Turley v. ISG Lackawanna, Inc. et al
DECISION AND ORDER DENYING Defendants' 214 Motion for Judgment as a Matter of Law; GRANTING in part and DENYING in part Defendants' 214 Motion for a New Trial or Remittitur; DIRECTING that a new trial on punitive damages be held un less Plaintiff accepts a reduced punitive damages award; ORDERING a reduction in punitive damages as follows: Corporate Defendants: $4 million under Title VII & § 1981. ArccelorMittal Lackawanna, Inc.: $998,750 for intentional inflict ion of emotional distress. Larry Sampsell: $1,250 for intentional infliction of emotional distress. GRANTING Plaintiff's 203 Motion for Attorney Fees and Costs as specifed; INFORMING Plaintiff that if he chooses to accept the reduced awa rd, he must file an affidavit indicating so with the Clerk of the Court within 30 days. If no such affidavit is received, or if Plaintiff affirmatively declines to accept the reduced award, a new trial on punitive damages will be held at a date to be determined by this Court. Signed by William M. Skretny, Chief Judge U.S.D.C. on 1/11/2013. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
ISG LACKAWANNA, INC.,
ISG LACKAWANNA, LLC,
MITTAL STEEL USA LACKAWANNA INC.,
MITTAL STEEL USA INC., d/b/a
LARRY D. SAMPSELL,
GERALD C. MARCHAND,
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 50(b) & 59 Standards .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Defendants’ Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Parent-Corporation Liability. . . . . . . . . . . . . . . . . . . . . . . . 10
Corporate & Individual Liability — Title VII, § 1981, and NYHRL
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Intentional Infliction of Emotional Distress . . . . . . . . . . . . 20
Verdict Form & Jury Charge . . . . . . . . . . . . . . . . . . . . . . . 24
Passion and Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Compensatory Damages . . . . . . . . . . . . . . . . . . . . . . . . . 27
Punitive Damages .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Ratio .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Degree of Reprehensibility .. . . . . . . . . . . . . . . . . . 35
Sanctions for Comparable Conduct . . . . . . . . . . . . 39
Plaintiff’s Motion for Attorney Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Attorney Rates .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Time Expended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
V. ORDERS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
After several weeks of trial in this employment-discrimination case, a properlyempaneled, eight-member jury returned a unanimous verdict in favor of the Plaintiff, Elijah
Turley. The trial was bifurcated between liability and damages, and, at the close of the
second installment, the same jury awarded Turley a total of $1,320,000 in compensatory
damages and $24,005,000 in punitive damages.
Turley’s former employer, his former supervisors there, and its parent company—the
Defendants in this case—now move for judgment as a matter of law, or for a new trial
under Federal Rules of Civil Procedure 50(b) and 59. Defendants argue that the evidence
presented at trial does not support any part of the jury’s verdict, including its finding that
Arcelor Mittal USA Inc. (“AM USA”)—the corporate parent—and its local subsidiary,
ArccelorMIttal Lackawanna LLC, (“Lackawanna”), constituted a single employer.1 Barring
judgment as a matter of law or a new trial, they seek a reduction in the amount of
Defendant was hired by a Buffalo-area steel plant form erly known as Bethlehem Steel. At all relevant
tim es, however, the plant was owned by a different com pany. Those various corporate nam es, beginning with
ISG Lackawanna Inc., and including parent and subsidiary relationships, were explained by this Court in an
earlier Decision and Order:
ISG Lackawanna Inc., a wholly-owned subsidiary of International Steel
Group Inc., purchased the steel galvanizing operation at the form er
Bethlehem Steel Plant in Lackawanna, N.Y. in May 2003. In January 2004,
ISG Lackawanna Inc. becam e ISG Lackawanna LLC, a Delaware lim ited
liability com pany. In April 2005, Mittal Steel Co. purchased International
Steel Group, Inc., the parent of ISG Lackawanna LLC and shortly thereafter
changed the nam e to Mittal Steel USA Inc. In June 2006, Mittal Steel Co.
and Arcelor m erged to create ArcelorMittal Inc. Shortly thereafter the nam e
Mittal Steel USA Inc. was changed to Arcelor Mittal USA Inc. ISG
Lackawanna LLC was then a wholly-owned subsidiary of ArcelorMittal USA
Inc. and changed its nam e to ArcelorMittal Lackawanna LLC.
Turley v. ISG Lackawanna, Inc., 803 F. Supp. 2d 217, 227–28 (W .D.N.Y. 2011) (citations om itted). The parties
stipulated that ISG Lackawanna, Inc., ISG Lackawanna, LLC, and ArccelorMIttal Lackawanna LLC,
(collectively “Lackawanna”) were Turley’s em ployers. No stipulation was entered regarding the parent
com pany, Arcelor Mittal USA Inc.
Turley opposes Defendants’ motion and moves separately for attorney fees.
For the following reasons, Defendants’ motion is denied, except on punitive
damages, which will be reduced; Plaintiff’s motion is granted, but with a reduction in the
amount of recoverable attorney fees.
Elijah Turley was a steel worker. He started in 1995, when he was hired by the
Buffalo-area plant, Bethlehem Steel. He was employed there when ISG Lackawanna Inc.
purchased the plant from Bethlehem Steel in 2003, and remained employed through AM
USA’s purchase in 2005. He was finally laid off when the plant closed in April of 2009.
Elijah Turley is also black. He was, in fact, the only African-American in
Lackawanna's Pickler Department—the processing area of the plant where Turley worked.
(3 Tr. 21.) And the testimony at trial unequivocally demonstrated that, beginning in 2003,
he was subjected to loathsome racial harassment at work. An illustration of that follows.
Defendant Thomas Jaworski, one of Turley’s supervisors, repeatedly called him
“boy.” (3 Tr. 4, 6.) Co-workers refused to eat lunch him; they called him a monkey, a boon,
an ape, a gorilla; they called him a nigger, or worse yet, “that fucking nigger.” (See, e.g.,
2 Tr. 66, 2 Tr. 186, 3 Tr. 73.)
Regrettably, the disparaging treatment was not limited to offensive name calling. His
workstation, for instance, was also targeted. A “dancing gorilla” sign was hung there; the
letters “KK,” an apparent reference to King Kong, were spray-painted on the nearest door
to his workstation; the phrase “King Kong lives” was spray-painted not just on a nearby coil
but also on a nearby floor plate.
Co-worker Frank Pelc’s conduct was particularly egregious. He admitted that he
spray-painted graffiti with messages directed at Turley. And at one point he confronted
Turley, screaming at him, “You fucking black bitch, you fucking black piece of shit.” (3 Tr.
26.) He made monkey sounds and threatened Turley’s life: “When I see your black nigger
ass on the outside, I’m going to fucking shoot you.” (3 Tr. 28.) After this incident Turley was
visibly traumatized, and was taken to the hospital.
Other co-workers also confronted Turley. At one point, Kevin Daley shouted at
Turley, “Shut up you fucking black crybaby bitch. Fuck You. You ain’t shit. You’re always
crying like a bitch.” (3 Tr. 30, 32.) Defendants Larry Sampsell and Gerald Marchand “just
stood there.” (3 Tr. 32.) Another co-worker once tried to bait Turley into hitting him and
shouted, “Black bitch. Fuck you black piece of shit. Get your black ass out of here. We
don’t want you here anyway.” (3 Tr. 82.)
The harassment continued. In March of 2006, the phrase “No Lazy People,”
intended as a reference to a contemptible racial stereotype perpetuated by Pelc and others
at the plant, was written on a wall in the Pickler Department. Testimony revealed that thick,
black grease was applied “at least five days per week” to the chair, door handles, and
controls used by Turley. (2 Tr. 161) Pelc’s response: “it must have been the boon that’s
doing it.” (2 Tr. 165–66.) Later, Pelc destroyed a chair that Turley used, declaring, “That
nigger ain’t sitting in this chair.” (3 Tr. 107.)
The harassment not only continued, it amplified. Incredibly, in June of 2006, the
letters “KKK” were spelled out on the wall across from Turley’s workstation. Shaken, Turley
was again taken to the hospital. As if that were not enough, in February of 2007, the
threatening reference to the hate group was written on the wall again.
The list goes on. A sad face was drawn on the wall, presumably mocking Turley
because he often became upset at work. An ape man was drawn on the wall. Turley was
denied bathroom breaks; his time sheets were tampered with; Defendant Sampsell
installed a camera trained on his workstation and someone drew an eyeball on the wall;
his car was often vandalized; on December 3, 2007, in fact, Turley returned to his car to
find a black toy monkey dangling in front of him—it was hung by a noose.
During the trial, Plaintiff played a recording of shrill monkey sounds that were
regularly broadcast over the public address system at the Pickler. That system was also
used to threaten Turley. Unidentified employees broadcast to the plant: “We are going to
fucking kill you, fucking nigger” and “we’re going to kill your fucking Jewish lawyer too.” (3
When Turley began work at the steel plant, he enjoyed his job and was a man full
of confidence; he possessed a colorful and animated personality. He came in, as one
witness put it, displaying his feathers like a “rooster.” (2 Tr. 138.) But the unyielding
harassment took its toll. And by the time he left, he was broken and dispirited. The
company had, again in the words of this witness, “cut the head off the rooster.” (2 Tr. 139.)
The individual defendants in this case are largely not, however, the people who
perpetrated these repugnant acts. They are, instead, the supervisors at the plant.
Defendant Larry Sampsell was the Manager of Labor Relations and Security at the
Lackawanna Plant during the relevant time period. Defendant Gerald Marchand was the
Manager of Human Resources from May 2003 until March 2007, after which he continued
as a human resources consultant for several months. Defendant Thomas Jaworski was
the Area Manager of the Pickler and Tandem Mill Departments from May 2003 to January
2007. Sampsell and Jaworski both worked at the plant in a management capacity since
1962. Marchand had been an employee there since 1963.
Testimony at trial revealed that these defendants, and others in supervisory roles,
took some measures meant to counteract the racial harassment. Plant officials took down
the “dancing gorilla” sign, and painted over some of the graffiti. They hired a private
investigator. They conducted interviews with employees and retained an outside attorney
to investigate the monkey in Turley’s car. Although that investigation proved fruitless,
Sampsell ordered the installation of lights in the parking lot. Eventually, Turley was
assigned an escort to protect him.
Defendants also took remedial measures against known offenders. They suspended
Pelc for three days without pay after he threatened Turley, and they suspended him for two
days after he admitted that he was responsible for the “King Kong” graffiti. Defendants also
suspended another employee for five days after learning of a racially discriminatory
Most of the incidents, however, went unpunished. Defendants concede this. But
they argue that the “code of silence,” which they say permeated the plant, stymied their
best efforts. Employees would warn one another when a manager entered the plant. And,
five witnesses eventually admitted that they had withheld information during the company’s
In the end, the jury was asked several questions regarding the respective liability of
the individual defendants, the corporate defendants, and the relationship between
Lackawanna and its parent company. It found in Turley’s favor on almost every question:
Turley had been subjected to a hostile work environment, which was created or permitted
to exist by Defendants; Defendants failed to take adequate corrective action, were grossly
negligent, or created a policy under which these practices occurred; none of the
Defendants exercised reasonable care to promptly prevent and correct racially harassing
behavior; the corporate defendants, and individual-defendant Sampsell, acted in
furtherance of their business interests and, through extreme and outrageous conduct,
intended to cause Turley severe emotional distress; Turley, in fact, suffered from severe
distress; and finally, AM USA was sufficiently integrated with its subsidiary, Lackawanna,
to constitute a single employer.
The jury awarded Turley over $25 million in total damages.
After filing charges of discrimination with the New York State Division of Human
Rights and the Equal Employment Opportunity Commission, Turley filed a complaint in this
Court on December 6, 2006. (Docket No. 1.) After discovery, Defendants filed a motion for
summary judgment on September 20, 2008. (Docket No. 27.) On March 23, 2011, this
Court granted Defendants’ motion for summary judgment on claims regarding retaliation,
overtime, training, leave time, and monitoring. It denied the motion as to Turley’s hostile
work environment, equal pay, and intentional infliction of emotional distress claims.
This Court then resolved motions in limine (Docket No. 147), lingering discovery
issues (Docket No. 141), and trial subpoena matters (Docket No. 149). It subsequently
selected eight jurors and began trial on May 15, 2012. (Docket Nos. 159, 162.) At the
close of Plaintiff’s case, Defendants moved for dismissal under Rule 50(a). This Court
denied the motion with the exception of Turley’s equal pay claim, which it dismissed.
Ultimately, the jury returned a verdict in Turley’s favor on the remaining claims: those for
a hostile work environment and for the intentional infliction of emotional distress. (Docket
No. 191.) The second phase of the trial then began, and, on June 14, 2012, it concluded
with the jury’s award of damages. (Docket No. 197.)
Thereafter, the parties each filed post-trial motions. Turley now seeks attorney fees
(Docket No. 203) and Defendants seek judgment as a matter of law or a new trial (Docket
No. 214.) Briefing on these motions concluded on November 5, 2012, at which time this
Court took them under consideration.
Rule 50(b) & 59 Standards
Rule 50 of the Federal Rules of Civil Procedure permits a court to render judgment
as a matter of law and vacate a jury’s verdict if it finds that “a reasonable jury [did] not have
a legally sufficient evidentiary basis” to reach its conclusion. The standard is well settled:
Judgment as a matter of law may not properly be granted
under Rule 50 unless the evidence, viewed in the light most
favorable to the opposing party, is insufficient to permit a
reasonable juror to find in h[is] favor. In deciding such a
motion, the court must give deference to all credibility
determinations and reasonable inferences of the jury, and it
may not itself weigh the credibility of witnesses or consider the
weight of the evidence.
Galdieri–Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998) (internal
citations omitted). Indeed, the standard for post-verdict judgment as a matter of law is the
same as that for summary judgment under Federal Rule of Civil Procedure 56. Nadel v.
Isaksson, 321 F.3d 266, 272 (2d Cir. 2003) (citing This Is Me, Inc. v. Taylor, 157 F.3d 139,
142 (2d Cir.1998)). Thus, a district court must deny a motion for judgment as a matter of
law unless “there can be but one conclusion as to the verdict that reasonable [jurors] could
have reached.’” Id. (quoting Cruz v. Local Union No. Three of the Int'l Bhd. of Elec.
Workers, 34 F.3d 1148, 1154-55 (2d Cir.1994)).
The moving party must, however, fulfill the procedural prerequisite of moving for
judgment as a matter of law before the case was submitted to the jury. See Fed. R. Civ.
P. 50(a)(2); Mealey v. Apartment Rentals, 125 F.3d 844 (2d Cir. 1997). And a party may
only make a post-judgment Rule 50(b) motion based on grounds specifically raised at the
close of evidence. Lambert v. Genesee Hosp., 10 F.3d 46, 53–54 (2d Cir.1993). If the
movant does not meet the Rule 50 specificity requirement, the Court may not grant
judgment as a matter of law unless the result is “required to prevent manifest injustice.”
Kuper v. Empire Blue Cross & Blue Shield, No. 99 Civ. 1190, 2003 WL 359462, at *4
(S.D.N.Y. Feb. 18, 2003) (citing Russo v. State of New York, 672 F.2d 1014, 1022 (2d Cir.
The standard under Rule 59, which permits the court to “grant a new trial on all or
some of the issues,” see Fed. R. Civ. P. 59(a)(1), is less stringent. See Manley v. AmBase
Corp., 337 F.3d 237, 244 (2d Cir. 2003). “In contrast to a judgment as a matter of law, a
new trial may be granted under Rule 59 even if there is substantial evidence to support the
jury's verdict.” Mono v. Peter Pan Bus Lines, Inc., 13 F. Supp. 2d 471, 475 (S.D.N.Y. 1998)
(citing Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). And the court
need not weigh the evidence in a light most favorable to the non-moving party. Song, 957
F.2d at 1047. Nevertheless, “[a] motion for a new trial ordinarily should not be granted
unless the trial court is convinced that the jury has reached a seriously erroneous result or
that the verdict is a miscarriage of justice.” Townsend v. Benjamin Enters., Inc., 679 F.3d
41, 51 (2d Cir. 2012) (internal citations and quotation marks omitted).
Defendants seek judgment as a matter of law or a new trial on each of the jury’s
several findings. They argue that:
(1) Turley did not prove that AM USA and Lackawanna
constituted a single employer;
(2) The evidence did not show that either the individual
or the corporate defendants were liable under Title
VII, § 1981, or NYHRL;
(3) Turley did not prove that Sampsell or Lackawanna
were liable for the common law tort of intentional
infliction of emotional distress, nor did he prove
that punitive damages were warranted under
(4) There were prejudicial errors in the verdict form;
(5) The verdicts were the result of passion and
(6) The compensatory damages are excessive, and;
(7) The punitive damages are grossly excessive.
Each argument will be addressed in turn below.2
This Court has reviewed Defendants' other asserted grounds for relief— two evidentiary objections
concerning the adm ission of police reports and judicial notice of the United States Census Bureau Table 107.
(Docket No. 214, ¶¶ 16,17.) But there is no cause to revisit this Court’s previous rulings, and those rulings
will stand. No further discussion is warranted.
The parties stipulated before trial that Lackawanna was Turley’s employer. (See
supra, n. 1.) No such stipulation, however, was entered with regard to the parent
corporation, AM USA. Defendants argue, as they did in their Rule 50(a) motion, that Turley
was not employed by AM USA. That is, they contend that Turley provided insufficient
evidence at trial linking Lackawanna to its parent corporation such that AM USA could be
held liable for the racially-offensive environment at the local plant.
At the outset, this Court is cognizant that “it is a general principle of corporate law
deeply ingrained in our economic and legal systems that a parent corporation . . . is not
liable for the acts of its subsidiary.” See Watters v. Wachovia Bank, N.A., 1550 U.S. 1, 43,
127 S. Ct. 1559, 167 L. Ed. 2d 389 (2007); see also Kiobel v. Royal Dutch Petroleum Co.,
621 F.3d 111, 194 (2d Cir. 2010). This is because “the law allows a corporation to organize
so as to isolate liabilities among separate entities.” Murray v. Miner, 374 F.3d 402, 404 (2d
Against this backdrop, whether a parent corporation can be held liable for the acts
of its subsidiary depends, first, on the type of claim brought. Under Title VII and § 1981,
the relevant point of inquiry is the “single or joint employer test,” developed by the National
Labor Relations Board and adopted by the Second Circuit in Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995). This tests asks whether the parent and the
subsidiary can be considered a “single employer.” If so, the parent can be held liable for
the acts of its subsidiary. To make this determination, courts consider (1) the interrelation
of operations, (2) the centralized control of labor relations, (3) common management, and
(4) common ownership or financial control. Id. at 1240.
While “not every factor need be present, and no particular factor is controlling,” Lihli
Fashions Corp., Inc. v. N.L.R.B., 80 F.3d 743, 747 (2d Cir. 1996), the second
factor—centralized control of labor relations—is the most significant. Cook, 69 F.3d at
1241. In assessing this factor, “the Court must focus its inquiry on the parent's actual
involvement in the particular circumstances giving rise to the litigation and determine,
‘[w]hat entity made the final decisions regarding employment matters related to the person
claiming discrimination?’” Herman v. Blockbuster Entm't Group, 18 F. Supp. 2d 304, 311
(S.D.N.Y. 1998) (citing Cook, 69 F.3d at 1240).
This Court finds that sufficient evidence exists enabling the jury to find in Turley’s
favor with respect to this factor.
The collective bargaining agreement, for example, was signed and negotiated by
the parent corporation. It contained provisions central to the “particular circumstances
giving rise to the litigation,” such as those concerning harassment awareness and
prevention. Other relevant policies were also prepared and issued by AM USA—not
Lackawanna. (See Defs.’ Exs. 22, 23, 24.) AM USA also provided, together with the steel
workers union, a “Workplace Harassment Awareness and Prevention” training seminar in
October of 2007. The parent company’s name and logo appeared on the documents
associated with the seminar. Moreover, in the process of investigating the monkey hung
by a noose in Turley’s car, Nevin Hope, who replaced Marchand as Human Resources
Manager, provided employees with both AM USA’s and Lackawanna’s Equal Employment
Opportunity policy; he memorialized his reports on AM USA letterhead.
Further, during a police investigation into events at Lackawanna, Defendant
Sampsell told the police that before he could provide certain information, he would have
to check with AM USA’s legal department.3
The companies’ centralized benefit system and the presence of a centralized
“Alertline,” which, according to one witness, is “tied into the Corporate headquarters in
Chicago” (6 Tr. 74), further demonstrates the unified relationship between Lackawanna
and AM USA. Turley, in fact, utilized the Alertline, which was set up to field workplace
complaints from each of AM USA’s subsidiaries, to report Pelc’s death threat. A report was
then compiled and sent to Lackawanna for further action.
Singling out each piece of evidence, Defendants contend that Turley failed to meet
the applicable legal standard; they argue that he failed to prove that AM USA “exercised
day-to-day control over employment decisions.” (Defs.’ Br. at 4; Docket No. 224.)
But, initially, Turley can meet his burden “even absent [a showing of] total control
or ultimate authority over hiring decisions.” Cook, 69 F.3d at 1241. More importantly,
Defendants’ piecemeal approach misses the bigger picture. Defendants cite, for instance,
Ferguson v. New Venture Gear, Inc., for the proposition that a parent’s status as a party
to collective bargaining agreement is insufficient to establish control of labor relations.
5:04-CV-1181 FJS/GHL, 2009 WL 2823892 (N.D.N.Y. Aug. 31, 2009). They also cite
E.E.O.C. v. Grace Episcopal Church of Whitestone, Inc., for the proposition that a parent’s
efforts in setting anti-discrimination policies and procedures are insufficient under this
factor. 06-CV-5302(ERK)(WDW), 2007 WL 6831007 (E.D.N.Y. July 3, 2007). Finally, they
cite Velez v. Novartis Pharm. Corp., 244 F.R.D. 243, 252 (S.D.N.Y. 2007) for the
proposition that a common benefits package does not suggest centralized control of labor
Lackawanna did not have a separate legal departm ent.
What is missing, though, is any authority considering the type of evidence present
here in the aggregate. Indeed, in finding a lack of centralized control of labor relations, the
court in Velez, seemingly at odds with the holding in Grace Episcopal, relied on the fact
that “uncontradicted testimony in the record indicates that [the parent] never tells [the
subsidiary’s] Human Resources personnel what policies to adopt or how to respond to an
employee complaint.” Velez, 244 F.R.D. at 251. That is not the case here.
The evidence in Ferguson was also limited, but in a different respect. The court
pointed out that “Plaintiffs' only evidence regarding this factor is the labor agreement
between [parent] and [subsidiary]. 2009 WL 2823892 at *3. Turley offers more than that.
Finally, although the evidence in Grace Episcopal was arguably more substantial,
the case is not relevant to this action. The plaintiff there tried to hold the Diocese of Long
Island responsible for the acts of a local rector. The differences between a corporate
parent, financially invested in its subsidiary, and the structure of a religious institution are
readily apparent. Indeed, the Grace Episcopal court, for instance, found that “the
underlying purpose of the sexual harassment policies [issued by the “parent”] was not to
control labor relations, but to ‘provide the Diocese of Long Island with a way to gather the
information necessary to make recommendations that will facilitate a just and
compassionate outcome to incidents of sexual harassment or abuse in the ministerial
relationship.’” 2007 WL 6831007, at *4. The evidence here does not begin to suggest that
AM USA’s policies served as mere recommendations meant to facilitate a “compassionate
outcome.” Rather, the evidence indicates that the parent’s policies were more than
recommendations; they were official regulations.
Taken in the aggregate, and considering that much of this evidence pertains to the
“particular circumstances giving rise to the litigation,” (i.e., the response to Turley’s
treatment), this Court finds that the evidence presented at trial was sufficient to meet the
Plaintiff has also presented sufficient evidence to establish an interrelation of
operations between Lackawanna and AM USA. In addition to the evidence outlined above,
it should be noted that the highest position at Lackawanna was the plant supervisor. As
Turley points out, there was no chief executive officer, no chief financial officer, and no
chief operating officer at the Lackawanna plant. Financial information was also reported
jointly, not separately. And the Board of Managers for AM USA was vested with the
authority to indemnify Lackawanna employees so long as those employees were
represented by AM USA counsel. Such a structure suggests that the parent exercises
ultimate control over the subsidiary.
This evidence also helps to support the two remaining, albeit less important, Cook
factors. See Meng v. Ipanema Shoe Corp., 73 F. Supp 2d 392, 403 (S.D.N.Y. 1999)
(common management and common ownership, the final two factors, “are less important
as they represent ordinary aspects of the parent-subsidiary relationship”). There is, in fact,
no real dispute over these factors.
In the end, “[t]he policy underlying the single employer doctrine is the fairness of
imposing liability for labor infractions where two nominally independent entities do not act
under an arm's length relationship.” Murray v. Miner, 74 F.3d 402, 405 (2d Cir. 1996). In
other words, the doctrine imposes responsibility “on an entity that shares decisionmaking
authority with the employing entity.” Id. The evidence here is not overwhelming, but it need
not be. Considering it in the aggregate, this Court finds that a reasonable jury could have
found that the two entities shared decision making authority when it came to the response
to the racial harassment in the Lackawanna plant. As such, the jury’s verdict is not
“seriously erroneous,” see Townsend, 679 F.3d at 51, and it will not be overturned.
The jury also imposed liability on AM USA under the NYHRL. The standard for this
claim is slightly different: Turley must have proven that AM USA had the power to hire and
fire him, pay him, and have the power to control his conduct. See, e.g., Hargett v. Metro.
Transit Auth., 552 F. Supp. 2d 393, 405 (S.D.N.Y. 2008). Defendants, however, do not
raise any new arguments as to this claim. And this Court finds that, for the same reasons
articulated above, the jury’s verdict on this charge should also be upheld.
Corporate & Individual Liability — Title VII, § 1981, and NYHRL
An employer is liable for a hostile work environment under Title VII and § 1981
“created by a victim's co-workers if the employer knows about (or reasonably should know
about) that harassment but fails to take appropriate remedial action.” Whidbee v. Garzarelli
Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (internal citations and quotation
marks omitted; parenthesis in original). “Once an employer has knowledge of a racially
combative atmosphere in the workplace, he has a duty to take reasonable steps to
eliminate it.” Id. (quoting Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir.1986))
Individual liability, as opposed to corporate or employer liability, is analyzed under
a slightly different standard. To impose individual liability, Turley must have shown that
defendants (1) directly participated in the alleged violation; (2) exhibited gross negligence
in the supervision of subordinates who committed the wrongful acts; or (3) failed to take
action upon receiving information that violations are occurring. Patterson v. County of
Oneida, 375 F.3d 206, 229 (2d Cir. 2004).
As for the NYHRL, an individual may be liable under Section 296 if he “actually
participates in the conduct giving rise to a discrimination claim.” Tomka v. Seiler Corp., 66
F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Ind. v. Ellerth,
524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). “To ‘actually participate’ in
discrimination, however, an individual employee need not himself take part in the primary
violation.” Ahmed v. Compass Group, No. 99 Civ. 10032, 2000 WL 1072299, at *5
(S.D.N.Y. August 3, 2000) (quoting Lewis v. Triborough Bridge & Tunnel Auth., 77 F. Supp.
2d 376, 380–81 (S.D.N.Y.1999)). Instead, “[a] supervisor's failure to take adequate
remedial measures can rise to the level of ‘actual participation.’”4 Lewis, 77 F. Supp. 2d at
An employer may be liable under the NYHRL if, through its supervisors, it
encouraged, condoned, or acquiesced in a hostile work environment. See e.g., Bennet v.
Progressive Corp., 225 F. Supp 2d. 190, 210 (N.D.N.Y. 2002); State Div. of Human Rights
ex rel. Greene v. Saint Elizabeth's Hosp., 66 N.Y.2d 684, 687, 496 N.Y.S.2d 411, 487
N.E.2d 268 (1985).5
Defendants do not dispute that the Sam psell, Marchand, and Jaworski were supervisors at the plant.
Defendants seek judgm ent as a m atter of law on Turley’s NYHRL claim because he did not plead
this claim . Although Turley did not specifically m ention NYHRL § 296 in his com plaint, he did plead that
“Defendants have discrim inated against Plaintiff by denying him the sam e rights enjoyed by Caucasian
em ployees with regard to the term s and conditions of his em ploym ent in violation of 15 New York Executive
Law § 291 et seq.” (Com pl., ¶ 64.) Further, this Court finds that Defendants were not prejudiced by the
inclusion of this claim , as the nature of the allegations— discrim inatory conduct in violation of New York Hum an
Rights Law— was patently clear. See N.Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98, 104 (2d Cir.
1996) (“In assessing whether the pleadings should conform to the proof, the pivotal question is whether
prejudice would result.”). In conform ity with Rule 15(b), which m andates am endm ent of the pleadings such
that they conform to the evidence presented at trial, Defendants’ m otion on this ground is rejected.
Despite the minor differences in the applicable standards, this Court finds that the
evidence, discussed below, was sufficient for the jury to find Defendants liable under each
of the claims.
Defendants argue that those findings were in error because they took appropriate
remedial steps, and therefore, the verdict must be overturned. This argument is
unpersuasive. Although Defendants did take some steps—including removing the gorilla
sign, washing off graffiti, suspending Pelc, and hiring a private investigator—the jury could
have reasonably concluded that those measures were either too little, too late, or both.
Racist graffiti, for instance, remained on the walls for long periods of time, despite
management’s knowledge of it. “King Kong lives” remained on the walls for “at least a
month.” (2 Tr. 149–150.) The spray-painted eyeball remained for “several weeks, maybe
longer.” (3 Tr. 64.) “KKK,” the most incendiary of all the graffiti, remained for “approximately
a month.” (2 Tr. 155.). And although Marchand talked to the employees about the incident,
the jury could have reasonably found that this sort of investigation was inadequate. Indeed,
when the offensive letters appeared on the wall again, Marchand did not change
tactics—he simply conducted various interviews again. In neither instance was he able to
find the perpetrator. In fact, much of Defendants’ argument is dedicated to Marchand’s
investigations. But there is no dispute that they often proved fruitless, and with the work
environment becoming increasingly more hostile, the jury could have found that he should
have done more, done it better, and done it faster. See Zeno v. Pine Plains Cent. Sch.
Dist., No. 10-3604-CV, 2012 WL 5992147, at *11 (2d Cir. Dec. 3, 2012) (in a racial
discrimination case, the “jury reasonably could have found that the [defendant] ignored the
many signals that greater, more directed action was needed”).
The jury could have also deemed the suspensions to be inadequate. Pelc, hurling
racial epithets, threatened Turley’s well-being. After admitting it, he was suspended only
two days. After the King-Kong-graffiti incident, Pelc was suspended only three days and
was permitted to work overtime, at a higher rate, that very week. Pelc called his suspension
a “vacation.” (3 Tr. 26.) No further disciplinary actions were taken.
The jury could have also determined that Defendants hampered police
investigations. When Detective Daniel Cardi asked for certain materials, Sampsell insisted
on checking with the company’s legal department. Detective Cardi “never heard a word
after that.” (5 Tr. 90–91.) Cardi testified that management was uncooperative.
Further, although in 2007 Defendants hired a private investigator, he was quickly
proven to be ineffective. Despite this, defendants did not attempt another such
The jury could have also properly concluded that other remedial efforts came too
late. Parking lot lights, for example, were not installed until 2008, despite Turley’s
complaints dating to 2005. In Turley’s words, the threats “kept coming and coming, year
after year.” (4 Tr. 85.)
Moreover, the defendants themselves were not simply bystanders. Defendant
Jaworski repeatedly called Turley “boy.” When Turley told him about the “KK” graffiti, his
response, according to Turley, was to laugh and tell Turley to “go get a can of paint and
paint it yourself.” (3 Tr. 16.) Sampsell, too, laughed off the “KK” and the “KKK” as
horseplay. When Turley complained, Sampsell callously told Turley that “King Kong” was
a good movie and that he should go see it. Management also laughed when told about
Pelc’s death threat. And Sampsell did not keep Pelc from working on the same line as
Turley, despite his promise that he would. Sampsell also installed a hidden camera trained
on Turley’s workstation, and when Turley confronted him about it, Sampsell denied
installing it. Sampsell also admitted running a background check on Turley. His
explanation, that “maybe there was something in his background that might help me
determine if I could help him,” (6 Tr. 70), could easily have been discredited by the jury.
Defendants contend that their attempts to intervene were stymied by a “code of
silence” in the Pickler. But, based on evidence like that outlined above, the jury was free
to find that Defendants’ own lackluster effort in stopping the behavior was the true reason
it continued and escalated. There is sufficient evidence that management acquiesced in
this abhorrent conduct by dismissing it as trivial, conducting investigations in name only,
and administering mild, slap-on-the-wrist punishment instead of genuine discipline that
would have sent a more forceful message. Given the number of incidents, the duration
over which they took place, and their severity, the jury was not unreasonable in concluding
that Defendants were grossly negligent for failing to conduct more thorough investigations,
or for failing to address Turley’s complaints with greater earnestness and alacrity. See
Richardson v. N.Y. State Dept. of Corr. Serv., 180 F.3d 426, 442 (2d Cir. 1999) (evidence
that employer took some remedial measures did not shield it from liability as matter of law),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
126 S. Ct. 2405, 2420, 165 L. Ed. 2d 345 (2006). Nor was it unreasonable for the jury to
conclude that Defendants’ acquiescence, if not direct involvement, led to individual liability
Accordingly, the jury’s verdict regarding corporate liability for Turley’s Title VII claim,6
in addition to its finding of individual and corporate liability under § 1981 and NYHRL, is
neither unreasonable nor erroneous. The verdict will therefore stand.
Intentional Infliction of Emotional Distress
The jury found Sampsell and the corporate defendants—but not Marchand or
Jaworski—liable under the common-law tort of intentional infection of emotional distress.
An individual is liable for intentionally inflicting emotional distress when his conduct
is “so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency.” Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350
(1993). Specifically, a plaintiff must prove (1) extreme and outrageous conduct; (2) intent
to cause, or reckless disregard of a substantial probability of causing, severe emotional
distress; (3) causal connection between the conduct and injury; and (4) severe emotional
distress. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999).
Under New York law, an employer can be held liable for this tort based on the acts
of its employees, but only if those employees acted within the scope of their employment.
Riveiello v. Waldron, 47 N.Y.2d 297, 302, 391 N.E.2d 1278, 418 N.Y.S.2d 300 (1979).
Defendants’ argument that the jury’s verdict was in error is twofold: First they argue
that Sampsell’s conduct was not within the scope of his employment. Second, they
contend that the mere failure to take appropriate remedial action—the principal charge
levied at Defendants—cannot constitute extreme and outrageous conduct.
Title VII does not provide for individual liability. See Spiegel v. Schulm ann, 604 F.3d 72, 79 (2d Cir.
As noted by this Court in ruling on both Defendants’ summary judgment and Rule
50(a) motions, workplace harassment, alone, is rarely sufficient to sustain an intentional
infliction of emotion distress claim against the employer. As the Supreme Court wrote: “The
harassing supervisor often acts for personal motives, motives unrelated and even
antithetical to the objectives of the employer.” Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 757, 118 S. Ct. 2257, 2266, 141 L. Ed. 2d 633 (1998). Although that case concerned
sexual, not racial, harassment, the Court observed that the “general rule is that 
harassment by a supervisor is not conduct within the scope of employment.” Id. But this
is not a typical case, and this Court therefore finds that the “general rule” is inapplicable.
As this Court has previously found, see Turley, 803 F. Supp. 2d at 255, there is
sufficient evidence that Defendants acted not only for personal reasons, but also to
advance their business interests. More thorough investigations, or lengthier suspensions
could have hampered steel production. A jury could consider, for example, the fact that
Pelc was suspended only a few days, and allowed to work overtime, as evidence that
management preferred letting the harassment continue over taking workers off the line.
Unlike sexual abuse, which is clearly outside of an employee’s duties, the decision to
suspend an employee fits squarely within Sampsell’s duties at the plant. His failure to take
appropriate action, therefore, could lead a reasonable jury to conclude that he was acting
in furtherance of the company’s business. See E.E.O.C. v. Die Fliedermaus, 77 F. Supp.
2d 460, 473 (S.D.N.Y. 1999) (citing Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d
300, 391 N.E.2d 1278 (1979) (“[T]he determination of whether a particular act was within
the scope of the [person’s] employment is heavily dependent on factual considerations,
and therefore the question is ordinarily one for the jury”).
A jury could have also reasonably viewed Defendants’ refusal to cooperate with the
police as intended to protect their bottom line. Police involvement might have led to further
scrutiny and negative publicity, with the attendant effects on the plant’s business. The jury
was entitled to consider this. Accordingly, this prong is sufficiently met.
That leaves Defendants’ argument that the conduct in question did not rise to the
necessary level of severity. Once again, a supervisor’s inaction, or inadequate action, is
rarely considered sufficient to sustain an intentional infliction of emotional distress claim.
See, e.g., Ross v. Mitsui Fudosan, Inc, 43 F. Supp 2d 477, 392 (S.D.N.Y. 1999). But the
duration of such malicious and pervasive harassment here, including what the jury could
have found to have been implicit condonation of behavior as extreme as threatening
Turley’s life, removes this case from those like Ross. And, as noted above, Sampsell’s
conduct was not limited to mere acquiescence. He laughed off Turley’s complaints about
the racial hatred that permeated the plant; he disrupted police investigations; he failed to
hold perpetrators—as was his job (see 6 Tr. 97)—sufficiently responsible; and, despite a
promise to do so, he failed to keep Pelc, a man who had threatened Turley’s life, away
from Turley at the plant.
What is more, the jury could have found that instead of properly responding to this
hate-filled environment, he considered Turley—the lone African-American in the Pickler—to
be the problem, and focused his efforts on him by surreptitiously installing a camera in his
workstation and performing a background check.
In sum, a jury could find the totality of Sampsell’s conduct “beyond the bounds of
decency.” Accordingly, the evidence meets the legal threshold under New York law, and
the jury was entitled to find as it did.
Finally, Defendants contend that even if they remain liable for the infliction of
emotion distress, the punitive damage award on this claim should be stricken.7 In essence,
they contend that even if their conduct was “extreme and outrageous,” it did not “evince a
high degree of moral turpitude and wanton dishonesty,” justifying punitive damages. See
Walker v. Sheldon, 10 N.Y.2d 401, 405, 179 N.E.2d 497 (1961).
But for substantially the same reasons as articulated above, this Court finds that the
jury rationally concluded that Sampsell’s conduct was sufficiently culpable to warrant
punitive damages. Sampsell’s conduct, in other words, had a “high degree of moral
culpability, which manifest[ed] a conscious disregard of [Turley’s] rights.” Home Ins. Co.
v. Am. Home Prods. Corp., 75 N.Y.2d 196, 203, 550 N.E.2d 930, 934 (1990) (internal
citations and quotation marks omitted). As such, punitive damages are justified. Id.
Further, because Sampsell, as a manager, not only “ratified” the outrageous and
malicious conduct that Turley was subjected to, but also contributed to it, the jury was
permitted to award punitive damages against the corporate defendants. See Loughry v.
Lincoln First Bank, N.A., 67 N.Y.2d 369, 378, 494 N.E.2d 70, 74 (1986) (“[P]unitive
damages can be imposed on an employer for the intentional wrongdoing of its employees
only where management has authorized, participated in, consented to or ratified the
conduct giving rise to such damages.”).
Defendants did not specifically m ove for judgm ent as a m atter of law with respect to punitive
dam ages in their Rule 50(a) m otion. Defendants argue, however, that their m otion for com plete judgm ent
subsum ed their argum ent regarding punitive dam ages. This position has som e support. See Todaro v. Siegel
Fenchel & Peddy, P.C., No. 04-CV-2939 JS/W DW , 2009 W L 3150408, at *6 n. 8 (E.D.N.Y. Sept. 25, 2009)
(“Defendants m oved for a com plete judgm ent in their favor. This, ipso facto, m eans that Defendants sought
a legal ruling that they did not discrim inate at all, and thus, could not have discrim inated m aliciously or with
reckless indifference.”). But the point is m oot: whether or not the objection is preserved, this Court finds that
the jury’s punitive award is perm issible.
Verdict Form & Jury Charge
Defendants contend that there were errors in the verdict form and jury instructions.
“A jury instruction is erroneous if it misleads the jury as to the correct legal standard or
does not adequately inform the jury on the law.” Anderson v. Branen, 17 F.3d 552, 556 (2d
Cir. 1994) (citing Folger Adam Co. v. PMI Indus., Inc., 938 F.2d 1529, 1533–34 (2d Cir.
1991). Viewing the charge as a whole, Defendants must prove that they were actually
prejudiced by the erroneous charge. United States v. Pujana-Mena, 949 F.2d 24, 27 (2d
Cir. 1991). If they meet this burden, a new trial is necessary. See United States v.
Quinones, 511F.3d 289, 313 (2d Cir. 2007).
Defendants first object to Instruction No. 31 and the related Liability Verdict
Question No. 2. Instruction No. 31 states that an employer can be responsible for a hostile
work environment created by co-workers if “the plaintiff proves by a preponderance of the
evidence that the plaintiff's supervisor or successively higher authority knew . . ., or should
have known . . ., of the hostile or abusive work environment and permitted it to continue
by failing to take remedial action.” Tracking that language, Verdict Question No. 2 asks:
“Has the plaintiff proven by a preponderance of the evidence that a supervisor with
immediate or successively higher authority over the plaintiff created or permitted the hostile
or abusive work environment by not taking reasonable action to address it?”
Defendants argue that this instruction and the associated verdict question allowed
the jury to impose liability if it found only one supervisor, as opposed to the employer as
a whole, permitted the hostile work environment to continue. Defendants seem to suggest
that other, non-defendant supervisors addressed the hostile work environment even if the
named Defendants did not. But for several reasons, this objection is without merit.
As an initial matter, this charge contains plain, standard language from pattern jury
instructions, with no substantive changes. See O'Malley et al., Federal Jury Practice and
Instructions § 171.22; see also United States v. Dixon, No. 09-CR-6046L, 2011 WL
4829718, at *1(W.D.N.Y. Oct. 12, 2011) (denying objection because, in part, the instruction
was plain and standard).
Furthermore, Defendants have not proven that they were actually prejudiced by any
alleged error. The jury found each individual defendant—Turley’s supervisors—individually
liable. Although Defendants allude to the possibility that another supervisor somehow
redeemed the acts and omissions of the individual defendants, they point to no such
person in their moving papers.
Finally, although it contains a different burden of proof, the jury rejected Defendants’
affirmative defense and found that the corporate defendants, as a whole, did not exhibit
reasonable care in responding to the hostile work environment. (See Liability Verdict Form
Question No. 8.) Accordingly, this objection is rejected.
Defendants next object to Liability Verdict Question Nos. 10–13, arguing that they
allowed the jury to impose corporate liability for intentional infliction of emotional distress
without finding all the necessary elements of the tort. To sustain an intentional infliction of
emotional distress claim against an employer, the plaintiff must not only prove all the
traditional elements of the claim, but he must also show that those responsible for the
distressing conduct acted within the scope of their employment. See Riveiello, 47 N.Y.2d
To this end, Question No. 10 of the Verdict Form asks: “Has the plaintiff proven by
a preponderance of the evidence that the co-workers or supervisors who were responsible
for the conduct he experienced acted in furtherance of the corporate employers’ business
and not for their own personal reasons?” Question Nos. 11–13 also contain the language
“co-workers or supervisors,” and it is this language with which Defendants take issue. They
contend that the jury could have found that a supervisor (not acting with intent to cause
emotional distress) acted in furtherance of the employer’s business, while a co-worker
(acting with the requisite “extreme and outrageous” intent) did not act in furtherance of the
business. As such, Defendants, argue, there is the possibility that the jury did not find that
Turley proved each element of the claim as against the corporate defendants.
This objection fails for two reasons.
First, it is a tortured interpretation of the question. Defendants theorize that the jury
could have split the question, attributing one element of the offense to one group of
defendants and another element to a different group. But the question is straightforward:
it asks whether those responsible for the conduct Turley experienced, no matter who they
might be, acted in furtherance of the employee’s business. This Court finds no possibility
of confusion therein.
Second, the jury’s findings demonstrate it was not confused. Indeed, it could not
have been, as Defendants argue, that the jury found the supervisors as a class acted in
furtherance of the business, but not outrageously, for they found Defendant Sampsell, a
supervisor, liable for extreme and outrageous conduct. This objection is therefore also
Passion and Prejudice
Pointing to the request of Turley’s attorney for a specific damage award, and the
copious awards conferred in this case, Defendants argue that a new trial, not remittitur, is
necessary because the verdict is a result of passion and prejudice.
This Court disagrees.
First, the jury was instructed that, “the damages that you award must be fair and
reasonable, neither inadequate nor excessive,” and this Court admonished the jury to be
“guided by dispassionate common sense” and “sound discretion.” Lacking evidence to the
contrary, this Court presumes that those instructions were followed. See CSX Transp., Inc.
v. Hensley, 556 U.S. 838, 841, 129 S. Ct. 2139, 173 L. Ed. 2d 1184 (2009) (“The jury
system is premised on the idea that rationality and careful regard for the court's instructions
will confine and exclude jurors' raw emotions”); see also United States v. Whitten, 610 F.3d
168, 191 (2d Cir. 2010) (“We presume that juries follow instructions . . . .”).
Second, Defendants claim that the jury was unjustly influenced by “anchoring”—the
practice of suggesting an appropriate figure to the jury during summation. But this practice,
though possibly disfavored, is not prohibited. See Ramirez v. N.Y. City Off-Track Betting
Corp., 112 F.3d 38, 40 (2d Cir. 1997). And Defendants themselves engaged in the
practice, suggesting $200,000 to $250,000 to be an appropriate award. (16 Tr. 74.)
Finally, this Court finds the jury’s award to be a reflection not of passion or prejudice
but of the damages it believed were necessary to compensate Turley for extreme anguish
and to sufficiently punish an especially wealthy defendant for reprehensible conduct.
Defendants also contend that the compensatory damages—totaling $1,320,000—
are excessive, requiring remittitur.
“A jury has broad discretion in measuring damages,” Dotson v. City of Syracuse,
No. 5:04-CV-1388 NAM/GJD, 2011 WL 817499, at * 13 (N.D.N.Y. Mar. 2, 2011), but “there
must be an upper limit, and whether that has been surpassed is . . . a question of law,”
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435, 116 S. Ct. 2211, 2223, 135 L. Ed.
2d 659 (1996) (quoting Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961).
If a district court finds that the limit has been eclipsed, and that the damages are
excessive, it may order a new trial, a new trial limited to damages, or remittitur. Thorsen
v. County of Nassau, No. CV 03-1022, 2010 WL 2671816, at * 11 (S.D.N.Y. 2010) (citing
Cross v. N.Y. City Transit Auth., 417 F.3d 241, 258 (2d Cir. 2005)).
Remittitur, “a limited exception to the sanctity of jury fact-finding”, see Akermanis v.
Sea-Land Serv., Inc., 688 F.2d 898, 902 (2d Cir.1982), “is the process by which a court
compels a plaintiff to choose between reduction of an excessive verdict and a new trial,”
Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990). It is appropriate where
“a properly instructed jury, hearing properly admitted evidence, nevertheless makes an
excessive award.” Werbungs Und Commerz Union Austalt v. Collectors' Guild, Ltd., 930
F.2d 1021, 1027 (2d Cir. 1991). A court’s decision to compel such a choice depends on
whether the jury's award is “so high as to shock the judicial conscience and constitute a
denial of justice.” Payne v. Jones, 696 F.3d 189, 199 (2d Cir. 2012) (quoting Zarcone v.
Perry, 572 F.2d 52, 56 (2d Cir. 1978).8
The Second Circuit recently wrote that “[n]either cases arising under federal law nor
those arising under state law provide a clear line as to whether [the award] for emotional
But see infra at 35. The Payne court, considering punitive dam ages, found that “a degree of
excessiveness less extrem e than ‘grossly excessive’ will justify a ‘shocks the conscience’ finding that supports
im posing a rem ittitur.” 696 F.3d at 200. But even under this arguably lower standard, this Court finds that the
com pensatory award should stand.
distress on the basis of a trial record such as that created in the present case deviates so
materially from what would be reasonable compensation as to shock the judicial
These words were not written about this case, see Lore v. City of Syracuse, 670
F.3d 127, 177 (2d Cir. 2012), but they could have been. Perhaps that statement is even
truer here. Indeed, while both parties point to cases dealing with harassment generally, it
is not surprising that neither party is able to identify any cases beginning to replicate the
facts in this case. That poses a significant difficulty, because one of the most concrete
methods used to determine whether an award “shocks the judicial conscience, is to
“consider[ ] . . . the amounts awarded in other, comparable cases.” DiSorbo v. Hoy, 343
F.3d 172, 183 (2d Cir. 2003).
But that is not to say that useful analogies, comparisons, and contrasts cannot be
gleaned from the case law. In fact, several courts have found that emotional distress
awards within the Second Circuit can “generally be grouped into three categories of claims:
‘garden-variety,’ ‘significant’ and ‘egregious.’” See, e.g., Olsen v. County of Nassau, 615
F. Supp. 2d 35, 46 (E.D.N.Y. 2009); Mugavero v. Arms Acres, Inc., 680 F. Supp. 2d 544,
578 (S.D.N.Y. 2010).
In “garden variety” emotional distress claims, “the evidence of mental suffering is
generally limited to the testimony of the plaintiff, who describes his or her injury in vague
or conclusory terms, without relating either the severity or consequences of the injury.”
Khan v. Hip Centralized Lab. Servs., Inc., No. CV-03-2411, 2008 WL 4283348, at *11.
“Garden variety” emotional distress claims “generally merit $30,000 to $125,000 awards.”
Mugavero, 680 F. Supp. 2d at 578.9
“Significant” emotional distress claims “are based on more substantial harm or more
offensive conduct, and are sometimes supported by medical testimony and evidence,
evidence of treatment by a healthcare professional and/or medication, and testimony from
other, corroborating witnesses.” Khan, 2008 WL 4283348, at *11. “Significant” damages
merit awards at least as high as $175,000. See, e.g., Mugavero, 680 F. Supp 2d at 578
(upholding total emotional distress award of $175,000 where the plaintiff offered evidence
of “more than a ‘garden variety’ claim”).
Finally, “egregious” emotional distress claims “generally involve either ‘outrageous
or shocking’ discriminatory conduct or a significant impact on the physical health of the
plaintiff.” Khan, 2008 WL 4283348, at *12. Substantially higher awards are appropriate in
for this type of claim. See, e.g., Ramirez,112 F.3d at 38 (affirming a $500,000 award,
reduced from $1,145,625 by the district court, in an employment discrimination case).
This Court can therefore use this formulation as a guidepost. Further, although not
entirely analogous, both sides point to cases that they believe support their positions.
Turley points to relatively large awards. See id. ($500,000); Osorio v. Source Enters., Inc.,
No. 05 CIV. 10029 (JSR), 2007 WL 683985 (S.D.N.Y. Mar. 2, 2007) (upholding a $4 million
compensatory award, but only because emotional distress damages were coupled with
significant reputational harm); Chopra v. Gen. Elec. Co., 527 F. Supp. 2d 230 (D. Conn.
2007) (affirming $500,000 award for emotional distress ). As is evident, however, none of
these cases establish precedent for the magnitude of damages, for emotional distress
The Court in Khan, citing Rainone v. Potter, 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005), identified a
lower range of com pensation for garden-variety claim s. But that range has not been widely accepted and has
been am ended to reflect the present day value of the dollar. See, e.g., Olsen, 615 F. Supp. 2d at 46 n.4.
alone, present here.
For their part, Defendants point to a series of significantly smaller awards. See, e.g.,
Khan, 2008 WL 4283348, at *6–*12 (reducing $200,000 award to $50,000); Rainone, 388
F. Supp. 2d at 124–26 (reducing $175,000 award in gender failure-to-promote case to
Defendants also rely heavily on Lore, where the Second Circuit recently affirmed
a $250,000 award for compensatory damages. 670 F.3d 127. There, the plaintiff suffered
from anxiety, tension headaches, and stomach problems as a result of sexually
discriminatory conduct at her workplace; she couldn't sleep because she was fearful. Id.
at 146–47. Stress prompted her to consult a doctor, who prescribed an antidepressant. Id.
The court highlighted testimony that revealed she was once a “gregarious person” who, as
result of the conduct, became “reclusive.” Id. Her depression led her mother to be “afraid
she was going to do something to hurt herself.” Id.
Although the court affirmed the award, it characterized it as “generous” and noted
that remittitur would have been necessary if not for the reputational harm the plaintiff
suffered. Id. at 179. It also found that “[o]ne would not reasonably expect emotional
distress on the part of [plaintiff] . . . to be on par with the emotional distress suffered by a
person who was discriminatorily fired.” Id. Because the court arguably found $250,000 to
be a borderline-excessive award, Defendants suggest that this number—$250,000—is the
upper limit for pain and suffering in employment-discrimination cases where the plaintiff,
like Turley, was not terminated.
This Court must be cautious, however, not to apply bright-line standards when
performing this exceedingly fact-intensive inquiry. Instead, it must “bear in mind that any
given judgment depends on a unique set of facts and circumstances.” See Scala v. Moore
McCormack Lines, 985 F.2d 680, 684 (2d Cir. 1993). So considered, this Court finds that
the unique facts and circumstances of this case set it apart from others. It is not hyperbole
to say that, for roughly three years, Turley endured some of the most hate-filled and racist
behavior imaginable. As a result, Turley cried daily; he lost 30 pounds; he suffered from
panic attacks, depression, isolation and anxiety; on two separate occasions, unable to
withstand the hatred any longer, he was taken to the hospital directly from work. At trial,
Dr. Syed Jaffri, a psychiatrist, confirmed that Turley suffered from Post-Traumatic Stress
Disorder and Adjustment Disorder. He opined that Turley would continue to have triggers
the rest of his life. At one visit in 2008, Dr. Jaffri remembered that Turley presented as
“noticeably distraught, depressed, hopeless, [and] helpless.” (8 Tr. 53.) The jury, too,
witnessed a defeated and dispirited man in the courtroom. This apparently left a marked
As already discussed, the jury reasonably attributed the atmosphere at the plant to
the inaction, or worse, acquiescence of Defendants. Defendants argue that the distress
Turley suffered was neither significant nor egregious. This Court cannot agree; the jury
recognized that Turley suffered immensely, and medical evidence, his own testimony, and
that of his co-workers evidenced as much.
Indeed, there can be no serious dispute that Turley experienced prolonged,
egregious conduct, and that he had significant emotional and physical repercussions from
the harassment that he endured at the Pickler. This is not a case where a black employee
was simply passed over for a promotion, terminated out of bias, or retaliated against for
making a complaint. Nor is this a single incident of racial insensitivity or discrimination.
Turley was instead made to suffer daily ignominies and outrageous abuses. Testimony
revealed that Turley, once a proud and animated athlete, was rendered a mere shell of the
man he once was.
Just recently, the Second Circuit upheld a $1 million compensatory award for the
emotional distress that a black high school student suffered due to the school district’s
indifference to the racial harassment he faced. See Zeno, 2012 WL 5992147, at *13.
Differences in this case are again easy to spot. The plaintiff in Zeno, for example, was only
a student, and the jury may have concluded that he would continue to be affected by the
harassment for the rest of his life. But the case highlights the fact-intensive nature of this
determination. It recognizes, in other words, that a million-dollar verdict for racial
harassment is not de jure excessive. Likewise, fully aware that verdicts of this sum for
emotional distress are exceptional, this Court finds the circumstances of this case to be
equally exceptional. As such, the award is warranted, and it will not be reduced.
One final matter on this topic requires attention. The jury awarded Turley a total of
$1,060,000 for his claims under Title VII, § 1981, and the NYHRL; it then awarded him a
total of $260,000 for his intentional infliction of emotional distress claim. Defendants thus
contend that the compensatory award is duplicitive. Defendants, however, fail to show that
they objected to the division of the claims on the verdict sheet, which allowed the jury to
award damages for each one. See Lambert v. Genesee Hosp., 10 F.3d 46, 53–54 (2d
Cir.1993) (A party may only make a post-judgment Rule 50(b) motion based on grounds
specifically raised at the close of evidence). Second, the jury was instructed not to award
duplicitive damages (16 Tr. 96), an instruction which the jury is presumed to have followed.
Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000). And
third, “a jury's award is not duplicative simply because it allocates damages under two
distinct causes of action.” Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 497 (2d Cir.
1995). This basis for a new trial is therefore rejected.
Last, Defendants seek remittitur or a new trial on punitive damages. Defendants
claim that the $24,000,000 punitive award is excessive and should be set aside.10
This Court agrees.
“Awards of punitive damages are by nature speculative, arbitrary approximations.”
Payne, 696 F.3d at196. Nonetheless, courts have an obligation to ensure that such awards
“be fair, reasonable, predictable, and proportionate.” Id. Judicial review of punitive
damages awards, in fact, “has been a safeguard against excessive verdicts for as long as
punitive damages have been awarded.” Id. (citing Honda Motor Co. v. Oberg, 512 U.S.
415, 421, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994)).
A court’s authority to limit an award derives in part from the Due Process Clause
of the Fourteenth Amendment. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532
U.S. 424, 433, 121 S. Ct. 1678, 1683, 149 L. Ed. 2d 674 (2001). When a federal court
reviews a state-court award, punitive damages violate the Due Process Clause if they are
“grossly excessive.” Id.; BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134
L. Ed. 2d 809 (1996). But, as recently noted by the Second Circuit, a federal trial court
The jury awarded Turley $20,000,000 as against the corporate defendants for violations of Title VII
and § 1981. It awarded him $4 m illion in em otional distress punitive dam ages as against ArclerlorMittal
Lackawanna, LLC, and another $5,000 as against Defendant Sam psell. (See Dam ages Verdict Sheet; Docket
No. 197-1.) Because there is no cap on punitive dam ages under § 1981, as there is for Title VII, the jury’s
award for Title VII violations is apportioned to § 1981. See, e.g., Funk v. F & K Supply, Inc., 43 F. Supp. 2d
205, 225 (N.D.N.Y. 1999); Gonzalez v. Bratton, 147 F. Supp. 2d 180, 204 (S.D.N.Y. 2001); Kauffm an v. Maxim
Healthcare Servs., Inc., 509 F. Supp. 2d 210, 220 n. 13 (E.D.N.Y. 2007).
reviewing its own jury’s verdict for excessiveness has an independent “supervisory
authority.” Payne, 696 F.3d at 200. Therefore, “a degree of excessiveness less extreme
than ‘grossly excessive’ will justify” remittitur in cases such as this. Id.
The three guideposts articulated by the Supreme Court in Gore inform this inquiry.
517 U.S. at 574–75. Those guideposts are: (1) degree of reprehensibility of the defendant's
conduct, (2) relationship of the punitive damages to the compensatory damages, and (3)
criminal and civil penalties imposed by the state's law for the misconduct in question. Id.;
Payne, 696 F.3d at 200. Each is addressed below.
Degree of Reprehensibility
The degree of reprehensibility of the defendant's misconduct is “[p]erhaps the most
important indicium of the reasonableness of a punitive damages award.” Gore, 517 U.S.
at 575. “This guidepost is particularly important and useful because punitive damages are
intended to punish, and the severity of punishment, as in the case of criminal punishments,
should vary with the degree of reprehensibility of the conduct being punished.” Payne, 696
F.3d at 201. The Supreme Court has outlined five factors relevant to determining the
reprehensibility of a defendant’s conduct. State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 419, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003). Accordingly, courts should
[T]he harm caused was physical as opposed to economic; the
tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of the
conduct had financial vulnerability; the conduct involved
repeated actions or was an isolated incident; and the harm
was the result of intentional malice, trickery, or deceit, or mere
It is beyond dispute that the jury found Defendants’ conduct to be particularly
reprehensible. The evidence supports this conclusion. The overt racist harassment lasted
for more than three years. It did not improve with time; it escalated. Investigations were
feeble and perfunctory; responses were cursory. Defendants exhibited an indifference to
Turley’s health, safety, and general well-being. The effect this had on Turley has already
been detailed. It is enough to note here that it was deleterious and pervasive.
Some amount of punitive damages are thus appropriate based on this factor alone.
However, aside from the physical manifestations of emotional harm, the harms were purely
emotional; Defendants, that is, engaged in no “physical assault.” State Farm, 538 U.S. at
426. And there is no evidence that Turley was targeted because of financial vulnerability.
At least two of the factors described in State Farm are therefore absent. Further,
Defendants did not, for the most part, perpetrate the racist acts; instead, they failed to
remedy them or acquiesced in them. This distinction also limits, to a degree, their
“Courts must ensure that the measure of punishment is both reasonable and
proportionate to the amount of harm to the plaintiff and to the general damages recovered.”
State Farm, 538 U.S. at 426 (emphasis added). This factor—the ratio between the
compensatory and punitive damages—is the “most commonly cited indicum of an
unreasonable or excessive punitive damages award.” Gore, 517 U.S. at 580. A bright-line
test, however, is inappropriate, see id. at 582–83, as “it is difficult or impossible to make
useful generalizations,” Payne, 696 F.3d at 201. But, “in practice, few awards exceeding
a single-digit ratio between punitive and compensatory damages will satisfy due process.”
State Farm, 538 U.S. at 425.
The jury awarded Turley just over $1 million in compensatory damages for his §
1981 claim and $260,000 for his intentional infliction of emotional distress claim. Punitive
damages for those claims amounted to $20 million, and just over $4 million, respectively.
The ratio of compensatory to punitive damages for the § 1981 claim is thus 20 to 1, while
the intentional-infliction-of-emotional-distress ratio is 16 to 1.
This is excessive. The Supreme Court has found that “an award of more than four
times the amount of compensatory damages might be close to the line of constitutional
impropriety.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22–23, 111 S. Ct. 1032, 1046,
113 L. Ed. 2d 1 (1991). Over ten years later, the Supreme Court affirmed the continued
validity of this sentiment, but also noted that “[w]hen compensatory damages are
substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach
the outermost limit of the due process guarantee.” State Farm, 538 at 425. Heeding the
guidance from the Supreme Court in cases like Haslip, Gore, and State Farm, courts in this
district, and throughout the country, have recognized the overarching principle that a
single-digit ratio is “more likely to comport with due process” than a double-digit one. Id.;
see E.E.O.C. v. Sterling Jewelers Inc., 788 F. Supp. 2d 83, 89 (W.D.N.Y. 2011); Bridgeport
Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 488 (6th Cir. 2007); S. Union Co. v. Sw.
Gas Corp., 415 F.3d 1001, 1010, 423 F.3d 1117 (9th Cir. 2005).
This is true of discrimination cases as well. The court in Zakre v. Norddeutsche
Landesbank Girozentrale, for example, found a punitive damages award of $2.5 million,
where compensatory damages were roughly $1.5 million, to be disproportionate. 541 F.
Supp. 2d 555, 567 (S.D.N.Y. 2008). There, the jury found the defendant liable for
purposely limiting the career opportunities of the plaintiff, unfairly criticizing her, and
exhibiting a pattern of sex discrimination and unfair compensation. Id. at 564-65. The court
recognized this as reprehensible behavior, but, because the compensatory damages were
substantial, it reduced the award even though the initial ratio was less than 2:1. Id. The
court ordered remittitur in the amount of $600,000.
In Thomas v. iStar Financial, Inc., the jury found that the plaintiff’s supervisor
disproportionately targeted black employees for criticism and termination. 438 F. Supp. 2d
348, 355 (S.D.N.Y. 2006). The supervisor told black employees, including the plaintiff, that
he “knew what it was like to grow up poor” and that “he came from where they came from
and grew up in the ‘hood,’ poor and on welfare.” Id. “He also called a former black
employee a “nigger,” and told her she had to try harder because she is black.” Id. The jury
awarded $1,600,000 in punitive damages, resulting in a punitive-to-compensatorydamages ratio of approximately 3.6:1. The district court reduced the punitive damages to
$190,000. On appeal, the Second Circuit affirmed, and noted the substantial compensatory
award “weighs heavily in favor a punitive damages award equal to or less than” the
compensatory figure. 652 F.3d 141, 144 (2d Cir. 2011), cert. denied, 132 S. Ct. 856, 181
L. Ed. 2d 552 (2011).11
Turley seems to recognize that, post Gore, such a disproportionate award as was
issued here has never been accepted by the courts. Although he cites no fewer that 19
cases to support his argument that “higher ratios are needed to punish reprehensible
conduct,” not one of those cases reflects an award of the type of disparity present here.
But it m ust be rem em bered that no two cases are identical. The plaintiff in iSTar was unsuccessful
on his hostile work environm ent claim . And the offensive racial rem arks were “occasional and isolated.” Id.
at 144. That was not the case here.
To be sure, one of the cases he points to upheld a punitive award 150 times greater than
the compensatory award, but that was only because the jury awarded nominal
compensatory damages. This is an exception to the proportionality rule. See Lee v.
Edwards, 101 F.3d 805, 811 (2d Cir.1996) (where compensatory damages are nominal,
“a much higher ratio can be contemplated”).
The jury’s award here was far from nominal. And although Defendants’ net worth,
which is significant, can be considered in assessing punitive damages, see Smith v.
Lightning Bolt Products, Inc., 861 F.2d 363, 373 (2d Cir. 1988); Gore, 517 U.S. at 591
(Breyer, J., concurring), great wealth alone “cannot justify an otherwise unconstitutional
punitive damages award,” State Farm, 538 U.S. at 427. As noted by a sister court in a
separate case, “In light of the substantial amount of damages already awarded to
compensate plaintiff, these [disproportionate] ratios underscore the excessiveness of” the
punitive award. Chopra, 527 F. Supp. 2d at 246. As such, a reduction in the punitive
damages award is necessary to achieve greater proportion to the harm that Defendants
Sanctions for Comparable Conduct
The third, and arguably least important, guidepost assesses the “disparity between
the punitive damages award and the ‘civil penalties authorized or imposed in comparable
cases.’” State Farm, 538 U.S. at 428; Gore, 517 U.S. at 583.
There are two related statutes pertinent to the type of misconduct present in this
case: the New York Human Rights Law and Title VII. Both of these limit the amount of
damages recoverable. NYHRL permits damages up to $100,000 for willful, wanton, or
malicious discrimination. See N.Y. Exec. Law § 297(4)(c)(vi). And Title VII caps the
combined punitive and compensatory damages at $300,000. See 42 U.S.C. § 1981a(b)(3).
Although Congress imposed no limits on punitive damages recovered pursuant to §1981,
these related limitations should be considered. See, e.g., Gore, 517 U.S. at 583 (“[A]
reviewing court engaged in determining whether an award of punitive damages is
excessive should accord substantial deference to legislative judgments concerning
appropriate sanctions for the conduct at issue”) (internal quotation marks omitted); iStar,
508 F. Supp. 2d at 263. Accordingly, like the two before it, this factor also suggests that
the award should be reduced.
Considering the totality of the circumstances, including the degree of reprehensibility
at issue, the singular nature of this case, the large compensatory award, and the ultimate
purpose of punitive damages—to punish and deter future misconduct—this Court finds that
it must significantly reduce the punitive award to satisfy the “less-than-grossly-excessive”
test outlined in Payne. Specifically, this Court finds that a $5 million punitive damage award
sufficiently punishes and deters Defendants while reflecting the upper most limit
permissible under the law.12 If Turley does not accept the remittitur, this Court will vacate
the punitive damages award and conduct a new trial limited to the question of punitive
damages. See iStar, 652 F.3d at 145–47 (“[T]his Court has . . . provided plaintiffs with the
option of a new trial  where a punitive damages award has been deemed excessive”);
Vasbinder v. Scott, 976 F.2d 118, 122–23 (2d Cir. 1992).
$4 m illion will be attributed to the § 1981 claim , and $1 m illion to the em otional distress claim . The
em otional distress claim requires further division. $1,250 will be attributed to Larry Sam psell and $998,750
to ArcelorMittal Lackawanna, LLC. This equals a roughly 4:1 ratio for each of the claim s.
Plaintiff’s Motion for Attorney Fees
To ensure that federal rights are adequately enforced, the United States Code
provides that a prevailing party in civil rights action may recover, subject to the court’s
discretion, “a reasonable attorney's fee.” See 42. U.S.C. § 1988; see also 42 U.S.C. §
2000e–5(k); Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1671, 176 L. Ed. 2d 494
(2010). “A ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to
undertake the representation of a meritorious civil rights case.” Id.
In this Circuit, if the court finds a fee award to be appropriate, it will set a
“reasonable hourly rate,” bearing in mind all the case-specific variables. Adorno v. Port
Auth. of N.Y. & N.J., 685 F. Supp. 2d 507, 510-11 (S.D.N.Y. 2010) (quoting Arbor Hill
Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir.
2008).13 The court then uses that rate to calculate the presumptively reasonable fee by
multiplying the rate by the number of hours reasonably expended. Id.
Plaintiff seeks a judgment for fees in the amount of $523,416.00. This is based on
2,433.90 hours of work expended by various lawyers, paralegals, and student law clerks.
Defendants object. They contend that several attorneys’ rates are too high, that time spent
pursuing unsuccessful claims must be eliminated, and that many entries are redundant or
To arrive at that fee, district courts should also consider the twelve Johnson factors: (1) the tim e and
labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal
service properly; (4) the preclusion of em ploym ent by the attorney due to acceptance of the case; (5) the
attorney's custom ary hourly rate; (6) whether the fee is fixed or contingent; (7) the tim e lim itations im posed
by the client or the circum stances; (8) the am ount involved in the case and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in sim ilar cases. See Arbor Hill, 522
F.3d at 190 (citing Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717 (5th Cir. 1974)).
Defendants seek to limit the partners’ fees to $250 per hour. See Ghadersohi v.
Health Research, Inc., 08-CV-355S, 2011 WL 5040668 (W.D.N.Y. Oct. 21, 2011) (finding
that a $250 rate to be appropriate for partner-level attorneys). This proposal would affect
only Donald Eppers, senior counsel for Turley, who billed at a rate of $295 per hour, and
Lisa Sofferin, who billed at $275 per hour.
“The most critical factor in a district court's determination of what constitutes
reasonable attorney's fees in a given case is the degree of success obtained by the
plaintiff.” Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008). Mr.
Eppers was the senior attorney on this case, and he and his firm certainly attained a
considerable degree of success for Mr. Turley. Ms. Sofferin, too, is an experienced litigator
and was lead counsel on the case for several years before she withdrew from Brown &
Kelly, LLP. According to the records submitted, she certainly contributed to the favorable
outcome. But their rates remain slightly excessive for this district. See Simmons v. N.Y.
City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (courts “should generally use the
hourly rates employed in the district in which the reviewing court sits in calculating the
presumptively reasonable fee”); see also Ghadersohi, 2011 WL 5040668, at *6; Williams
v. Beemiller, Inc., No. 05–CV–836, 2010 WL 891001, at (W.D.N.Y. Mar. 10, 2010),
(collecting cases and reducing rate to $250), rev'd on other grounds, 416 F. App'x 97 (2d
Cir. 2011). Therefore, each of their rates will be reduced by $25 per hour.
Although the rates sought for associates and paralegals in the case are $25 and
$15 over the rates approved in Ghadersohi, this Court does not find them to be excessive.
They will stand. No information is provided about the law clerks, who billed at $95 per hour.
Defendants seek to reduce their rate to $75 per hour. This Court finds such a reduction to
This Court must exclude any hours that were “excessive, redundant, or otherwise
unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 76 L. Ed. 2d 40
(1983). Indeed, all time must be reasonably expended. Louis Vuitton Malletier S.A. v. LY
USA, Inc., 676 F.3d 83, 111 (2d Cir. 2012). In making this determination, the court must
Rochester–Genesee Reg'l Transp. Auth., 388 F. Supp. 2d 159, 163 (W.D.N.Y. 2005).
Defendants contend that Plaintiff’s attorneys failed to use billing judgment and that many
hours were expended litigating claims that were ultimately unsuccessful; other entries, they
argue, are vague or redundant. In short, they contend that the hours must be heavily
reduced. They seek to cut the total fee to 4/7ths of its current figure, or alternatively, to
reduce the number of hours billed by 30%.
There is no dispute that Turley was unsuccessful on several claims, including those
for disparate treatment and retaliation. If those claims “are distinct in all respects, the hours
spent on the unsuccessful claim should be excluded.” Hensley, 461 U.S. at 440. In
Hensley, the Court divided fee-shifting cases into two broad types: those that involve
“distinctly different claims for relief that are based on different legal facts and legal theories”
and those “involve a common core of facts” or are “based on related legal theories.” Id.,
at 434–35; Kassim v. City of Schenectady, 415 F.3d 246, 253 (2d Cir. 2005). “In the more
unitary cases—those involving a common core of facts or related legal theories—it is more
‘difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be
viewed as a series of discrete claims. Instead the district court should focus on the
significance of the overall relief obtained by the plaintiff in relation to the hours reasonably
expended on the litigation.’” Id. (quoting Hensley, 461 U.S. at 435).
There can be no serious dispute that this case falls into the second or “unitary”
category, as all claims arise out of Turley’s general mistreatment at the plant. Some
reduction, however, remains necessary considering that Turley did not obtain the full relief
he sought. Furthermore, “[h]ours spent . . . on claims wholly ineligible for fee-shifting, must
be excluded from the reasonable hours spent on the case . . . .” Millea v. Metro-N. R. Co.,
658 F.3d 154, 168 (2d Cir. 2011). This includes Turley’s state-law emotional distress
Defendants also point out the inevitable overlap that occurred when Turley’s initial
attorney left the case. Despite this, the attorneys’ fee schedule does not account for the
unnecessary double effort. Defendants also point to exaggerated entries. For example,
Turley’s principal trial attorneys, Mr. Eppers and Mr. Mills, and a paralegal, Ms. Dingey, all
billed 9.4 hours for attendance at trial on June 11, 2012. Trial adjourned that day after a
morning session, however. These three also billed for 3.4 hours for a technology-training
session in the courtroom. Those sessions last no more than an hour.
Due to instances such as these, in addition to the reductions related to the lack of
success on several of Turley’s claims, this Court finds that an overall reduction of 15% in
the total hours is appropriate. See Grievson v. Rochester Psychiatric Ctr., 746 F. Supp. 2d
454, 466 (W.D.N.Y. 2010) (quoting Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir.
1998) (A “‘practical means of trimming the fat’ is to apply a reasonable percentage
reduction to the total number of hours requested”).
Adjusting the time for each attorney, paralegal, and law clerk by 15%, and factoring
in the adjusted rates from above, this Court approves a fee award of $437,323.30. This
figure is subject to change if the litigation in this case continues.
This Court finds the costs, $32,711.42, to be reasonable.
The jury determined that Elijah Turley endured extraordinary racial harassment, the
likes of which this country had hoped to leave in its past. It found that the responses to this
treatment were alarmingly inadequate. It determined that Turley suffered, and that he
should be compensated for that suffering. It concluded that deterrence and punishment
were necessary. These determinations will not be upset, with one exception: this Court
vacates the punitive damages award and orders a new trial on punitive damages unless
Turley accepts a reduced punitive damages award of $5 million.
Last, this Court finds the award of attorney fees to be appropriate, and it approves
them in the amount of $437,323.30. It awards Plaintiff costs in the amount of $32,711.42.
IT HEREBY IS ORDERED, that Defendants’ Motion for Judgment as a Matter of
Law (Docket No. 214) is DENIED; their related Motion for a New Trial or Remittitur is
GRANTED in part and DENIED in part.
FURTHER, a new trial on punitive damages will be held unless Turley accepts a
reduced punitive damages award. Specifically, this Court orders a reduction in punitive
damages as follows:
Corporate Defendants: $4 million under Title VII & § 1981.
ArccelorMittal Lackawanna, Inc.: $998,750 for intentional infliction of emotional
Larry Sampsell: $1,250 for intentional infliction of emotional distress.
FURTHER, Plaintiff’s Motion for Attorney Fees and Costs (Docket No. 203) is
GRANTED, in accordance with this Decision.
FURTHER, if Plaintiff chooses to accept the reduced award, he must file an affidavit
indicating so with the Clerk of the Court within 30 days. If no such affidavit is received, or
if Plaintiff affirmatively declines to accept the reduced award, a new trial on punitive
damages will be held at a date to be determined by this Court.
Dated: January 11, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court
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