259 F.3d 91 (2nd Cir. 2001), 00-9045, Farias v Instructional Systems Inc.

Docket Nº:Docket No. 00-9045(L), 00-9135(XAP)
Citation:259 F.3d 91
Party Name:NELSON A. FARIAS AND ANGELA M. ROBINSON, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES, v. INSTRUCTIONAL SYSTEMS, INC., DEFENDANT-APPELLEE-CROSS-APPELLANT, PRENTICE-HALL, INC., DEFENDANT.
Case Date:August 01, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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259 F.3d 91 (2nd Cir. 2001)

NELSON A. FARIAS AND ANGELA M. ROBINSON, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES,

v.

INSTRUCTIONAL SYSTEMS, INC., DEFENDANT-APPELLEE-CROSS-APPELLANT,

PRENTICE-HALL, INC., DEFENDANT.

Docket No. 00-9045(L), 00-9135(XAP)

United States Court of Appeals, Second Circuit

August 1, 2001

        Argued: April 24, 2001

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        Louie Nikolaidis, Lewis, Greenwald, Clifton & Nikolaidis, P.C., New York, Ny, for Plaintiffs-Appellants-Cross-Appelles.

        John A. Ridley, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for Defendant-Appellee-Cross-Appelant.

        Before: Jacobs, Parker, Katzmann, Circuit Judges.

        Dennis Jacobs, Circuit Judge

        In this discrimination suit by Nelson A. Farias and Angela M. Robinson against their former employer, defendant Instructional Systems, Inc. ("ISI"), the United States District Court for the Southern District of New York (Wood, J.) granted summary judgment dismissing the claims of discrimination based on national origin and race but preserved Robinson's retaliation claim for trial, at which Robinson prevailed. Farias and Robinson appeal the dismissal of their discrimination claims; Robinson appeals from orders entered by the trial judge (Motley, J.) (i) refusing to submit the punitive damages claim to the jury and (ii) reducing Robinson's request for attorney's fees to reflect limited success. ISI cross-appeals (i) the denial of summary judgment dismissing Robinson's retaliation claim, (ii) the denial of ISI's request for a two-day continuance to accommodate the schedule of a witness named Marie Milillo, and (iii) the grant of plaintiffs' oral application at trial to exclude

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the testimony of ISI's counsel, Joseph Dunn, Esq.

        We affirm the judgment in favor of ISI on the discrimination claims as well as the district court's trial rulings excluding Dunn's testimony and denying the continuance. The denial of summary judgment on Robinson's retaliation claim is not appealable per se, and the issues raised on summary judgment were not preserved by timely motions at trial. We also affirm the ruling that the record does not justify submission of punitive damages to the jury, and hold that the standard for imposition of punitive damages under federal law, set forth in Kolstad v. American Dental Association, 527 U.S. 526, 529-30 (1999), applies as well to the New York City Administrative Code. Finally, we vacate the award of attorney's fees and remand to the district court for clarification.

        BACKGROUND

        Farias (who is Chilean-American) and Robinson (who is African-American) sued their employer, ISI, in the Southern District of New York, alleging employment discrimination based on national origin and race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a)(1) and (2); Section 296 of the New York State Human Rights Law ("HRL"); and Section 8-107(a) of the New York City Administrative Code ("Administrative Code"). Robinson also alleged that ISI retaliated against her in violation of federal, state and local law because she filed an EEOC discrimination complaint.

        ISI, a New Jersey corporation that marketed educational software, employed the plaintiffs as Educational Training Consultants ("ETC"). Plaintiffs' primary assignment was to service the firm's account with the New York City Human Resources Administration ("HRA"), assisting in the support and training of HRA personnel. HRA's contract with ISI was not renewed in 1994. For a time, ISI maintained staffing on the account in the hope that HRA would renew, but late in 1995 ISI began to lay off the employees servicing the HRA account.

        Farias was terminated on October 28, 1994. Every ETC whose primary assignment was the HRA account was terminated by the end of 1994, except for plaintiff Robinson, who was placed on the Help Desk after returning from medical leave in December 1994.1 Robinson was terminated by ISI's President, Phyllis Kaminer, on March 1, 1995. Kaminer explained that, without the HRA contract, ISI would have no work for Robinson unless it won the contract with a juvenile justice program in New Jersey. Kaminer held out the possibility of per diem work in other cities (Buffalo and Boston), and said that if the New Jersey contract was signed, ISI would consider rehiring Robinson for it. Robinson declined these alternatives because of the relocation or travel involved.

        At that meeting, Robinson was given to understand that she would receive ISI's standard termination letter which offered severance benefits, conditional on the employee's release of all claims against ISI.2

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(There are undoubtedly other terms and conditions of the standard termination letter, which is omitted from the Joint Appendix submitted to this Court.) This meeting, also attended by Marie Milillo, Director of Training, and David Lilly, Staff Development Manager, was amicable.

        After the initial meeting, however, Kaminer learned that Robinson had filed an EEOC complaint alleging discrimination in the terms and conditions of her employment. At a second meeting on March 1, 1995 (roughly an hour after the first meeting), attended by the same people, Kaminer asked Robinson about the EEOC charge and told her that ISI could not offer her severance because Robinson's EEOC charge conflicted with at least one condition of the standard termination agreement. On the advice of ISI's counsel, Joseph Dunn, Kaminer explained that, because Robinson was unable to give the required consideration (a release of all claims against ISI), ISI would be unable to offer her severance.

        Farias and Robinson alleged that they were terminated by reason of (respectively) national origin and race. In addition, plaintiffs alleged that ISI discriminated against them in the terms and conditions of their employment. Farias alleged that he was (1) paid a lower salary than non-Chilean-American employees with comparable backgrounds, (2) denied access to ISI computer equipment and denied financing for a personal computer, and (3) denied training opportunities available to other employees. And Robinson alleged that she (1) was denied a raise and (2) received a functional demotion when ISI placed her on the Help Desk in December of 1994. Finally, Robinson argued that ISI retaliated against her for filing an EEOC charge by denying her severance benefits, per diem work and the opportunity to be rehired by ISI when permanent work became available.

        In support of its motion for summary judgment, ISI proffered nondiscriminatory reasons for the allegedly discriminatory actions, chiefly a serious downturn in its business. With respect to plaintiffs' allegations of discrimination in the terms and conditions of employment, ISI responded with respect to Farias that (1) his salary was commensurate with similarly situated employees not of Chilean heritage, (2) he was denied a personal computer because his job description did not call for one and because the accounts he was working on were about to be lost, and (3) he was unqualified for the positions for which he sought training and (in any event) similarly situated ETCs were not given the training that he was denied. With respect to Robinson's allegations, ISI responded that (1) she was denied a raise in order to bring her salary in line with lower salaries paid to similarly situated employees, and (2) the alleged functional demotion was an effort to keep her employed in anticipation of a new contract, since the alternative was to terminate her employment entirely.

        The district court (Wood, J.) granted summary judgment in favor of ISI on the claims that ISI discriminated against the plaintiffs in the terms and conditions of their employment and in their terminations.

        Robinson's retaliation claim--that ISI withheld benefits and opportunities because ISI learned (after terminating her but before assembling her severance package) that she had filed a charge with the EEOC--went to a jury before Judge Motley.

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On December 30, 1999, Judge Motley postponed the scheduled start of trial one day to January 4, 2000. By letter dated January 3, 2000, ISI requested a two-day continuance on the ground that one of its witnesses, Marie Milillo, was committed to attend a conference in California on January 5-6, and therefore was available to testify only on January 3, 4, or 7. This request was denied. At trial, plaintiffs made an oral motion to exclude the testimony of Mr. Dunn (the ISI lawyer who advised ISI's president on how to handle Robinson's severance package). Judge Motley granted the motion on the ground that Dunn's testimony related to a defense, advice of counsel,...

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