787 F.3d 106 (2nd Cir. 2015), 14-1753-cv, Wiercinski v. Mangia 57, Inc.

Docket Nº:14-1753-cv
Citation:787 F.3d 106
Opinion Judge:Barrington D. Parker, Circuit Judge :
Party Name:ADAM WIERCINSKI, Plaintiff-Appellant, v. MANGIA 57, INC., SASHA MUNIAK, ARTUR ZBOZIEN, MALGORZATA CYMANOW, GRZEGORZ SAROSIEK, ROBERT BAZGIER, AND DARIUSZ MASLANKA, Defendants-Appellees
Attorney:MATTHEW J. BLIT, Levine & Blit, PLLC, New York, NY, for Plaintiff-Appellant Adam Wiercinski. DANIEL J. KAISER (Henry L. Saurborn, Jr., on the brief), Kaiser Saurborn & Mair, P.C., New York, NY, for Defendants-Appellees Mangia 57 Inc., Sasha Muniak, Artur Zbozien, Malgorzata Cymanow, Grzegorz Saro...
Judge Panel:Before: PARKER, HALL, and LIVINGSTON, Circuit Judges.
Case Date:May 21, 2015
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 106

787 F.3d 106 (2nd Cir. 2015)

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

May 21, 2015

Submitted February 6, 2015.

Page 107

Appeal from the United States District Court for the Eastern District of New York. No. 09-cv-4413 (ILG) -- I. Leo Glasser, Judge.

Plaintiff-appellant Adam Wiercinski appeals from a judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge). The jury returned a verdict in favor of Wiercinski on his claim of hostile work environment in violation of 42 U.S.C. § 1981 and awarded him nominal damages of $1 and punitive damages of $900,000. Following the verdict, defendants-appellees moved pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for remittitur of the jury's punitive damages award, or in the alternative, for a new trial on punitive damages, while Wiercinski applied for fees and costs. The district court vacated the jury's liability verdict and denied Wiercinski's application for fees. We AFFIRM the district court's ruling only to the extent that it vacated the award of punitive damages. We REVERSE the district court's denial of Wiercinski's application for fees and costs, and REMAND for the calculation and award of appropriate fees.

MATTHEW J. BLIT, Levine & Blit, PLLC, New York, NY, for Plaintiff-Appellant Adam Wiercinski.

DANIEL J. KAISER (Henry L. Saurborn, Jr., on the brief), Kaiser Saurborn & Mair, P.C., New York, NY, 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

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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

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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.

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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...

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