Wiercinski v. Mangia 57, Inc.

• Citation: 787 F.3d 106
• Decision Date: 21 May 2015
• Docket Number: No. 14–1753–cv.,14–1753–cv.
• Parties: Adam WIERCINSKI, Plaintiff–Appellant, v. MANGIA 57, INC., Sasha Muniak, Artur Zbozien, Malgorzata Cymanow, Grzegorz Sarosiek, Robert Bazgier, and Dariusz Maslanka, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

787 F.3d 106

Adam WIERCINSKI, Plaintiff–Appellant

v.MANGIA 57, INC., Sasha Muniak, Artur Zbozien, Malgorzata Cymanow, Grzegorz Sarosiek, Robert Bazgier, and Dariusz Maslanka, Defendants–Appellees.

No. 14–1753–cv.

United States Court of Appeals, Second Circuit.

Submitted: Feb. 6, 2015.

Decided: May 21, 2015.

Matthew J. Blit, Levine & Blit, PLLC, New York, N.Y., for Plaintiff–Appellant Adam Wiercinski.

Daniel J. Kaiser (Henry L. Saurborn, Jr., on the brief), Kaiser Saurborn & Mair, P.C., New York, N.Y., for Defendants–Appellees Mangia 57 Inc., Sasha Muniak, Artur Zbozien, Malgorzata Cymanow, Grzegorz Sarosiek, Robert Bazgier, and Dariusz Maslanka.

Before: PARKER, HALL, and LIVINGSTON, Circuit Judges.

Opinion

BARRINGTON D. PARKER, Circuit Judge:

Adam Wiercinski, a Polish man of Jewish descent, immigrated to the United States in 1981 with the assistance of Rav–Tov International Jewish Rescue Organization (“Rav–Tov”), a community organization helping Jews resettle in Israel and the United States. Starting in approximately 1984 and continuing until December 2007, Wiercinski worked as a deliveryman for Mangia, a food catering company with several locations in Manhattan.¹ All Mangia locations are owned by Sasha Muniak. Malgorzata Cymanow, Muniak's sister, served as the general manager of all Mangia locations throughout the period of Wiercinski's employment.

There were only two notable breaks in Wiercinski's employment by Mangia during this 23 year period. Wiercinski left the Mangia 56 location in approximately 1989 and worked as a security officer until he returned to work at the Mangia 48 location in 1992. In 1998, Wiercinski was fired by his manager at the Mangia 48 location, allegedly because of that manager's anti-Semitism. Shortly thereafter Wiercinski asked his friend and Rav–Tov sponsor, Zindel Zelmanovitch, to help him get his job back. Zelmanovitch approached Muniak and Cymanow and convinced them to rehire Wiercinski. They did so and Wiercinski then worked at Mangia's Wall Street branch.

In 1999, Wiercinski asked Zelmanovitch to help him transfer from the Wall Street location to the Mangia 57 location because it “was the busiest location in the midtown” and Wiercinski believed he would “be able to earn some decent money” at that branch. JA 89, 91. Wiercinski worked at Mangia 57 until he took an extended leave of absence to visit family in Poland in late 2007. When he returned in early 2008, he asked to be rehired at Mangia and was rejected.

In October 2009, Wiercinski sued Mangia 57 and six individual defendants (together, “Mangia”), alleging discrimination on the basis of religion and national origin, retaliation, conspiracy, wrongful termination, and violation of various New York State and City laws. Wiercinski alleged that a night shift manager, Artur Zbozien, verbally harassed and abused him with anti-Semitic slurs such as “stinking jew,” “dirty Jew,” “Jewish pederast,” and “kike” throughout Wiercinski's eight year period of employment at Mangia 57. In October 2013, following several years of motion practice, the parties proceeded to trial on Wiercinksi's sole remaining claim—hostile work environment under Section 1981.

The evidence presented by both sides was almost entirely testimonial. Wiercinski recounted multiple instances of Zbozien's harassing conduct. For example, Wiercinski testified that on the first day of work, he accidentally bumped into Zbozien while carrying boxes, to which Zbozien responded, “did anybody ever fuck you up, you stupid fucking Jew.” JA 93. Wiercinski also said that, on several occasions, Zbozien paid out Wiercinski's tips in pennies and threw them on the floor. JA 96–97. Wiercinski recalled that Zbozien sometimes passed gas in front of him, laughed, and said, “here is your Zyklon B that was used to gas Jews in the concentration camps.” JA 100. According to Wiercinski, Zbozien used anti-Semitic slurs “at least a dozen times” over the eight years during which Wiercinski worked at Mangia 57. JA 102.

Wiercinski also introduced testimony from three former coworkers, who testified in detail about the specific instances described above and explained that Wiercinski commonly complained to them and others about the anti-Semitic slurs he was subject to. See, e.g., JA 106–107, 179–180, 195, 202. Nevertheless, Wiercinski admitted that he never looked for another job during the eight years of harassment from Zbozien, and in fact, asked to be transferred to Zbozien's night shift, a request that Mangia granted.

Wiercinski testified that he complained to Cymanow about the harassment “on several occasions, but then she always discouraged [him] [from] com[ing] back.” JA 109. According to Wiercinski, he spoke with Cymanow “at least ten times” about Zbozien and other individuals “calling [him] dirty names about [his] Jewish religion.” JA 110. The only result of these conversations, according to Wiercinski, was Cymanow's decision to transfer Zbozien to Mangia Wall Street. Zbozien returned to Mangia 57 approximately three weeks later. Shortly after Zbozien returned, Wiercinski was transferred to a different shift, again apparently upon his own request. See JA 366–367 (8/8/07 affidavit of Artur Zbozien) (“Wiercinski was transferred to work on the day shift, while I continued to work the night shift. Since then, I have had very limited contact with [him].”); JA 108 (testimony of Wiercinski) (“At th[e] time [that Zbozien returned] I think I was off the night shift.... I quit the night shift and became [a] part-time delivery person”). According to Wiercinski, Cymanow was herself “known for being anti-Semitic,” although his only specific allegation of such behavior was her occasional use of a Polish term for Jews that Wiercinski characterized as “not very derogatory.” JA 124. Other than these alleged complaints to Cymanow, Wiercinski testified that he commonly complained to his coworkers and brought the issue to Muniak's attention in 2007. Wiercinski stated that as a result of Zbozien's harassment, he suffered from depression, anxiety, and sleep issues, although he did not present any medical evidence as to these problems.

On cross-examination, Mangia undertook to impeach Wiercinski's credibility but was thwarted as a result of his repeated invocation of the Fifth Amendment privilege against self-incrimination. Specifically, Wiercinski invoked the Fifth Amendment privilege when cross-examined about his use of a different name for payroll purposes while at Mangia, his failure to report income earned at Mangia on tax returns, his application for and receipt of Social Security and other public assistance benefits without reporting income earned at Mangia, and his failure to report income earned at Cucina, a catering company where Wiercinski worked after his termination in 2007.² See JA 125–131, 134–136, 153159. Although Mangia was, at times, able to impeach Wiercinski using prior deposition testimony, see, e.g., JA 130 (Wiercinski deposition testimony admitting that he used a different name to receive income earned at Mangia in order to conceal it from government authorities), its ability to present a defense was significantly hampered by Wiercinski's obstructive behavior during cross-examination.

In total, Wiercinski invoked the Fifth Amendment at least twenty four times over the course of a brief cross-examination, including in response to questions as basic as whether or not he recalled giving prior deposition testimony. See JA 127–129.

Mangia also attacked the credibility of Wiercinski's witnesses by impeaching their trial testimony with prior inconsistent deposition testimony. See, e.g., JA 182 (deposition testimony of Marian Krajewski stating that he could not remember instances of anti-Semitic slurs directed at Wiercinski); JA 202, 215–216 (deposition testimony of Marcin Swiderski and Jaroslaw Ubowski stating that Wiercinski never complained to them about anti-Semitism). At the conclusion of plaintiff's case, Mangia moved for a directed verdict on the ground that Wiercinski's testimony was not credible, citing to the inconsistencies in his testimony and his pervasive invocation of the Fifth Amendment. The district court denied the motion because it was “based on questions of credibility,” which are in the domain of the jury. JA 221.

Mangia introduced five witnesses in its case-in-chief. Robert Ranfranz, a former co-worker of Wiercinski's and Mangia's current director of operations, testified that he received a phone call from Wiercinski in August 2007, shortly before Wiercinski left the company and that he offered him a bribe. Specifically Wiercinski told Ranfranz that “he is not happy with the way that things are going at Mangia [or] Zbozien, and he said he is thinking about opening a case, suing the company, and he asked [Ranfranz] if [he] will testify for him. [Wiercinski] said that he will offer [Ranfranz] [one] thousand or $2,000 as an exchange, and that if he wins the lawsuit [they] can speak about additional money after the case.” JA 225.

Zelmanovitch also testified about his extensive relationship with Wiercinski, and recalled that even though Wiercinski frequently spoke to him about work and compensation issues, he never mentioned that he was subject to anti-Semitic harassment at work. Zbozien testified and denied using anti-Semitic slurs against Wiercinski. Zbozien admitted that Cymanow transferred him to Mangia Wall Street for a brief period because of Wiercinski's complaints, but could not remember whether he knew at the time that those complaints alleged anti-Semitic remarks. Cymanow denied ever being told by Wiercinski of alleged anti-Semitic remarks, and claimed that she fired Wiercinski in 2007 because of job performance issues and because he requested too much vacation time. Finally, another former deliveryman testified that he never heard Zbozien make anti-Semitic remarks, and that Wiercinski never complained to him about anti-Semitism in the office, even though they were both Jewish and...