Gierlinger v. New York State Police

• Decision Date: 26 January 1994
• Docket Number: No. 629,D,629
• Parties: 63 Empl. Prac. Dec. P 42,826 Christine M. GIERLINGER, Plaintiff-Appellee, v. NEW YORK STATE POLICE, et al., Defendants, John Gleason, Individually, and in his Capacity as a Major and Troop Commander of Troop A of the New York State Police, Defendant-Appellant. ocket 93-7485.
• Court: U.S. Court of Appeals — Second Circuit

Page 32

15 F.3d 32

63 Empl. Prac. Dec. P 42,826

Christine M. GIERLINGER, Plaintiff-Appellee, v. NEW YORK STATE POLICE, et al., Defendants, John Gleason, Individually, and in his Capacity as a Major and Troop Commander of Troop A of the New York

State Police, Defendant-Appellant.

No. 629, Docket 93-7485.

United States Court of Appeals, Second Circuit.

Argued Nov. 9, 1993.

Decided Jan. 26, 1994.

Michael S. Buskus, Asst. Atty. Gen., Albany, NY (Robert Abrams, Atty. Gen., Peter G. Crary, Asst. Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Albany, NY, of counsel), for defendant-appellant.

Willard M. Pottle, Jr., Buffalo, NY, for plaintiff-appellee.

Before: NEWMAN, Chief Judge, CARDAMONE and GOODWIN ^*, Circuit Judges.

GOODWIN, Circuit Judge:

John Gleason appeals from the May 29, 1992 judgment of the United States District Court for the Western District of New York (Elfvin, J.), entered against him after a jury verdict in favor of plaintiff Christine M. Gierlinger in an amount of $340,000, and from the same court's order dated April 15, 1993 that denied appellant's motions for judgment as a matter of law and for a new trial.

Ms. Gierlinger, a former New York state trooper, brought an employment discrimination action against the New York State Police and named as defendants State Police officials, alleging that she was fired because she is a woman, and in retaliation for filing complaints of sexual harassment. Based on the same set of facts, the plaintiff brought both a Title VII sex discrimination claim, which prior to 1991 was not triable to a jury but which carries respondeat superior liability, and a 42 U.S.C. Sec. 1983 damage claim that is triable to a jury, but which does not impose respondeat liability. She also alleged state law claims. The trial court submitted the commingled claims to the jury with instructions that generally stated correct legal principles, but which, on the evidentiary record before the jury, left the jury with uncertain guidance on which legal principles to apply to whatever they determined the facts to be.

The jury returned verdicts in favor of all defendants except appellant John Gleason, the now-retired former commander of the troop in which plaintiff was employed, who was sued personally and in his official capacity. The other named defendants who were exonerated by the jury held various positions of responsibility in the State Police department. The actual perpetrators of numerous sophomoric acts of locker-room harassment were not named as defendants. It is the commingling of claims and theories in the jury instructions that defendant Gleason challenges on appeal.

DISCUSSION

A. Contentions of Parties

Plaintiff's employment was terminated when she was not recommended for retention after the end of her probationary, one-year training period. (The trial court correctly instructed the jury for the purposes of this case that her unemployment was a "termination."). It was virtually undisputed that some sexual harassment occurred in the police locker room, and elsewhere in the work environment. The disputed facts had to do with the individual responsibility of the named defendants.

Plaintiff's theories of liability were that supervisors, who were named defendants, permitted fellow troopers to harass her, and then, when she complained, retaliated against her by writing negative performance evaluations that ultimately caused her loss of employment and resulting money damages. Her theory, which was submitted to the jury, was that the named defendants had a duty to protect employees from sexual harassment by other employees, and that they wrongfully failed to prevent sexual harassment and therefore were personally liable in damages for their own leadership defaults. She alleged that defendant Gleason, as the officer in charge of her administrative unit, was personally responsible for her termination either because of her gender or in retaliation for her complaints.

The defense argued that the Title VII sex discrimination claims, upon which injunctive and other equitable remedies may be founded, were improperly submitted to the jury together with the notions of vicarious Title VII respondeat superior liability to the prejudice of the individual defendants. Because the jury exonerated all the defendants but the officer in charge, the plaintiff now contends that any error in submitting the commingled theories of liability was harmless. The plaintiff maintains that the jury found its way through the complexities of the various theories, and reached a just result holding liable the officer in charge, and that Gleason's liability was supported by evidence that he was indeed responsible for the damages the jury found the plaintiff to have suffered: loss of employment and wages.

The defense argues that the civil rights violations that may have been committed by individual troopers in violation of Sec. 1983, and for which the defendants denied responsibility, were improperly attributed by the jury to Gleason, who, from the evidence in the record, did not engage in sexual harassment. The plaintiff asserted that Gleason created an environment, or at least permitted one to exist, in which the alleged misconduct of various troopers under his command flourished and produced the harm of which the plaintiff complained. These factual questions

were appropriate for submission to a jury, but only with proper instructions.

B. The Instructions

The defense argues that the instructions permitted the jury to return a verdict that was inconsistent with the law and the facts. The district court charged the jury, over the objection of defense counsel, that Title VII standards for retaliation claims applied...