Wednesday, May 13, 2020

2d Circuit upholds large verdict in sexual harassment and retaliation case

The Court of Appeals has upheld an employment discrimination judgment in the amount of $2.88 million in favor of a female civilian teacher at Attica Correctional Facility who suffered discrimination, retaliation and sexual harassment at work.

The case is Small v. Cuer, a summary order issued on May 7. This case originated in the Western District of New York. The jury awarded plaintiff $7 million but the trial court reduced that amount on remittitur. The defendant who appealed, Cuer, was hit with a $3.85 million judgment, which the district court reduced significantly, still leaving the plaintiff with close to $2.88 million against this defendant, a correction officer who became obsessed with plaintiff and made explicitly sexual comments toward her. In particular, defendant told plaintiff that God wanted her to succumb to his unwanted advances. The jury found that the jail did not effectively remediate this harassment, and Cuer eventually retaliated against plaintiff for resisting his advances and complaining about him. Plaintiff eventually stopped coming to work and exhausted her sick leave. DOCCS fired her.

The Court of Appeals (Lohier, Park and Bianco) does not provide much detail about this case, but the district court ruling does, at 2019 WL 1593923 (W.D.N.Y. April 15, 2019). The district court held that plaintiff was entitled to substantial damages for pain and suffering, as proven through testimony from her expert witness and treating psychologist. While the jury awarded plaintiff $1.55 million in pain and suffering, and the trial court said these damages "had a significant overall impact on Small's psychological and physical health" (including PTSD, major depressive disorder, sleep phobia, etc.), as the discrimination lasted months and not years, that amount shocks the conscience under federal law. The trial court reduced that amount to $500,000. The court cited comparable cases in support of this reduction, including Chopra v. General Electric, 527 F. Supp. 2d 230 (D. Conn. 2007), and Ramirez v. New York City OTB, 112 F.3d 38 (2d Cir. 1997).

The district court ruling is not clear about this, but it looks like the jury found that plaintiff was constructively discharged. Hence, the large damages award for lost wages. Constructive discharge claims are difficult to win in the Second Circuit, as the plaintiff must show the discrimination was so egregious that a reasonable person would have no choice but to resign. But it does not look like defendant challenged that portion of the verdict post-trial. He did challenge the punitive damages award, which was $50,000. But the district court found that that amount did not shock the conscience, as (1) the discrimination was reprehensible; and (2) the amount is not disproportionate to the compensatory damages award (and only a fraction of that award, not a multiple of it).

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