Court of Appeals sustains hostile work environment verdict

The Court of Appeals has affirmed a plaintiff's verdict, where the jury found she endured a hostile work environment based on sex, gender, race and color, as well as a retaliation verdict and a successful defamation claim. 

The case is Smart v. USA Labor for Hire, Inc., a summary order issued on April 28. The evidence is typical of a successful hostile work environment claim. This is from the district court ruling that sustained the verdict against the employer's post-trial motion to have it thrown out:

Plaintiff testified that Defendant Tsimbler referenced her race and national origin, repeatedly calling her, or even introducing her as, “sexy black Katya, exotic Katya, [and] Grenadian black princess.” Plaintiff also testified that Defendant Tsimbler called her “cyka,” and “vlat cyka,” which she understood to mean “bitch” and “fucking bitch” in Ukrainian, respectively. In addition, he would yell at her “on the phone, screaming, saying that I don't have a brain, that I didn't graduate from kindergarten, that ... I'm a baby and I have a brain of a baby, that I can't think on my own. This was constantly, every single day.”  Further, Plaintiff testified that Defendant Tsimbler once told a police officer that Plaintiff “runs around in Grenada in a car with a man. That's all she did in Grenada, that's what I'm paying her for, you know, to run around and act like way slut in a car and sleeping with men in a car.” Plaintiff also produced evidence that Defendant Tsimbler made comments about her neighborhood, referring to it as a “ghetto,” as well as comments about “black people” who “just buy fancy cars but can't pay their bills and can't buy a house.” 

Plaintiff also introduced a lengthy text message chain between her and Defendant Tsimbler that corroborated her testimony regarding how Tsimbler treated her. For example, the text messages included messages from Defendant Tsimbler in which he referred to her as “Syka,” and he once texted her: “Don't be Syka!!!” The text messages also demonstrated frequent communications between Plaintiff and Defendant Tsimbler over the time period from September 18, 2018, through early February 2020.

Defendant objects that this evidence is not enough for a plaintiff's verdict because it was laden with hearsay "concerning the meaning of Ukranian terms that Tsimbler frequently used when referring to her." Plaintiff does not speak Ukranian but she testified that a coworker translated these vulgarities for her. The trial court told the jury that this hearsay testimony was admissible, not for the truth of what it means in Ukranian but for the fact that the statement was said and plaintiff's understanding of it. The Second Circuit (Leval, Wesley and Sullivan) sidesteps this issue and finds that even if this instruction was incorrect, the hostile work environment evidence was overwhelming even without this hearsay.

 

The jury awarded plaintiff $60,000 for pain and suffering and another $50,000 in punitive damages. These numbers were not challenged on appeal, but the district court did sustain these awards, finding that plaintiff sustained garden-variety emotional distress, which places the acceptable damages within the Second Circuit's damages matrix: $30,000 to $125,000. The district court noted that plaintiff's sister, Drakes, corroborated the emotional distress:

 

Drakes testified that, “over time, I could tell [Plaintiff] wasn't so happy.... There came a point where I noticed it was consistently, like, stressed out ....” Drakes also testified that Plaintiff lost a significant amount of weight, distanced herself from family, and that the job was “taking its toll on her.” Drakes further testified that after Plaintiff was terminated, she was “sad” and “hurt by the way things went down,” and that “it took her a long time to get over what happened and the way he treated her. You could tell she was sort of not herself.... She just wasn't in a good place for a while ... [and] it took her a long time to get herself back together.”

As for the punitives, the trial court held the jury had a basis to find that defendants knew about the antidiscrimination and sexual harassment laws but engaged in conduct sufficiently reckless as to amount to a conscious disregard of plaintiff's rights.