court of Appeals finds they were still part of the continuing violations in support of the hostile work environment. The case in support of that proposition is Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30 (2d Cir. 2019), which issued during the briefing of this appeal, reminding us once again that you should keep up with the latest developments in the Court of Appeals and elsewhere, as today's court rulings can help you tomorrow.

The holding on this issue is that "time-barred evidence constitutes non-discrete acts that are sufficiently related to the acts that occurred within the limitations period, and that acts involved the same individual, and were part of the same pattern of harassing conduct towards Sooroojballie." While defendants argued that these incidents could not be introduced at trial on the racial harassment claim because they also comprised the retaliation claim that the district court dismissed on the summary judgment motion, the Court of Appeals (Bianco, Sack and Hall) disagrees, holding that "'one type of hostility can exacerbate' the effect of another,'" such that "while Sooroojballie alleged the the counseling memoranda were produced to retaliate against his filing of the EEOC complaint, it was permissible for the jury to consider whether the counseling memoranda were also issued based on Frattali's racial and national origin animus and contributed to Sooroojballie's hostile work environment." This is a useful ruling for plaintiffs.

Overall, the evidence sufficed to support the verdict, the Court of Appeals holds, because Frattali made four explicitly racist comments (i.e., "what is it with you type of people" and "You fucking Indian asshole"), and these comments could be considered in conjunction with racially-neutral adverse acts in determining whether plaintiff endured a hostile work environment. The go-to case on that point is Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).

As I mentioned, the Court of Appeals also ruled on the propriety of the damages award for pain and suffering punitive damages. You can read about that in tomorrow's installment.