JACK B. WEINSTEIN, Senior District Judge.
I. Introduction. 348
II. Procedural History. 349
III. Facts. 349
A. 2007 . 349
B. 2008 . 350
C. 2009 . 350
D. 2010 . 350
E. 2011 . 350
F. 2012 . 350
1. October 23, 2012: Anonymous Complaint to Corporate Concerns
Hotline 351
2. October 26, 2012: UPS's First Investigation . 351
3. November 15, 2012: Letter to Corporate Headquarters . 351
4. November 26, 2012: Call to UPS Corporate Concerns Hotline . 351
5. November 29, 2012: UPS's Second Investigation . 352
6. December 5, 2012: Alteration of Plaintiff's Time Card . 355
7. Early December 2012: Second Investigation Ends . 355
8. Early December 2012: Complaint to New York State Division of
Human Rights . 355
9. December 21, 2012: Plaintiff Hit with Packages During Work . 356
IV. Legal Standards for District Courts' Review of Jury's Verdict . 357
A. Renewed Motion for Judgment as a Matter of Law . 357
B. Motion for a New Trial . 357
V. New York City Human Rights Law . 358
A. Context . 358
B. Employment Discrimination Based on Sexual Orientation . 361
1. Historical Context . 361
2. Prevalence of Workplace Discrimination in the 21st Century . 361
3. Protections at the Federal Level . 362 4. Protections at the State Level . 366 5. Protections at the Local Level . 367 6. New York City Human Rights Law . 368 C. Law: Direct Liability of Employer . 368 D. Law: Hostile Work Environment . 368 E. Law: Retaliation . 368 F. Guiding Principles for Both Claims . 371 G. Application of Facts to Hostile Work Environment Law . 371 H. Application of Facts to Retaliation Law . 372 VI. Remittitur of Compensatory Damages . 372 A. Law . 372 B. Application of Facts to Law . 373 VII. Punitive Damages . 373 A. Law . 373 B. Standard of Review for Vacatur of Punitive Damages Awards . 374 C. Application of Facts to Law . 374 VIII. Conclusion . 374
As the nation's understanding and acceptance of sexual orientation evolve, so does the law's definition of appropriate behavior in the workplace. A jury, comprised of a cross-section of our heterogeneous community, is best placed to determine what is appropriate at the moment. See Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir.1998) (addressing appropriateness of jury assessing alleged gender discrimination in the workplace), abrogated in part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
The jury found improper under the law repeated advice from plaintiff's supervisor that her sexual orientation as a lesbian was evil and needed to be changed in accordance with religious dictates.
Appeal to the bible, or theology generally, cannot justify management's condoning the harassing of a lesbian in the workplace. Defendant's central administration failed to protect plaintiff from such abuse.
An award of compensatory and punitive damages was supported by the record.
Plaintiff Tameeka Roberts, a lesbian, sued her employer, defendant United Parcel Service, Inc. ("UPS"), for violations of the New York City Human Rights Law, New York City Administrative Code § 8-502(a) et seq. ("NYCHRL"). She claimed that she was subjected to a hostile work environment because of her sexual orientation, and that she was retaliated against for complaining about this demeaning treatment. See Compl. ¶ 1, Nov. 5, 2013, ECF No. 1.
A jury found in favor of plaintiff on both counts. Jury Verdict Sheet, June 18, 2015, ECF No. 74. Awarded to plaintiff was $25,000 in compensatory damages on each of her two claims, and an additional $25,000 in punitive damages on each claim. The total judgment was $100,000, plus costs. Id.; Trial Tr. 419:25-423:11, June 18, 2015.
Defendant moves (1) to set aside the jury verdict; (2) for judgment of dismissal or a new trial; or, in the alternative, (3) for reduction of compensatory damages; and (4) striking of punitive damages. All motions are denied.
During trial, plaintiff withdrew all claims against her supervisor, Donald Woodard, whom she had sued individually. Trial Tr. 238:8-11, June 17, 2015.
At the conclusion of plaintiff's case, defendant moved for judgment as a matter of law. See Fed.R.Civ.P. 50(b); Def.'s Br. in Supp. of its Mot. for J. as a Matter of Law, June 17, 2015, ECF No. 77; Trial Tr. 327:6-328:4, June 17, 2015. It also moved to dismiss the punitive damages claims. Def.'s Br. in Supp. of its Mot. for J. as a Matter of Law 9-11; Trial Tr. 327:9-11, 328:5-13, 330:6-11, June 17, 2015. The motions were denied with leave to renew. Id. at 328:14-329:4.
Following the verdict in favor of plaintiff, defendant renewed its motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), or, in the alternative, a new trial pursuant to Federal Rule of Civil Procedure 59(a). Trial Tr. 424:9-13, June 18, 2015; Def.'s Br. in Supp. of its Mot. for J. as a Matter of Law or in the Alternative for a New Trial, June 18, 2015, ECF No. 79 ("Def.'s Br."); see also Def.'s Reply Br. in Supp. of its Mot. for J. as a Matter of Law or in the Alternative for a New Trial or Remittitur, June 24, 2015, ECF No. 78 ("Def.'s Reply"). Remittitur of the compensatory damages award and vacatur of the punitive damages award were sought. Def.'s Br.; Def.'s Reply; Trial Tr. 424:11-13, June 18, 2015. Plaintiff opposed all motions. Pl.'s Opp'n to Def.'s Mot. for J. as a Matter of Law or in the Alternative for a New Trial, June 22, 2015, ECF No. 76 ("Pl.'s Opp'n").
Plaintiff, Tameeka Roberts, a forty-one year-old lesbian, lives with her wife and three sons in New Jersey. Trial Tr. 24:12-16, 34:21, 24:24-25:17, June 15, 2015 (Roberts). She has worked for defendant UPS for approximately twenty years, starting in 1995 as a part-time "unloader" at its Maspeth facility in Queens, New York; in 1999, she switched to a part-time position as a "sorter." Id. at 27:6-10, 28:7-17, 29:1-4, 30:1-11 (Roberts). She was later assigned two new jobs: small package sorter and "operational data capture clerk." The latter position required scanning international package invoices to ensure accuracy. Id. at 30:15-24 (Roberts).
During her career at UPS, plaintiff has had some twenty different supervisors. Id. at 31:20-22 (Roberts). This case centers on one: Donald Woodard, a "full-time area coordinator." He supervised plaintiff from 2007 through 2008, and again from 2010 through 2012. Id. at 32:7-17, 37:25-38:3 (Roberts); Trial Tr. 271:15, June 17, 2015 (Woodard). Woodard made a continuing series of derogatory comments to plaintiff about her sexual orientation. See Trial Tr. 34:10-12, June 15, 2015 (Roberts).
Woodard's criticisms started some time in 2007. Speaking to plaintiff, he denigrated another employee's sexual orientation as a lesbian, which was apparently evident from that employee's tattoo. Id. at 34:16-24 (Roberts). In response, plaintiff complained directly to Woodard about his comment. Id. at 35:2-3 (Roberts). The next day, Woodard brought his bible to work and "showed [plaintiff] . . . where [the bible] says that being a lesbian is wrong." Id. at 35:9-13 (Roberts). He told her: "It goes against the bible. . . . It's a sin." Id. at 35:13-14 (Roberts). Woodard admitted to having made these comments. Trial Tr. 306:12-309:9, June 17, 2015 (Woodard) (some time during 2007 or 2008); but see Riddick Report, Ex. J-7, at UPS 00174-75 (some time in 2011).
In 2008, in the presence of one of plaintiff's co-workers, Kenneth Gayden, Woodard told plaintiff: "being a lesbian is a sin." Id. at 36:23-37:4 (Roberts); Trial Tr. 249:10-12, June 17, 2015 (Gayden) (Gayden said "[Woodard] told me that [I] shouldn't hang out with [plaintiff], she's not living right. She had demons. She doesn't know who she is."). Plaintiff responded, "this is not church[,]" and stated: "making comments about me being a lesbian is wrong." Trial Tr. 37:7-11, June 15, 2015 (Roberts). Plaintiff complained to her shop steward, Bill Groll. Id. at 37:12-17 (Roberts).
Throughout 2008, Woodard made additional comments—stating repeatedly that plaintiff's sexual orientation was "wrong," and that she was "going to hell." Id. at 37:18-21 (Roberts). Sometimes, plaintiff would walk away or tell Woodard to "leave me alone." Id. at 37:22-24 (Roberts).
In 2009, for reasons apparently unrelated to plaintiff, Woodard did not work in the Maspeth facility. Id. at 37:25-38:3 (Roberts).
When Woodard returned as plaintiff's supervisor in 2010, his demeaning comments continued. He again "showed [plaintiff] a bible and stated that . . . being a lesbian is a sin and it's in the bible." Id. at 38:4-12 (Roberts). In response, plaintiff told him: "This is not . . . a church and you don't have a right to do that." Id. at 38:13-16 (Roberts). She complained for a second time to her shop steward, Bill Groll, stating: "[Woodard] again . . . showed me the bible and I had complained to [another shop steward Vincent Pietraniello]. . . [previously] and [now Woodard is] doing it again." Id. at 38:17-22 (Roberts).
Nothing changed. Woodard told plaintiff that "two women being married is not natural." Id. at 39:22-23 (Roberts). In response she again complained to shop steward Groll. Id. at 40:3-5 (Roberts). Woodard's unwelcome comments continued. He told plaintiff that "being a lesbian is wrong" and that she was "going to hell" and she needed to "change [her] life, the style, the way [she was] living." Id. at 40:12-15 (Roberts). Plaintiff complained again to Groll. Id. at 40:18-20 (Roberts).
In 2011, according to plaintiff, Woodard threatened to take a photo of plaintiff with a married male co-worker and send it to his wife, apparently as a means of suggesting the two were having an affair. Trial Tr. 41:10-12, June 15, 2015 (Roberts). Plaintiff reported the incident, and Woodard's comments about her sexual orientation, to both her night manager, Donnell Pottinger, and to her shop steward, Phil Montenegro Id. at 42:2-6 (Roberts) (referring to Phil Montenegro by his first name). Pottinger told her: "do not go to corporate [with your complaints about Woodard]. I will handle the situation[.]" Id. at 43:1-3 (Roberts). For about a year, Woodard's comments stopped. Id. at 88:5-8 (Roberts).
In the late summer of 2012, Woodard remarked to plaintiff—that "two women
On October 10, 2012, plaintiff overheard Woodard tell a co-worker that someone had "demons" inside her; plaintiff assumed he was speaking about her. Id. at 45:4-19 (Roberts); Trial Tr. 110:2-13, June 16, 2015 (Roberts). In response, plaintiff complained to shop stewards Groll and Montenegro, who brought her to the offices of Natalie King, a member of the defendant's human resources department, and Mike Reckner, the night manager and Woodard's supervisor. Trial Tr. 45:22-46:19, June 15, 2015 (Roberts); Trial Tr. 103:1-20, June 16, 2015 (Roberts).
On October 23, 2012, plaintiff lodged an anonymous complaint with UPS's "Corporate Concerns" hotline. Trial Tr. 48:11-21, June 15, 2015 (Roberts). She identified herself as "gay" and stated that she feels "intimidated" and "harassed" because Woodard engages in "religious rants at the job" and makes "derogatory comments about gays." Ethics and Compliance Reporting, Ex. J-4, at UPS 00156, Oct. 23, 2012; see Trial Tr. 149:10-12, 150:1-152:6, 199:7-23, June 16, 2015 (Riddick).
On October 26, 2012, Natalie King, Mike Reckner, Bill Groll and Phil Montenegro met with plaintiff. On behalf of UPS, they opened an investigation into Woodard's comments. Trial Tr. 47:2-48:6, June 15, 2015 (Roberts); Trial Tr. 103:9-104:17, June 16, 2015 (Roberts).
The investigation report indicates that Woodard was questioned, and he stated that "he does not talk down to gay people." UPS HR Case Details, Ex. J-5, at UPS 00159, Nov. 14, 2012. In response, human resources cautioned Woodard that "religion has no place in the workplace." Id. It reviewed with Woodard UPS's written "professional conduct and anti-harassment policy." Id.; UPS Professional Conduct and Anti-Harassment Policy, Ex. J-13, at UPS 000924, Nov. 14, 2012; Trial Tr. 284:6-12, June 17, 2015 (Woodard). The investigation was then closed by UPS. Case Summary, Ex. J-9, at UPS 00167, Mar. 1, 2013. Woodard did not make a subsequent comment directly to plaintiff about her sexual orientation. Trial Tr. 107:22-24, June 16, 2015 (Roberts).
Soon after the first investigation by UPS ended, on November 15, 2012, plaintiff sent a letter to defendant's corporate offices in Atlanta, Georgia describing Woodard's comments. Trial Tr. 49:1-10, June 15, 2015 (Roberts); Ethics and Compliance Reporting, Ex. J-6, at UPS 00165-66, Nov. 15, 2012 (Plaintiff's letter). It stated, in part: "I'm contacting you because I'm being harassed by Donald Willard [sic] . . . I feel threaten [sic] harassed and stressed cause of this situation. . . . Why is Donald Woodard allowed to Harass, Gay Bash and verbal [sic] abuse his employees and still be employed at United Parcel Service." Ethics and Compliance Reporting, Ex. J-6, at UPS 00165-66, Nov. 15, 2012 (Plaintiff's letter).
On November 26, 2012, plaintiff called UPS's Corporate Concerns hotline to complain about Woodard's comments, this time revealing her identity. Trial Tr. 50:16-24, June 15, 2015 (Roberts).
Three days later, Beverly Riddick, then the UPS Human Resources Operations Manager for the district containing the Maspeth facility, opened an investigation. Riddick Report, Ex. J-7; Trial Tr. 152:13-17, June 16, 2015 (Riddick). She met with plaintiff for approximately a half-hour. Trial Tr. 52:10-23, June 15, 2015 (Roberts); Trial Tr. 111:16-19, June 16, 2015 (Roberts); 152:13-17, June 16, 2015 (Riddick). Riddick told her that UPS was taking her complaint "very seriously," "actively investigating" it, and conducting interviews. Trial Tr. 111:20-112:23, June 16, 2015 (Roberts).
Riddick also met with Woodard. Woodard was not told to desist. As she testified at trial about their meeting, the corporate investigator thought his remarks were merely inappropriate:
Trial Tr. 154:2-155:1 (Riddick) (emphasis added).
Riddick also interviewed Vincent Pietraniello, plaintiff's union shop steward, Victor Robinson, an operations data clerk and a bagger for the small sort department, and Kenneth Gayden, an operations data clerk and bagger. Trial Tr. 156:12-13, 157:5-6, June 16, 2015 (Riddick); Trial Tr. 245:17-18, June 17, 2015 (Gayden). She recorded her notes. See Riddick Report, Ex. J-7. Riddick later testified about what transpired in the meeting with Pietraniello, admitting that she did not deem Woodard's remarks illegal:
Trial Tr. 156:12-157:1, June 16, 2015 (Riddick) (emphasis added).
Riddick also testified about what she learned from interviewing Victor Robinson, plaintiff's co-worker:
Id. at 157:2-157:17 (emphasis added).
Human Resources Operations Manager Riddick also testified about what she learned from plaintiff's co-worker, Kenneth Gayden:
Id. at 157:18-159:11 (emphasis added).
Riddick testified about her knowledge of, and training in, defendant UPS's antidiscrimination and anti-harassment policies,
Id. at 159:12-25, 160:5-161:1, 161:6-24 (emphasis added).
Riddick then testified about concluding the investigation and finding plaintiff's complaints unsubstantiated:
Id. at 161:25-162:11.
Soon thereafter, plaintiff asked her union shop steward, Vincent Pietraniello, about the status of the investigation. Trial Tr. 54:16-21, June 15, 2015 (Roberts). He told plaintiff that her complaints were "probably unfounded," given that Woodard was still allowed to supervise plaintiff. Id. at 54:24-55:2 (Roberts) (emphasis added).
On December 3, 2012, in the middle of the second investigation, plaintiff received permission from her supervisors, Christina Wyman and Michelle Torres, to miss work on December 4, 2012 in order to appear in traffic court. Id. at 55:10-15 (Roberts). This permission was memorialized in her time card. Roberts Timecard, Ex. P-2, at 705799, Dec. 4, 2012. But, when plaintiff returned to work on December 5, 2012, her time card stated "no call"—i.e. that she never notified UPS that she had to miss work on December 4. Trial Tr. 55:18-20, June 15, 2015 (Roberts); Roberts Employee Statistics Timesheet, Ex. P-23. Woodard denied plaintiff's charge that he altered the time card. Trial Tr. 293:18-294:7, June 17, 2015 (Woodard).
In early December 2012, UPS's second investigation into plaintiff's complaint ended. Trial Tr. 150:12-15, June 16, 2015 (Riddick). Defendant gave Woodard no written warnings in connection with plaintiff's complaint, and Woodard continued to supervise plaintiff in the near term. Trial Tr. 315:3-10, June 17, 2015 (Woodard). Riddick and other senior management determined that the appropriate discipline for Woodard would be a transfer to a different facility, a review of the UPS policy, and his completion of two written statements:
Trial Tr. 162:21-164:6, June 16, 2015 (Riddick) (emphasis added).
In early December 2012, plaintiff filed a complaint of discrimination with the New York State Division of Human Rights ("NYSDHR"). Trial Tr. 66:2-3, June 15, 2015 (Roberts). She informed her shop stewards, Vincent Pietraniello and Phil Montenegro, as well as her union delegate, Steven Oz, about the complaint. Id. at 66:20-24.
On December 21, 2012, while sorting packages, plaintiff placed packages in a bin to her left, and then turned back to the chute which releases new packages for sorting. Id. at 62:24-63:5. As she reached for new packages, a number of packages fell and hit her face, shoulder, arm and hand. Id. at 63:6-10. She looked up and saw Woodard above her. Id. at 63:23-25. He was attempting a UPS procedure called "breaking the jam," but he had not followed safety protocol, which required notifying everyone in the area and stopping the conveyor belt. Id. at 63:23-65:1; but see Trial Tr. 294:8-298:21, June 17, 2015 (Woodard) (contending safety procedure was not required in that instance). Woodard was familiar with and had followed this safety protocol in the past. Trial Tr. 65:2-5, June 15, 2015 (Roberts); Trial Tr. 318:1-20, June 17, 2015 (Woodard).
Plaintiff wrote again to the NYSDHR, stressing the adverse impact this and other incidents had on her health:
Roberts Letter to NYSDHR, Ex. P-3 at 705799 8-9 (emphasis added).
Woodard was not "written up" or disciplined for the incident. Trial Tr. 320:8-12, June 17, 2015 (Woodard). The injuries plaintiff sustained required her to take time off until mid-February 2013. Trial Tr. 69:8-70:4, June 15, 2015 (Roberts).
In January 2013, Woodard was transferred to a different facility. Trial Tr. 162:15-163:1, 224:3-10, June 16, 2015 (Riddick).
Plaintiff testified that Woodard's treatment caused her emotional and physical distress:
Trial Tr. 73:15-74:5, June 15, 2017 (Roberts) (emphasis added).
Federal Rule of Civil Procedure 50(b) permits a post-verdict motion for a new trial or entry of judgment against the plaintiff. It states:
Fed.R.Civ.P. 50(b) (emphasis added).
The Rule "provides that if a jury returns a verdict for which there is not a legally sufficient evidentiary basis, the District Court may either order a new trial or direct the entry of judgment as a matter of law." Welch v. United Parcel Serv., Inc., 871 F.Supp.2d 164, 172 (E.D.N.Y.2012). Evidence must be considered "in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that the jury might have drawn in its favor from the evidence." Id. at 173 (citations omitted). Granting judgment as a matter of law is "proper only if the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached." Id. at 173-74 (citations omitted) (emphasis added); see also id. at 178 (granting judgment as a matter of law because a "manifest injustice" would occur if a verdict under NYCHRL—based on impact felt outside the boundaries of New York City—were allowed to stand).
The standard that applies to motions for judgment as a matter of law during or after trial pursuant to Rule 50 is the same as that for pre-trial motions for summary judgment pursuant to Rule 56. Id. at 173 (citations omitted).
Federal Rule of Civil Procedure 59 provides, in relevant part, that a court "may, on motion, grant a new trial on all or some of the issues . . . after a jury trial. . . ." Fed.R.Civ.P. 59(a)(1). "The general grounds for a new trial are that (1) the verdict is against the clear weight of the evidence; (2) the trial court was not fair; (3) substantial errors occurred in the admission or rejection of evidence or the giving or refusal of instructions to the jury; or (4) damages are excessive." Welch, 871 F.Supp.2d at 174 (citing 12 Moore's Federal Practice, ¶ 59.13(1) at 59-43 (3d ed.2005)); see also 12 Moore's Federal Practice, ¶ 59.13 (3d ed.2015) (same).
It is easier to prevail on a Rule 59 motion than on a Rule 50 motion:
Slack v. Cnty. of Suffolk, 50 F.Supp.3d 254, 263 (E.D.N.Y.2014) (emphasis added) (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir.1998)).
Jury decisions should be approached with deference and respect. The jury is a primary constitutional vehicle for dispensing justice. It expresses the will and good sense of the community. It should not be lightly ignored. Trial judges tend to be out of touch with what goes on in the world about them. Allowing a jury verdict to stand whenever practical adds to fair adjudications acceptable to litigants as well as the community at large. A new trial should be granted under Rule 59 only if the court determines that the jury's verdict was "seriously erroneous" or constituted a "miscarriage of justice." Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir.2002) (per curiam) (stating standard and holding that the district correctly applied the standard in granting a new trial).
"[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence v. Texas, 539 U.S. 558, 579, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (emphasis added).
The nation continues to seek equality, understanding and acceptance of lesbian, gay, and bisexual members of our community. Acceptance of differences has dramatically increased.
Brief of the Organization of American Historians as Amicus Curiae in Support of Petitioner at 2-3, 2015 WL 1004709, Obergefell v. Hodges, 135 S.Ct. 2584 (2015) ("Amicus Br. of Org. of Am. Historians").
Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584, 2596, 192 L.Ed.2d 609 (2015) (citations omitted) (emphasis added).
Amicus Br. of Org. of Am. Historians at 3-4.
Obergefell, 135 S.Ct. at 2596 (citations omitted). The following graphic shows the shift in public perception with respect to sexual orientation (and gender identity):
Federal courts, largely following changing community attitudes, have "shift[ed their] trajectory" with respect to gay and lesbian rights. Katie Eyer, Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality, 125 Yale L.J. Forum 1, 5 (2015) (referring to the United States Supreme Court); see also Romer v. Evans, 517 U.S. 620, 635-36, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (declaring unconstitutional an amendment to Colorado's Constitution that prohibited legislative, executive, or judicial protections of gays and lesbians); Lawrence, 539 U.S. at 578-79, 123 S.Ct. 2472 (declaring unconstitutional Texas law that prohibited certain consensual intimate contact between same-sex persons); United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2693, 186 L.Ed.2d 808 (2013) (declaring unconstitutional section 3 of the federal Defense of Marriage Act which defined "marriage" and "spouse" as excluding same-sex partners); Obergefell, 135 S.Ct. at 2588 (declaring unconstitutional the laws of Kentucky, Ohio, Michigan, and Tennessee that either ban same-sex marriage or refuse to recognize same-sex marriages performed out of state, and holding that marriage is a fundamental right). But see Brief of Bi-Law as Amicus Curiae in Support of Petitioners at 5, 2015 WL 1041665, Obergefell, 135 S.Ct. 2584 ("In litigation affecting gay and bisexual individuals, there has been an unfortunate trend of bisexual exclusion from briefings and court opinions.").
The "project of achieving formal equality—itself just the first step in the longer project of achieving real equality on the ground—is not yet won for the [lesbian, gay and bisexual] rights movement." Eyer, supra, at 3. And "gay men and lesbians continue to live with the legacy of anti-gay laws and hostility." Amicus Br. of Org. of Am. Historians at 4; see also Brief for the United States as Amicus Curiae Supporting Petitioners at 6, 2015 WL 1004710, Obergefell, 135 S.Ct. 2584 (animus towards gay, lesbian, bisexual or transgender people is the second-most common motivation for hate crimes, increasing twenty-one percent between 1996 and 2013 as hate crimes overall dropped thirty-two percent in same timespan) (comparing Federal Bureau of Investigation, 2013 Hate Crime Statistics tbl. 1, https://www.fbi.gov/about-us/cjis/ucr/hate-crime/2013/tables/1tabledatadecpdf/table_1_incidents_offenses_victims_and_known_offenders_by_bias_motivation_2013.xls, with Federal Bureau of Investigation, 1996 Hate Crime Statistics tbl. 1, https://www.fbi.gov/about-us/cjis/ucr/hate-crime/1996/hatecrime96.pdf); Press Release, Centers for Disease Control and Prevention, CDC Report Finds Gay, Lesbian and Bisexual Students at Greater Risk for Unhealthy, Unsafe Behaviors (June 6, 2011), http://www.cdc.gov/media/releases/2011/p0606_yrbsurvey.html (students who identify as gay, lesbian or bisexual face "dramatic disparities for so many different health risks"); Mark L. Hatzenbuehler et al., Structural Stigma and All-Cause Mortality in Sexual Minority Populations, 103 Soc. Sci. & Med. 33 (2014) (finding in a study with a small sample size that life expectancy of sexual minorities living in communities with high levels of anti-gay prejudice is twelve years shorter than for those living in low prejudice communities); Brief of Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders in Support of Petitioners at 26-27, 2015 WL 981538, Obergefell, 135 S.Ct. 2584 ("LBGT people are under-represented at the top of the income pyramid and overrepresented at the bottom." (citations
"Employment discrimination against gay, lesbian, and bisexual persons has a long history of acceptance." Robin C. Miller, Federal and State Constitutional Provisions as Prohibiting Discrimination in Employment on Basis of Gay, Lesbian, or Bisexual Sexual Orientation or Conduct, 96 A.L.R. 5th 391 (originally published in 2002).
Jacob Richards, From One to Windsor: Sixty Years Movement for LGBT Rights, GP SOLO, November/December 2014, at 35-37, http://www.americanbar.org/content/dam/aba/publications/gp_solo_magazine/november_december_2014/gpsm_v031n06_14nov_dec.authcheckdam.pdf (last accessed July 20, 2015); see also Amicus Br. of Org. of Am. Historians at 11-12.
A 2013 Pew Research Center survey found that twenty-one percent of lesbian, gay, bisexual and transgender respondents reported "being treated unfairly" by their employers because of their sexual orientation (or gender identity). See A Survey of LGBT Americans: Attitudes, Experiences and Values in Changing Times, Pew Research Center, at 1 (June 13, 2013),
No federal statute explicitly protects against employment discrimination on the basis of sexual orientation. Cf. Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. § 2 (2013) ("The purposes of this Act are . . . (1) to address the history and persistent, widespread pattern of discrimination on the bas[is] of sexual orientation . . . by . . . employers [and] . . . (2) to provide an explicit, comprehensive Federal prohibition against discrimination on the bas[is] of sexual orientation . . . including meaningful and effective remedies for any such discrimination. . . .") (The text, which passed the Senate on November 7, 2013, never passed the House of Representatives); Paul Kane, The Next Battle in the Gay Rights Movement Kicks Off on Capitol Hill, Washington Post (July 23, 2015), http://www.washingtonpost.com/politics/the-next-battle-in-gay-rights-movement-kicks-off-on-capitol-hill/2015/07/23/0d565804-314b11e5-8f36-18d1d501920d_story.html (last accessed July 23, 2015) (Equality Act, introduced in both houses of Congress, would grant gays and lesbians "the same protections as African Americans and other minorities from discrimination in the workplace, in getting loans and housing, jury duty selection and other public accommodations."). Instead, "unlike race discrimination—which is proscribed by statute in the employment, public accommodations, housing and voting rights domains—federal statutory law is largely silent on . . . sexual orientation discrimination, leaving vast domains of private discrimination unaddressed." Eyer, supra, at 6, 8 n. 31 (collecting cases denying sexual orientation claims under Title VII).
The Court of Appeals for the Second Circuit has joined other circuits in holding that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, does not prohibit discrimination based on sexual orientation. See Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir.2005) (plaintiff "cannot satisfy the first element of a prima facie case under Title VII because the statute does not recognize [gays and lesbians] as a protected class"); Rodas v. Town of Farmington, 567 Fed.Appx. 24, 26 (2d Cir.2014) (summary order) (stating standard); Giudice v. Red Robin Int'l, Inc., 555 Fed.Appx. 67, 68 (2d Cir.2014) (summary order) (same); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U.L.Rev. 715, 722 (2014) (citations omitted) ("[F]ederal courts have almost universally refused to derive protection for sexual orientation from Title VII's `sex' prong. . . . [T]he Ninth Circuit held that Title VII's prohibition of `sex' discrimination applies only to discrimination on the basis of gender and should not be judicially extended to include [same-sex sexual orientation]. Since then, every other circuit to address the issue has agreed: Title VII does not prohibit harassment or discrimination because of sexual orientation." (citation omitted)); but see
A change towards federal protection has been primarily a result of administrative sensitivity to the problem. "Federal agencies charged with enforcement of civil rights laws also have recently emphasized that discrimination experienced by lesbian, gay, bisexual, and transgender people is often discrimination based on nonconformity with gender-based expectations—and in these circumstances such discrimination constitutes sex discrimination." Brief of National Women's Law Center, Williams Institute Scholars of Sexual Orientation and Gender Identity, and Women's Legal Groups as Amici Curiae in Support of Petitioners at 18, 2015 WL 981536, Obergefell, 135 S.Ct. 2584 (collecting examples); see also Exec. Order No. 13672, 79 Fed. Reg. 42971 (July 21, 2014) (prohibiting, inter alia, discrimination in hiring by federal contractors on the basis of sexual orientation); David Alexander & Lisa Shumaker, Pentagon Bars Discrimination Against Gays, Lesbians in Uniform, Reuters: Politics (June 9, 2015), http://www.reuters.com/article/2015/06/09/us-usa-military-gaysidUSKBN0OP2BD20150609 (last accessed July 23, 2015) (stating that "the Pentagon has updated its equal opportunity policy to bar discrimination based on sexual orientation, putting it in the same category as discrimination based on race, religion, color, age and sex."); Memorandum from EEOC Commissioner Chai Feldblum on Employment Protections for LGBT Persons under Federal Sex Discrimination Law & the Continuing Need for Explicit Laws Protecting LGBT People to American Bar Association's 8th Annual Section of Labor and Employment Law Conference (September 2014), http://www.glad.org/uploads/docs/publications/eeoc-clarifies-protections.pdf (last accessed July 20, 2015) (EEOC's September 2014 summary of evolving protections against discrimination based on sexual orientation and gender identity); Eric S. Dreiband & Brett Swearingen, The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964, Jones Day (April 2015), http://www.jonesday.com/files/Publication/07f7db13-4b8c-44c3-a89b6dcfe4a9e2a1/Presentation/PublicationAttachment/74a116bc-2cfe-42d2-92a5-787b40ee0567/dreiband_lgbt.authcheckdam.pdf (last accessed July 20, 2015) (summarizing, inter alia, evolution of interpretation of Title VII with respect to sexual orientation).
On July 16, 2015, the Equal Employment Opportunity Commission ("EEOC") issued a landmark ruling—binding on all federal agencies—criticizing federal courts for "simply cit[ing to] earlier and dated decisions without any additional analysis" when they interpreted Title VII's prohibition of sex-based discrimination not to include protections against sexual orientation discrimination. See Complainant v. Foxx, EEOC Decision No. 0120133080, at 12 n. 11, 2015 WL 4397641 (July 16, 2015). It wrote:
Id. at 12-14 (emphasis added).
Relying on principles of Title VII in protecting against sex-based discrimination, the EEOC reasoned:
Id. at 5-11 (emphasis added) (footnotes omitted). Applying the "words of the statute Congress has charged us with enforcing[,]" the EEOC held:
Id. at 14 (emphasis added).
A minority of states—twenty-two states and the District of Columbia—protect against discrimination in employment based on sexual orientation. Rotondo, supra, at 105 n. 9 (listing twenty-one of the states and their respective statutes which protect against sexual-orientation discrimination in the workplace); Antidiscrimination and Religious Freedom Amendments, 2015 Utah Laws Ch. 13 (S.B.296) (effective May 12, 2015) (prohibiting discrimination based on sexual orientation and gender identity). They "largely cluster in the Northeast and Pacific states. This leaves most [lesbian, gay, bisexual or transgender] people in the Midwest, South and Mountain states with limited legal options
Even where protections do exist, relatively few actions based on sexual orientation discrimination have been brought according to the Government Accounting Office. U.S. Gov't Accountability Off., GAO-13-700R, Sexual Orientation/Gender Identity Employment Discrimination 2 (2013), http://www.gao.gov/assets/660/656443.pdf (last accessed July 16, 2015); see also Annual Discrimination Complaints to State Agencies Prohibiting Sexual Orientation and/or Gender Identity, The Williams Institute (November 2008), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Badgett-SearsRamos-Discrimination-Comp-State-Agencies-Nov-2008.pdf (last accessed July 21, 2015).
Over two hundred cities and counties have passed nondiscrimination employment laws with regard to sexual orientation. Lydia E. Lavelle, Grassroots Gay Rights: Legal Advocacy at the Local Level, 21 Am. U.J. Gender Soc. Pol'y & L. 507, 519 (2013) (citation omitted); see also
"Although the text of the NYCHRL mirrors the [New York State Human Rights Law N.Y. Exec. Law § 296] . . . the New York City Council [, in 2005,] broadened the protection of the NYCHRL see Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85 (`Restoration Act')." McDonnell v. Schindler Elevator Corp., No. 12-CV-4614, 2014 WL 3512772, at *15 (S.D.N.Y. July 16, 2014), aff'd, 618 Fed.Appx. 697, No. 14-2816-CV, 2015 WL 4038567 (2d Cir. July 2, 2015) (summary order). The Restoration Act was passed "based on an understanding that local discrimination laws were being undermined by courts which failed to distinguish between the New York City Human Right Law . . . and its state and federal counterparts." Kumaga v. New York City Sch. Const. Auth., 27 Misc.3d 1207(A), 910 N.Y.S.2d 405 (Sup.Ct.2010). It "mandated a complete reevaluation of all relevant provisions," id., stressing a more protective interpretation than the federal or state law:
N.Y.C. Admin. Code § 8-130 (enacted pursuant to N.Y.C. Local Law No. 85, § 7 (2005)).
"As a result of this revision, [NYCHRL] now explicitly requires an independent liberal construction analysis in all circumstances, even where State and federal civil rights laws have comparable language. The independent analysis must be targeted to understanding and fulfilling what the statute characterizes as the [NYCHRL's] uniquely broad and remedial purposes, which go beyond those of counterpart State or federal civil rights laws." Williams v. N.Y.C. Hous. Arith., 61 A.D.3d 62, 66, 872 N.Y.S.2d 27 (1st Dep't 2009); see also Tate v. Rocketball, Ltd., 45 F.Supp.3d 268, 274-75 (E.D.N.Y.2014) ("Courts construe the NYCHRL's provisions broadly in favor of [ ] plaintiff's, to the extent that such a construction is reasonably possible." (citations omitted)).
"The NYCHRL imposes strict liability on employers for discriminatory acts of managerial employees." Garrigan v. Ruby Tuesday, Inc., No. 14-CV-0155, 2014 WL 2134613, at *6 (S.D.N.Y. May 22, 2014) (citations omitted); see N.Y.C. Admin. Code § 8-107(13)(b)(1) ("an employer is liable for the acts of its employees: (1) where the offending employee exercised managerial or supervisory responsibility").
NYCHRL explicitly prohibits discrimination based on sexual orientation. The Law states:
N.Y.C. Admin. Code § 8-107(1)(a). It is unlawful to create a hostile work environment based on discrimination because of sexual orientation. The standards for discrimination and hostile work environment are the same. Johnson v. Strive E. Harlem Emp't Grp., 990 F.Supp.2d 435, 445
What is reasonable in the workplace—friendly chit chat or hurtful comment—is being gradually redefined by case law and jury verdicts.
Mihalik, 715 F.3d at 111 (citation omitted).
"[A] single comment . . . made in circumstances where that comment would, for example, signal views about the role of [a protected class] in the workplace[,]" may be considered more than a "petty slight or trivial inconvenience[.]" Dillon, 85 F.Supp.3d at 657, 2015 WL 427921, at *11 (citing Williams, 61 A.D.3d at 80 n. 30, 872 N.Y.S.2d 27); see also Hernandez v. Kaisman, 103 A.D.3d 106, 115, 957 N.Y.S.2d 53 (1st Dep't 2012) (holding that "comments and emails objectifying women's bodies and exposing them to sexual ridicule, even if considered isolated, clearly signaled that defendant considered it appropriate to foster an office environment that degraded women" and therefore could be actionable under NYCHRL).
In "weighing both the plaintiff's claim and the defendant's affirmative defense, courts must consider the totality of the circumstances without ignoring the overall context in which the challenged conduct occurs." Johnson, 990 F.Supp.2d at 446 (citations omitted).
After plaintiff has proffered her prima facie case, "[t]he employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but [a defendant will succeed] on this basis only if the record establishes as a matter of law that discrimination played no role in its actions." Mihalik, 715 F.3d at 111 n. 8 (citations omitted) (reversing motion for summary judgement and remanding for new trial).
On retaliation, section 8-107(7) of the Administrative Code makes it unlawful to retaliate against a person who complains about illegal discrimination or a hostile work environment:
N.Y.C. Admin. Code § 8-107(7) (emphasis added).
"Retaliation claims under the NYCHRL cover a broader range of conduct" than discrimination claims. Richardson v. Bronx Lebanon Hosp., No. 11-CV-9095, 2014 WL 4386731, at *10 (S.D.N.Y. Sept. 5, 2014) (emphasis added). To establish a retaliation claim under the NYCHRL, a plaintiff must prove that: (1) she engaged in a protected activity; (2) her employer was aware that she participated in such activity; (3) she suffered an action that would be reasonably likely to deter a person from engaging in the protected activity; and (4) there is a causal connection between the protected activity and the adverse action. See Brightman v. Prison Health Serv., Inc., 108 A.D.3d 739, 739-40, 970 N.Y.S.2d 789 (2d Dep't 2013) (stating standard); see also Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312-13, 786 N.Y.S.2d 382, 819 N.E.2d 998 (2004) (same); Mihalik, 715 F.3d at 112 (finding that plaintiff presented sufficient evidence of retaliation to overturn summary judgment; remanded for trial on violation of NYCHRL).
The retaliation "need not result in . . . a materially adverse change in the terms and conditions of employment . . . provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity." Williams, 61 A.D.3d at 70-71, 872 N.Y.S.2d 27 (citing N.Y.C. Admin. Code § 8-107(7)) (finding assignment "to duties outside or beneath one's normal work tasks" could deter a person from engaging in a protected activity). "A decision on whether an action was reasonably likely to deter the plaintiff must be made in light of the [New York] City Council's goal of melding the broadest vision of social justice with the strongest law enforcement deterrent." Sotomayor v. City of New York, 862 F.Supp.2d 226, 262 (E.D.N.Y.2012) (citation omitted), aff'd, 713 F.3d 163 (2d Cir.2013) (emphasis added).
When assessing a retaliation claim that involves neither an ultimate action of discharge nor a materially adverse change in the terms and conditions of employment, "it is important that the assessment be made with a keen sense of workplace realities, of the fact that the chilling effect of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities." Id. (citations omitted).
In proving a causal connection, plaintiff may rely on a slight temporal link, provided it is not unreasonably attenuated. There is no bright line rule. See, e.g., Dixon v. Int'l Fed'n of Accountants, 416 Fed.Appx. 107, 110 (2d Cir.2011) (summary order) ("To the extent [plaintiff] relies on the temporal proximity [of one year] between these two events as circumstantial evidence of causation, that, standing alone, is insufficient.") (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). Much depends on the sense of the jury about how long a discriminatory blow stings. The Court of Appeals for "the Second Circuit has found the two acts sufficiently close when the lapse was between twelve days and eight months." Encarnacion v. Isabella Geriatric Ctr., Inc., No. 11-CV-3757, 2014 WL 7008946, at *8 (S.D.N.Y. Dec. 12, 2014) (collecting cases); cf. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir.2013) (holding that "[t]he three-week period from [plaintiff's] complaint to her termination is sufficiently short to make a prima facie showing [under Title VII] of causation indirectly
"There is a relative paucity of instructive case law devoted to the independent application of the NYCHRL" generally. Grant v. Cont'l Cas. Co., No. 13-CV-5675, 2015 WL 1499724, at *12 (S.D.N.Y. Mar. 30, 2015). More specifically, there remains an open question as to whether, after the plaintiff establishes a prima facie case, the McDonnell Douglas burden-shifting test applies to retaliation claims under the NYCHRL, and to what extent. See Mihalik, 715 F.3d at 110 n. 8 ("It is unclear whether, and to what extent, the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims"); Zann, 737 F.3d at 843 n. 3 (recognizing a lack of clarity but not resolving the issue). In the instant case, the court need not resolve this question because both parties stipulated, through their consent to the jury charge, that no such shifting was applicable; and a shifting charge would have been likely to confuse instead of clarify. See Trial Tr. 331, 340-341, June 17, 2015.
The Court of Appeals for the Second Circuit has summarized the guiding principles for analyzing claims of discrimination and retaliation under NYCHRL. The law requires interpretation different from state and federal statutes, and it tends to favor plaintiffs:
Mihalik, 715 F.3d at 113 (citations omitted).
Defendant argues that plaintiff fails to make a prima facie case of hostile work environment because she presents only "petty slights and trivial inconveniences." Def.'s Br. 4. To the contrary, Woodard's continuing discriminatory comments about plaintiff's sexual orientation, made over a number of years, show adverse differential treatment. So too do the significant failures of supervisors to protect plaintiff against discrimination. See supra Part III.A-F.
There was sufficient evidence for a jury to conclude that a reasonable person—who repeatedly was the target of such comments as plaintiff and repeatedly complained but found no recourse—would consider the comments more than a trivial inconvenience.
It is not disputed that: (1) plaintiff is a member of a protected class of those who may seek redress and protection from discrimination; and (2) that defendant was aware of plaintiff's complaints. Def.'s Br. 6.
Defendant claims, however, that plaintiff has failed to produce evidence that defendant engaged in retaliatory conduct reasonably likely to deter a person from engaging in the protected activity. Def.'s Br. 7-8. It also contends that the relationship between the protected activity of the worker's complaint and the employer's adverse punitive reaction to the exercise of the right to complain was too diluted by time and dubious causal connection. Id.
Retaliation may be subtle and hidden and can be hard to prove. Juries are therefore given more leeway in finding retaliation than in finding discrimination. See supra Part V.E.
The jury had ample grounds to find retaliation likely to deter a worker from complaining of abuse. Woodard and the defendant's deliberate adverse conduct—the jury could have found—would likely deter a person from engaging in plaintiff's protected activity (identifying as a lesbian). First, not only did Woodard harass plaintiff over a course of approximately six years, but he harassed her after she complained repeatedly, to her supervisors and to him, of his ongoing adverse conduct. See supra Part III.A-F. Second, the jury could find that shortly after the second investigation, plaintiff's time card was changed by Woodard as a punishment for protesting. Third, the jury could find plaintiff was hit with packages by Woodard in retaliation. See supra Part III.F.6-9. Fourth, it could find that defendant's decision to allow Woodard to supervise plaintiff after her repeated complaints demonstrated so much disdain by management as to itself constitute retaliation. See supra Part III.A-F. Fifth, Riddick's investigation yielded no tangible results, despite substantial evidence of harassment; this know-nothing attitude was itself a form of retaliation by an implied expression of contempt for plaintiff's complaints.
A trial court may grant remittitur where it deems a damages verdict excessive. MacMillan v. Millennium Broadway Hotel, 873 F.Supp.2d 546, 559 (S.D.N.Y.2012) (finding jury's award of $125,000 to be excessive under Title VII and NYCHRL). An award is excessive where it "shock[s] the judicial conscience." Id. at 560. "[I]n calculating the remittitur, the court must use the least intrusive—and most faithful to the jury's verdict—method of reducing the verdict only to the maximum that would be upheld by the trial court as not excessive." Id. at 559-60 (citations omitted).
"In garden variety emotional distress claims, the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury." Id. at 560 (citations omitted).
Considered are the amounts awarded in the comparable cases, "bearing in mind that any given judgment depends on a unique set of facts and circumstances." Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F.Supp.2d 575, 600 (S.D.N.Y.2010) (citations omitted). "Garden variety" claims generally merit awards of approximately $30,000-$125,000. See, e.g., Watson v. E.S. Sutton, Inc., No. 2-CV-2739, 2005 WL 2170659, at *16
The parties concede that the damages in the instant case are "garden variety." Def.'s Reply 9; Pl.'s Opp'n. 11-12.
Defendant challenges the compensatory damages award of $25,000 per count, arguing that it exceeds the appropriate range for "garden variety" emotional distress claims. Def.'s Reply 12. These modest awards are well within an acceptable reasonable range. See supra Part VI.A.
Second, defendant contends that compensatory damages for the two claims may not be based on the same evidence of emotional distress. Def.'s Reply 8-9. Each damages award was sufficiently causally connected to a separate cause of action. No duplication existed.
The award was appropriate in light of the evidence presented to the jury. The motion for remittitur is denied.
Punitive damages are available under New York City Administrative Code § 8-502(a):
N.Y.C. Admin. Code § 8-502(a) (emphasis added).
In analyzing punitive damages, the same federal standard applies under the NYCHRL and the federal law. Johnson, 990 F.Supp.2d at 449. "A plaintiff can satisfy this burden by presenting evidence that (1) the employer discriminated (or retaliated) against him with conscious knowledge it was violating the law, or (2) that it engaged in egregious or outrageous conduct from which an inference of malice or reckless indifference could be drawn." Caravantes v. 53rd St. Partners, LLC, No. 09-CV-7821, 2012 WL 3631276, at *25 (S.D.N.Y. Aug. 23, 2012) (emphasis added) (citations omitted).
When awarding punitive damages, mitigation based on the existence and scope of antidiscrimination policies and procedures may be considered. See N.Y.C. Admin. Code § 8-107(13)(e)-(f). To mitigate damages, a defendant must demonstrate that it "[e]stablished and complied with policies, programs and procedures for the prevention and detection of unlawful discriminatory practices by employees [and] agents. . . and have a record of no, or relatively few, prior incidents of discriminatory conduct by such employee, agent . . . or other employees." N.Y.C. Admin. Code §§ 8-107(13)(d)(1)-(2). Mitigation may include:
N.Y.C. Admin. Code §§ 8-107(13)(d)(1)(i)-(iv).
The United States "Supreme Court set forth three categories of factors to be considered in assessing the validity of a punitive damage award. These factors include:
Zakre v. Norddeutsche Landesback Girozentrale, 344 Fed.Appx. 628, 630-31 (2d Cir.2009) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)) (applying United States Supreme Court test to NYCHRL claims).
Defendant moves for vacatur of the jury's award of punitive damages, alleging that plaintiff did not demonstrate that defendant acted with "malice" or "reckless indifference." Def.'s Br. 14; Def.'s Reply 13-15. It claims that punitive damages are inappropriate under the circumstances because upon notification of Woodard's actions, defendant conducted a prompt investigation in accordance with UPS's anti-harassment policy and took affirmative remedial measures to rectify the situation. Def.'s Br. 14; Def.'s Reply 14. Asserted is a claim that plaintiff has failed to prove a pattern of "turning a blind eye" to reports of discrimination and retaliation. Def.'s Reply 15.
To the contrary, plaintiff demonstrated sufficiently for a jury finding that defendant acted with reckless indifference to her multiple complaints of sexual orientation discrimination over many years. See supra Part III.A-F. UPS was anything but prompt. By 2012, when Riddick, a high-level manager for defendant, conducted an investigation, she determined, contrary to the overwhelming evidence of discrimination, that no discrimination had occurred. She did not discipline Woodard in any meaningful fashion and allowed him to continue supervising plaintiff for a short period.
Even if plaintiff failed to demonstrate that defendant retaliated because of her complaints by altering her time card and by failing to provide a safe work environment for plaintiff, there was sufficient proof of retaliation in central administration's cavalier attitude towards plaintiff's serious charges of harassment.
Plaintiff is entitled to punitive damages as a matter of law under the NYCHRL. The modest award for each claim was appropriate in light of the evidence before the jury. The motion to vacate the punitive damages award is denied.
Defendant's motion for judgment as a matter of law is denied. There was a legally sufficient evidentiary basis to support the jury's verdict that defendant UPS subjected plaintiff to a hostile work environment based on her sexual orientation. See generally Trial Tr. June 15-June 17,
Defendant's motion for a new trial is denied. There is no evidence of a miscarriage of justice warranting the extraordinary relief of a new trial. See id.
Defendant's motion for remittitur of compensatory damages is denied. The compensatory damage award of $25,000 for each claim is warranted. See id.
Defendant's motion to vacate the punitive damage award is denied. The award of $25,000 to each claim is appropriate in light of the evidence before the jury since UPS created a hostile work environment, based on plaintiff's sexual orientation, and retaliated against her for complaining. See id.
The Clerk of the Court shall enter judgment in accordance with the jury's verdict, plus costs.
SO ORDERED.
