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.

 

Cruel treatment does not amount to racial harassment

This case is a primer on how bad and even cruel treatment at work may not be enough to create a hostile work environment in violation of Title VII. The plaintiffs, who work in state corrections, lose their case.

The case is Browne v. New York State Department of Corrections, a summary order issued on April 23. A hostile work environment is only illegal when it is motivated by race, gender, age, disability, religion, or any other protected class. Many hostile environments are therefore not illegal. A rude boss or hostile co-worker who has little, if any, skills in getting along with others is not violating Title VII. The same holds true for the workplace filled with anti-social personalities. In cases like this, it may be easy to prove the harassment is motivated by race or gender; the harassment may be expressly racist or sexist. 

But in this case, the Court of Appeals (Menashi, Lynch and Cabranes) holds, plaintiffs cannot prove the harassment was motivated by race. Here is how the Court summarizes plaintiffs' claim: 

They alleged that their co-workers tampered with their timecards, put transfer slips in their mailboxes, gossiped about them, called  them names such as “rat,” and circulated derogatory poems about them in the workplace. Parker also alleged that co-workers stalked her, and Browne alleged that co-workers cut the valve stem on his car. Browne and Parker further alleged that their supervisors assigned them to less desirable posts  and disregarded their staffing requests." 

This treatment is pretty bad. But is it illegal? It is not illegal, the Court says.

None of the alleged harassment  referred  to  either  plaintiff’s  race.  Instead,  the  only  evidence referencing any reason for the alleged abuse, including the plaintiffs’ own testimony, tended to indicate that Browne and Parker were harassed because they were perceived to be disloyal. Parker stated that other officers believed she was a “rat” because she had testified on behalf of an inmate in a disciplinary hearing. As a result, those officers thought that she did not “stick up for the blues.” Browne stated that other officers regarded him as a “scumbag” because he had testified against a fellow corrections officer at another institution where he had worked.

What about the poems? Plaintiffs said they were racially offensive, but the Court of Appeals does not see it that way. The poems make no reference to race and instead describe an officer who served as an informant for the Office of Special Investigations.

Both sides jointly appealed from trial court's refusal to recognize FLSA settlement

This case is unique because both sides wanted the Court of Appeals to reverse the district court's ruling. We are dealing with a class action settlement that the district court rejected. The Court of Appeals reverses and finds the trial court abused its discretion.

The case is Robertson v. Trinity Packaging Corp., a summary order issued on April 17. This is a Fair Labor Standards Act case asserting wage and hour violations. The parties agreed to settle, but the district court has to approve the settlement to ensure it is fair to the class. The trial court did not approve the settlement, finding that plaintiffs' lawyers could not adequately serve as class counsel based on their purportedly improper actions in a different case, what we will call the Bonura action. 

While the competence of plaintiff's class counsel (more precisely, the adequacy of counsel's representation) is one factor to consider in approving class certification and approval of the settlement, it is not the only factor. The Court of Appeals (Sack, Perez and Robinson) holds that while misconduct in a different case might impact this determination, "we would expect that misconduct to be clear, significant, and indicative of counsel's adequacy to represent the class in the case currently before the court. The Second Circuit cites a Seventh Circuit ruling for this proposition, so this is a new concept in the Second Circuit.

The trial court in this case said plaintiffs' counsel mishandled the Bonura case because they tried to settle the individual claims in that case without first seeking court approval. A magistrate judge in Bonura said as such. While the trial court in the Robertson case said that plaintiffs' counsel could not challenge the conclusion on Bonura because they did not object to the Report and Recommendation on that point, the R&R in Bonura did not actually sanction counsel for that maneuver or hold that counsel had violated the code of professional ethics. Without those findings, the Bonura case cannot impede settlement in the Robertson case. Also, counsel in Bonura did not have to litigate the issue of the propriety of their conduct because they negotiated a new settlement in their client's interests that satisfied the trial court's concerns. The Second Circuit further finds that counsel in Bonura did not act so improperly as to prevent the trial court in Robertson from approving the Robertson settlement.

The case returns to the Western District of New York for the court to reconsider whether to approve the settlement in this case.

Court expands the rights of pre-trial detainees who were denied proper medical treatment

The Court of Appeals has revived a civil rights case alleging that jail officials in Putnam County were deliberately indifferent to a pre-trial detainee who died following a suicide attempt while she was undergoing heroin withdrawal. This case details the rules governing when poor supervision by jail officials may result in liability under Section 1983.

The case is Lara-Grimaldi v. County of Putnam, issued on March 27, more than year following oral argument. The deceased ("plaintiff") entered the County Jail following her arrest for an alleged probation violation and allegedly possessing a hypodermic needle. She told the intake officers that she had recently injected heroin and that she had previously attempted suicide. The officers also knew she was mentally ill. The claim is that, despite this knowledge, the officers were not sufficiently attentive to plaintiff, who hanged herself with a bedsheet in her cell and died after she was taken to the hospital.

The Eighth Amendment prohibits the cruel and inhumane treatment of inmates, but those cases impose a high standard for plaintiffs who were convicted of a crime. Under the Fourteenth Amendment, invoked by pre-trial detainees (not yet convicted of anything), the legal standard is more lenient. The Supreme Court has drawn that distinction, and the Second Circuit developed it further in Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) (a case I briefed on appeal), and Charles v. Orange County, 925 F.3d 73 (2019). Under these cases, the plaintiff wins if the correction officer was deliberately indifferent to jail conditions and acted intentionally to impose the jail condition or recklessly failed to act with reasonable care to mitigate the risk to the inmate. If the defendant knew or should have known the condition posed an excessive risk to the plaintiff, then the Fourteenth Amendment is violated.

The Court of Appeals extends Darnell to cases like this, where the officers, aware of an excessive health risk, do not properly supervise the plaintiff. While Darnell involved prison conditions (bad toilets, overcrowding, vermin, etc.), the Second Circuit (Kearse, Leval and Nardini) says its reasoning "is equally applicable to due process claims for denial of medical care." This is a civil rights victory for inmates and their lawyers.This case will proceed to trial because defendants were aware of plaintiff's risk of experiencing withdrawal symptoms, her bipolar disorder, and her prior suicide attempt. As the jury may find these defendants failed to properly supervise plaintiff and that failure led to her death, summary judgment is reversed. 

You can't ask the jury to impeach its own verdict: $2 million equal pay verdict stands

Jury deliberations are off-limits to everyone but the jury. We only know what the jury thinks when it formally asks the judge a question during deliberations and then issues its verdict. A body of case law says you cannot obtain an affidavit from the jury post-verdict in an effort to overturn the verdict. The reason for this is that we do not want to intrude on jury deliberations, and such a practice will result in harassment of the jury. There are exceptions to this rule, but those exceptions are narrow. In this the case, the losing side wanted a new trial on the basis that the jury did not follow the judge's instructions. That effort failed, and a $2 million verdict stands. 

The case is Nordenstam v. State University of New York, New York State College of Environmental Science (ECF), issued by State Supreme Court, Onondaga County, on April 9. A.J. Bosman tried the case. I assisted in opposing the post-trial effort to undo the verdict. 

Plaintiff claimed she was denied equal pay in violation of Title VII and the New York State Human Rights Law. The jury was instructed to award compensatory damages but not lost wages. The jury ruled that the state violated the equal pay laws and awarded plaintiff $2 million in damages.

Following trial, the Attorney General's office spoke with the jury's foreperson. This is what the foreperson's affidavit says:

The foreperson stated that the jury concluded that plaintiff suffered damages “mentally and physically,” and experienced “pain, suffering, and mental and medical issues, all as a result of what occurred at SUNY ESF." In particular, as the jury found, plaintiff left her teaching post after she suffered (and as a result of) these harms, she did not return to the field, and she “never reached her full professorship” toward which she had worked for her “whole career.”

To give shape to its damages assessment, the jury decided on “running some numbers and doing some math." The foreperson explained that it “awarded [plaintiff]] $1.5 million for lost wages. This was based on about 10-12 years of work, as a full professor, that she should/could have achieved/accrued if she stayed at the university.” The jury awarded a further sum of $500,000 (bringing the total to $2,000,000) for medical expenses and pain and suffering.

The AG's office sought a new trial on the basis that the jury actually awarded plaintiff damages for lost wages. The motion was denied and the verdict stands. The trial court noted the general rule against asking jurors about their deliberations in order to impeach the verdict. The only exceptions are that the jury statement is useful if "an error is made in reporting the verdict" such that the trial court can correct a "ministerial error," or where the record "demonstrates substantial confusion among the jurors in reaching a verdict." These exceptions do not apply here, Justice Antonacci held, because the jury instructions were clear, and there was no ambiguity in the verdict sheet. The Court states:

What ESF seeks to do here is not illuminate an instance of confusion or impropriety apparent from the record. Instead, ESF endeavors to intrude on the jury’s secret deliberations to create grounds for questioning the verdict where none existed. “[I]f ‘verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication . . . all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding’ ”

Without evidence of jury confusion, the verdict stands. In any event, the Court stated, "a fair reading of the statement does not support the conclusion that the jury failed to follow the Court's instructions." The Court explains:

plaintiff did not ask the jury to award a monetary amount for lost wages in conjunction with this cause of action. More to the point, in placing such great weight on the phrase “lost wages” in the foreperson’s written statement, ESF disregards the fuller context of the foreperson’s explanation. Given a fair reading, the foreperson’s statement reflects the jury’s care in compensating plaintiff for mental anguish and pain and suffering (Doc No. 98 at 1 [referring to damages to the plaintiff ’s health, “mentally and physically,” and her “pain, suffering, and mental and medical issues”]). Presumably, ESF would have had no qualm with the foreperson’s explanation if he had stated that the jury plucked the number from the air, or that it was the product of some form of “gut instinct.” In any event, the Court is not persuaded that the jury failed to follow its legal instructions merely because it sought to imbue its compensatory award with some form of grounded rationality.

Disability discrimination verdict is affirmed on appeal

The Court of Appeals has affirmed a jury verdict in favor of a high school student who was thrown off the baseball team because of his disability. The Court also finds the trial judge abused his discretion in reducing plaintiff's attorneys' fees by 80%.

The case is Spring v. Allegany-Limestone Central School District, a summary order issued on April 10. I briefed the appeal. A.J. Bosman tried the case and argued the appeal.

The plaintiff had multiple disabilities. As the Second Circuit summarizes this issue, plaintiff had "Tourette’s and Callosum Dysgenesis, conditions that restricted his ability to process information, 'put his  thoughts into words,' and speak. When Gregory did speak, verbal tics, such as repeating the 'F' word, interrupted and distracted him. These conditions also inhibited Gregory’s ability to control and articulate his emotions.  When Gregory was trying to get a word out, process what was going on, or respond to authority, he became anxious and upset." In this state, he would act act impulsively and get into verbal confrontations. On these facts, the jury had reason to find plaintiff was disabled under federal law.

During a baseball team practice, the boys were playing a game where they kicked each other. After Gregory kicked a teammate, the coach singled him out for discipline, and Gregory used the "F" word and told the coach to "suck it." The coach sent Gregory home and he was off the team. At trial, the coach admitted that he removed Gregory from the team for "what he said" and "the way he acted after he kicked the other student." That admission confirms he was removed from the team because of his disability and not for kicking a teammate. The coach knew about Gregory's disability and his tendency to use foul language, a condition over which he had no control. The Court of Appeals (Livingston, Wesley and Sannes [D.J.]), affirms the verdict.

Following the verdict, a plaintiff's lawyer will file a motion for attorneys' fees. The trial court generally will multiply the number of attorney and paralegal hours by their hourly rates and then perform a downward departure if the plaintiff was not fully successful at trial or the billing records contain vague or otherwise improper entries. The 80% reduction in this case went too far, the Court of Appeals holds, as the vague time entries were not so severe as to warrant this steep reduction, and the trial court miscalculated the degree of plaintiff's success in the case, as the student-on-student harassment claim, which plaintiff lost at trial, involved a similar core of facts as the successful baseball team expulsion claim. The fee motion returns to the trial court for further review.

Court of Appeals reinstates hostile work environment and other civil rights claims

The Court of Appeals has reinstated a hostile work environment claim brought by a former laundromat employee who claims her supervisors subjected her to a barrage of racial slurs. The Court also reinstates her retaliation claim, as well as her disability discrimination and wage-and-hour claims.

The case is Knox v. CRC Management Co., issued on April 9. I briefed and argued the appeal. Plaintiff alleges that, on a daily basis, supervisor Ashmeade made derogatory comments, telling her she was "too 'hood' and 'ghetto' to work" for defendant, and that "the Yankee in you makes you timid." Another supervisor, Ferris, "began routinely making derogatory comments of his own," once telling plaintiff that she "looked like Aunt Jemima," and he criticized her for "'talking Jamaican' when she got upset." The district court said these daily comments, while "deplorable," were not enough to create a hostile work environment "because they only lasted two months and did not involve any physical altercations with a coworker." The district court also held that plaintiff's declaration in detailing the racial harassment was "self-serving" and thus not enough for trial.

The Court of Appeals (Park, Perez and Kearse) disagrees and remands this issue for trial. The Court says a jury can find that "daily and routine comments such as these were sufficiently continuous and concerted to have worsened the conditions of Knox's employment," and the Second Circuit held in Whidbee v. Garzarelli Food Specialties, 223 F.3d 62 (2d Cir. 2000) (a case I argued 25 years ago) that "a stream of racially offensive comments over the span of two to three months was sufficient to defeat summary judgment. Plaintiffs in these cases do not need to prove there was any physical altercation to win these cases, though the record actually shows there was such an altercation. The Court reminds us that "specific descriptions of each instance of harassment -- which, if harassment occurred daily, could be difficult to provide -- are unnecessary for a plaintiff to defeat summary judgment." The plaintiff does not need specific details to prove pervasive harassment. The case for that proposition is Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997).

The retaliation claim, stemming from plaintiff's termination shortly after she complained about the work environment, will also proceed to trial. She last complained about the harassment in mid-March 2019, and she was fired in mid-April 2019. Cases hold that a four-month period is enough to prove the causation element of the prima facie case. Plaintiff can also show she was fired for pretextual reasons. While defendant said plaintiff was fired for taking cash from the register, the jury could find Ferris had given her permission to reimburse herself if she left her cab receipt in the register. If defendant's articulated reason was knowingly false, then the jury may find pretext and can rule in her favor on the retaliation claim.

Plaintiff also has a triable disability discrimination claim. After she broke her thumb from a car accident, one supervisor said plaintiff could refrain from lifting 25 pounds during her shifts (again, this was a laundromat), but Ashmeade told plaintiff that she "shouldn't have a job" if she needed an accommodation, and she continued to require plaintiff to lift more than 25 pounds. After plaintiff complained to another supervisor about this, that supervisor responded that "we might need to have a conversation if you can't do your job."

The wage-and-hour claim is also reinstated. Plaintiff alleged she was denied pay for extra working hours and that her time sheets were altered to make it look like defendant had paid her, and that compensation for her hours seemed to have been allocated to Ashmeade. Under Kuebel v. Black & Decker, 643 F.3d 352 (2d Cir. 2011), an FLSA plaintiff can meet her burden through her own estimates about her time estimates.