Opinion
97 Civ. 1083 (RLC)
May 4, 2000
ANTHONY OFODILE, ESQ., Brooklyn, NY, attorney for Plaintiff.
NICOLETTI, GONSON BIELAT, LLP., New York, New York, attorney for defendant.
OPINION
I. INTRODUCTION
This action is before the court on D.A.O.R. Security, Inc.'s ("D.A.O.R.") and Mohammed Islam's (collectively "defendants") motion for judgment as a matter of law, or for a new trial, pursuant to Rules 50(b) and 59, F. R. Civ. P. Defendants seek to set aside the jury verdict granting plaintiff, Debrah Sowemimo, judgment on her retaliatory discharge claim, and awarding her $2,080.00 in compensatory damages, and $4,160.00 in punitive damages. For the reasons stated below, defendants' motion is denied.
II. FACTS
The following facts were presented at trial. D.A.O.R. is a security firm that works on contract, offering guards at various business and government locations. Sowemimo is a Nigerian woman who worked for D.A.O.R. as a security guard from February, 1995, until October 13, 1995. (Tr. at 51). From June, 1995, until September, 1995, she was assigned to guard duty at the Department of Homeless Services's Park Avenue Women's Shelter ("Park Avenue Shelter"), and her direct supervisor was defendant Islam, another D.A.O.R. employee.
Tr. refers to the trial transcript from the February 7, 2000, trial. Ex. refers to Trial Exhibits submitted during the February 7, 2000, trial. Def. Mem. refers to Defendants' Brief in Support of [Its] Motion to Set Aside Verdict, filed March 15, 2000. Pl. Mem. refers toPlaintiff's Memorandum of Law in Opposition to Defendant's Motion to Set Aside the Jury Verdict in this Action, filed April 3, 2000.
Between June, 1995, and September, 1995, while Sowemimo worked on night shift duty, Islam repeatedly approached her and made comments about her physical anatomy, and propositioned her for dates and for sex. (Tr. at 53-55). Sowemimo always rejected his advances. On one occasion during August, 1995, Islam grabbed Sowemimo's breasts while uttering sexual vulgarities and, in response, Sowemimo slapped him in the face, and threatened to press charges against him. (Tr. at 56)
Sowemimo went to D.A.O.R.'s main office in the Bronx, New York, in August, 1995, and complained about Islam's harassing behavior to D.A.O.R. dispatcher Jorge Buret. (Tr. at 57-58). Buret informed Sowemimo that a meeting would be scheduled to resolve her complaint, but he did not indicate when the meeting would occur. (Tr. at 57). Sowemimo asked to see the owner of the company, and her request was refused. ( Id.). No D.A.O.R. employee ever contacted Sowemimo to initiate an investigation about her discrimination complaint. (Tr. at 57).
Islam continued to harass Sowemimo through August until September 12, 1995. On that date, Islam approached Sowemimo during the night shift in the basement of the Park Avenue Shelter and touched her breasts. When Sowemimo rebuffed his advances, Islam threatened to file a false disciplinary report reprimanding her for misconduct. (Tr. at 56-59). Later that night, Islam placed several radio calls to Sowemimo at her station on the fifth floor at the Park Avenue Shelter from his third floor post. (Tr. at 14). Sowemimo answered the calls. (Tr. at 14, 25) Islam subsequently came up to Sowemimo's floor complaining that she had failed to respond to his radio check, and indicating that he was going to write a negative report about her. (Tr. at 14). Sowemimo followed Islam back down to his third floor post to prevent him from writing the disciplinary report, and the two came to blows. (Tr. at 25, 60). The altercation was stopped by Park Avenue Shelter employee George Busby. (Tr. at 29). Islam called D.A.O.R.'s offices and stated that Sowemimo had viciously attacked him without provocation. (Ex. 10. at 17-18). Sowemimo also called D.A.O.R.'s main offices, and reported that the altercation had resulted because of Islam's harassing behavior. (Tr. at 61-62)
The facts concerning Islam's alleged sexual harassment of Sowemimo and his threat to file a false discrimination report against her were presented by Sowemimo in her trial testimony. Islam neither testified or appeared at trial, and no witness disputed Sowemimo's testimony as to these subjects.
Islam's allegations triggered D.A.O.R. to open an investigation of the events leading up to the fight; they sent D.A.O.R. Site Supervisor Dame Fall to the Park Avenue Shelter on the night of the altercation to collect information. (Tr. at 111). Additionally, the company removed Sowemimo from the guard duty schedule at the Park Avenue Shelter, pending the investigation results, and told Sowemimo that she would be reassigned when a guard position became available at another site. (Tr. at 64). During this period, Sowemimo filed a police report about Islam's harassing behavior and secured an order of protection against him. (Ex. 4, 5).
Fall's investigation consisted of securing incident reports from various D.A.O.R. and Park Avenue Shelter employees. Specifically, statements were taken from Park Avenue Shelter employees present at the altercation, including George Busby and Barbara Grant, and from Leandra Barbieri who, although not present at the time of the incident, as the Deputy Director of the Park Avenue Shelter, had experience supervising Sowemimo. (Tr. at 145). Additionally Fall secured reports from D.A.O.R. employees Isoken, Islam and Sowemimo. (Tr. at 17, 63, 249).
Barbieri's report indicated that Sowemimo was an unruly employee and that Barbieri did not want her to work at any Department of Homeless Services shelter. Busby's and Grant's reports merely described events during the fight between Sowemimo and Islam. (Tr. at 144-145). Isoken's report summarized the fight events, but also indicated that the fight broke out because Islam erroneously contended that Sowemimo had not answered his radio checks. (Ex. 5). Sowemimo's report indicated that her fight with Islam was part of an ongoing pattern of sexual harassment. (Tr. at 63 Ex. 1). Islam's report indicated that Sowemimo had attacked him without cause. (Tr. at 249).
At D.A.O.R.'s request, Isoken filed a subsequent report about the altercation events in which she indicated that, during Sowemimo's tenure at the Park Avenue Shelter, Sowemimo had never confided in Isoken that she was being sexually harassed. (Tr. at 19). D.A.O.R. also asked Isoken to complete a third report about the altercation events at D.A.O.R.'s lawyers' offices.
On October 13, 1995, Sowemimo appeared at D.A.O.R. offices for a disciplinary hearing regarding the altercation, and to inquire about her reassignment and the investigation of her sexual harassment complaint. (Tr. at 80, 263-64). She was directed to the office of Stephen Worrell, a D.A.O.R. personnel director. (Tr. at 263-64). Worrell asked Sowemimo to fill out another complaint describing her sexual harassment allegations. (Tr. at 80). When Sowemimo finished, Worrell read the complaint and, based on the information collected during the altercation investigation, concluded that Sowemimo's harassment complaint was false, and orally terminated her. (Tr. at 84, 118-120). He also drafted a termination letter, and listed the four infractions that formed the basis for Sowemimo's termination: leaving her post, being insubordinate, attacking her supervisor, and filing a false sexual harassment report. (Ex. 13)
Sowemimo subsequently filed a Title VII action, bringing hostile environment and retaliatory discharge claims against defendants Islam and D.A.O.R. A three-day trial was held before this court, commencing February 7, 2000. The jury ultimately returned a verdict in favor of plaintiff solely on her retaliatory discharge claim, and awarded her compensatory and punitive damages. Defendants seek to have the verdict for plaintiff set aside.
III. LEGAL ANALYSIS
A. JUDGMENT AS A MATTER OF LAW
Defendants move for judgment as a matter of law, pursuant to Rule 50 (b), F. R. Civ. P., with respect to plaintiff's retaliatory discharge claim. A motion for judgment as a matter of law may be granted when "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) [when] there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against him." Broome v. Biondi, 17 F. Supp. 2 d 211, 215 (S.D.N.Y. 1997) (Carter, J.) (internal quotations and citations omitted). On review of a Rule 50(b) motion, the district court is required to "consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence." Id. The district court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Id.
1. Prima Facie Case of Retaliatory Discharge
Defendants maintain that they are entitled to judgment as a matter of law because Sowemimo did not establish a prima facie case of retaliatory discharge. In order to establish a prima facie case of retaliatory discharge, plaintiff must show that: (1) she engaged in a statutorily protected activity; (2) defendant was aware of this protected activity; (3) she suffered an adverse employment action; and (4) a causal connection exists between the adverse employment action and the protected activity. See Alston v. New York City Transit Auth., 14 F. Supp.2d 308, 311 (S.D.N.Y. 1998) (Carter, J.).
Defendants do not contest that plaintiff established the first three elements required for making her prima facie case:
her attempts to file sexual harassment complaints with D.A.O.R. were protected activity; D.A.O.R. was aware of her attempts; and D.A.O.R.'s decision to fire her was an adverse employment action. Rather, defendants argue that plaintiff failed to establish the fourth element: she did not demonstrate that there was a causal connection between her filing of her discrimination complaints and her termination. (Def. Mem. at 3).
A plaintiff can prove the causal connection element in a prima facie case of retaliatory discharge, "indirectly, by showing that the protected activity was followed by discriminatory treatment . . . or directly through evidence of retaliatory animus." Cosgrove, 9 F.3d at 1039. In this case, plaintiff proved the causal connection requirement directly, providing documentary and testimonial evidence that retaliatory animus played a role in her termination. Specifically, Sowemimo presented the jury with a D.A.O.R. termination letter which stated that one of the reasons she was being fired was for filing a "false" discrimination report. (Ex. 13). Sowemimo also testified that in a meeting on October 13, 1995, Worrell directed her to redraft her sexual harassment complaint, immediately reviewed her allegations, dismissed them, and then fired her, stating that she was being discharged for filing a false discrimination report. (Tr. at 78, 84). Indeed, Worrell's description of the meeting events confirmed plaintiff's testimony regarding the meeting. (Tr. at 118-119). Since plaintiff presented evidence that directly proved a causal connection between her filing of her sexual harassment complaints and D.A.O.R.'s decision to terminate her, defendant's challenge to her prima facie case must fail.
2. Pretext Evidence
Defendants argue that even if plaintiff's prima facie case was properly established, she did not show that D.A.O.R.'s proffered justification for terminating her was pretext, and therefore the jury's verdict must be set aside. (Def. Mem. at 6). Indeed, "[o]nce a plaintiff establishes a prima facie case [of retaliatory discharge], the burden shifts to the defendant to articulate legitimate, non-discriminatory reasons for its action."Alston, 14 F. Supp.2d at 313. Once defendant has articulated a legitimate justification for its action, "the burden shifts to plaintiff to demonstrate that the articulated reasons were pretexts for retaliation." Id. In this case, D.A.O.R. satisfied its obligation to provide a legitimate reason for terminating plaintiff: it indicated that she was fired for leaving her post, fighting with her supervisor, and for being insubordinate. (Ex. 13). All of these actions are listed in D.A.O.R.'s employment code as infractions which may lead to dismissal. (Ex. 14). Therefore, D.A.O.R. shifted the burden back to Sowemimo to prove that its proffered reasons for terminating her were pretextual.
Defendants, however, fail to recognize that Sowemimo's termination letter and Worrell's testimony irrefutably established that retaliatory animus played some motivating role in D.A.O.R.'s decision to terminate Sowemimo and, therefore, Sowemimo was entitled to prove her retaliation claim under Title VII's mixed motive standard. See Cosgrove, 9 F.3d at 1039-1040. The mixed motive standard provides that "Title VII . . . is violated when a retaliatory motive plays a part in adverse employment actions toward an employee, whether or not it was the sole cause" and even "if [other] valid objective reasons for the discharge exist." Id. at 1039. Therefore, although plaintiff always retained the burden to prove by the preponderance of the evidence that D.A.O.R. retaliated against her, once she demonstrated that retaliatory animus played a role in the decision to discharge her, her employer was required to show that it would have fired her based on legitimate business reasons alone. See id. at 1040.
At trial, Sowemimo marshaled substantial evidence to support the evidence presented in her prima facie case of retaliatory discharge. She presented evidence that D.A.O.R. failed to investigate her sexual harassment complaint in the manner provided by company policy, that is, by making written findings and circulating them to involved parties. (Tr. at 125-128). She also showed that the company followed its policy for resolving complaints when it reviewed Islam's complaint about her behavior. Cf. Cosgrove, 9 F.3d at 1040 (noting that proof that an employee who files a discrimination complaint is treated differently from other similarly situated employees may indicate that the employee is a victim of retaliation). She also provided evidence that defendant Islam was not fired for committing some of the same infractions listed in her termination letter. (Ex. 18-21). Cf. Alston, 14 F. Supp.2d at 314 (explaining that evidence showing that a company disciplines employees who file discrimination complaints more harshly than those who do not file complaints proves retaliation). This evidence was sufficient for the jury to find that Sowemimo proved by the preponderance of the evidence that D.A.O.R. retaliated against her for filing a discrimination claim.
Importantly, D.A.O.R. did offer evidence that it would have fired plaintiff in the absence of any retaliatory motive:
personnel director Worrell testified that Sowemimo's physical fight with Islam was an infraction that alone would have provided a basis for firing her. (Tr. at 147) (Ex. 14) (D.A.O.R.'s employment policy describing bases for termination). However, the jury as fact finder was entitled to credit the evidence supporting Sowemimo's claim over defendants' evidence, and the court will not disturb the jury's conclusions about the weight of conflicting evidence on review of a Rule 50 motion. See Broome, 17 F. Supp.2d at 215.
3. Punitive Damages Evidence
Defendants last argue that plaintiff failed to present sufficient evidence on her retaliatory discharge claim to be awarded punitive damages. (Def. Mem. at 8). The United States Supreme Court established the requisite modicum of proof necessary for a punitive damages award inKolstad v. American Dental Association, 119 S.Ct. 2118, 2124 (1999) In order to be awarded punitive damages, a Title VII plaintiff must show that a defendant acted with "malice" or in "reckless disregard" of plaintiff's federally protected rights. Id. Plaintiff cannot demonstrate that he is entitled to punitive damages merely by showing that the defendant employer engaged in discrimination; rather he must show that the defendant employer acted with the knowledge that its actions might violate federal law. Id.
The trial evidence showed that plaintiff on three separate occasions brought her sexual harassment complaint to D.A.O.R.'s attention and, on the date of her last attempt to lodge a complaint she was terminated. (Tr. at 57-58, 61-62, 82-84). The trial evidence also showed that D.A.O.R. never initiated an investigation into plaintiff's sexual harassment complaint, and that when it investigated Sowemimo's altercation with Islam it did nothing to investigate her claim that the conflict was part of a continuing pattern of sexual harassment. (Tr. at 117-119 125-28) Lastly, D.A.O.R. personnel director Worrell testified that the evidence he possessed at the October 13, 1995, meeting did not establish whether plaintiff's sexual harassment complaint was founded or unfounded, but that he "had the feeling" her complaint was false, and therefore he terminated her. (Tr. at 127-28)
In the court's view, there was sufficient evidence presented at trial for the jury to conclude that D.A.O.R. acted in reckless disregard of plaintiff's rights under Title VII when it terminated her, as the evidence shows that D.A.O.R. failed to investigate plaintiff's sexual harassment complaints and terminated plaintiff for pursuing them; therefore, the jury's award of punitive damages will stand.
B. MOTION FOR A NEW TRIAL
In the alternative to its motion for judgment as a matter of law, defendants move for a new trial, pursuant to Rule 59(a), F. R. Civ. P. "Unlike a [motion for] judgment as a matter of law, a [motion for a] new trial may be granted even if there is substantial evidence to support the jury's verdict." Ortiz v. New York City Hous. Auth., 22 F. Supp.2d 15, 25 (E.D.N.Y. 1998) (internal citations and quotations omitted). The motion, however, "should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Id. The moving party bears the burden of showing he is entitled to a new trial, Schwartz v. Fortune Magazine, 2000 WL 245893, *1 (S.D.N.Y. March 2, 2000) (Carter, J.), and on review of the motion, the trial court "is free to weigh the evidence . . . and need not view it in the light most favorable to the verdict winner." Ortiz, 22 F. Supp.2d at 25.
Defendants' motion for a new trial rests on the same bases as their motion for judgment as a matter of law. The court's previous review of the evidence indicates that the jury's retaliatory discharge verdict and its punitive damage award are well supported by the trial evidence. This conclusion holds even when the court balances the relative weight of the evidence, and draws possible factual inferences in defendants' favor. Indeed, there is strongly compelling testimonial and documentary evidence establishing that defendant retaliated against plaintiff for pursuing her sexual harassment complaint. (See, e.g., Ex. 13; Tr. at 118-120). Given the substantial evidence in support of plaintiff's retaliatory discharge claim, the court concludes that the verdict was not in error and a new trial is not warranted.
III. CONCLUSION
In summary, the court finds that plaintiff presented sufficient evidence to prevail on her retaliatory discharge claim and to be granted punitive damages, and that there was no error in the jury's verdict. Accordingly, defendants' motion for judgment as a matter of law and for a new trial is denied.