Coffey v. Dobbs Intern. Services, Inc.

• Decision Date: 05 May 1998
• Docket Number: No. 96-CV-948.,96-CV-948.
• Citation: 5 F.Supp.2d 79
• Parties: Paula L. COFFEY, Plaintiff, v. DOBBS INTERNATIONAL SERVICES, INC. and John Bryson, Defendants.
• Court: U.S. District Court — Northern District of New York

5 F.Supp.2d 79

Paula L. COFFEY, Plaintiff, v. DOBBS INTERNATIONAL SERVICES, INC. and John Bryson, Defendants.

No. 96-CV-948.

United States District Court, N.D. New York.

May 5, 1998.

COPYRIGHT MATERIAL OMITTED

Law Office of Mary Beth Hynes (Mary Beth Hynes, of counsel), Herrmann, Pelagalli & Weiner, LLP (Paul Pelagalli, of counsel), Clifton, NY, for Plaintiff.

Law Offices of Daniel Whalen (Matthew J. Clyne, of counsel), Albany, NY, for Defendants.

MEMORANDUM, DECISION & ORDER

McAVOY, Chief Judge.

Plaintiff Paula L. Coffey brought this action in June of 1996 for hostile work environment and quid pro quo sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York Human Rights Law, Executive Law § 290, et seq. Plaintiff also brought common law negligence claims. The Complaint was amended in November of 1997 to include a claim for retaliatory discharge. Defendants are plaintiff's former employer, Dobbs International Services, Inc. ("Dobbs") and her former supervisor, John Bryson.

The case was tried to a jury in Albany, New York in December of 1997. On December 16, 1997, the jury returned a verdict for plaintiff on the retaliation claim, and for defendant on the harassment claims.¹ The jury found plaintiff was entitled to a back pay award and punitive damages against Dobbs on the retaliation claim.

On December 18, 1997, the Court held a hearing on the issue of punitive damages. The same day, the jury returned a punitive damage award of $75,000 against Dobbs. The parties stipulated to a back pay figure of $4,341.58, and the Clerk entered judgment in plaintiff's favor for $79,341.58 on January 28, 1998.

Defendants now move, pursuant to Fed. R.Civ.P. 50(b), for judgment as a matter of law on the retaliation claim. Plaintiff moves for an award of attorneys' fees and costs.

I. Background

The Court recounts the facts of this case only to the extent they are relevant to the pending motions. Plaintiff was employed at Dobbs' Albany Flight Kitchen from October of 1991 until her resignation in January of 1995. Her resignation stemmed from allegations of sexual harassment by Bryson, who was then the Albany Flight Kitchen's General Manager.² In May of 1997, while this lawsuit was pending, plaintiff accepted an offer of re-employment at the Albany Flight Kitchen. The acting General Manager of the Albany Flight Kitchen at the time plaintiff returned was James Russo, a friend of Bryson's. During the same period, Dobbs was considering the sale of the Albany Flight Kitchen to Russo.

During the summer of 1997, Russo rehired Bryson to do consulting work in connection with Russo's pending purchase of the Albany Flight Kitchen. Upset at this turn of events, plaintiff told Russo she could not work at Dobbs with Bryson there. Plaintiff thus took an approved vacation until Bryson's consulting work was complete. Upon returning from the vacation near the end of the summer, she gave a deposition in connection with this lawsuit on August 28, 1997. Bryson was present during the deposition, during which plaintiff, in her testimony, made reference to both Bryson and Russo. Plaintiff also presented evidence at trial that Bryson and Russo communicated after the deposition.

On September 1, 1997, plaintiff was discharged. Dobbs sold the Albany Flight Kitchen to Russo on September 3, 1997. In response to this turn of events, plaintiff's attorney contacted Magistrate Judge Ralph W. Smith, Jr. by letter dated October 27, 1997 to request permission to amend the Complaint to include a claim for retaliatory discharge. Judge Smith granted the request in an order signed November 18, 1997.

II. Discussion

A. Defendants' Motion for Judgment as a Matter of Law

The Second Circuit has established the standard for granting a judgment as a matter of law. The court in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir.1980), stated that:

the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n. o. v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir.1983).³ Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires pursuant to Rule 50(a), or motion after the jury has spoken pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14.

The Court turns to defendants' arguments with this standard in mind.

1. Leave to Amend the Complaint

Defendants first argue the magistrate judge erred in allowing plaintiff leave to amend the Complaint to add the claim of retaliatory discharge. As plaintiff correctly notes, the present motion is not the appropriate vehicle for such an argument.

Federal Rule of Civil Procedure 72(a) provides, as to nondispositive orders of a magistrate judge, that

[w]ithin 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made.

Id. (emphasis added). Furthermore, Rule 72.1(b) of the Local Rules for the Northern District of New York provides that any party may appeal a magistrate judge's non-dispositive order within ten days after the order is filed. Defendants filed no such objections in this Court within the ten-day period following the November 18, 1997 order. They accordingly are foreclosed by the explicit language of Fed.R.Civ.P. 72(a) from assigning errors to the magistrate judge's order granting plaintiff leave to amend the Complaint. Their motion for judgment as a matter of law is therefore denied in this respect.

2. Dobbs' Liability for Retaliatory Discharge

Defendants next argue that plaintiff failed at trial to prove a prima facie case of retaliatory discharge. Specifically, defendants argue: (1) there was no proof that Dobbs' corporate hierarchy was aware that Russo terminated or declined to retain the plaintiff; (2) Dobbs had no legal control over whether Russo retained plaintiff after the sale; and (3) the retaliation claim was devoid of any evidentiary foundation logically connecting Russo's decision with any retaliatory animus on Dobbs' part.

As to the first argument, the parties fail to address the standard to be applied in imputing liability to an employer for a supervisor's retaliatory actions. Courts generally are split on the question. See, e.g., Cross v. Cleaver, 142 F.3d 1059, 1073 (8th Cir.1998) (where supervisory employee with power to hire, fire, demote, transfer or suspend employee is shown to have used authority to retaliate, plaintiff need not prove employer participated in or knew or should have known of retaliation); Davis v. Palmer Dodge West, Inc., 977 F.Supp. 917, 925 (S.D.Ind.1997) ("courts must hold an employer to a strict liability standard for quid pro quo harassment, and a heightened negligence standard for hostile environment and retaliatory harassment by a supervisor."); Gary v. Washington Metro. Area Transit Auth., 886 F.Supp. 78, 88 (D.D.C.1995) ("In a retaliation case, as in the quid pro quo case, the employer should be held strictly liable."). Though the Second Circuit has not addressed the issue, this Court finds the Eighth Circuit's rationale in Cross persuasive on the present facts, and finds that, as a matter of law, Russo's retaliatory actions were those of his employer.

Russo was the acting General Manager of Dobbs at the time of plaintiff's termination. It is undisputed he had the power to hire and fire employees. The rationale for applying strict liability in the quid pro quo context is thus applicable to the present facts perforce; Russo, like the quid pro quo harasser, necessarily wielded Dobbs' authority in making what the jury found was a retaliatory decision to fire plaintiff. See Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert. denied, 512 U.S. 1213, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994); see also Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir.1992) ("The supervisor is deemed to act on behalf of the employer when making decisions that affect the economic status of the employee."). By wielding the authority delegated to him by Dobbs, Russo was, "by definition, acting as the employer." Cross, 142 F.3d 1059, 1073. Accordingly, the nature of Russo's position and the decisions he made with respect to plaintiff's employment warrant imputing liability for those decisions to Dobbs.⁴

Dobbs next argues it had no legal control over whether Russo retained plaintiff as an employee in the new company after the sale. This argument presumes that Russo's retaliation took the form of a refusal to retain plaintiff after the sale, rather than firing plaintiff from her position with Dobbs. The jury, however, heard evidence from which it could conclude that Russo, acting as General Manager of the Albany Flight Kitchen, terminated plaintiff.

Lastly, Dobbs argues that Russo's decision was not logically connected with any retaliatory animus on Dobbs' part. The jury's conclusion as to causation was not, however, without evidentiary support. The evidence at trial showed that plaintiff's deposition testimony on August 28, 1997, made reference to both Bryson and Russo, and that...