Bonner v. Guccione

• Decision Date: 27 May 1999
• Docket Number: No. 1433,D,1433
• Citation: 178 F.3d 581
• Parties: Staci BONNER, Plaintiff-Appellee, v. Robert GUCCIONE, Jr., individually, and as Publisher and Editor of Spin Magazine, Spin Magazine, Camouflage Associates, Camouflage Publishing, Inc., Stephen C. Swid Corporation, and SCS Communications, Inc.; Defendants-Appellants. ocket 97-9026.
• Court: U.S. Court of Appeals — Second Circuit

Page 581

178 F.3d 581

Staci BONNER, Plaintiff-Appellee, v. Robert GUCCIONE, Jr., individually, and as Publisher and Editor of Spin Magazine, Spin Magazine, Camouflage Associates, Camouflage Publishing, Inc., Stephen C. Swid Corporation, and SCS Communications, Inc.; Defendants-Appellants.

No. 1433, Docket 97-9026.

United States Court of Appeals Second Circuit.

Argued April 13, 1998.

Decided April 30, 1999.

Amended May 27, 1999.

Bettina B. Plevan, New York, N.Y. (John E. Daly, Christine Oyakawa, Proskauer Rose LLP, on the brief), for Defendants-Appellants.

Hillary Richard, New York, N.Y. (Laurie Edelstein, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., on the brief), for Plaintiff-Appellee.

Before: JACOBS and MAGILL, ^* Circuit Judges, and KORMAN, ^** District Judge. ^***

KORMAN, District Judge:

Staci Bonner commenced this action alleging that she and other female employees at Spin Magazine were the victims of sexual harassment. A number of causes of action were alleged under federal and state law. Of relevance here are three separate claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and three identical claims under the New York State Human Rights Law, N.Y. Executive Law § 296 (NYSHRL). Under both of the foregoing statutory schemes, Bonner claimed that she was the victim of quid pro quo sexual harassment, intentional gender discrimination and hostile work environment sexual harassment. On five of these six causes of action, the jury either found in favor of the defendants or failed to award any damages. Specifically, as the district court analyzed the record, Bonner did not prevail on her quid pro quo harassment claim because "[t]here was insufficient evidence that she herself was asked to submit to sexual advances in order to gain a promotion," Bonner v. Guccione, No. 94 CIV.7735, 1997 WL 441910 at * 2 (S.D.N.Y. Aug. 6, 1997) (Cote, J.) (hereafter Bonner II); she did not prevail on her claim of gender discrimination because she "failed to prove that the defendants were untruthful in their explanation that she was denied writing opportunities and other benefits because of her writing abilities as opposed to her gender," id. at * 3; and she was not awarded damages on her Title VII hostile work environment sexual harassment claim because she failed to establish that she sustained any damage within the period of her employment that was not time-barred. Id. at * 5. Bonner was awarded $90,000 on the NYSHRL analog of that claim which has a much longer statute of limitations.

The latter two causes of action give rise to the issues on this appeal from judgments entered in the United States District Court for the Southern District of New York (Cote, J.), awarding the plaintiff $90,000 on her NYSHRL cause of action and $760,109.92 in attorney's fees and costs as a prevailing party on her Title VII cause of action. The issues relating to these two judgments have their genesis in the difference between the statutes of limitation for Title VII causes of action and NYSHRL causes of action. Under Title VII, plaintiff here could recover damages for discriminatory conduct that occurred within 300 days before the filing of a complaint with the EEOC. 42 U.S.C. § 2000e-5(e)(1). If the conduct fell outside of the 300-day period, she could recover for that conduct only if she could demonstrate that she was subject to a continuous policy and practice of discrimination, and that one act in furtherance of the policy and practice fell within the 300-day period. See Acha v. Beame, 570 F.2d 57, 65 (2d Cir.1978). By contrast, on her NYSHRL cause of action, plaintiff could recover damages for discriminatory acts within three years of the filing of the complaint.

This difference was not reflected in Judge Cote's charge. Instead, the instruction to the jury clearly suggested that the same statutory period of limitations applied to both causes of action. As Judge Cote concluded her instruction on the period of limitations:

This means that for Ms. Bonner to recover on ... [the claims of hostile work environment sexual harassment, quid pro quo sexual harassment or intentional gender discrimination], she must prove that there was a continuous policy and practice of discrimination at Spin, and that one act in furtherance of this policy or practice occurred after September 11, 1993, and before Ms. Bonner left Spin on November 24, 1993.

Joint Appendix 654 (hereafter cited to the page number, e.g. A654).

The suggestion that this charge applied to both the Title VII and the NYSHRL causes of action was conveyed to the jury both implicitly and explicitly. The charge was the only one that referred to the causes of action for hostile work environment sexual harassment. Indeed, the introductory clause of the statute of limitations charge indicated that it applied "to each of the three claims [Judge Cote had] just described," A653. These included the Title VII and NYSHRL causes of action. A638-44. Moreover, a subsequent statute of limitations instruction on a different state law cause of action began as follows: "I have already charged you with regard to the statute of limitations for claims under Title VII and NYSHRL law." A665.

The error in the statute of limitations instruction as it related to the NYSHRL causes of action was raised after the charge was read to the jury, but before the jury was told to begin its deliberations, when Judge Cote asked whether there were any objections to the charge. Plaintiff's counsel replied:

In your charge on the statute of limitations, you mentioned New York law. There is no statute of limitations issue with respect to New York law. It's three years back. I didn't see it, I just heard it. I don't know if you intended that.... It wasn't in the actual Title VII charge, so I don't know that it needs to be corrected. I just wanted to bring it to your attention.

A494. Judge Cote then asked whether plaintiff's counsel wanted her to do anything to rectify the charge. She replied "No." Id.

The next day Judge Cote presented the parties with draft supplemental instructions intended to clarify the appropriate statute of limitations for both Title VII and the NYSHRL. Defendants stated that they wanted the charge given to the jury while it was deliberating, but plaintiff argued that she would be prejudiced if the charge were given at that point because "it emphasizes something that the jury hasn't indicated they are in a quandary over." A507. Rather, plaintiff preferred that any problems with the charge be rectified by a post-verdict interrogatory. A508. Judge Cote ultimately deferred to her request and declined to give the instruction. A515. Nevertheless, Judge Cote observed that, because the initial charge "would be read by the jury to suggest that the 300-day statute of limitations period applies to both the federal and the New York State claims[,] ... counsel should be alert to whether or not additional clarifying questions need to be put to the jury immediately based upon the verdict they return." A515.

The jury found that plaintiff had established by a preponderance of the evidence that Camouflage Associates, the publisher of Spin Magazine, was liable for hostile work environment sexual harassment under Title VII and the NYSHRL, and that Robert Guccione, Jr. was liable for the same under the NYSHRL as a person with power over personnel decisions. The jury, however, found that plaintiff had failed to prove that she was entitled to compensatory or punitive damages against either defendant. On all other causes of action under Title VII and New York law, the jury found for the defendants on the issue of liability.

After a discussion with counsel, and over a defense objection, the district judge submitted a special interrogatory entitled "Second Special Verdict Form" to the jury. The substance of this form inquired whether the jury reached its verdict for the defendants with respect to quid pro quo sexual harassment and intentional gender discrimination solely because plaintiff failed to prove "that defendants maintained a continuous policy or practice of discrimination, or that one act in furtherance of this policy or practice occurred after September 11, 1993." A545. When the district judge summarized the special interrogatory to the jury, many of the jurors nodded yes, and several others indicated orally that the statute of limitations had affected their verdict. Id. The jury deliberated briefly, and then returned a "yes" answer to both questions, A718, thereby indicating that the verdicts on the quid pro quo sexual harassment and intentional gender discrimination claims were based solely on the jury's application of the statute of limitations as it had been charged.

The Second Special Verdict form did not ask the jury whether its verdict in favor of the plaintiff on the hostile work environment cause of action, without any award of damages, was affected by the erroneous statute of limitations instruction. Judge Cote had agreed initially with the defendants that the issue of compensatory damages should not be reconsidered. A547. Upon reflection, however, she concluded that her initial statute of limitations instruction may have affected this verdict as well. As she explained:

[B]ecause while they found a violation of the hostile work environment cause of action under the New York human rights claim, obviously their understanding of the statute of limitations restricted, in their mind, an assessment to a final few months. And that may have affected similarly their decision on the amount of damages.

A560.

Judge Cote then gave the jury a supplemental instruction on the correct statute of limitations under the NYSHRL. Later that day, the jury returned a verdict that was identical to the previous verdict on liability on all of the affected causes of action under the NYSHRL. On plaintiff's NYSHRL hostile work environment cause of action, however, it awarded plaintiff...