Friday, May 28, 2021

Court denies new trial in racial harassment case

This racial harassment went to trial a few years ago. Plaintiff alleged that a coworker had called her a series of racial names in the classroom where they were training to become Transit Authority employees. Things came to a head on February 21, 2016, a few months after the harassment started, when plaintiff's antagonist threatened her and hurled more abusive attacks against plaintiff, though this time there was nothing explicitly racial about this second round of attacks. The trial court told the jury to ignore the second round, and the plaintiff lost at trial. She appealed, claiming the second round was relevant and she could have prevailed at trial had the jury been able to consider it.

The case is Watkins v. New York City Transit Authority, a summary order issued on May 25. I represented plaintiff on appeal. The Court of Appeals sustains the judgment against plaintiff. We argued that while the second round of attacks was not explicitly racial, since it involved the same person who had racially insulted plaintiff a few months earlier, the jury could deem the second round to be racially-motivated, as well. Case law supports that argument. See e.g. Pucino v. Verizon Comms., 618 F.3d 112 (2d Cir. 2010). The Court of Appeals (Chin, Leval and Wesley) does not address that issue, instead ruling against plaintiff on different grounds: that the harassment cannot be imputed to the Transit Authority. 

While plaintiff argued that the harassment took place in a classroom with the instructors present, thereby putting them on notice of the hostile work environment, the Court writes:

Her only evidence offered in support of the Transit Authority's knowledge prior to February 21 was the presence of instructors in the classroom near her when she heard Jenkins's insults.  That was insufficient to support the inference that the instructors were aware, or should have been aware, that a severe or pervasive pattern of race-based harassment was occurring.

The harassment took place in a classroom in which there were about 11 trainees and several instructors.  Watkins gave no information about what the general noise conditions were at the moments when Jenkins's taunts were spoken, such as whether they occurred during classroom instruction when the room was otherwise quiet or during breaks when numerous conversations might have been going on at the same time among the approximately 15 trainees and instructors. Nor did she furnish information as to whether the instructors were engaged in other conversations at those moments. The mere fact that instructors were within earshot of what Watkins heard Jenkins say is insufficient by itself to support the inference that they actually heard or paid attention to Jenkins's words, much less that they understood those insinuations as constituting one student's race-baiting of another. None of the seven witnesses who had been present in the classroom, who could have corroborated Jenkins's racial harassment, including two classmates called by Watkins, testified to having heard Jenkins's race-based slurs. It is undisputed, furthermore, that Watkins did not inform supervisors of Jenkins's race baiting prior to the February 21 altercation.

Was the Court of Appeals over-analyzing the evidence here? Since the jury was not given a particularized special verdict form that asked if management knew about the harassment, plaintiff argued there was not way of knowing that the jury had rejected her claim that the instructors had heard the racial name-calling. So, while many witnesses said they did not hear the insults, the argument goes, the jury could have credited plaintiff's testimony that the insults took place in the instructors' presence and that they therefore heard all of it. Plus, if the insults are taking place in the classroom, it is a fair inference that the instructors heard it. The Court of Appeals disagrees: "Accordingly, even if the February 21 evidence was relevant to the question whether Jenkins subjected Watkins to a pattern of race-based hostility, its exclusion was harmless."

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