Echevarria v. Insight Medical, P.C. et al
Filing
89
OPINION AND ORDER re: 65 MOTION for Judgment as a Matter of Law Pursuant to FRCP 50(a), 50(b) and 59(e) filed by Insight Medical, P.C., Steve Okhravi, Al Okhravi, 67 MOTION for Attorney Fees and Costs filed by I nsight Medical, P.C., Steve Okhravi, Al Okhravi: For the reasons set forth above, Defendants' Post-Trial Motions and Motion for Fees and Costs are DENIED. The Clerk of Court is directed to terminate the motions pending at docket entries 65 a nd 67. The parties are further ORDERED to file a joint submission on or before January 5, 2015, proposing a briefing schedule for Plaintiff's contemplated motion for attorneys' fees and costs pursuant to 42 U.S.C. § 2000e5(k) and/or N.Y.C. Admin. Code § 8-502(f). (Signed by Judge Katherine Polk Failla on 12/22/2014) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
INGRIT ECHEVARRIA,
:
:
:
Plaintiff,
:
:
v.
:
INSIGHT MEDICAL, P.C., AL OKHRAVI,
:
and DR. STEVE OKHRAVI, individually,
:
:
Defendants. :
:
----------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: December 22, 2014
______________
13 Civ. 3710 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Ingrid Echevarria brought this action in May 2013, accusing her
former employer, as well as its owner and manager, of subjecting her to sexual
harassment at her workplace and terminating her employment when she
complained about the harassment. On June 30, 2014, after a four-day trial,
the jury found that Plaintiff had proven her retaliation claims under federal
and New York City law, and awarded her $50,000 in compensatory damages.
Defendants have filed various post-trial motions, including motions for
(i) judgment as a matter of law in favor of Defendants; (ii) a new trial;
(iii) remittitur of the damages award; and (iv) attorneys’ fees and costs in favor
of Defendants as “partially prevailing parties” in this litigation. For the reasons
set forth in the remainder of this Opinion, Defendants’ motions are denied.
BACKGROUND
A.
The Pretrial Procedural History
Plaintiff filed her complaint against Insight and Al and Steve Okhravi on
May 31, 2013. (Dkt. #1). In it, she brought claims for discrimination (in the
form of a hostile work environment) and retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, the New York State
Human Rights Law, N.Y. Exec. Law §§ 290 to 301 (the “NYSHRL”), and the New
York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-131 (the
“NYCHRL”).
After the completion of discovery and a failed mediation proceeding,
Defendants moved for summary judgment. (Dkt. #26-29). In their papers,
Defendants argued that (i) Insight did not meet the statutory definition of an
employer under the NYSHRL and the NYCHRL; (ii) Plaintiff had failed to present
a prima facie case of sexual harassment in the form of a hostile work
environment; (iii) Plaintiff had failed to demonstrate that Insight and Dr. Steve
Okhravi had notice of the harassment; (iv) Plaintiff’s retaliation claim failed
because she was not an employee at the time she complained of the
harassment; and (v) Plaintiff could not prove damages. The motion was denied
after oral argument on April 17, 2014, and trial was scheduled. Before trial,
Plaintiff agreed to proceed on her federal and city, but not her state, claims of
discrimination and retaliation.
2
B.
The Evidence at Trial 1
The parties agreed that Plaintiff was employed as the office manager at
Insight Medical (“Insight”) from July 2008 through December 2012. Her
relationship with her immediate supervisor, Al Okhravi, as well as the
circumstances of the termination of her employment, were the key factual
disputes at trial.
1.
Plaintiff’s Case at Trial
Plaintiff testified that she began working as an office manager at Insight,
a primary care facility for adult patients located in the Bronx, in July 2008.
(Tr. 53, 70). For a two-month period earlier in the year, Plaintiff had been
employed at Insight as a medical assistant. (Tr. 52). Insight was owned by
Dr. Steve Okhravi and managed by his brother, Al Okhravi. (Tr. 57-58).
According to Plaintiff, Al Okhravi communicated with her “daily” by phone,
email, or text message, and traveled to Insight’s offices from his home in
Virginia at least once every two weeks. (Id.). While at Insight, Al Okhravi
would have meetings as needed and bring paychecks, forms, and other
supplies. (Id.).
According to Plaintiff, her communications with Al Okhravi increased in
October 2012. (Tr. 59). By this time, the Okhravi brothers had established two
1
The parties’ memoranda of law in connection with Defendants’ post-trial motions are
referred to using the conventions “Def. Br.,” “Pl. Opp.,” and “Def. Reply.” “Tr.” refers to
the trial transcript, and “PX” and “DX” refer to the parties’ respective trial exhibits. For
convenience, certain of the texts introduced at trial are referred to using the convention
“[Sender] to [Receiver], [date], [time].” Many of these texts were also read into the trial
record.
3
24-hour urgent care facilities in Manhattan, using the corporate entity Pinnacle
Medical PC (“Pinnacle”). (Tr. 59-60, 383). Plaintiff recalled a meeting that
month with the Okhravi brothers at one of Pinnacle’s offices, which meeting
was called to discuss, among other things, problems with Dr. Okhravi’s remote
access of electronic medical records; after the meeting, Plaintiff received an
“inappropriate” text message from Al Okhravi. (Tr. 84-85). According to
Plaintiff, Al Okhravi confessed in the text that “he had wanted to tell [her]
something for a long time, but he didn’t dare.” (Tr. 84). When Plaintiff pressed
him (also by text) for specifics, he replied that “he liked [her] ass.” (Tr. 86).
Within the next week, Plaintiff received multiple messages from Al Okhravi
propositioning her for sex, including invitations to a weekend assignation at
Atlantic City where they could “eat, drink, and ... fuck.” (Tr. 86; see also Tr. 87
(receiving a text from Al Okhravi suggesting anal sex); Tr. 88 (receiving a text
from Al Okhravi inviting Plaintiff to meet him at a hotel near Giants Stadium);
Tr. 97-98 (receiving a text from Al Okhravi suggesting they meet early at
Insight’s offices for sex)).
According to Plaintiff, separate and apart from the sexual overtures, Al
Okhravi also sent her texts about “all his personal things,” including medical
issues he was experiencing and problems he was having in his marriage.
(Tr. 87; see also Tr. 90-92 (recounting meeting with Al Okhravi where he
conveyed concern about another woman contacting his wife at their home)).
Plaintiff did not respond to the majority of the text messages, and made up
4
excuses to decline his invitations. (Tr. 87-88, 268). The messages persisted
through the beginning of December. (Tr. 89). 2
Other issues came to the fore in December 2012. Insight’s physician’s
assistant, Ricardo Fisher, had lost his insurance coverage, which meant that
he could not see patients (and, as a practical matter, that Insight’s offices
would be closed to patients on those days when a backup physician’s assistant
could not be found). (Tr. 100-04). In addition, medical assistant Erica
Gonzalez planned to stop working at Insight shortly and begin her maternity
leave. (Tr. 104-05).
Plaintiff recalled an argument with Al Okhravi on the night of December
18, 2012, concerning the possible replacement of Gonzalez and the staffing of
the office over the holidays. (Tr. 105-08; see also Tr. 250-53). During the
argument, Al Okhravi implored Plaintiff to “let him run his office (Tr. 105), and
even told her not to come back to work if she disagreed with his decisions
(Tr. 109; see also Tr. 108 (discussing text from Plaintiff’s Exhibit 2 in which
Plaintiff tells Al Okhravi, “According to what you said to me, you are telling me
not to go back to work.”)). He also advised Plaintiff that he was “frustrated,”
2
At trial, Plaintiff testified that she deleted the sexually offensive and unduly personal
texts from Al Okhravi because of concerns that her children, who had access to her
phone, would read them. (Tr. 96-97, 264-65). As a sanction for previous discovery
violations, the Court instructed the jury during the trial that Defendants had stated
that relevant text messages existed, that Plaintiff had requested their production, and
that Defendants had failed to produce them. (Tr. 206). Accordingly, none of the
offensive texts was introduced at trial.
5
and that he sought sex with her to “relieve his frustration.” (Tr. 108, see also
Tr. 253, 299-300).
On the morning of December 19, 2012, Plaintiff sent Al Okhravi a text
message indicating that she would not “tolerate anyone mistreating [her]”; she
testified that her text pertained to the sexually explicit messages he had been
sending. (Tr. 166; see also Tr. 168 (discussing text message from Plaintiff in
which she advised Al Okhravi that “[a]fter what happened last night, I feel very,
very uncomfortable,” and that Okhravi “made [her] feel like a piece of [shit]”)).
Plaintiff advised Al Okhravi that she was rethinking her continued employment
with Insight. (Tr. 167). Indeed, Plaintiff fabricated a competing job offer,
explaining to the jury that after the preceding evening’s conversation, she had
realized that “[her] job was not secure there.” (Tr. 169-71). However, Plaintiff
testified, she never advised Dr. Steve or Al Okhravi that she was going to leave,
only that she had been offered another position. (Tr. 173).
While initially protesting that “[n]othing happened last night” (A. Okhravi
to Echevarria, 12/19/2012, 7:29 a.m.; see also Tr. 169), Al Okhravi later
stated that Plaintiff was “a lady and not garbage,” and apologized for making
her feel like the latter (A. Okhravi to Echevarria, 12/19/2012, 7:30 a.m.). In
specific response to Plaintiff’s hints about a job offer, Al Okhravi stated, “I do
not want to lose u. I hope u consider staying. U r part of family. We will
adjust your salary.” (A. Okhravi to Echevarria, 12/19/2012, 7:39 a.m.). At the
conclusion of their exchange of texts, Al Okhravi asked Plaintiff to “reconsider”
6
and told her that she had “a secure job.” (A. Okhravi to Echevarria,
12/19/2012, 7:49, 7:51 a.m.).
Later that day, Plaintiff participated in a meeting with Al Okhravi at
Insight’s offices. In the course of a conversation in an examination room, in
which he sought to convince Plaintiff to remain in her position, Al Okhravi put
his hand on Plaintiff’s thigh and expressed, again, his desire to have sex with
her. (Tr. 176, 259-60). Plaintiff left the examination room and returned to the
common area of the offices; Okhravi left. She testified that after that meeting,
she intended to remain at Insight, but wanted the harassing conduct to cease.
(Tr. 177).
On the evening of December 20, 2012, Plaintiff sent a text to Al Okhravi
in which she stated, in relevant part, that “[t]his is not the time for [her] to
leave” Insight. (Tr. 178; see also id. (“I would never leave at a time like this. …
Trust me, I would not leave you at a time like this.”)). The following day, Al
Okhravi came to Insight’s offices with a new physician’s assistant, without
greeting Plaintiff or introducing her to the new hire. (Tr. 179). Plaintiff was put
off by Okhravi’s brusqueness towards her, and texted these sentiments to him
and to Stefanie Messina; she also repeated to Messina the lie about the
competing job offer. (Tr. 186). 3
3
Plaintiff recalled a telephone conversation with Messina later that evening, in which she
thanked Messina for letting her vent. (Tr. 186-88). As discussed infra, the parties
disputed whether Plaintiff resigned in that conversation.
7
On December 21, 2012, Plaintiff left a message with Dr. Steve Okhravi to
discuss staffing of Insight’s offices for the holidays and other issues. (Tr. 195;
see also Echevarria to S. Okhravi, 12/21/2012, 7:27 a.m.). 4 Plaintiff also
decided to disclose to Dr. Okhravi the harassment to which his brother had
subjected her. (See Tr. 304-05 (noting her prior discomfort with raising to
Dr. Okhravi issues with his brother’s behavior)). Ultimately, Plaintiff had a
phone conversation with Dr. Okhravi on December 22, 2012, but an odd
reference by him to the Pope caused Plaintiff to cut the conversation short after
a brief discussion of the tension between Al Okhravi and Plaintiff at Insight’s
offices on December 19. (Tr. 196-97).
The next day, Plaintiff received a voice mail in which Dr. Okhravi, among
other things, called her “delusional.” (Tr. 198). Plaintiff then texted him
explaining that the reason for her stilted behavior during her meeting with Al
Okhravi on December 19 was “because he had proposed many times to [her]
that [they] have a sexual relationship.” (Tr. 199, 279; see also Echevarria to S.
Okhravi, 12/22/2012, 10:16 a.m.). After exchanging a few more texts, Dr.
Okhravi suggested a meeting with Plaintiff to take place the following week,
and Plaintiff agreed. (Tr. 202; see also S. Okhravi to Echevarria, 12/22/2012,
10:39 a.m.). Within 30 minutes, however, Plaintiff received a call from Stefanie
4
On cross-examination, Plaintiff was questioned about an incident where the
replacement physician’s assistant had related to her a conversation with Al Okhravi in
which he had advised the assistant that Plaintiff “[was not] going to be there with them
for very long.” Plaintiff recalled the incident and explained that this, too, was a reason
for her reaching out to Dr. Okhravi on Saturday morning, December 22, 2012.
(Tr. 274-75).
8
Messina, advising her that her employment had been terminated, effective
immediately; during the course of the call, Dr. Okhravi took the phone from
Messina and reiterated what Messina had said. (Tr. 202-04, 283-84).
Plaintiff testified that during and as a result of her fall 2012 interactions
with Al Okhravi, she was “very stressed.” (Tr. 93). She also noted that she felt
“[d]isgusted, disrespected, [and] degraded” after the December 19 meeting at
Insight’s offices. (Tr. 176; see also Tr. 87, 218). However, on crossexamination, Plaintiff acknowledged that “[t]here was never a time [she]
couldn’t perform [her] duties because of sexual harassment.” (Tr. 269; see also
Tr. 301-02 (noting that her office work environment, apart from her dealings
with Al Okhravi, was not abusive)).
At trial, Plaintiff recalled that she was unemployed for a period of
approximately two months after her termination from Insight. (Tr. 209).
Plaintiff noted that she became “severely depressed,” and had both panic
attacks and a loss of appetite. (Tr. 213). From December 2012 forward,
Plaintiff has also experienced nightmares and flashbacks, including episodes in
which she believed she was followed. (Tr. 217-18). A social worker who began
meeting with Plaintiff in June 2013, Jensy Linares, testified that Plaintiff
presented to her as “nervous, anxious, unable to concentrate, unable to
sleep … not able to really function during the day with her daily activities.”
(Tr. 134). Plaintiff was subsequently diagnosed with post-traumatic stress
disorder and major depressive disorder. (Tr. 137).
9
2.
Defendants’ Case at Trial
Unsurprisingly, Defendants’ witnesses testified to different recollections
of events and different interpretations of their communications with Plaintiff.
Stefanie Messina, Pinnacle’s office manager, recalled a conversation with
Plaintiff on December 18, 2012, during which Plaintiff recounted a fight that
had transpired earlier in the day between herself and Al Okhravi and told
Messina that she (Plaintiff) had resigned. (Tr. 325-26). Indeed, Messina
testified that Plaintiff had asked her (Messina) to tell Dr. Okhravi that she had
quit. (Tr. 326-27; see also Tr. 330 (“she had already made that decision, so she
felt that it should stick”)). 5 Messina advised Dr. Okhravi of Plaintiff’s
resignation the following day, December 19. (Tr. 331). Dr. Okhravi asked
Messina to reach out to Gina Whyte, an employee at an MRI facility to which
Pinnacle had referred its patients, and solicit her interest in the position.
(Tr. 331-32). Whyte met that day with both Okhravi brothers and Messina,
and later in the day accepted the position of Insight’s office manager. (Tr. 33233; see also DX E (offer letter prepared by Messina dated December 19, 2012)).
5
Messina acknowledged on cross-examination that Plaintiff continued to come to work at
Insight for several days following their December 18 telephone conversation. Messina
suggested that “maybe [Plaintiff] was considering her two weeks’ notice.” (Tr. 338; see
also id. (“Initially, she had told me she resigned. And then she was still there, so I
thought she was doing like a two-week notice.”)). Messina was aware that Al Okhravi
had asked Plaintiff to remain at Insight, and reviewed during her cross-examination a
text from Plaintiff indicating, even after December 19, that she (Plaintiff) had decisions
to make regarding her employment.
Messina’s testimony about subsequent events is somewhat muddled. First, Messina
testified that, by December 20, she believed that Plaintiff intended to continue working
at Insight, and that Plaintiff intended to take Al Okhravi up on his offer that she
reconsider. (Tr. 344). However, she later testified as to her belief that Plaintiff “was
going to leave because of her conversations with Al Okhravi.” (Tr. 346).
10
Gina Whyte testified similarly that she received a phone call from
Stefanie Messina on December 19, 2012, discussing a job opportunity that had
arisen because “somebody was leaving.” (Tr. 373-74; see also Tr. 378-79
(recalling on cross-examination that the process of hiring her had been
expedited because “the person was leaving, and I know they needed somebody
there to help”)). Whyte went to Pinnacle’s 42nd Street office later that day; met
with Messina and the Okhravi brothers; and accepted the job offer “that same
night,” with the understanding that she would start on January 3, 2013.
(Tr. 375-76, 378).
Dr. Steve Okhravi testified that Stefanie Messina showed him a
December 18, 2012 text from Plaintiff in which she resigned from Insight,
though the actual text was not produced in discovery or introduced as an
exhibit at trial. (Tr. 389, 456-57; see also Tr. 434 (mentioning Messina
conversation in voice mail to Plaintiff)). He also recalled learning on December
19, 2012, from Al Okhravi that Al’s efforts to convince Plaintiff to remain at
Insight had failed. (Tr. 391-92, 471-72). 6 Consequently, Dr. Okhravi
instructed Stefanie Messina to contact Gina Whyte about the position.
(Tr. 393-94). He participated in Whyte’s interview later that day, and
ultimately offered her Plaintiff’s position as office manager at Insight. (Tr. 39496).
6
Dr. Okhravi understood, however, that Plaintiff continued to come to work after
December 18. (Tr. 426).
11
For the first time on December 22, 2012, Plaintiff advised Dr. Okhravi
that his brother had sent her inappropriate text messages. (Tr. 428, 430). He
responded by asking her for the texts, which he never received. (Tr. 431-32).
Dr. Okhravi scheduled a meeting with Plaintiff to discuss her concerns, but the
meeting did not take place because of what Dr. Okhravi termed “a series of
events.” (Tr. 435; see also id. (“[Plaintiff] resigned, and there was no
relationship, and it never happened.”); Tr. 480-84 (acknowledging that he had
scheduled a meeting to discuss Plaintiff’s allegations of harassment, but then
canceled the meeting because Plaintiff had not immediately sent him the text
messages)). Instead, Dr. Okhravi instructed Messina to call Plaintiff “and tell
her she does not need to come in to fulfill her remaining two weeks.” (Tr. 436).
At trial, Dr. Okhravi repeatedly testified to his understanding — even
while reviewing several equivocal emails from Plaintiff — that Plaintiff had quit
on December 18, and that any time that she had worked at Insight after that
date was in fulfillment of her obligation to give two weeks’ notice. (See, e.g.,
Tr. 466, 474-75). Dr. Okhravi also maintained that Plaintiff’s employment
terminated on December 18, even as he conceded that his brother had spoken
at length with Plaintiff on December 19 to convince her to remain with the
company. (Tr. 486-87).
The final witness at trial was Defendant Al Okhravi. Okhravi handled
the “big things” at Insight, e.g., accounts payable, payroll, finance, accounting,
and information technology. (Tr. 511). He traveled from Virginia to New York
12
biweekly, and later weekly, to perform tasks for Insight and Pinnacle. (Tr. 51213). He echoed testimony from Plaintiff and from Dr. Okhravi concerning
Plaintiff’s earlier, two-month stint working at Insight in early 2008; of
significance, Al Okhravi testified that when Plaintiff resigned from Insight in
2008, she gave two weeks’ notice. (Tr. 517).
Al Okhravi had a different recollection from Plaintiff of his December 18
conversation/argument with her. According to him, the two discussed staffing
(including the above-described problems occasioned by the lapse in insurance
coverage for the physician’s assistant), and argued over his decision to keep
Insight’s offices open on Christmas Eve. (Tr. 535-38). According to Okhravi,
Plaintiff quit in the course of that conversation, which he considered to be an
overreaction to their dispute and which prompted him to send several texts
asking her to stay with Insight. (Tr. 538, 540-45, 549).
At trial, Okhravi interpreted a text from Plaintiff that post-dated the
meeting, in which Plaintiff mentioned “a choice” that she would have to make
concerning her future employment, as a resignation. (Tr. 546). He testified
that he exchanged additional texts with Plaintiff, trying to calm her down and
reconsider, which culminated in a face-to-face meeting at Insight’s offices on
December 19. (Tr. 548-52). Okhravi testified that Plaintiff’s texts suggested
that “would not change her mind, basically,” about leaving. (Tr. 552-53).
Okhravi testified that at the December 19 meeting, he offered to increase
Plaintiff’s salary, and pressed her for an immediate decision, to which she
13
replied “I am leaving.” (Tr. 554-55; see also Tr. 557-58 (surmising that text
sent later that day by Plaintiff checking in on him was because she was
concerned about his reaction to her resignation)). After the meeting, Okhravi
advised his brother that Plaintiff was “not staying,” and commenced the search
for a replacement, resulting in an offer being made to Gina Whyte later that
day. (Tr. 555-57).
Al Okhravi testified that while he was aware that Plaintiff had come to
work after December 19, he believed that it was part of the two weeks’ notice
she had given. (Tr. 559). However, Okhravi was confronted with texts he had
sent to Plaintiff after her purported resignation about remaining with Insight,
including a text on the evening of December 19 in which he indicated to her
that she had a “secure job.” (Tr. 603). Okhravi was also presented at trial with
his deposition testimony, where he had testified that Plaintiff sought a few days
after December 19 to make a final decision concerning her job; he explained at
trial that her request had been rejected because he needed an “immediate
answer.” (Tr. 608-10). According to Okhravi, by the time he received Plaintiff’s
text that she would not “leave [Insight] at a time like this,” he and his brother
had already hired her replacement. (Echevarria to A. Okhravi, 12/20/2012,
6:44 p.m.).
C.
Defendants’ Mid-Trial Motions and the Verdict
At the close of Plaintiff’s case, Defendants moved for judgment as a
matter of law under Federal Rule of Civil Procedure 50(a). (Tr. 305-19). Among
14
other things, Defendants argued that (i) Plaintiff had failed to prove her aiding
and abetting claim under the NYCHRL against Dr. Steve Okhravi or Al Okhravi,
although for different reasons as to each; (ii) Plaintiff had failed to present
evidence of unwelcome conduct that was sufficiently severe or pervasive that it
altered the conditions of employment; and (iii) Plaintiff had failed to prove that
Insight employed 15 or more persons. The Court reserved decision on the
motions.
On June 30, 2014, the jury returned a verdict finding that Plaintiff had
not proven her discrimination claims, but had proven her retaliation claims,
under Title VII (as to Insight) and the NYCHRL (as to Insight, Dr. Steve
Okhravi, and Al Okhravi). (Dkt. #54). It awarded her $50,000 in compensatory
damages against Insight Medical only, and nothing in punitive damages.
D.
Defendants’ Post-Trial Motions
On August 21, 2014, Defendants filed a motion for judgment as a matter
of law and, in the alternative, for a new trial or remittitur of the damages
award, as well as a motion for attorneys’ fees. (Dkt. #65, 67). In the former,
Defendants argued that (i) Insight did not qualify as an employer under Title
VII or the NYCHRL; (ii) Plaintiff had failed to demonstrate that she engaged in a
protected activity, as required to support a finding of unlawful retaliation, or
that she was an employee at the time of the alleged retaliatory conduct;
(iii) Plaintiff had failed to present evidence of retaliation, inasmuch as she had
failed to rebut Defendants’ non-retaliatory reason for her termination and failed
15
to demonstrate a causal connection between the proffered protected activity
and her termination; (iv) the jury’s verdict was excessive; and (v) a new trial
was warranted. (Dkt. #66). 7
In reviewing Defendants’ post-trial motions, the Court determined that
the issue of whether Insight had a sufficient number of employees to be subject
to the NYCHRL and Title VII was not, as the parties had believed, a
jurisdictional issue for the Court’s determination, but rather was an element of
each offense that should have been presented to the jury. See Arbaugh v.
Y & H Corp., 546 U.S. 500, 516 (2006) (“the threshold number of employees for
application of Title VII is an element of a plaintiff’s claim for relief, not a
jurisdictional issue”). By Order dated October 6, 2014, the Court requested
supplemental briefing from the parties on whether this employee-numerosity
issue had been waived or forfeited by the parties by their failures to request a
jury charge in this regard; whether the parties wished now to have the Court
decide the issue; and whether a new trial was warranted. (Dkt. #80). A
conference with the parties to discuss these issues was then held on November
20, 2014. Ultimately, the parties waived their right to have the jury decide the
7
Defendants timely filed a notice of motion for attorneys’ fees and costs as a “partially
prevailing” parties, but failed to file a memorandum in support of that motion until
several weeks later. By Order dated September 3, 2014, the Court rejected the
untimely supporting memorandum. (Dkt. #73). As a practical matter, this rejection
has little effect; Plaintiff filed a memorandum in opposition to the motion to which
Defendants replied, ensuring that their arguments were before the Court. (Dkt. #77,
79).
16
issue, and agreed instead to have the issue decided by the Court. (Dkt. #81,
86).
DISCUSSION
A.
Defendants’ Are Not Entitled to Judgment as a Matter of Law
1.
Applicable Law
Rule 50 “imposes a heavy burden on a movant, who will be awarded
judgment as a matter of law only when ‘a party has been fully heard on an
issue during a jury trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party on that issue.’”
Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Fed. R. Civ.
P. 50(a)(1)); accord Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119,
127-28 (2d Cir. 2012). The “burden is particularly heavy where, as here, the
jury has deliberated in the case and actually returned its verdict in favor of the
non-movant.” Cash, 654 F.3d at 333 (internal quotation marks omitted). In
such circumstances, a court may set aside the verdict only if, viewing the
evidence in the light most favorable to the non-movant, “there exists such a
complete absence of evidence supporting the verdict that the jury’s findings
could only have been the result of sheer surmise and conjecture, or the
evidence in favor of the movant is so overwhelming that reasonable and fair
minded persons could not arrive at a verdict against it.” Id. (internal quotation
marks omitted); accord Stampf v. Long Island R. Co., 761 F.3d 192, 197-98 (2d
Cir. 2014); see also, e.g., Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir.
17
2007) (stating that a Rule 50 motion may be granted only if the court
concludes that “a reasonable juror would have been compelled to accept the
view of the moving party” (internal quotation marks omitted)).
In deciding a motion under Rule 50, the Court must disregard any
evidence that weighs against the jury’s verdict unless the jury was required to
believe it. Zellner, 494 F.3d at 370 (citing Reeves v. Sanderson Plumbing, 530
U.S. 133, 150-51 (2000)). The jury is required to believe the testimony of
unimpeached, disinterested, uncontradicted, and plausibly credible witnesses.
See, e.g., Reeves, 530 U.S. at 151. The question is whether, if credibility
assessments are made against the moving party and all reasonable inferences
are drawn against the moving party, a reasonable jury nevertheless would have
no choice but to find in the movant’s favor. Zellner, 494 F.3d at 370-71 (citing
Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993)).
2.
Several of Defendants’ Claims Are Not Properly Raised
Under Fed. R. Civ. P. 50(b)
As a preliminary matter, both parties are correct that Defendants are
“limited to those grounds that were specifically raised” in Defendants’ motion
pursuant to Fed. R. Civ. P. 50(a). (Compare Def. Br. 3 (internal quotation
marks and citation omitted), with Pl. Opp. 4). More pointedly, however,
Plaintiff is correct that several of the claims advanced in Defendants’ current
new trial motion were not raised in their Rule 50(a) motion. (Pl. Opp. 4). In
particular, Defendants failed to raise before submission of the case to the
jury — and thus cannot raise now — their arguments that (i) Plaintiff failed to
18
demonstrate that Insight was a qualifying employer (based on the number of
persons employed) under the NYCHRL; (ii) Plaintiff was not an employee at the
time of the alleged retaliatory conduct (i.e., because she had resigned on
December 18); and (iii) Plaintiff failed to prove her claims of retaliation because
she failed to rebut the non-discriminatory reason proffered by Defendants’ for
her termination (i.e., that she had been terminated from Insight because the
company had already hired Gina Whyte to replace her upon learning of her
resignation). 8
In response, Defendants contend that the issue of Plaintiff’s employee
status vel non was raised “[t]hroughout trial and during several sidebars,” and
further note that “the Court went to great lengths to understand the arguments
and it was clear Defendants put forth two arguments,” including an argument
that Defendants had a non-retaliatory reason for terminating her employment.
(Def. Reply 1). While Defendants correctly cite the trial record, they
misperceive the legal significance of these facts. It is plainly not the case that
every argument advanced during trial can be renewed in a Rule 50(b) motion.
Rather, as the Second Circuit has confirmed:
Under Rule 50(a), a motion for judgment as a matter of
law must first be made before the case is submitted to
the jury, and renewed following the verdict pursuant to
Rule 50(b). The law is pellucid that a party’s failure to
move under Rule 50(a) has consequences. If that party
later moves under Rule 50(b), the standard for granting
judgment as a matter of law is elevated, and the motion
may not properly be granted by the district court, or
8
As it happens, Defendants’ unpreserved claims also fail on the merits, as discussed
infra.
19
upheld on appeal, except to prevent manifest injustice.
Manifest injustice exists where a jury’s verdict is wholly
without legal support.
ING Global v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97 (2d Cir.
2014) (internal citations omitted); Lore v. City of Syracuse, 670 F.3d 127, 153
(2d Cir. 2012) (“As to any issue on which proper Rule 50 motions were not
made, JMOL may not properly be granted by the district court, or upheld on
appeal, or ordered by the appellate court unless that action is required in order
to prevent manifest injustice.” (citations omitted)). Defendants have not, and
cannot, demonstrate manifest injustice on this record. The parties’ arguments
with regard to the evidence arguments were made — fully and repeatedly — to
the jury. Each side could point to evidence in the trial record to support its
arguments; the jury’s verdict was therefore not against the weight of the
evidence, and certainly did not constitute a manifest injustice.
3.
Insight Qualified as an Employer Under the NYCHRL
and Title VII
Defendants’ principal argument in favor of judgment as a matter of law is
that Insight lacked a sufficient number of employees to implicate either the
NYCHRL or Title VII. The parties agreed after trial that the Court, and not the
jury, could decide this issue. For the reasons set forth below, Plaintiff satisfied
the employee-numerosity thresholds of both the NYCHRL and Title VII.
a.
The Evidence at Trial
At trial, Plaintiff acknowledged that she was employed from 2008 to 2012
by Insight, and not by Pinnacle. (Tr. 221). Plaintiff recalled that there were
20
two physician’s assistants, two medical assistants, one scanner, and herself
working at Insight, as well as Dr. Steve Okhravi. (Tr. 53, 226; see also Tr. 53233 (testimony of Al Okhravi that Insight typically employed a physician’s
assistant, two medical assistants, one office manager, and occasionally one
scanner)). Plaintiff further recalled that at least three people were present at
each Pinnacle office during the 24 hours of its operation, and believed that,
aggregating personnel at both Pinnacle and Insight, the Okhravis employed
“more than 15” people. (Tr. 59-60).
Plaintiff also presented evidence suggesting joint or integrated operation
of Insight and Pinnacle. For instance, Plaintiff testified that she assisted the
staff at Pinnacle’s Chambers Street office in setting up that office, and that she
worked for one day at Pinnacle’s 42nd Street office. (Tr. 61). She also worked
closely with the office manager of the two Pinnacle offices, Stefanie Messina.
(Tr. 77-78; see also Tr. 81-82 (discussing frequency of interactions with
Pinnacle personnel)). She would send supplies, including vaccines, from
Insight to Pinnacle, and would receive supplies, including suture kits, from
Pinnacle. (Tr. 61-62). Plaintiff understood that both companies used the same
supply company, and that Al Okhravi would sometimes order supplies for both
entities at once. (Tr. 62, 225; see also PX 4 (emails in which Insight is referred
to as “the Bronx” or “the Bronx Office” to distinguish it from Pinnacle’s two
offices)).
21
Plaintiff was given both an Insight and a Pinnacle email address. (PX 4;
Tr. 71-73; see also Tr. 442 (testimony of Dr. Steve Okhravi that certain
employees, “on a discretionary basis,” were given email addresses at both
companies)). She recalled that she could access electronic medical records for
Insight patients at Pinnacle’s offices, though the passwords for the Insight and
Pinnacle systems differed. (Tr. 83).
On the issue of sharing employees, Plaintiff recalled that Insight’s
physician’s assistant, Ricardo Fisher, would sometimes work at Pinnacle’s
offices, and that several of Pinnacle’s physician’s assistants, including Chinwe
Nduka, would cover for Fisher in situations in which Insight could not
otherwise secure coverage. (Tr. 63; but see Tr. 450 (testimony of Dr. Okhravi
that Nduka “never worked at Pinnacle”)). She also recalled that certain
administrative personnel, including Erica Gonzalez, worked at both entities.
(Tr. 63). Plaintiff assisted in providing coverage to Pinnacle, but did not
“manage[] the staff” there. (Tr. 224).
According to Plaintiff, Insight employees who worked at Pinnacle were
not separately compensated by Pinnacle. (Tr. 64 (testifying that she knew the
employees were paid by Insight “[b]ecause I was the one that gave the checks to
the employees”)). Plaintiff never received additional compensation for the work
that she performed at either Pinnacle office. (Tr. 61).
Finally, Plaintiff recalled that Al Okhravi’s management duties extended
to, and were exercised at the same time across, all three medical offices. (See,
22
e.g., Tr. 78-80; see also Tr. 511, 519-20 (testimony of Al Okhravi that he
handled finance, payroll, information technology, accounts payable, and
supplies for both Insight and Pinnacle)).
Defendants’ witnesses sought to highlight the differences — legal and
practical — between the Insight and Pinnacle entities. Dr. Steve Okhravi
pointed out in his direct testimony that Insight and Pinnacle were two different
corporate entities, offering different types of medical services. (Tr. 382-84). He
recalled that Insight had four employees, while Pinnacle had more, and that
employees were paid by the particular entity at which they worked. (Tr. 384).
The two companies had separate e-mail systems, and while they used the same
company to maintain their electronic medical records, they used separate
account numbers for each company. (Tr. 385; see also Tr. 524-25 (testimony
of Al Okhravi)).
On cross-examination, Dr. Okhravi conceded that medical assistants
were transferred between companies “on an emergency basis,” and that
Insight’s physician’s assistant performed work for Pinnacle “when they are not
working at Insight.” (Tr. 445-46). He recalled, however, that “they were paid
based on that location’s payroll.” (Tr. 447; but see Tr. 449 (discussion of email
in which Pinnacle employee was working at Insight, but where request was
made to “add this to his Pinnacle time sheet”)). Dr. Okhravi also acknowledged
that Stefanie Messina performed tasks for both entities, but explained that she
was his “right-hand person,” and that at times he “delegate[d] responsibilities
23
for both Pinnacle and Insight” to her. (Tr. 452). Later in his crossexamination, Dr. Okhravi conceded that, when and as needed, he “move[d]
resources from one entity to the other.” (Tr. 453).
Al Okhravi testified that he performed similar duties for Pinnacle and
Insight, and worked for both companies “on a regular basis.” (Tr. 574). He
received a share of the profits from Insight, and a straight salary from Pinnacle.
(Tr. 574-75). When possible, Okhravi would perform his duties for both
companies at the same time. (Tr. 576-77 (“If it is — if it is not against the law
and illegal, yes.”)).
Okhravi recalled that Pinnacle had 10-12 full-time employees, and,
including part-time employees, 14-15 employees in 2012. (Tr. 572-73). Insight
had four full-time employees in that year. (Tr. 573). Employees of one
company would occasionally be posted to another company if there were
problems with staffing; Okhravi testified that these employees would be paid
extra, but conceded that they might sometimes receive that additional payment
from the company for which they regularly worked (rather than the company to
which they had been posted). (Tr. 578-80). Okhravi also testified that
employees from both companies were invited to Pinnacle’s holiday party.
(Tr. 580-81).
b.
Applicable Law
i.
The NYCHRL
The NYCHRL defines, as one of several unlawful discriminatory practices,
24
For an employer or an employee or agent thereof,
because of the actual or perceived age, race, creed,
color, national origin, gender, disability, marital status,
sexual orientation or alienage or citizenship status of
any person, to refuse to hire or employ or to bar or
discharge from employment such person or to
discriminate against such person in competition or in
terms, conditions or privileges of employment.
N.Y.C. Admin. Code § 8-107(1)(a). As amended by the Local Civil Rights
Restoration Act of 2005, N.Y.C. Local L. No. 85, all provisions of the NYCHRL
shall be construed liberally for the accomplishment of
the uniquely broad and remedial purposes thereof,
regardless of whether federal or New York State civil and
human rights laws, including those laws with
provisions comparably-worded to provisions of this title
have been so construed.
Id. § 8-130; see also Albunio v. City of New York, 16 N.Y.3d 472, 477-78 (2011)
(requiring that all provisions of the NYCHRL be construed “broadly in favor of
discrimination plaintiffs, to the extent that such a construction is reasonably
possible”); see generally Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
F.3d 102, 109-10 (2d Cir. 2013).
The NYCHRL does not so much define what a qualifying employer is as
what it is not: it excludes from the term’s reach “any employer with fewer than
four persons in his or her employ.” N.Y.C. Admin. Code § 8-102(5); see
generally Robins v. Max Mara, U.S.A., Inc., 923 F. Supp. 460, 470 (S.D.N.Y.
1996); Krohn v. N.Y.C. Police Dep’t, 2 N.Y.3d 329, 334 (2004). And in contrast
to other anti-discrimination statutes, such as Title VII, the statute speaks not
of employees, but of “persons,” defined to include “one or more natural
persons, proprietorships, partnerships, associations, group associations,
25
organizations, governmental bodies or agencies, corporations, legal
representatives, trustees, trustees in bankruptcy, or receivers.” N.Y.C. Admin.
Code § 8-102(1).
ii.
Title VII
Title VII imposes liability for employment discrimination only on an
“employer,” which is defined by the statute as “a person engaged in an industry
affecting commerce who has fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding calendar
year, and any agent of such a person.” 42 U.S.C. § 2000e(b). Notably,
however, “[t]he definition of ‘employer’ has been construed liberally for Title VII
purposes and does not require a direct employer/employee relationship.” Lima
v. Addeco, 634 F. Supp. 2d 394, 399 (S.D.N.Y. 2009) (citations omitted); see
also Gulino v. N.Y. Educ. Dep’t, 460 F.3d 361, 378-79 (2d Cir. 2006) (holding
that courts should apply “traditional indicators of employment under the
common law of agency” in determining whether an entity is a plaintiff’s
employer under Title VII).
For statutes such as Title VII, where Congress uses the term “employee”
without specifically defining it, the Supreme Court has directed courts to
presume that Congress had in mind “‘the conventional master-servant
relationship as understood by the common-law agency doctrine.’” Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (quoting Cmty. for Creative
26
Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989)). 9 And in Clackamas
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 (2003), the Court
confirmed that “the common-law element of control is the principal guidepost
that should be followed” — in that case, in determining whether a shareholder
of a professional corporation was an “employee” under the anti-discrimination
statutes. The Court further focused the inquiry to consider “whether the
individual acts independently and participates in managing the organization, or
whether the individual is subject to the organization’s control.” Id. at 449. 10
9
In Reid, the Court culled 13 factors from federal case law and the RESTATEMENT (SECOND)
OF AGENCY for courts to consider in determining whether a “hired party” is an employee
for purposes of the Copyright Act:
[i] the hiring party’s right to control the manner and means by
which the product is accomplished ... [;][ii] the skill required;
[iii] the source of the instrumentalities and tools; [iv] the location
of the work; [v] the duration of the relationship between the parties;
[vi] whether the hiring party has the right to assign additional
projects to the hired party; [vii] the extent of the hired party’s
discretion over when and how long to work; [viii] the method of
payment; [ix] the hired party’s role in hiring and paying assistants;
[x] whether the work is part of the regular business of the hiring
party; [xi] whether the hiring party is in business; [xii] the provision
of employee benefits; and [xiii] the tax treatment of the hired party.
490 U.S. at 751-52 (footnotes omitted)
10
The six factors set forth in Clackamas to determine whether a shareholder is an
employee include: (i) “whether the organization can hire or fire the individual or set the
rules and regulations of the individual’s work”; (ii) “whether and, if so, to what extent
the organization supervises the individual’s work”; (iii) “whether the individual reports
to someone higher in the organization”; (iv) “whether and, if so, to what extent the
individual is able to influence the organization”; (v) “whether the parties intended that
the individual be an employee, as expressed in written agreements or contracts”; and
(vi) “whether the individual shares in the profits, losses, and liabilities of the
organization.” 538 U.S. at 450-51 (quoting EEOC Compliance Manual § 605:0009).
The Court made clear, however, that “these six factors need not necessarily be treated
as ‘exhaustive,’” and, further, that “[t]he answer to whether a shareholder-director is an
employee or an employer cannot be decided in every case by a ‘shorthand formula or
magic phrase.’” Id. at 450 n.10 (quotations and citations omitted).
Prior to Clackamas, the Second Circuit had articulated a three-factor test that
considered “[i] whether the [executive] has undertaken traditional employee duties;
[ii] whether the [executive] was regularly employed by a separate entity; and [iii] whether
27
Even part-time workers can qualify as “employees” under Title VII. See
Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997) (adopting the
“payroll method,” by which a court calculates the number of employees who are
on the payroll for each day of a given week regardless of whether they were
actually present at work each day, to determine whether an employer has
reached Title VII’s threshold number); see also Aly v. Mohegan Council, Boy
Scouts of America, 711 F.3d 34, 44-45 (1st Cir. 2013).
iii.
Aggregation of Employees Under the NYCHRL
and Title VII
Finally, courts have allowed plaintiffs raising claims under both the
NYCHRL and Title VII to aggregate employees of different entities in order to
satisfy the numerosity requirement, pursuant to what has come to be known
as the “single employer” (or “single integrated employer”) and the “joint
employer” doctrines. See generally Turley v. ISG Lackawanna, Inc., — F.3d —,
No. 13-561, 2014 WL 7172061, at *9 (2d Cir. Dec. 17, 2014) (collecting cases);
Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193, 197-98 (2d Cir. 2005);
Strauss v. N.Y. Dep’t of Educ., 805 N.Y.S.2d 704, 707-08 (3d Dep’t 2005). 11
the [executive] reported to someone higher in the hierarchy.” E.E.O.C. v. Johnson &
Higgins, Inc., 91 F.3d 1529, 1539 (2d Cir. 1996); see also id. at 1539-40 (holding that
directors of an insurance brokerage firm were employees for purposes of the ADEA
because each performed traditional employee duties, worked full-time for the firm, and
reported to senior members of the firm). Even after Clackamas, the Second Circuit has
occasionally employed the Johnson & Higgins test. See, e.g., Frederick v. United Broth.
of Carpenters and Joiners of America (UBCJA) Local 926, 558 F. App’x 83, 85 (2d Cir.
2014) (summary order).
11
At least one court has recognized that the Second Circuit in Gulino appeared to conflate
the two doctrines into a “single or joint employer” test, despite having previously
distinguished them in cases like Arculeo. Dupree v. Urban Homesteading Assistance Bd.
Sterling St. Housing Dev. Fund Corp., No. 10 Civ. 1894 (JG)(JO), 2011 WL 1343163, at
28
Under the “single employer” doctrine, liability may be found “when two
nominally separate entities are part of a single integrated enterprise.” Lima,
634 F. Supp. 2d at 399-400 (quoting Arculeo, 425 F.3d at 198 (internal
quotation marks omitted)); see also Gulino, 460 F.3d at 378 (considering the
“[i] interrelation of operations, [ii] centralized control of labor relations,
[iii] common management, and [iv] common ownership or financial control”).
The single employer doctrine allows a plaintiff to hold a party liable
where there is “sufficient indicia of an interrelationship between the immediate
corporate employer and the affiliated corporation to justify the belief on the
part of an aggrieved employee that the affiliated corporation is jointly
responsible for the acts of the immediate employer.” Chin-McKenzie v.
Continuum Health Partners, 876 F. Supp. 2d 270, 294 (S.D.N.Y. 2012) (internal
citations omitted). The most common example of a “single employer” or “single
integrated entity” is a parent and a wholly owned subsidiary. Arculeo, 425 F.3d
at 198; see also Lima, 634 F. Supp. 2d at 399-400 (“Single integrated
enterprises can include parent and wholly-owned subsidiary corporations or
separate corporations that operate under common ownership and
management.”). The critical question in this analysis is “what entity made the
final decision regarding employment matters related to the person claiming
*6 n.9 (E.D.N.Y. Apr. 8, 2011); cf. Arculeo, 425 F.3d at 198 (“The labeling can be
deceptive because the terms are used in numerous contexts, such as union
representation, responsibility for violations of the Fair Labor Standards Act, and, as
here, Title VII liability. Notwithstanding the same label and some core similarities
between those contexts, the doctrines might differ significantly in different contexts.”).
Similar to the Dupree Court, this Court distinguishes the two doctrines.
29
discrimination?” Velez v. Novartis Pharm. Corp., 244 F.R.D. 243, 250 (S.D.N.Y.
2007) (citation omitted); see also id. (“The four-factor test may be satisfied ‘by a
showing that there is an amount of participation that is sufficient and
necessary to the total employment process, even absent total control or
ultimate authority over hiring decisions.’” (quoting Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir. 1995))).
“In contrast to the single employer theory, joint employment ‘assumes
that [there] are separate legal entities, but that [the entities] handle certain
aspects of their employer-employee relationship jointly.’” Dias v. Cmty. Action
Project, Inc., No. 07 Civ. 5163, 2009 WL 595601, at *3 (E.D.N.Y. Mar. 6, 2009)
(alterations in original). 12 Under this doctrine, liability may be found when
“separate legal entities have chosen to handle certain aspects of their employeremployee relationships jointly.” Lima, 634 F. Supp. 2d at 400 (quoting Gore v.
RBA Grp., Inc., No. 03 Civ. 9442 (KMK), 2008 WL 857530, at *3 (S.D.N.Y.
Mar. 31, 2008)). “Where this doctrine is operative, an employee, formally
employed by one entity, who has been assigned to work in circumstances that
justify the conclusion that the employee is at the same time constructively
employed by another entity, may impose liability for violation of employment
law on the constructive employer, on the theory that this other entity is the
employee’s joint employer.” Arculeo, 425 F.3d at 198.
12
For this reason, under the joint employer theory, “only the employees who are jointly
employed can be aggregated for Title VII purposes.” Ingenito v. Riri USA, Inc., No. 11
Civ. 2569 (MKB), 2013 WL 752201, at *5 n.3 (S.D.N.Y. Feb. 27, 2013) (citing Dias, 2009
WL 595601, at *3).
30
The Second Circuit has “not yet fully analyzed or described a test for
what constitutes joint employment in the context of Title VII.... The indicia
suggesting a conclusion of joint employment may vary depending on the
purpose of the inquiry.” Arculeo, 425 F.3d at 199 n.7 (citing Zheng v. Liberty
Apparel Co., Inc., 355 F.3d 61, 72 (2d Cir. 2003)). The Zheng case, which arose
under the Fair Labor Standards Act, considered
[i] whether [defendant’s] premises and equipment were
used for the plaintiffs’ work; [ii] whether the Contractor
Corporations had a business that could or did shift as
a unit from one putative joint employer to another;
[iii] the extent to which plaintiffs performed a discrete
line-job that was integral to [defendant’s] process of
production; [iv] whether responsibility under the
contracts could pass from one subcontractor to another
without material changes; [v] the degree to which the [ ]
Defendants or their agents supervised plaintiffs’ work;
and [vi] whether plaintiffs worked exclusively or
predominantly for the [ ] Defendants.
Zheng, 355 F.3d at 72. Other factors suggested have included “commonality of
hiring, firing, discipline, pay, insurance, records, and supervision.” NLRB v.
Solid Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir. 1994) (per curiam).
c.
Discussion
Plaintiff testified that during her tenure at Insight, the company
employed four persons, separate and apart from Al and Steve Okhravi. (Tr. 53,
226). Both Okhravis corroborated Plaintiff’s testimony, noting that Insight
typically employed four to five persons. (See Tr. 384 (Dr. Steve Okhravi
testifying that “Insight Medical is set up [with] two medical assistants, [a]
physician’s assistant and a lead person, office manager.”); Tr. 532-33 (Al
31
Okhravi testifying that Insight Medical employed one office manager, one
physician’s assistant, two medical assistants, and occasionally a part-time
scanner)).
In their motion papers, Defendants advance somewhat contradictory
arguments: While describing Insight in their papers as a “small operation
consisting of four full[-]time employees” (Def. Br. 6), Defendants nonetheless
claim that Insight was not subject to the NYCHRL because, at the exact
moment that Plaintiff stopped working at Insight, the company employed only
“one employee — a medical assistant” (id.; see also Tr. 105, 204-05, 285
(referring to a medical assistant named “Monica”)). Plaintiff responds that the
latter figure overlooks a number of temporary and permanent Insight
employees, including Plaintiff herself. (Pl. Opp. 7-8).
As previously discussed, Defendants’ current challenge to Insight’s
status as a qualifying employer under the NYCHRL is procedurally improper.
During their mid-trial motions, Defendants challenged Insight’s status under
Title VII, but not under the NYCHRL. (Tr. 314 (arguing that “the plaintiff hasn’t
established that there are 15 or more employe[e]s”)). For completeness,
however, the argument and its deficiencies are discussed in this section.
Resolution of the employee-numerosity requirement under either statute
begins with identifying those Insight employees whose status is beyond
dispute. They include, first, the medical assistant identified at trial as
“Monica.” Second is Plaintiff — who, contrary to Defendants’ arguments, was
32
Insight’s office manager and employee during the relevant time period. Third is
the medical assistant Erica Gonzalez; while there was testimony at trial about
the possibility of firing her in late 2012, Gonzalez testified at trial that she was
employed at Insight for a five-year period that ended in May 2014. (Tr. 397).
There are other persons who, in fairness, ought to be deemed Insight
employees during the relevant period, but whose status is slightly less clear.
The parties agreed at trial that Insight had a fourth employee during the
relevant time period, namely, a physician’s assistant. Until the end of 2012,
that position was held by Ricardo Fisher; shortly before Plaintiff’s termination,
the position was assumed by Robert Brugna. (Tr. 101). Particularly in light of
(i) the expansive reading accorded to the NYCHRL, (ii) the absence of temporal
restrictions on the numerosity requirement, and (iii) the preponderance
standard under which this issue is decided, Fisher/Brugna should count as
the fourth person under the NYCHRL. However, in light of Brugna’s part-time
status and the brevity of his time at Insight, the issue is not free from doubt. 13
13
Before Brugna’s hiring, Defendants transferred physician’s assistants from Pinnacle to
Insight, the significance of which is discussed later in this section. In addition,
Defendants hired physician’s assistants from a temporary employment agency.
(Tr. 244). Plaintiff argues that the Court may consider the contract employees in
ascertaining whether Insight met the statutory threshold (Pl. Opp. 7), but such a
conclusion is not at all clear. Under the NYCHRL, “natural persons employed as
independent contractors to carry out work in furtherance of an employer’s business
enterprise who are not themselves employers shall be counted as persons in the employ
of such employer.” N.Y.C. Admin. Code § 8-102(5); see generally Fowler v. Scores
Holding Co., 677 F. Supp. 2d 673, 680 (S.D.N.Y. 2009). However, at least one court has
found persons employed by a temporary agency not to qualify as “persons” under this
definition. O’Neill v. Atlantic Sec. Guards, Inc., 671 N.Y.S.2d 976, 976 (1st Dep’t 1998)
(excluding independent contractors who are employed by corporations).
33
According to Plaintiff, Defendants Al and Steve Okhravi should also be
included as employees because of their managerial and/or supervisory
responsibilities at Insight. (Pl. Opp. 8). This contention, however, overlooks
the legal framework outlined above. Analyzing the issue under either the
Clackamas or the Johnson & Higgins factors, Dr. Steve Okhravi would appear
to have too much control and seniority to count as an employee. Cf. Drescher
v. Shatkin, 280 F.3d 201, 204 (2d Cir. 2002) (holding that president, who was
the sole director and sole shareholder of corporation, and who dominated
affairs of business to such an extent as to be “in control of the very policies and
actions of which [employees] would be complaining,” was not an “employee” for
purposes of determining Title VII applicability). The status of Al Okhravi is a
closer call: Using the Johnson & Higgins factors, Al Okhravi undertook
traditional employee duties; worked for Insight (and Pinnacle); and reported to
someone higher in the hierarchy (his brother, Steve), all of which counsel in
favor of finding him to be an employee of Insight. (See Tr. 509-14). Using the
Clackamas factors, Al Okhravi reported to his brother, but was otherwise very
senior in the Insight organization; he was able to influence the organization;
and he received a share of the profits (rather than a straight salary) from
Insight, all of which counsel against finding him to be an employee of Insight.
(Tr. 574-75).
Counting noses at Insight thus results in three definitely-qualifying
employees, one highly-likely-to-be-qualifying employee, and one perhaps34
qualifying employee. That, however, is not the end of the inquiry. On the facts
of this case, Plaintiff is permitted to consider Pinnacle employees. Using a joint
employer analysis, Plaintiff was permitted to consider Stefanie Messina, who
was jointly employed by both Pinnacle and Insight. Messina’s status as a joint
employee was confirmed by testimony of Steve Okhravi, who “delegate[d]
responsibilities for both Pinnacle and Insight” to her (Tr. 452), and by Plaintiff,
who testified to the frequency of their communications concerning
management of the Manhattan and Bronx medical offices (Tr. 77-79). Notably,
Messina was the employee who reached out to Gina Whyte to arrange for the
latter’s interview for the position of office manager at Insight (Tr. 331-33);
Messina signed the offer letter to Whyte on behalf of Insight as its “Practice
Administrator” (DX E); and Messina related to Plaintiff that her employment at
Insight had been terminated (Tr. 349-50, 435-36).
More fundamentally, the evidence at trial made clear that Insight and
Pinnacle were jointly run as a single integrated employer, thereby satisfying
even the higher, 15-employee threshold of Title VII. (See Tr. 572-73 (testimony
of Al Okhravi that, in 2012, Pinnacle had 10-12 full-time employees, and with
part-time employees had 14-15 employees)). While the corporate formalities
between the organizations were respected when it proved beneficial (such as,
for example, the filing of separate tax returns, see Tr. 444-45), in practice the
formalities were often ignored. Al Okhravi performed substantively identical
managerial duties for Pinnacle and Insight, and worked for both companies “on
35
a regular basis.” (Tr. 574). Indeed, Okhravi acknowledged that “if it is not
against the law and illegal,” he would perform his duties for both companies at
the same time. (Tr. 577). It is neither, but it is a basis on which to find
integration of operations. Stefanie Messina also performed duties for both
companies, as detailed above. And Plaintiff testified to providing periodic
assistance to Pinnacle, for which she was not separately compensated by
Pinnacle. (Tr. 60-61). Plaintiff was given email addresses for both entities, and
was permitted to access Insight patient records at either location. (Tr. 83).
Additional to the symbiotic managerial relationship between and among
Al Okhravi, Plaintiff, and Messina was the fact that Insight and Pinnacle
shifted personnel and supplies between them as needed. The employees
included both administrative personnel, such as Erica Gonzalez, as well as
Insight’s and Pinnacle’s physician’s assistants, whose presence was necessary
for patients to be seen at the respective offices. (Tr. 63-64). Plaintiff testified,
though Defendants disputed, that Insight employees who worked at Pinnacle
were paid for such work by Insight, and that Pinnacle employees who worked
at Insight were not separately paid by Insight, because “[she] was the one that
was in charge of getting the paychecks at Insight.” (Tr. 64). Plaintiff also
testified, and Defendants did not dispute, that supplies such as vaccines and
suture kits were transferred between the parties as needed. (Tr. 61-62; see
36
also Tr. 453-54 (testimony of Dr. Okhravi acknowledging that he “move[d]
resources from one entity to the other”)). 14
The circumstances of the termination of Plaintiff’s employment are
likewise illustrative of the integrated operation of the two entities. After
receiving messages from Plaintiff on the morning of December 19, 2012, Al and
Steve Okhravi met to discuss Plaintiff’s continued employment at Insight; the
meetings took place at Pinnacle’s offices in midtown Manhattan. There, joined
by Stefanie Messina, they interviewed Gina Whyte for a position at Insight;
Messina, the nominal office manager of Pinnacle, had reached out to Whyte at
Steve Okhravi’s direction to gauge her interest in the position. Subsequently,
after exchanging text messages with Plaintiff on December 22, 2012, Steve
Okhravi ultimately directed Messina, at Pinnacle, to advise Plaintiff of the
termination of her employment. (Tr. 435-36, 451-52).
In sum, for a variety of reasons, Defendants cannot credibly challenge
that Insight had four or more employees during the relevant time period. That
is sufficient to sustain the jury’s award; after all, the jury awarded
compensatory damages for the retaliatory conduct to which it found Plaintiff
had been subjected. Such conduct necessarily qualified under the NYCHRL,
which is construed more broadly than Title VII and has a lower threshold
number of persons/employees. That said, aggregation of Pinnacle and Insight
14
And while this fact is more illuminative than dispositive of the issue, Al Okhravi
testified that employees from both companies were invited to Pinnacle’s holiday party.
(Tr. 580-81).
37
employees under a single integrated employer theory is also warranted on these
facts, and this would allow Plaintiff to satisfy even the higher employeenumerosity requirement of Title VII.
d.
Defendants’ Other Defaulted Claims for Judgment as a
Matter of Law Fail on the Merits
In their post-trial motions, Defendants raise other challenges to the
jury’s verdict that were not raised at trial, and that therefore are not properly
brought under Fed. R. Civ. P. 50(b). These challenges include claims that
(i) Plaintiff failed to prove that she engaged in protected activity, because she
did not have a “good faith, reasonable belief” in her claims of sexual
harassment; (ii) Plaintiff did not have an employment relationship with Insight
at the time of the alleged retaliatory conduct; and (iii) Plaintiff failed to rebut
Defendants’ proffered non-discriminatory reason for her termination (or,
conversely, failed to present sufficient evidence of a causal connection between
her termination and “motives of retaliation or discrimination”). (Def. Br. 17).
Separate and apart from the aforementioned fatal procedural defects, the
claims also fail on the merits.
These precise claims were made, and rejected, by the jury at trial.
Plaintiff claimed at trial that while there were staffing problems involving Fisher
and Gonzalez, the real problem with her employment at Insight was that she
was the recipient of numerous unwanted advances from Al Okhravi.
Furthermore, while Plaintiff did discuss the possibility of leaving Insight to take
a competing job offer on December 19, 2012, she never resigned, and made
38
clear to Al and Steve Okhravi shortly thereafter that she would remain at
Insight because of her concerns for its patients. Plaintiff argued, therefore,
that the only reason for her termination on December 22, 2012, was the fact
that she had complained to Dr. Steve Okhravi about Al Okhravi’s behavior less
than one hour earlier. Defendants responded that Plaintiff and Al Okhravi had
fought over a staffing issue, and that Plaintiff’s perception that Okhravi had
failed to appreciate her or her contributions caused her to fabricate a
competing employment offer, to threaten to leave, and — upon learning of the
hiring of Gina Whyte — to level a false accusation of sexual harassment.
Particularly given the dearth of corroborating text messages, both sides were
able to make their arguments. The Court cannot say that the jury’s ultimate
decision was untethered to the evidence.
A retaliation claim under Title VII requires proof of (i) conduct by the
plaintiff that is protected activity under Title VII; (ii) of which the employer was
aware; (iii) followed by an adverse employment action of a nature that would
deter a reasonable employee from making or supporting a discrimination claim;
(iv) that was causally connected to the protected activity. See Kessler v.
Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)
(collecting cases). “Protected activity” in this context includes an employee’s
complaint to supervisors about alleged unlawful activity that turns out not to
be unlawful, so long as the employee “had a good faith, reasonable belief that
[s]he was opposing an employment practice made unlawful by Title VII.”
39
McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir. 2001) (citation
omitted). Retaliation claims under the NYCHRL are even more broadly defined:
It shall be an unlawful discriminatory practice for any
person engaged in any activity to which this chapter
applies to retaliate or discriminate in any manner against
any person because such person has (i) opposed any
practice forbidden under this chapter.... The retaliation
or discrimination complained of under this subdivision
need not result in an ultimate action with respect to
employment, housing or a public accommodation or in
a materially adverse change in the terms and conditions
of employment, housing, or a public accommodation,
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.
N.Y.C. Admin. Code § 8-107(7) (emphases added).
Defendants’ first argument — that Plaintiff lacked a “good faith,
reasonable belief” that her complaint to Dr. Steve Okhravi amounted to
protected conduct — stems from Defendants’ claim that Plaintiff fabricated her
sexual harassment claim. That argument was specifically rejected by the jury,
and the evidence at trial supported the jury’s decision. By the time of trial,
Plaintiff lacked any contemporaneous evidence of any untoward conduct by Al
Okhravi; however, she testified at length concerning this conduct at trial, and
her testimony — which was not implausible on its face or in relation to the
documentary evidence at trial — was necessarily credited by the jury to some
degree in reaching its verdict. That testimony, coupled with the December 22,
2012 text from Plaintiff to Dr. Okhravi that was introduced at trial, showed
Plaintiff explaining to Dr. Okhravi that she had reacted in a certain way
specifically because of her discomfort with Al Okhravi’s repeated requests for a
40
sexual relationship. Her complaint to Dr. Okhravi qualifies as protected
activity.
Defendants’ second challenge fail for analogous reasons. Defendants
argued at trial that Plaintiff had already resigned from Insight on December 19,
2012; that any time she spent thereafter at Insight was akin to her giving “two
weeks’ notice”; and that asking her not to return to the office on December 22,
2012, did not therefore amount to a termination. This, too, was rejected by the
jury, and evidence at trial supports the jury’s verdict. While Stefanie Messina
espoused this resignation argument, she acknowledged that by December 20,
2012, she believed that Plaintiff intended to accept Al Okhravi’s request that
she reconsider. (Tr. 344). Dr. Steve Okhravi also claimed that Plaintiff had
resigned, but fumbled somewhat in explaining why he had scheduled a meeting
with Plaintiff to discuss her concerns and then canceled it (and Plaintiff’s
employment) some 30 minutes later. (Tr. 480-84 (claiming that the meeting
was canceled because Plaintiff did not send him the text messages within that
30-minute period)). In contrast, Plaintiff testified, in testimony that was
credited by the jury, that while she discussed the (fabricated) job offer with Al
Okhravi, she “never told him [she] was going to leave.” (Tr. 173; see also
Tr. 177 (“I wanted to stay working at the office. I just wanted everything else
that was going on with the sexual harassment to stop.”)).
41
Plaintiff’s testimony was corroborated by text messages post-dating
December 19, where Plaintiff indicates her intention to remain at Insight. As
but a few examples:
In a text message sent at 6:44 p.m. on December 20, 2012,
Plaintiff specifically advised Al Okhravi (and forwarded the
same message to Dr. Steve Okhravi on December 22, 2012)
that “regardless of our little difference[s,] my feelings
toward the office or the [patients] are the same. I would
never aba[n]don them at this moment, I would never walk
out and leave them hanging.... This is not the time for me
to leave.... [Trust] me[, I] will not leave [you] at a time like
this.” (See also Tr. 178 (testimony of Plaintiff that this
message was sent “[b]ecause I wanted to clarify to him that
I was not going to leave the office in the situation that it
was, that I was going to stay at the office working”)).
Earlier on December 20, Plaintiff had exchanged texts with
Stefanie Messina, noting that “he” (presumably Al Okhravi)
was interviewing individuals to assist Plaintiff at Insight,
for which she expressed relief because “[she] need[ed] the
help.” Messina responded at 4:08 p.m. that this news was
“good,” because it meant that Plaintiff was staying on at
Insight. In texts sent at 4:09 and 4:10 p.m., Plaintiff
complained about Al Okhravi’s treatment of her earlier in
the day, but confirmed that she would “stay here at my job
and [would] work whatever way he wants to work.”
In a text message sent at 10:27 a.m. on December 22, 2012
(i.e., after Plaintiff had sent the text concerning Al
Okhravi’s sexual advances), Plaintiff advised Dr. Steve
Okhravi that, while she was upset at his lack of support,
she would refrain from discussing those issues and wanted
to “only talk about work related issues during my work
schedule.” A few minutes later, at 10:41 a.m., responding
to Dr. Okhravi’s suggestion that they meet in the next
week, Plaintiff agreed, and indicated that she would see
him the following Monday.
By contrast, there are no texts referencing Plaintiff’s resignation. While there
was testimony of a conversation with Messina in which a resignation was
42
communicated, the jury was entitled to discredit that testimony, especially
given Plaintiff’s testimony that she would only have communicated her
resignation to Al Okhravi. (Tr. 190).
Defendants’ final challenge concerns the evidence of a causal connection
between Plaintiff’s complaint to Dr. Steve Okhravi and her termination. To be
sure, the evidence indicates that Gina Whyte was hired on December 19, 2012,
to work at Insight. However, the parties introduced neither testimonial nor
documentary evidence that anyone advised Plaintiff that her replacement (as
opposed to her assistant) had been hired. To the contrary, as just noted,
Messina expressed excitement on December 20, 2012, that Plaintiff had elected
to stay at Insight. The jury learned that within an hour of Plaintiff complaining
to Dr. Steve Okhravi that she had been subject to sexual harassment at the
hands of his brother, she was asked not to return to work. On the facts of this
case, the jury was permitted to infer a causal connection from the deficiencies
in Defendants’ explanation for the termination (such as Dr. Okhravi’s reference
to Plaintiff’s failure to provide him the texts immediately, when his texts
included no such directive), as well as the temporal proximity of the two events.
Cf. Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d
545, 554 (2d Cir. 2001) (“a plaintiff can indirectly establish a causal connection
to support a ... retaliation claim by showing that the protected activity was
closely followed in time by the adverse [employment] action” (citation and
43
internal quotation marks omitted) (alteration in Gorman-Bakos); accord Summa
v. Hofstra Univ., 708 F.3d 115, 127-28 (2d Cir. 2013).
For all of these reasons, and finding ample support for the jury’s verdict
of retaliation, the Court denies Defendants’ motion for judgment as a matter of
law.
B.
Defendants Are Not Entitled to a New Trial or to Remittitur of the
Damages Award
1.
Applicable Law
As a fallback position, Defendants move for a new trial or a remittitur of
the damages award. (Def. Br. 18-21). Under Rule 59(a), a court “may, on
motion, grant a new trial on all or some of the issues ... after a jury trial, for
any reason for which a new trial has heretofore been granted in an action at
law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). The standard for granting a
new trial under Rule 59(a) is less stringent than the standard for judgment as a
matter of law under Rule 50. See, e.g., Manley v. AmBase Corp., 337 F.3d 237,
244-45 (2d Cir. 2003). That said, the Second Circuit has held that a grant of a
new trial is appropriate under this rule only where “the trial court is convinced
that the jury has reached a seriously erroneous result or that the verdict is a
miscarriage of justice.” Piroscafo v. Metro-North Commuter R.R. Co., 552 F.
App’x 6, 9 (2d Cir. 2013) (summary order) (quoting Lightfoot v. Union Carbide
Corp., 110 F.3d 898, 911 (2d Cir. 1997)). Moreover, the Court has made clear
that
Our precedent is clear that a “decision is against the
weight of the evidence if and only if the verdict is
44
[i] seriously erroneous or [ii] a miscarriage of justice.”
Our cases teach that a high degree of deference is
accorded to the jury’s evaluation of witness credibility,
and that jury verdicts should be disturbed with great
infrequency. Unlike on a Rule 50 motion, however, on a
Rule 59 motion the court “may weigh the evidence and
the credibility of witnesses and need not view the
evidence in the light most favorable to the verdict
winner.” But when, as here, “a verdict is predicated
almost entirely on the jury’s assessments of credibility,
such a verdict generally should not be disturbed except
in an egregious case, to correct a seriously erroneous
result, or to prevent a miscarriage of justice.”
ING Global, 757 F.3d at 99 (quoting Raedle v. Credit Agricole Indosuez, 670
F.3d 411, 417-18, 419 (2d Cir. 2012)); see also Raedle, 670 F.3d at 418 (noting
that a district court judge “must exercise their ability to weigh credibility with
caution and great restraint,” and may not “freely substitute his or her
assessment of the credibility of witnesses for that of the jury simply because
the judge disagrees with the jury” (quoting DLC Mgmt. Corp. v. Town of Hyde
Park, 163 F.3d 124, 134 (2d Cir. 1998), and United States v. Landau, 155 F.3d
93, 104 (2d Cir. 1998))).
Courts may agree with a jury’s findings of fact, but disagree with its
damages award. “If a district court finds that a verdict is excessive, it may
order a new trial, a new trial limited to damages, or, under the practice of
remittitur, may condition a denial of a motion for a new trial on the plaintiff’s
accepting damages in a reduced amount.” Lee v. Edwards, 101 F.3d 805, 808
(1996) (quoting Tingley Sys. Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir.
45
1995)); see generally Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433
(1996); Lore, 670 F.3d at 153.
“Remittitur is the process by which a court compels a plaintiff to choose
between reduction of an excessive verdict and a new trial.” Lin v. McDonnell
Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984); see also Psihoyos v. John Wiley
& Sons, Inc., No. 11 Civ. 1416 (JPO), 2012 WL 5506121, at *1-2 (S.D.N.Y.
Nov. 7, 2012). The Second Circuit has identified “two distinct kinds of cases”
in which conditional remittitur is appropriate: (i) when the court discerns “an
error that caused the jury to include in the verdict a quantifiable amount that
should be stricken” or (ii) when the award is “intrinsically excessive” in the
sense that no reasonable jury could have awarded the amount, whether or not
the excessiveness can be attributed to “a particular, quantifiable error.” Kirsch
v. Fleet St. Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (quoting Trademark Research
Corp. v. Maxwell Online, Inc., 995 F.2d 326, 337 (2d Cir. 1993)). Where there is
no discernible error, the jury’s verdict should be set aside as “intrinsically
excessive” only if “the award is so high as to shock the judicial conscience and
constitute a denial of justice.” Id. (quoting O’Neill v. Krzeminski, 839 F.2d 9, 13
(2d Cir. 1988)) (internal quotation marks omitted).
2.
Discussion
Turning first to the jury’s verdict, the Court cannot say that it was the
product of evidentiary or other trial-conduct errors, or that it is against the
weight of the evidence. Both sides presented arguments that sought to
46
reconcile the evidence that existed at the time of trial; that the jury accepted
Plaintiff’s explanation over Defendants’ is supportable on the trial record, for
reasons similar the those outlined by the Court in denying the Rule 50(b)
motion.
With respect to the remittitur issue, the parties have not identified, and
the Court has not found, any error in the jury instructions that would have
caused the jury to include an amount that should be stricken; in consequence,
the Court’s inquiry is limited to a review of whether the award “shock[s] the
judicial conscience.” Kirsch, 148 F.3d at 165. It does not. Defendants do not
appear to dispute Plaintiff’s claims of $6,971.50 in lost wages and $4,000 in
reduced wages. (See Def. Br. 20; Def. Reply 9; see also Tr. 686 (Plaintiff’s
counsel seeking $13,000 in lost wages at trial)). Instead they argue that the
remaining $39,000 in damages is unsubstantiated. Notably, however, Plaintiff
introduced considerable evidence (in the form of testimony from herself and
social worker Jensy Linares) concerning the mental anguish she had
experienced as a result of both her wrongful termination and what she
perceived (sincerely but inaccurately, according to the jury’s verdict) to be a
hostile work environment.
While Plaintiff felt disgusted and degraded by her fall 2012 interactions
with Al Okhravi (Tr. 87, 176, 218), she was consistently able to perform her job
functions (Tr. 269, 301-02). It was only after her termination that Plaintiff — a
single mother who had been summarily dismissed a few days before Christmas,
47
and mere minutes after complaining to her boss about the conduct of his
brother — began to suffer panic attacks, depression, and difficulty sleeping.
(Tr. 213-18). Indeed, her symptoms progressed to such a degree that her
primary care physician referred her to Linares, who observed Plaintiff as
“nervous, anxious, unable to concentrate, unable to sleep” and diagnosed her
with post-traumatic stress disorder and depressive disorder. (Tr. 134-38).
Plaintiff continues to take medication for her anxiety. (Tr. 214-15). Given this
record, the Court will not disturb the jury’s award.
C.
Defendants Are Not Entitled to Fees and Costs
Finally, Defendants’ motion for the award of fees and costs as “partially
prevailing” parties, can be swiftly rejected. In fee-shifting statutes such as Title
VII, “a prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but
special circumstances,” Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
417 (1978), while a district court has the discretion to award attorney’s fees to
a prevailing defendant only “upon a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation, even though not [necessarily]
brought in subjective bad faith,” id. at 421. See also id. at 421-22 (cautioning
courts against “engag[ing] in post hoc reasoning by concluding that, because a
plaintiff did not ultimately prevail, his action must have been unreasonable or
without foundation”). In situations where a “plaintiff assert[s] both frivolous
and non-frivolous claims,” the court may grant to a defendant only those fees
48
“that the defendant would not have incurred but for the frivolous claims.” Fox
v. Vice, 131 S. Ct. 2205, 2211 (2011).
The Court cannot say, as did the Second Circuit in Carter v. Inc. Village
of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014), that Plaintiff’s claims were
“not the stuff of litigation.” Plaintiff’s retaliation claim succeeded at trial and
will not be disturbed by this Court. And while Plaintiff’s hostile work
environment claim was not ultimately successful, a careful review of the
evidence detailed in the Facts section of this Opinion confirms that the claim
was not baseless. Accordingly, the motion is denied.
CONCLUSION
For the reasons set forth above, Defendants’ Post-Trial Motions and
Motion for Fees and Costs are DENIED. The Clerk of Court is directed to
terminate the motions pending at docket entries 65 and 67.
The parties are further ORDERED to file a joint submission on or before
January 5, 2015, proposing a briefing schedule for Plaintiff’s contemplated
motion for attorneys’ fees and costs pursuant to 42 U.S.C. § 2000e–5(k) and/or
N.Y.C. Admin. Code § 8-502(f).
SO ORDERED.
Dated:
December 22, 2014
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
49
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