Equal Employment Opportunity Commission v. Karenkim, Inc.

Filing 131

MEMORANDUM-DECISION and ORDER: Plaintiff's # 110 motion to amend the judgment is GRANTED; it's motion for injunctive relief is DENIED and Plaintiff-intervenors are awarded $41,387.38 on their # 107 motion for costs and attorneys fees. The Clerk is directed to amend the judgment to reduce the amounts awarded by the jury to reflect the impact of Title VII's legal cap on damages as stated herein. Signed by Chief Judge Norman A. Mordue on 6/16/2011. (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
vs.

5:08-CV-1019
(NAM/DEP)

KARENKIM, INC., D/B/A/ PAUL’S BIG M,

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Defendant.
_________________________________________
ANDREA BRADFORD, JUDITH GOODRICH
and DEBORAH HASKINS,
Plaintiff-Intervenors,
vs.

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KARENKIM, INC., D/B/A/ PAUL’S BIG M
GROCER and KAREN CONNORS and ALLEN
MANWARING, individually and as aiders and abettors,
Defendants.
_________________________________________

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APPEARANCES:

OF COUNSEL:

United States Employment
Opportunity Commission
John F. Kennedy Federal Building
Government Center, Room 475
Boston, Massachusetts 02203-0506
Attorneys for Plaintiff

Markus L. Penzel, Esq.
Ami T. Sanghvi, Esq.

Satter & Andrews, L.L.P
McCarthy Building
217 South Salina Street
Syracuse, New York 13202
Attorneys for Plaintiff-Intervenors

Matthew E. Bergeron, Esq.

Antonucci Law Firm

David P. Antonucci, Esq.

The Bonadio Building
12 Public Square
Watertown, New York 13601
Attorneys for Defendants
Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
This case has been the subject of previous Memorandum-Decision and Orders and was

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tried before this Court and between January 3 - 20, 2011. The case resulted in a jury verdict in
favor of plaintiff EEOC on behalf of claimants and Plaintiff-Intervenors. Familiarity with the
facts and procedural history is assumed. Presently before the Court are three motions. Plaintiff
EEOC has filed two of these motions. The first seeks to amend the judgment obtained after trial
to reflect Title VII’s cap on punitive damages. The second seeks injunctive relief in addition to

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the jury’s award of compensatory and punitive damages for the claimants and PlaintiffIntervenors. The third motion has been filed by counsel for Plaintiff-Intervenors and seeks an
award of attorneys fees and costs.
II.

DISCUSSION

A.

Amendment of the Judgment

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Title VII authorizes the award of both compensatory and punitive damages but provides a
cap on the total amount of damages recoverable based on employer size. See 42 U.S.C. § 1981a
(a). Specifically, the statute states as follows:
In an action brought by a complaining party under section 706 or 717
of the Civil Rights Act of 1964 . . . against a respondent who engaged
in unlawful intentional discrimination . . . prohibited under section
703, 704, or 717 of the Act . . . the complaining party may recover
compensatory and punitive damages as allowed in subsection (b), in
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addition to any relief authorized by section 706(g) of the Civil Rights
Act of 1964 . . . from the respondent.
Section 1981a(b) provides:

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The sum of the amount of compensatory damages awarded under this
section for future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses, and the amount of punitive damages awarded
under this section, shall not exceed, for each complaining party -- (A)
in the case of a respondent who has more than 14 and fewer than 101
employees in each of 20 or more calendar weeks in the current or
preceding calendar year, $ 50,000 . . . .
All but claimant Lorraine Baldwin received compensatory and punitive damages in total
amounts exceeding the $50,000 cap. No party objects to the motion by plaintiff EEOC to amend
the judgment to reflect Title VII’s cap on damages. Therefore, the judgment will be amended to
reduce the amounts awarded by the jury to reflect the impact of the cap as follows:

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Emily Anderson: $50,000.00 (consisting of $750 in compensatory damages and
$49,250.00 in punitive damages);
Andrea Bradford: $51,900.00 (consisting of $1,900 in compensatory damages and
$50,000.00 in punitive damages);1
Amanda Cole: $50,000.00 (consisting of $2,050 in compensatory damages and $47,950.00

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The damages awarded Andrea Bradford, Judith Goodrich, and Deborah Haskins may properly
exceed the amount of the cap because the excess, consisting of their compensatory damages
award, can be attributed to their state court claims. Although there are statutory caps on
compensatory damages under Title VII, there are no such limits under the HRL. See e.g. Funk
v. F & K Supply, et al., 43 F. Supp. 2d 205, 225 (N.D.N.Y. 1999). Where a jury awards
compensatory damages in a case where both Title VII and HRL violations are found, and
those damages are in excess of the Title VII caps, the jury award [will] be allocated under the
liability theory that provides plaintiff the most complete recovery.” Id. In addition, under
Title VII, an award solely of punitive damages is permissible. See Cush-Crawford v. Adchem
Corp., 271 F.3d 352 (2d Cir. 2001).
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in punitive damages);
Judith Goodrich: $50,950.00 (consisting of $950 in compensatory damages and
$50,000.00 in punitive damages);
Deborah Haskins: $50,775.00 (consisting of $775 in compensatory damages and
$50,000.00 in punitive damages);
Rachel (Sivers) Johnson: $50,000.00 (consisting of $500 in compensatory damages and
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$49,500.00 in punitive damages);
Anna Miller: $50,000.00 (consisting of $1,230.00 in compensatory damages and
$48,770.00 in punitive damages);
Abigail Murray: $50,000.00 (consisting of $675 in compensatory damages and $49,325.00
in punitive damages);

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Lorraine (Baldwin) Warren: $23,724.00 (consisting of $250 in compensatory damages and
$23,474 .00 in punitive damages); and
Meghan Whitmarsh: $50,000.00 (consisting of $1,000 in compensatory damages and
$49,000.00 in punitive damages).
B.

Injunctive Relief
Plaintiff EEOC has presented an application to the Court for extensive injunctive relief to

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prevent future discrimination and harassment by defendant KarenKim. The full measure of the
injunctive relief sought by plaintiff EEOC is as follows:
1.
KarenKim its managers, officers, agents, parent organizations,
successors, purchasers, assigns, subsidiaries, affiliates, and any
corporation or entity into which KarenKim may merge or with which
KarenKim may consolidate are enjoined from engaging in sex
discrimination including by creating or maintaining a hostile work
environment on the basis of sex. KarenKim, its managers, officers,
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agents, parent organizations, successors, purchasers, assigns,
subsidiaries, affiliates, and any corporation or entity into which
KarenKim may merge or with which KarenKim may consolidate, are
further enjoined from retaliating against any individual for asserting
her or his rights under Title VII or otherwise engaging in protected
activity, such as by complaining of discrimination, opposing
discrimination, filing a charge, or giving testimony or assistance with
an investigation or litigation, including, but not limited to,
participating in this matter in any way including by giving testimony.
Employment of Allen Manwaring and Posting
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2.
KarenKim, its managers, officers, agents, parent organizations,
successors, purchasers, assigns, subsidiaries, affiliates, and any
corporation or entity into which KarenKim may merge or with which
KarenKim may consolidate, are enjoined from: (a) rehiring Allen
Manwaring; (b) employing and/or compensating Allen Manwaring in
any capacity, whether as an employee, independent contractor, or
consultant; (c) allowing Allen Manwaring to provide any services,
whether paid or unpaid, to KarenKim or otherwise engage in any
activities related to the store; and (d) allowing Allen Manwaring to
enter KarenKim’s building at 276 West 1st Street, Oswego, New
York, or the surrounding premises.
3.
Notwithstanding the above paragraph, KarenKim may
purchase produce from Allen Manwaring, provided that KarenKim is
prohibited from permitting Allen Manwaring to enter KarenKim’s
building at 276 West 1st Street, Oswego, New York.

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4.
KarenKim will post a notice, a reduced-size copy of which is
attached as Exhibit A, with a photograph of Allen Manwaring
included in the notice, in its break room informing employees of their
obligation to contact the Independent Monitor and/or EEOC if they
see Allen Manwaring in the building located at 276 West 1st Street,
Oswego, New York or on the surrounding premises. The notice will
also summarize the provisions of this Judgment and Order for
Injunctive Relief and will state that it is “So Ordered” by this Court.
The Notice will be printed on poster size stock of 18” x 24” with a 4”
by 6” photograph of Allen Manwaring included.
Independent Monitor
6.
KarenKim will give its full cooperation to the Independent
Monitor in the performance of the Independent Monitor’s
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responsibilities under the Judgment and Order for Injunctive Relief
and will pay all costs, fees, and expenses of the Independent Monitor.
KarenKim will give the Independent Monitor full access to
KarenKim’s officers, managers, supervisors, employees, vendors,
contractors, and documents and records related to the performance of
the Independent Monitor’s responsibilities under the Judgment and
Order for Injunctive Relief. KarenKim will immediately inform the
Independent Monitor of any allegations, reports or suspected incidents
of sexual harassment or retaliation.
Sexual Harassment Policy
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7.
Within seven days of EEOC’s approval of an Independent
Monitor, KarenKim will amend the sexual harassment policy currently
in Paul’s Big M “Employee Handbook” as Section 207 to include the
following: (a) the name, address, and telephone number of the
Independent Monitor; (b) a provision that any complaints of sexual
harassment must be made to the Independent Monitor; (c) a provision
that complaints can also be made to supervisors and managers in
addition to the President of KarenKim, and that these supervisors and
managers must then report the complaints to the President of
KarenKim and the Independent Monitor; (d) a provision that the
complaining employee will be notified in writing of the results of any
investigation within thirty days; and (e) a provision amending its
provision prohibiting retaliation to include retaliation against any
individual for asserting her or his rights under Title VII or otherwise
engaging in protected activity, such as by complaining of
discrimination, opposing discrimination, filing a charge, or giving
testimony or assistance with an investigation or litigation. KarenKim
must distribute the amended policy to each current employee within
fourteen days of EEOC’s approval of the Independent Monitor.
KarenKim will distribute the amended policy to any new employees
within seven days of hire. KarenKim must also immediately post the
new policy in its break room in a manner easily visible to all
employees and immediately forward a copy of the amended policy to
EEOC and the Independent Monitor.
Distribution of Notice Concerning Allen Manwaring
8.
Within seven days of agreement on the identity of the
Independent Monitor, KarenKim will deliver to each of its current
employees a letter in the form attached as Exhibit B, signed by Karen
Connors, along with a wallet-sized card containing the addresses and
phone numbers for the Independent Monitor and EEOC.
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9.
Within seven days of the hiring of any new employee,
KarenKim will give a copy of Exhibit B and the wallet-size card to the
new employee.
10.
Each employee given a copy of Exhibit B and the wallet-size
card must sign an acknowledgement of receipt. KarenKim will
maintain such receipts and forward them to EEOC every six months
from January 19, 2011, the anniversary of the verdict, along with a
current list of employees containing contact (address and telephone)
information.
Training
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11.
KarenKim will conduct a two hour training session for all
management and supervisory employees on the requirements of Title
VII’s prohibitions against sexual harassment and the requirements and
prohibitions of this Judgment and Order for Injunctive Relief. The
training must be completed within 60 days of the entry of this
Judgment and Order for Injunctive Relief. The training will also be
provided to all new management and supervisory employees within 30
days of their hire or promotion. KarenKim must maintain attendance
sheets identifying each person who attended each training session, and
must forward a copy of the attendance sheets to EEOC along with a
current list of employees within seven days of each training session.
KarenKim will provide all management and supervisory employees
with one hour of refresher training on the requirements of Title VII’s
prohibitions against sexual harassment annually on the anniversary of
this Judgment and Order for Injunctive Relief’s effective date.

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12.
KarenKim must also conduct a training session for all
non-management employees on the requirements of Title VII’s
prohibitions against sexual harassment and the requirements and
prohibitions of this Judgment and Order for Injunctive Relief. The
training sessions will be completed within 60 days of the entry of this
Judgment and Order for Injunctive Relief. Such training will also be
provided to all new non-management employees within 30 days of
their hire. KarenKim must maintain attendance sheets identifying
each person who attended each training session, and must forward a
copy of the attendance sheets to EEOC along with a copy of
KarenKim’s current employee roster within seven days of each
training session.
13.
All training referenced above must be coordinated and
provided by the Independent Monitor. Within fourteen days of the
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entry of this Judgment and Order for Injunctive Relief, KarenKim
must provide EEOC with the Independent Monitor’s proposed written
materials and training outline. EEOC will then approve or disapprove
of the training materials. Approval may not be unreasonably withheld
by EEOC. If EEOC disapproves of the proposed training materials,
it will work with the Independent Monitor to produce suitable training
materials.
14.
After EEOC’s approval of the training materials, KarenKim
must provide EEOC with fourteen days notice and receive EEOC
approval before making any changes to the written materials and
training outline.
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Monitoring
15.
EEOC has the right to monitor and review compliance with
this Judgment and Order for Injunctive Relief. Accordingly:

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16.
Every six months for the duration of this Judgment and Order
for Injunctive Relief, and one month before the expiration of this
Judgment and Order for Injunctive Relief, KarenKim must submit
written proof via affidavit to EEOC that it has complied with each of
the requirements set forth above. Such proof must include, but need
not be limited to, an affidavit by a person with knowledge
establishing: (a) the completion of training; (b) that Exhibit A remains
posted and that the letters to employees were delivered; (c) that the
sexual harassment policy has been distributed and remains posted in
accordance with this Judgment and Order for Injunctive Relief; and
(d) that it has complied with the injunctions in paragraphs 2 through
4.

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17.
For the duration of this Judgment and Order for Injunctive
Relief, KarenKim must create and maintain such records as are
necessary to demonstrate its compliance with this Judgment and Order
for Injunctive Relief and 29 C.F.R. §1602 et seq. and maintain an
updated EEO poster in compliance with 42 U.S.C. § 2000e-10.
18.
EEOC, or its designee, has the right to: (a) review any and
all documents relevant to the relief provided in this Judgment and
Order for Injunctive Relief; (b) without advance notice, interview
employees, managers, supervisors and contractors regarding
compliance with this Judgment and Order for Injunctive Relief, and
(c) conduct unannounced inspections of the premises at 276 West
1st Street, Oswego, New York, regarding compliance with this
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Judgment and Order for Injunctive Relief.
19.
Any report or notification to EEOC required of KarenKim
under this Judgment and Order for Injunctive Relief must be made
by overnight or certified mail to Markus L. Penzel, Trial Attorney,
EEOC, JFK Federal Bldg., Room 475, Boston, MA 02203.
Successors

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20.
This Judgment is binding upon KarenKim’s parent
organizations, successors, assigns, subsidiaries, affiliates, purchasers
and any corporation or entity into which KarenKim may merge or with
which KarenKim may consolidate. Before any merger, sale,
consolidation, transfer of ownership or corporate reorganization,
KarenKim will provide written notice of this lawsuit, together with a
copy of the Complaint and this Judgment and Order for Injunctive
Relief, to any potential purchaser of KarenKim’s business, or
purchaser of all or a portion of KarenKim’s assets, and any other
potential purchaser, successor, assign, corporation or entity with
which KarenKim may merge or consolidate. KarenKim will provide
written notice to EEOC 14 days before any sale, assignment,
succession, acquisition, merger or consolidation affecting KarenKim.

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Term of Injunctive Relief
21.
This Injunctive Relief will remain in effect for ten years
from the date of entry. The court will retain jurisdiction to enforce
the terms of this Judgment and Order for Injunctive Relief.
According to the EEOC, a district court has broad discretionary powers to craft an
injunction which will bar employment discrimination likely to occur in the future. Indeed, the

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EEOC argues that this Court essentially has no discretion to deny injunctive relief completely
given that defendant’s liability has already been established pursuant to Title VII. See United
States v. Gregory, 871 F.2d 1239, 1246 (4th Cir. 1989), Collins v. Suffolk Co. Police Dep’t , 349
F. Supp.2d 559, 562 (S.D.N.Y. 2004) (citing Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108,
1122 (3d Cir. 1988)). The Court finds neither Gregory nor Collins applicable to the facts at bar.
however.
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In Gregory, the complaint alleged that the defendant sheriff followed and continued to
follow a practice of refusing to consider women for deputy sheriff positions in violation of Title
VII. See 871 F.2d at 1240. The case was tried without a jury after which the district court
dismissed the case. See id. The Fourth Circuit twice remanded the case for further proceedings
prior to reversing a third time because the district court applied an incorrect legal standard in
assessing statistical evidence presented by the government and did not accord sufficient weight to
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admissions made by the defendant sheriff and the testimony of the complainants. See id. In its
third opinion concerning the case, the Fourth Circuit addressed the government’s request for
injunctive relief prospectively as it had not been decided by the district court. See 871 F.2d at
1246. The Circuit noted the well established principle that Title VII remedies have not been
limited to correcting only ongoing discriminatory policies, but that district courts clearly have the

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authority to grant injunctive relief even after apparent discontinuance of unlawful practices. See
id. (citing Title VII, 42 U.S.C. §2000e-5(g), which states in pertinent part: “if the court finds that
the respondent has intentionally engaged in or is intentionally engaging in unlawful employment
practice ... [the practice may be enjoined] ....”) (emphasis in original). Id.
However, in Gregory, the Circuit Court found that the authority granted to the district

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court was especially appropriate because the “record [did] not demonstrate a total cessation of the
unlawful practices” alleged in the complaint. Id. Indeed, while the original defendant sheriff in
the case had suffered defeat upon attempting to be reelected and had been replaced by another
administration, the discriminatory practice of failing to hire women as deputies continued. See id.
at 1247. Moreover, not only had the superceding defendant sheriff continued to refuse hire
women as deputies, he actually eliminated the female civil process server position which one of

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the complainants had occupied under his predecessor. See id.
In Collins, the other case relied on by the EEOC herein, the plaintiff police officer alleged
that she suffered discrimination and retaliation on account of her race and gender in violation of
Title VII. See 349 F. Supp.2d at 561. A jury awarded plaintiff $79,500 in compensatory damages
and $150,000 in punitive damages. See id. In connection with her post-trial request for
injunctive relief, the district court noted that such relief was appropriate “if ‘the moving party
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demonstrates there is some cognizable danger of recurrent violations.’” Id. at 563 (quoting
Aquilino v. Univ. of Kansas, 109 F. Supp.2d 1319, 1322 ( D. Kan. 2000) (quoting EEOC v. Gen.
Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989) (“The likelihood of future violations is inferred
from the totality of the circumstances, including the commission of past illegal conduct.”)). In
support of her request for injunctive relief, the plaintiff in Collins submitted an affidavit that

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detailed a “dramatic change” in the medical reports of the County’s doctor’s following her trial
regarding her ability to return to work after suffering a “line of duty” injury to her back and neck.
See id. The court highlighted the Second Circuit’s holding in Malarkey v. Texaco, Inc., 983 F.2d
1204, 1215 (2d Cir. 1993) concerning injunctions prohibiting future retaliation:

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It hardly seems drastic to require [the defendant] to obey the law as set
forth in the ADEA with respect to [the plaintiff]. It is difficult to
discern what heavy burden the order places on the employer: it covers
a single employee in a company employing nearly two thousand in its
corporate headquarters alone. The injunction does not require [the
defendant] to change employment practices, reorganize departments,
or rewrite official procedures. Moreover, we do not regard it as
superfluous to subject an employer found to have discriminated to the
district court's contempt powers, were it to repeat its retaliatory
conduct.
In contrast to the injunctive relief at issue in Collins, the Court notes that the proposed
injunctive order submitted by plaintiff EEOC in this case would place a substantial burden on the
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defendant employer, would cover every present and future employee for a period of ten years,
requires the defendant to alter drastically its employment practices and hire an independent
monitor whom, together with the EEOC, will review and critique any present or future
employment practices with respect to sexual harassment. Unlike the injunction in Collins, the
injunction proposed by the EEOC herein does require the employer to change employment
practices, reorganize departments and rewrite official procedures.
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This Court which presided over a nearly three week trial in this case is aware of the
following facts which arose in the course of testimony during said trial: defendant Allen
Manwaring is no longer employed by defendant KarenKim, Inc., nor are any of the claimants or
Plaintiff-Intervenors. While it was undisputed that there was no written policy or handbook
available for employees concerning sexual harassment during much of the time period at issue

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during the trial, the defendant store has since created an employee handbook which includes a
sexual harassment policy. A copy of the handbook is given to each new employee upon hire.
Aside from Allen Mawaring, there is no evidence that any other employee or manager of
defendant KarenKim, Inc. was responsible for subjecting any employee to unwelcome or
unlawful conduct.

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Nevertheless, in spite of the record which suggests that the discriminatory and unlawful
actions in this case were isolated instances involving a manager who is no longer employed by the
company and employees who are no longer employed by the company, occurring during a period
when the company did not have clearly established anti-harassment policies, the EEOC insists
that “there is no evidence that Karenkim will not allow a sexually hostile work environment to
recur.” Indeed, the EEOC insists that because defendant Karen Conners and Manwaring remain

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engaged to be married, there is a likelihood he may be rehired or be allowed on the premises of
the store. Moreover, the EEOC insists that given the continuing romantic relationship between
Manwaring and Conners, “unless Manwaring is barred from any role with KarenKim and the
employees are properly trained and given a neutral avenue to complain, the hostile environment is
likely to resurface.” The EEOC contends that Allen Manwaring “has continued to be involved in
the operations of the store in a decision-making role.” To wit, the EEOC states that Manwaring
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has “given advice to managers at the store and even informed one manager that she was
terminated.”2
It is well settled that a court may enjoin a defendant from further unlawful practices “if the
moving party demonstrates that there exists some cognizable danger of recurrent violations.”
Collins, 349 F. Supp.2d at 563 (citations omitted). In this case, the EEOC is attempting to flip the

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burden of proof by claiming that KarenKim has the burden to show it will not allow further
harassment of employees in the future. In support of this claim, the EEOC cites KarenKim’s

2

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Elanora Boyke’s affidavit states that even though she knew Allen Manwaring was no longer
employed by KarenKim, she called him on 2 or 3 occasions during some undisclosed period
of time to ask questions about the produce department. Ms. Boyke also said that she asked
Manwaring occasionally for advice on how to handle a difficult employee and that there was
another manager who also called Allen if he had a problem in the store and there was no one
there to handle it or help with it. Ms. Boyke averred that Dianne Vickery, another manager in
the store was aware of the fact that she had called Manwaring to ask advice and did not either
discipline for having done so or tell her not to do it again. Upon attempting to return to work
after a short medical leave, Ms. Boyke states she called the store to find out about her
schedule and was told she needed to speak to Karen Conners. When she attempted to reach
Karen Connors, she was unsuccessful, so she called Manwaring who told her that he would
contact Karen. Boyke states that moments later, Manwaring called her back to say that she
was being fired because she had not answered her phone the previous Wednesday when she
was home sick. Manwaring also told Boyke she should contact Karen Conners. Boyke
recounts that she later spoke to Karen Conners to verify whether she was being fired and
Conners confirmed this fact.
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alleged reluctance to act on long-standing complaints regarding Manwaring’s behavior before
finally terminating his employment in May 2010 and alleged lies told on the witness stand by
KarenKim employees in an attempt to cover up the real reason for Manwaring’s termination. The
EEOC also asserts in conclusory fashion that the defendant KarenKim “continues” to fail to take
responsibility for almost ten years of harassment and that it failed to show “contrition” for its
unlawful conduct based on the legal and factual defenses raised at trial.
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The Court finds the EEOC’s arguments specious and the evidence relied on in support of
its claims tenuous or non-existent. Indeed, there is no indication that the personal relationship
between Karen Conners and Allen Manwaring will result in the resurrection of the hostile work
environment that existed at KarenKim prior to his termination. In the first instance, Manwaring is
not presently employed by the company nor are any of the complaining parties. Given the

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existence of an anti-harassment policy at KarenKim and the company’s now keen awareness of
the issue, the Court is hard-pressed to imagine that should complaints by employees concerning
sexual harassment or employment discrimination of any other kind arise in the future, that
KarenKim will not take them seriously. At the present time, however, there is no indication,
much less evidence, that such conduct is likely to occur. Moreover, the Court is at a loss to
understand EEOC’s pressing need to prevent - in addition to Manwaring’s future employment by

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KarenKim - his very presence on the premises of the store. Indeed, the Court finds that the notion
of having Manwaring’s picture posted in the store and the notice of his official banishment being
printed on cards with a “hotline number” given to employees in the event he is ever spied on the
premises calls to mind a manner of punishment far beyond the nature and gravity of this case.
Ms. Boyke certainly does not state that she was told by anyone at KarenKim to call

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Manwaring. Her affidavit demonstrates nothing beyond the fact that she made a voluntary
choice as a manager to call Manwaring about store concerns knowing he was no longer employed
by the company, but clearly someone she considered to be a good and reliable source of advice.
As to the EEOC’s claim that Manwaring informed her she was fired, that is literally true.
However, as Ms. Boyke acknowledged in her affidavit, she was told by the store to contact Ms.
Conners and when she was unsuccessful in doing so, she made the choice to call Manwaring who
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called Conners on her behalf and relayed a message. It is clear though that Boyke did not rely on
Manwaring’s information regarding being fired until she later confirmed that she had indeed been
fired by talking personally with Karen Conners.
The only evidence submitted by the EEOC which even remotely suggests the possibility
of ongoing harassment by anyone at KarenKim is the declaration submitted by claimant Lorraine

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Warren in reply to defendants’ opposition to EEOC’s motion. Therein, Ms. Warren recounts an
incident which occurred in early January 2011 when she and her husband went to Paul’s Big M to
cash her New York State income tax refund check. Ms. Warren claims that when she and her
husband approached the front office where checks are generally cashed, she was told by a woman
with shoulder length reddish hair whom she believed to be Dianne Vickery that she was “no
longer allowed in the store” and that she had to “leave immediately.” Ms. Warren’s husband was

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also told that he could not cash the check and that he was no longer permitted in the store
“because he was [her] husband” and he was asked to leave. Ms. Warren stated that she found this
incident to be very embarrassing because there were other customers who overheard the entire
exchange. She avers that she “believe[s] that [she] was thrown out of the store and am no longer
allowed to shop there because I participated in this case and testified against the store.”

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The Court notes, however, that the incident set forth in Ms. Warren’s declaration is not a
basis on which to make a finding that ongoing acts of retaliation prohibited by Title VII are
occurring or will likely occur in the future against the complaining parties in this case. In the first
instance, Ms. Warren is no longer an employee of the store and was not denied any privilege or
condition of employment. The Court recognizes, however, that this factor alone is not dispositive
since the law is settled that former employees have a right to the protections afforded by Title VII.
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See Pantcheko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir. 1978). The fact remains,
however, that the alleged refusal of defendant KarenKim to cash a check for Ms. Warren does not
contemplate any of the rights or privileges envisioned by Title VII and thus cannot constitute
retaliation as a matter of law. It is true that in Burlington Northern & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67-68 (2006), the Supreme Court held that several circuits, including the Second

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Circuit, had defined “adverse action” too narrowly in the context of Title VII retaliation. The
Court ruled that Title VII's “anti-retaliation provision, unlike the substantive provision, is not
limited to discriminatory actions that affect the terms and conditions of employment.” Id. at
63–64. But the Court also held that, “The anti-retaliation provision protects an individual not
from all retaliation, but from retaliation that produces an injury or harm,” id. at 64, so that “a
plaintiff must show that a reasonable employee would have found the challenged action

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materially adverse, which in this context means it well might have ‘dissuaded a reasonable
worker from making or supporting a charge of discrimination.’ ” Id. at 68 (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C.Cir. 2006) (internal citation omitted) (emphasis added)).
“Petty slights [and] minor annoyances” in the workplace are not actionable as retaliation. Id.

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In this case, while Ms. Warren surmises that KarenKim’s action in refusing to cash her
check relates to her having testified during the trial, she does not aver that the incident would
have prevented her from so testifying or otherwise participating as a claimant herein. See
Vasquez v. Southside United Hous. Dev. Fund. Corp., 2009 WL 2596490 (E.D.N.Y. Aug. 21,
2009), at *13 (citing Burlington, 548 U.S. at 67-68) (plaintiff presented no evidence that alleged
retaliatory comments chilled her support of fellow employee who made claim of discrimination or
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caused her actually to fear reprisal). Thus, even if personally offensive or embarrassing to Ms.
Warren, the conduct by KarenKim is not a sufficient basis for a reasonable finder of fact to
conclude that the incident would dissuade a reasonable worker from making or supporting a
charge of discrimination. See id. This is not a case, unlike those cited by EEOC in support of the
relief requested herein, where the employer caused a former employee to be arrested and charged

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with trespass or where the employer filed a defamation lawsuit against the former employee.
That “bad blood” may have developed between the parties to the present litigation would
not shock the conscience of any reasonable person given the nature of the allegations in the case.
However, Title VII was not designed to police these type of personal disputes. Indeed, the Court
finds that the incident complained of by Ms. Warren falls more appropriately into the class of
“petty slights [and] minor annoyances” carved out by Burlington as beyond the purview of Title

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VII. 548 U.S. at 68. The Court also takes note of the fact that Paul’s Big M is a grocery store and
is not, in any event, in the business of banking. It is under no obligation to provide a check
cashing service to anyone and as a private business it certainly is entitled to run its affairs in its
own way so long as some valid regulatory statute does not tell it to do otherwise.
While the Court is keenly aware of the egregious conduct by Allen Manwaring that was

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alleged to be at the heart of EEOC’s complaint in this case, it is apparent that the jury in this case
believed wholeheartedly the testimony offered by the various claimants and plaintiffs concerning
his behavior. In that light the jury made substantial awards to the claimants of both compensatory
and punitive damages to compensate them and punish KarenKim for its conduct in this case.
None of these women are still employed by Paul’s Big M, the store has revised its sexual
harassment policies and terminated Mr. Manwaring’s employment. In the unlikely event that
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such harassing conduct were to recur at Paul’s Big M, EEOC is certainly free to commence
further investigative proceedings and litigation to address those concerns. Presently, however,
plaintiff’s EEOC’s request for injunctive relief against defendant KarenKim will be denied.
C.

Attorney’s Fees
Plaintiff-Intervenors seek $103,468.46 in attorney’s fees and costs. In the Second Circuit,

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when presented with a valid3 application for attorney’s fees, courts are to award the presumptively
reasonable fee, that is, the fee that would be paid by a reasonable, paying client in the relevant
community. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522
F.3d 182, 191-93 (2d Cir. 2008). Courts in the Northern District of New York have determined:
. . . the reasonable hourly rates in this District, i.e., what a reasonable,
paying client would be willing to pay, were $210 per hour for an

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Defendant claims that Plaintiff-Intervenors are not entitled to recovery of any attorney’s fees
because they recovered, collectively, less than $5000 in compensatory damages on all of the
claims in the complaint. The Court rejects this argument, however as Plaintiff-Intervenors,
having recovered on their hostile work environment claims, are nevertheless “prevailing
parties” under the law and entitled to an award of reasonable attorney’s fees. 42 U.S.C. §
2000e-5(k) provides that, “[i]n any action or proceeding under [Title VII] the court, in its
discretion, may allow the prevailing party ... a reasonable attorney's fee (including expert
fees) as part of the costs .... “ Under Hensley v. Eckerhart, 461 U.S. 424, 426 (1983), a
plaintiff is a prevailing party if he “succeed[s] on any significant issue in litigation which
achieves some of the benefit ... sought in bringing suit.” Id. (quotation omitted).
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experienced attorney, $150 per hour for an attorney with four or more
years experience, $120 per hour for an attorney with less than four
years experience, and $80 per hour for paralegals.
Picinich v. United Parcel Serv., 2008 WL 1766746, at *2 (N.D.N.Y. 2008) (citing, inter alia,
New Paltz Cent. Sch. Dist. v. St. Pierre, 2007 WL 655603, at *2 (N.D.N.Y. 2007)).
Using the lodestar figures established by courts in this district and turning to PlaintiffIntervenor’s application for attorney’s fees, the Court notes that attorney Bergeron states in his
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affidavit that attorney Mimi Satter, a partner in his office who performed some of the work in this
case, has been admitted to the practice of law since 1977. Mr. Bergeron also avers that another
partner in his office, Mr. Andrews is a 1992 graduate of Georgetown University Law School and
has been practicing in the area of labor and employment law since graduating from law school.
Thus, the Court does not question these attorneys’ entitlement to the maximum lodestar

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reimbursement rate of $210 per hour. With respect to Mr. Bergeron’s own experience, the Court
notes that while he states he has been admitted to practice since 2002, his experience is not nearly
equivalent to that of his partners. Clearly, this is an issue on which Mr. Bergeron himself has
some concern in light of his having submitted two attorney affidavits to support his claim of
entitlement to the $210 per hour rate.
Even assuming, however, Mr. Bergeron is entitled to the maximum reimbursement rate,

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the Court has more pressing concerns about the substance of his application for fees in this case.
Having presided over the trial in this case, it is clear that Mr. Bergeron did not have the lead role
in prosecuting this matter. Counsel for plaintiff EEOC did the vast majority of the questioning
and cross-examination of witnesses in this case with Mr. Bergeron asking few, and in some cases,
no questions. While it is true that Mr. Bergeron obviously took the lead role in questioning his

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own clients, the Plaintiff-Intervenors, this testimony was proportionately a much smaller part of
the trial that the portions led by the two attorneys from the EEOC. Upon review of the fee
application, the Court notes that conservatively, 180 of the 366.6 hours claimed by Mr. Bergeron
relate to his preparation for or participation in the trial in which he was a relatively minor
participant.
Moreover, while it is true that the jury in this case awarded each of the PlaintiffN

Intervenors substantial sums, the bulk of the damages were punitive in nature since there was
little, if any, evidence of actual damages presented, a fact reflected in the rather nominal amounts
awarded to the three Plaintiff-Intervenors in compensatory damages. Indeed, insofar as the
Plaintiff-Intervenors are concerned, the verdict in this case was a “mixed bag.” The jury rejected
Plaintiff-Intervenors’ state law claim which sought to impose personal liability on defendant

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Karen Connors as an alleged aider and abettor of the harassment which occurred at KarenKim.
The jury also rejected Andrea Bradford’s retaliation claim and the constructive discharge claims
of all three Plaintiff-Intervenors, including all claims for backpay damages. Of the 24 causes of
the action set forth in the complaint, the jury found in favor of Plaintiff-Intervenors solely on their
claims of hostile work environment under federal and state law against defendants KarenKim and
Allen Manwaring.

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Considering that the degree of success is “the most critical factor” in determining the
reasonableness of an attorney's fees award, Farrar v Hobby, 506 U.S. 103, 114 (1992), it is
apparent that awarding attorneys' fees to Mr. Bergeron’s firm by simply calculating the lodestar
amount would be excessive based on Plaintiff-Intervenor’s limited degree of success in this
litigation. See id. at 114-15. The Supreme Court has cautioned that “fee awards under § 1988

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were never intended to produce windfalls to attorneys....” Id. at 115 (internal quotation marks
omitted). After considering the amount and nature of damages awarded, “the court may lawfully
award low fees or no fees without reciting . . . factors bearing on reasonableness, or multiplying
the number of hours reasonably expended by a reasonable hourly rate.” Id. (internal citations and
quotation marks omitted).
In this case, counsel’s billing records do not distinguish between the various causes of
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action. Entries including interviews with witnesses, discussions with counsel and preparation for
trial all involved the case, as a whole. Accordingly, it would be impossible to determine which
entries applied to which claims. Since it appears that Plaintiff-Intervenor’s successful and
unsuccessful claims “involved a common core of facts and related legal theories,” this Court must
focus on the significance of the overall relief obtained when determining a reasonable amount of

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attorneys' fees, if any. See Kassim v. City of Schenectady, 415 F.3d 246, 255 (2d Cir.2005)
(affirming a district court's twenty percent reduction of attorneys' fees based on the plaintiff's
limited success). In Khan v. HIP Centralized Laboratory Services, Inc., 2009 WL 2259643, at *3
(E.D.N.Y. 2009), the court held that the successful and unsuccessful claims were intertwined, but
nonetheless concluded that a fee reduction was warranted as, “plaintiff’s overall degree of
success” was low since the jury rejected the causes of action which included claims for backpay.

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Weighing all factors, including the fact that plaintiff’s counsel still managed to achieve an award
of $50,159.91 in total damages on behalf of the plaintiff, the court awarded plaintiff $50,000 in
attorneys’ fees, inclusive of costs, which represented a reduction of roughly two-thirds. Id.
Plaintiff-Intervenor’s recovery of minimal compensatory damages entails limited success,
despite the amount of the jury's awards. Based thereupon, and upon Mr. Bergeron’s limited role

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in achieving the overall verdict in this case, the Court finds a sixty percent reduction of the
attorneys’ fees requested by his firm is warranted. Accordingly, the Court awards PlaintiffIntervenors $41,387.38 for attorneys’ fees and costs.
III.

CONCLUSION
Based on the foregoing, plaintiff EEOC’s motion to amend the judgment is GRANTED,

it’s motion for injunctive relief is denied and Plaintiff-Intervenors are awarded $41,387.38 on
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their motion for reasonably costs and attorneys fees. The Court directs the Clerk to amend the
judgment to reduce the amounts awarded by the jury to reflect the impact of Title VII’s legal cap
on damages as follows:
Emily Anderson: $50,000.00 (consisting of $750 in compensatory damages and
$49,250.00 in punitive damages);

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Andrea Bradford: $51,900.00 (consisting of $1,900 in compensatory damages and
$50,000.00 in punitive damages);
Amanda Cole: $50,000.00 (consisting of $2,050 in compensatory damages and $47,950.00
in punitive damages);
Judith Goodrich: $50,950.00 (consisting of $950 in compensatory damages and
$50,000.00 in punitive damages);

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Deborah Haskins: $50,775.00 (consisting of $775 in compensatory damages and
$50,000.00 in punitive damages);
Rachel (Sivers) Johnson: $50,000.00 (consisting of $500 in compensatory damages and
$49,500.00 in punitive damages);
Anna Miller: $50,000.00 (consisting of $1,230.00 in compensatory damages and

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$48,770.00 in punitive damages);
Abigail Murray: $50,000.00 (consisting of $675 in compensatory damages and $49,325.00
in punitive damages);
Lorraine (Baldwin) Warren: $23,724.00 (consisting of $250 in compensatory damages and
$23,474 .00 in punitive damages); and
Meghan Whitmarsh: $50,000.00 (consisting of $1,000 in compensatory damages and
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$49,000.00 in punitive damages).
IT IS SO ORDERED.
Date: June 16, 2011

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