Friday, November 2, 2018

Court upholds discrimination verdict against state agency

A trial court has upheld a discrimination verdict in which an Iranian-born man was denied a promotion because of his national origin. But the court reduced the damages award from $2.5 million to $125,000, ruling that the plaintiff's damages were merely "garden-variety" and not substantial.

The case is Saber v. New York State Department of Financial Services, 2018 WL 3491695 (S.D.N.Y. July 27, 2018). Plaintiff was rejected for the CRMS position in 2012 and 2013. The guys chosen for the position were initially deemed unacceptable by the decisionmakers. But according to the district court, plaintiff is highly educated and experienced. In 2013, plaintiff filed an internal grievance with the company over his rate of pay. A few weeks later, he received his first formal counseling. He then filed an EEOC charge in November 2013. Shortly afterwards, he got a mixed performance review. So where was the discriminatory intent? In May 2014, when management said staff had to take a course in handling hazardous materials in the workplace, plaintiff's superior said "that the reason is that plaintiff is hiding yellow cake in his cubicle," a reference to the materials needed to make an atomic weapon. Then, in July 2014, he received a notice of discipline which proposed 20 days' suspension without pay, leading to an arbitration in which the lead of labor relations joked with plaintiff, "I didn't waterboard you, did I?" As plaintiff is Iranian, both comments reflect discriminatory intent.

The trial court finds the jury had an evidentiary basis to find discrimination and retaliation. But another issue surfaced in the post-trial motion. The judge asked the jury for an advisory verdict on when the agency first decided not to select plaintiff for the promotion. The court did this because it wanted guidance in case it had to decide the amount of front pay, which is left to the judge and not the jury. In answering Question 3, the jury answered "October 2011," which actually predates when defendant posted the position that was denied to plaintiff, in early 2012. The state argues this answer means the jury was confused, requiring a new trial.

The trial court disagrees, for three reasons. First, the verdict is actually consistent, because Question 3 was only an advisory verdict, which is non-binding, and the other evidence at trial supports the overall discrimination/retaliation verdict. Second, the jury is entitled to “an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law.” The judge reasons that "the jury’s finding may be interpreted to mean that Plaintiff had no realistic chance of being hired as CRMS since the DFS’s inception," and the evidence at trial supports this view, as October 2011 coincides with the date of DFS’s creation, and, referencing the testimony of a non-party witness, "based on Ms. Atabaki and Plaintiff’s testimony, DFS, since its inception, had a strong focus in enforcing U.S. sanctions against Iran; Ms. Atabaki testified that since October 2011, she was demoted from being the head of her division." Third, "the jury had clear guidance on the verdict form (which is in the record as a court exhibit) that the discrimination claim was based on the failure to promote him to CRMS."The binding questions before the jury were clear and placed the ultimate issue at trial squarely before them.

Like all huge verdicts, the trial court cuts it down. This case is no different. Part II of this discussion will focus on remittitur and other damages-related issues.

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