Gierlinger v. Gleason

Decision Date05 November 1998
Docket Number97-7947,Docket Nos. 97-7917
Parties78 Fair Empl.Prac.Cas. (BNA) 988, 75 Empl. Prac. Dec. P 45,762 Christine M. GIERLINGER, Plaintiff-Appellant-Cross-Appellee, v. John GLEASON, Defendant-Appellee-Cross-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Willard M. Pottle, Jr., Buffalo, New York, for Plaintiff-Appellant-Cross-Appellee.

Michael S. Buskus, Assistant Attorney General, Albany, New York (Dennis C. Vacco, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Peter G. Crary, Assistant Attorney General, Albany, New York, on the brief), for Defendant-Appellee-Cross-Appellant.

Before: MESKILL and KEARSE, Circuit Judges, and TELESCA, District Judge * .

KEARSE, Circuit Judge:

Plaintiff Christine M. Gierlinger, following a jury verdict in her favor in the United States District Court for the Western District of New York, John T. Elfvin, Judge, was awarded $117,739 in damages against defendant John Gleason, a major and troop commander in the New York State Police ("NYSP"), on her claim under 42 U.S.C. § 1983 for the termination of her employment as a NYSP trooper in retaliation for her complaints of sexual harassment. Gierlinger appeals from so much of a postjudgment order as denied her motion for prejudgment interest and certain costs, and denied in part her request for attorneys' fees, limiting that award to $104,949. Gleason cross-appeals, contending that the trial evidence entitles him to judgment as a matter of law or, alternatively, that errors in the district court's evidentiary rulings and jury instructions entitle him to a new trial. For the reasons that follow, we reject Gleason's contentions; we find merit in Gierlinger's challenges to the rulings on prejudgment interest and attorneys' fees; and we remand for further proceedings.


These appeals follow the third trial of Gierlinger's claims. At the first trial in 1992, a jury found Gleason liable to Gierlinger in the amount of $340,000. As discussed in greater detail in Part III.B.5. below, the judgment was vacated on appeal because of errors in the manner in which the case was submitted to the jury. See Gierlinger v. New York State Police, 15 F.3d 32 (2d Cir.1994) ("Gierlinger I "). The second trial, begun in 1994, ended in a mistrial that was declared by the district judge sua sponte. The facts set out below are taken from the evidence presented at the third trial, held in 1996, viewed in the light most favorable to Gierlinger, against whom judgment is sought as a matter of law.

A. The Circumstances of Gierlinger's Employment

Gierlinger began duty as a probationary trooper in NYSP in March 1987, and after six months of training at the NYSP academy, was assigned in September 1987 to the On the night of December 2, 1987, Gierlinger arrived at work in Wellsville to find that the uniforms she kept in her locker at the station had been vandalized. The NYSP emblems on her shirts had been ripped off; and three pairs of her uniform trousers had been slit--two of them in the crotch. She reported the incident to a sergeant at the Wellsville station, who passed her complaint up the chain of command. She also reported the incident to a sergeant in NYSP's affirmative action office.

NYSP station in Wellsville, New York. Wellsville was in "zone 4" of NYSP "Troop A." Falconer, New York, a station to which Gierlinger was later transferred, was in "zone 3" of NYSP Troop A. At all pertinent times, Gleason was the Troop A commander.

On December 5, Gleason was informed of the complaint and since he "felt that [the complaint], in all probability, would come under the definition or classification of sexual harassment" (Transcript of Third Trial ("Third Trial Tr."), Aug. 19, 1996, at 550), he ordered Lieutenant Charles J. McCole, the zone commander for zone 4, to conduct an investigation. A few days later, NYSP headquarters took charge of the investigation, and eventually Staff Inspector Joseph M. Abate was assigned to investigate Gierlinger's complaints.

Abate investigated not only Gierlinger's complaints of the events of December 2 but also her complaints of other incidents, such as food being placed in her mail folder, her locker being overturned, and the lock on her locker being suffused with Super Glue. As a result of his investigations into these complaints, Abate concluded, in reports dated February 1 and 12, 1988, respectively, that the events of which Gierlinger complained had in fact occurred. However, the perpetrators of most of the incidents were never identified, and Abate's reports concluded that the events did not constitute sexual harassment.

In the meantime, on December 5, 1987, the day Gleason was informed of Gierlinger's complaints and instructed McCole to investigate, McCole met with Gierlinger to continue an evaluation session begun during the prior month and told Gierlinger, "at length," that "[h]er attitude and judgment ... were not satisfactory." (Memorandum from McCole to Troop A Commander [Gleason] re "First Monthly Conference," dated December 8, 1987, at 2.) McCole also sent Gleason a memorandum reporting that during the December 5 conversation with Gierlinger, she complained that one trooper had said after an argument with her that "no woman could talk to him in that manner," and that another trooper had been "picking on her because of her gender." (Memorandum from McCole to Troop A Commander re "Trooper Christine Gierlinger" dated December 8, 1987, at 2.)

Contemporaneously, because Gierlinger was scheduled to be transferred from the Wellsville station to the Falconer station, an additional evaluation of her was prepared. That evaluation, in which McCole also participated, gave Gierlinger an overall rating of "Needs Improvement" and singled out for criticism her "attitude" and her "judgment." (NYSP Transfer Performance Evaluation dated December 8, 1987, at 1-2.) Two days later, Gleason sent a memorandum to NYSP headquarters, stating that

Trooper Gierlinger has been counselled relative to her attitude and judgment. Specifically, she has been ordered to refrain from having her husband visit her while at work; leaving her issue baton with a defendant and also to refrain from confronting her supervisors when given constructive criticism. In addition, she is currently involved in a sexual harassment complaint in which she alleges that other members [of NYSP] assigned to SP Wellsville have harassed her.

(Memorandum from Gleason to Deputy Superintendent Jerome L. O'Grady dated December 10, 1987.)

During Abate's investigation of Gierlinger's complaint about the damage to her uniforms, Gierlinger stated that another female trooper in Troop A had been subjected to sexual harassment. Gleason was ordered to investigate that allegation. Accordingly, Gleason interviewed Gierlinger on January 27, 1988. At that interview, Gierlinger declined to describe any harassment of others, but she told Gleason that she personally had Following his January 27 meeting with Gierlinger, Gleason launched several investigations into Gierlinger's own conduct. Two were commenced on February 1, 1988. One involved an allegation that on January 17 Gierlinger had allowed her husband, who was not a member of NYSP, to enter restricted areas of an NYSP station. The other involved Gierlinger's use of sick leave and was based on information--learned more than a month earlier from casual sources--that Gierlinger was spending time with her husband at his job. On February 11, 1988, Gleason ordered three more investigations into Gierlinger's conduct. One involved a complaint that Gierlinger had failed to comply with orders directing her to submit memoranda explaining instances of tardiness and altered time records. Another investigation involved a complaint that Gierlinger had abandoned her post at the station desk, refused to return to the desk when ordered to return, and demonstrated disrespect to a superior officer. At the conclusion of this investigation, Gleason wrote a memorandum to NYSP headquarters, stating "I have determined that the penalties I can impose as Troop Commander are not sufficient in this matter. Recommend appropriate disciplinary action be commenced at the [headquarters] level." (Memorandum from Gleason to Chief Inspector Francis A. DeFrancesco dated March 1, 1988, at 2.)

been sexually harassed on several occasions. Sometime thereafter, Abate informed Gleason that Gierlinger had complained to an NYSP affirmative action officer about the January 27 meeting. She complained that Gleason had been disrespectful to her, had been unreceptive to her complaints, and, seemingly indifferent to the sensitive subject matter, had conducted the interview within earshot of other NYSP employees.

The third February 11 investigation involved a New York State Thruway toll supervisor's complaint that Gierlinger, while driving her NYSP vehicle, had failed to pay the required toll. That investigation included taking a statement from the toll supervisor. The toll supervisor testified at trial that she had held that position for nine years and that, during that period, she had made complaints several times each year about NYSP troopers' failures to pay tolls. But the only such instance in which she had ever been asked to give a statement was the incident involving Gierlinger.

B. Gierlinger's Termination

As each probationary trooper nears the end of the one-year term of probation, his or her supervisors are required to prepare an "eleventh-month" evaluation and to recommend whether the probationer's employment should be continued beyond the probationary period. On March 4, 1988, Gierlinger was presented with her "eleventh-month" evaluation, prepared by Sergeant Gary W. Rowe, the acting zone commander for zone 3 of Troop A, where Gierlinger then worked. Gierlinger's eleventh-month evaluation gave her an overall rating of "Needs Improvement." Rowe sent the...

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