Circuit awards harassment plaintiff $400,000 in compensatory and punitive damages

The Court of Appeals holds that, while the plaintiff suffered a hostile work environment, the jury's damages award, in excess of $2 million, was excessive. Instead, he is entitled to $250,000. But the Court also holds that the punitive damages award, $150,000, was proper in light of the outrageous harassment the plaintiff suffered.

The case is Sooroojballie v. Port Authority of New York and New Jersey, a summary order issued on June 4. I wrote about the liability portion of the Second Circuit's decision at this link. Now it's time for the damages portion. I briefed the appeal, which was argued by Marjorie Mesidor, Esq., who tried the case.

While we leave it to juries to calculate damages for pain and suffering, the Court of Appeals "is required to police closely the size of awards rendered in the trial courts," and the legal standard is whether the award "shocks the conscience." The Court ultimately will look to similar cases to see if the jury's amount was too high. The Court of Appeals applies a three-part formula in making these adjustments:

In assessing whether a jury award for compensatory damages is excessive, courts in the Second Circuit have routinely identified three categories of damages for emotional distress: (1) garden variety; (2) significant; and (3) egregious: 

In garden-variety claims, the evidence of emotional harm is limited to the plaintiff’s testimony, which describes his or her injuries in vague or conclusory terms, and fails to relate the severity or consequences of the injury. These claims typically lack extraordinary circumstances and are not supported by medical testimony. Significant emotional distress claims are based on more substantial harm or offensive conduct and may be supported by medical testimony, evidence of treatment by a healthcare professional, and testimony from other witnesses. Egregious emotional distress claims yield the highest awards and are warranted only where the employer’s conduct was outrageous and shocking or affected the physical health of the plaintiff.

Plaintiff's damages in this case were "significant" because the racial harassment caused him to suffer anxiety, insomnia, depression for which he was prescribed medication, strained family relations and excessive drinking. He attended 14 counseling sessions with a social worker and continued that therapy after he left Port Authority. "Significant" emotional distress cases are usually valued at $50,000 to $200,000, though some cases provide for more than that. This ruling cites some recent cases in this area. "Given the evidence in this case and our survey of comparable cases, we conclude that $250,000 is the upper limit of the reasonable range for the significant emotional distress that was described in Sooroojballie’s testimony. Accordingly, we grant a new trial as to Sooroojballie’s emotional distress damages unless he accepts a remittitur of the award to $250,000."

The jury also awarded plaintiff's supervisor, Frattali, $150,000 in punitive damages. That amount does not shock the conscience, the Court of Appeals (Sack, Hall and Bianco) holds, because the harassment was reprehensible, along with a false accusation that Frattali made against plaintiff, accusing him of sabotaging mechanical equipment at the airport, a potentially career-ending charge. This amount also falls below the $250,000 civil penalty cap set by the City Council for violations of the New York City Human Rights Law (which does not apply to Port Authority). As other cases in the Second Circuit have also awarded more than $150,000 in punitive damages, plaintiff's award is not excessive.

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. 

AutoZone altercation does not give plaintiff a retaliation claim

This employment discrimination case reminds us that management has much leeway in disciplining employees, and that even if the plaintiff makes out a prima facie case, the employer can get around that by showing it still had good reason to demote the plaintiff.

The case is Carter v. AutoZone, LLC, a summary order issued on May 29. The Court of Appeals (Wesley, Livingston and Sack) does not provide much detail in the facts of the case, but it assumes that plaintiff has made out a prima facie of discrimination, i.e., that she engaged in protected activity in complaining of discrimination, and that she sustained an adverse action under circumstances creating an inference of retaliation. The battle centers on whether plaintiff can show that management's reason for the demotion are false and that the real reason was discrimination or retaliation. She cannot do so.

Proving pretext generally requires the plaintiff to show the employer's reasons for the demotion or termination were made in bad faith. There are many ways to prove bad faith, including an outright lie, or something suspicious or fishy about the employment decision, like shifting explanations or some excuse that makes no sense at all. Bear in mind, though, that employers often get the benefit of the doubt in this area, as courts do not want to serve as super-personnel boards second-guessing managerial decisions.

In this case, defendant can show it had good reason to demote plaintiff, even if she did complain about discrimination shortly before the demotion. Plaintiff got into some kind of altercation with a coworker. We don't know the details of that altercation, so use your imagination, and picture an altercation at an AutoZone. Maybe someone threw a tire iron, or an air-pressure gauge, at someone else. Maybe a fight broke out because no one wanted to clean up some oil spill near the entrance of the store. Management's investigation into that altercation revealed that plaintiff responded unprofessionally to the co-worker's verbal invective in the presence of a customer, and that plaintiff had previously failed to report conduct by her subordinate employees that violated corporate policies, including commentary on a shopper's physical appearance. This is why plaintiff was demoted, not her protected activity in complaining about discrimination. While plaintiff says her admittedly disrespectful and unprofessional responses to her co-worker during the altercation "were reasonable responses to his inflammatory statements," the Court of Appeals will not buy an argument like this. Plaintiffs need to have good work records to survive motions for summary judgment, and the judges usually do not tolerate bad acts by the plaintiff, or efforts to excuse them as a means to win the case.

There will be a Democratic primary on June 23

The Second Circuit has ruled that a federal court properly ordered that the New York primary election scheduled for June 23, 2020 must take place. This decision rejects the Cuomo administration's argument that it had to cancel the election because of the Covid-19 pandemic.

The case is Yang v. Kosinski, issued on June 1. The governor canceled the primary election on April 27, 2020, making New York the only state to cancel its 2020 Democratic presidential primary. The justification for cancelling the election was the state wanted to minimize social contacts to limit the spread of the virus and to focus its limited resources on the management of other contested primary elections. As it happened, the other Democratic candidates had suspended their campaigns quite some time ago, including Andrew Yang and Sen. Bernie Sanders. But they challenged the primary cancellation under the First Amendment. They won in the Southern District of New York, and the Court of Appeals affirms.

When you seek a preliminary injunction, you have to convince the court that you deserve to win the case right now, prior to discovery or a formal trial. You have to show, largely on the paperwork, that you will most likely win the case and will suffer irreparable harm without an immediate injunction. This relief is hard to come by. But plaintiffs win the injunction because, first, the loss of constitutional rights is usually irreparable (and besides, a drawn-out lawsuit would be mooted by the time the case is finally decided, as the primary date will have come and gone). Second, the Court of Appeals finds, we have a serious First Amendment problem when a primary election is cancelled because the candidates, even if they are destined to lose, have the right to "engage in association for the advancement of beliefs and ideas" and "to cast their votes effectively." The candidates also have the right to compete for delegates, which can only happen if they compete in a primary election, as accumulating delegates gives the candidate influence over the party platform at the Democratic National Convention. In addition, Yang and Sanders supporters have the right to vote for the candidates of their choice, and their delegates have the constitutional right to attend the convention.

The Cuomo administration cannot offer compelling reasons to cancel the primary. Yes, we are in the midst of a public health pandemic, but voters can vote by absentee ballot, and while the state claims it need to conserve its resources to conduct other primaries, the state has not backed up this claim with real evidence. This asserted justification "warrants little discussion," the Second Circuit (Cabranes, Kearse and Jacobs) writes.

Since there is a political overtone to this case, Judge Cabranes drops an interesting footnote to emphasize how party conventions can actually make a difference, even if the party nominee has already been in effect chosen by then. He writes:

The Democratic Party is familiar with how unsuccessful presidential candidates have influenced the party’s governance and shaped the party’s rules in a way that has transformed the internal structure and politics of the Democratic Party moving forward. For example, after an unsuccessful run to obtain the Democratic nomination for President in the midst of the tumultuous 1968 Democratic National Convention, Senator George McGovern led an effort to reform the Party’s internal structure and nominating procedures. The effort concluded in the adoption of “guidelines to eliminate state party practices that limited the access of rank-and-file Democrats to the candidate selection procedures, as well as those that tended to dilute the influence of each Democrat who took advantage of expanded opportunities to participate”—which are commonly known as the “McGovern Rules,” and which were formally “incorporated into the Call to the 1972 Convention, which set forth the formal requirements of the delegate selection and nominating processes for the Convention.”

Ultimatum meeting in sexual harassment case not enough for constructive discharge claim under New York City HRL

The Court of Appeals has ruled that a woman who was told by supervisors that she had to work in the same unit as the man who had sexually harassed her for more than six years cannot make out a constructive discharge claim under the New York City Human Rights Law.

The case is Tulino v. City of New York, a summary order issued on June 3. I represented the plaintiff on appeal. The oral argument is at this link. Plaintiff sued the City for sexual harassment, retaliation, and constructive discharge. The discharge claim was dismissed mid-trial under Rule 50(a), as the trial court determined that no reasonable jury could find in her favor on that claim. The jury ruled in plaintiff's favor on the harassment and retaliation claims, awarding her more than $1 million in damages. See 2019 WL 3810975 (S.D.N.Y. Aug. 1, 2019). The constructive discharge claim was appealed on the basis that no reasonable woman can be expected to remain on the job if she has to continue working for the harasser.

After the agency investigated plaintiff's internal sexual harassment complaint and determined that the complaint could not be corroborated, two senior agency officials told plaintiff that her charge had "offended the agency" and that she had "no place here" if she did not return to the harasser's division (she and the harasser were temporarily separated during the investigation, which plaintiff alleges was faulty). Plaintiff quit rather than work with the harasser, as the multi-year harassment had caused her significant pain and suffering. The Court of Appeals (Wesley, Livingston and Menashi) affirms the trial court's JMOL ruling, holding that these comments were made in the context of other job offers within the agency, the lack of any active disciplinary investigations against plaintiff, her civil service protections, and her transfer to a different supervisor. Plaintiff argued on appeal, however, that she had not ruled out working elsewhere in the agency and, contrary to the City's position at trial, she did not demand that she remain in her unit. This factual dispute, she argued, was for the jury. The Second Circuit disagreed.

Plaintiff did ask the Second Circuit to certify this case to the New York Court of Appeals to clarify the standards guiding constructive discharge claims under the New York City Human Rights Law, which requires a more liberal statutory construction. In 2015, the First Department said the courts have not yet settled upon such a standard, and the Second Department made the same observation in May 2020, one week before oral argument in this case. Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 981 N.Y.S.2d 89, 92 n.1 (1st Dep’t 2014); Golston-Green v. City of New York, -- N.Y.S.3d --, No. 2016–02462, 2020 WL 2462411, at *9 (2d. Dep’t May 13, 2020). But in 2019, the First Department restated the tight Title VII constructive standard in a City HRL case without referencing the liberal statutory construction. Crookendale v. New York City Health & Hospitals Corporation, 107 N.Y.S.3d 282 (1st Dep’t 2019). In a footnote, the Second Circuit notes this lack of clarity on this issue, but it determined that plaintiff cannot meet any constructive discharge standard, no matter how it is formulated.

Woman cannot sue West Point over sexual assault

The Court of Appeals has ruled that an anonymous plaintiff cannot sue West Point for sexual assault. This is the second time the plaintiff has brought her case to the Second Circuit. She lost the first time under her Bivens claim, and she loses again under the Federal Tort Claims Act.

The case is Doe v. United States, a summary order issued on May 29. Plaintiff alleges that a male cadet sexually assaulted her and that the was West Point's fault in the way the institution handles (or fails to properly handle) such incidents.

There are certain things we cannot do in American society. Suing the military is one of them. There are exceptions to the Feres doctrine, but the Feres rule, set down by the Supreme Court in 1950, makes it almost impossible to do so. In her Bivens claim (which is the federal counterpart to Section 1983 constitutional claims against state and municipal defendants), the Court of Appeals applied the doctrine of intra-military immunity in holding plaintiff could not recover any damages. This time around, she seeks relief under the FTCA. Same result.

Feres holds that "the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Under Feres, cases cannot proceed if "commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions[.]" What dooms the FTCA claim is what doomed her Bivens claim: the Court of Appeals says her allegations "center on the implementation and supervision of allegedly inadequate and harmful training and education programs relating to sexual assault and harassment," as well as West Point's alleged failure to provide properly for the report and investigation of sexual assault claims, and for the support of cadets who are assaulted. It looks like anything relating to West Point's failure to provide for a safe environment for female cadets cannot be litigated under the FTCA.

Plaintiff tries to get around this by arguing that her suit relates to her role as a West Point student and not as a soldier. Good argument, but it will not work. The Second Circuit rejected that argument on her Bivens claim a few years ago. In the end, even as a student, she "was a member of the military, subject to military command at all times, who was at West Point for the purpose of military instruction."Also, "her education was inextricably intertwined with her military pursuits."

Pro se plaintiff wins Title VII retaliation appeal against JP Morgan

This pro se plaintiff wins in the Court of Appeals, which finds that the district court improperly dismissed his retaliation claim. But he cannot convince the Second Circuit that his hostile work environment has merit.

The case is Rivera v. JP Morgan Chase, a summary order issued on May 29. Let's start with the hostile work environment case. Plaintiff says in his complaint that he was subject to a "pattern and practice of overt ethnic discrimination" involving "verbal bullying and ethnic slurs." That's a good start; Title VII prohibits a severe or pervasive work environment on the basis of ethnicity/ But plaintiff did not provide any details about the harassment. Who did this to him? What did they say? There is not much case law in the Second Circuit on this precise issue: how much detail must the plaintiff provide in the complaint on a workplace harassment claim? This case does not clarify that answer, but we do know that plaintiff's allegations are not enough.

While the hostile work environment claim fails, the retaliation claim does not. Plaintiff says he complained to human resources in July 2010 that his supervisors were discriminating against him because of his national origin. A month later, management stripped him of his duties, diverted new clients to other bankers, suspended him, and terminated his employment. While the district court says plaintiff did not plausibly plead a causal connection between his complaints and the adverse actions. But that was wrong, the Second Circuit (Sack, Wesley and Chin) says. This is not a complex issue, actually. The retaliatory acts took place only a month after plaintiff complained. There is no bright-line rule on what constitutes a victorious timeline for retaliation claims, but one month is surely enough under the cases, like Abrams v. Dept. of Public Safety, 764 F.3d 244 (2d Cir. 2014), and Gorman-Bakos v. Cornell-Cooperative Extension, 252 F.3d 545 (2d Cir. 2001), which extend it out to five and four months, respectively.