Gleason v. Callanan Industries Inc.

• Decision Date: 21 April 1994
• Citation: 203 A.D.2d 750,610 N.Y.S.2d 671
• Parties: Kathleen E. GLEASON, Respondent-Appellant, v. CALLANAN INDUSTRIES INC., Appellant-Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 671

610 N.Y.S.2d 671

203 A.D.2d 750

Kathleen E. GLEASON, Respondent-Appellant, v. CALLANAN INDUSTRIES INC., Appellant-Respondent, et al., Defendant.

Supreme Court, Appellate Division Third Department.

April 21, 1994.

Deily, Testa & Dautel (Harry R. Hayes III, of counsel), Albany, for appellant-respondent.

Friedman and Manning P.C. (Michael P. Friedman, of counsel), Delmar, for respondent-appellant.

Before CARDONA, P.J., and MERCURE, WHITE, WEISS and PETERS, JJ.

PETERS, Justice.

Cross appeals from a judgment of the Supreme Court (Kahn, J.), entered April 22, 1993 in Albany County, upon a verdict rendered in favor of plaintiff.

Plaintiff commenced this action in September 1991 alleging that she had been sexually harassed by a co-worker, defendant Robert Gerren, during her employment with defendant Callanan Industries Inc. Plaintiff alleged that she was exposed to various acts of harassment by Gerren from the start of her employment in July 1988 until April 1991. On April 5, 1991, plaintiff wrote a memo to a Callanan officer informing him of Gerren's alleged acts of harassment. Shortly thereafter, on April 11, 1991 plaintiff was terminated on the ground of professional incompetence.

After five days of trial, Supreme Court granted Callanan's motion to dismiss plaintiff's causes of action for breach of contract and intentional infliction of emotional distress. The claims submitted to the jury were whether Callanan was liable to plaintiff for sexual harassment in violation of Executive Law § 296, whether Callanan was liable to plaintiff for retaliatory discharge pursuant to Executive Law § 296(1)(e) and whether Gerren committed a battery. The jury found in plaintiff's favor on the retaliatory discharge claim, finding that plaintiff was terminated in retaliation for her complaint of sexual harassment. The jury awarded plaintiff $54,000 in compensatory damages for emotional distress and $7,500 for lost earnings. Supreme Court denied Callanan's motion to set aside the verdict. Callanan now appeals from the judgment and plaintiff cross appeals.

The first issue raised on this appeal is whether the jury's finding that Callanan had discharged plaintiff in retaliation for her sexual harassment complaint was against the weight of the evidence. Although Callanan contends that the decision to terminate plaintiff was made before she advised Callanan of her sexual harassment complaint because plaintiff's job performance was poor, we find such claim considerably overcome by the evidence presented in the record.

The record reveals that plaintiff received regular and intermittent raises, was scheduled to receive another raise after the date of her complaint and had never had a poor job review. Plaintiff, however, was fired shortly after submitting her complaint of sexual harassment to Callanan. Thus, we conclude that a rational jury could have inferred that plaintiff's employment was terminated in retaliation for her complaint of sexual harassment and that the jury did not incorrectly assess the evidence presented (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145; see also, Sogg v. American Airlines, 193 A.D.2d 153, 603 N.Y.S.2d 21).

Callanan next contends that Supreme Court incorrectly failed to set aside the damage award for emotional distress as excessive. We disagree. As noted by Judge Fuchsberg in Figliomeni v. Board of Educ. of City School Dist. of Syracuse, 38 N.Y.2d 178, 379 N.Y.S.2d 45, 341 N.E.2d 557:

[I]t is the rule rather than the exception that, in cases calling for the monetary evaluation of bodily and emotional injuries and the frequently subjective pain and suffering that may flow from them, that a wide and diverse range of opinion is to be expected among triers of the fact, whether Judges or jurors. Of the latter, some may be skeptics, others stoics and still others stoical about the ability of others to endure pain. There are those too who, consciously or unconsciously, react unfavorably to the law's measurement of such noneconomical injury in terms of dollars and cents. On the other hand, there are those who have opposite, even hypersensitive, views about the plight of injured persons. Obviously, then, whether a jury consists of a preponderance of individuals of the one stripe or the other will make a world of difference in the quantum of damages which it awards (id., at 183, 379 N.Y.S.2d 45, 341 N.E.2d 557).

We are empowered to determine that an award is excessive "if it deviates materially from what would be reasonable compensation" (CPLR 5501[c]. While, as in Rhoades v. Niagara Mohawk Power Corp., 202 A.D. 762, 608 N.Y.S.2d 733, our review of the award is impeded by the fact that the jury did not itemize its verdict (see, CPLR 4111[f], this error is unpreserved as the parties did not object to the verdict sheet.

We also find guidance in the standard of review that we have used in considering awards of compensatory damages for emotional distress when such awards have been made by the Commissioner of Human Rights. As set forth in Matter of New York City Tr. Auth. v. State Div. of Human Rights (Nash), 78 N.Y.2d 207, 573 N.Y.S.2d 49, 577 N.E.2d 40, "psychic injury--by nature essentially subjective--has prompted difficult questions of proof, both as to establishing the genuineness of any injury and as to fixing its dollars-and-cents valuation * * *. Such questions have particular pertinence to Human Rights Law cases, where mental suffering is not only compensable * * * but also a frequent--sometimes sole--consequence of unlawful discriminatory conduct" (id., [203 A.D.2d 752] at 215, 573 N.Y.S.2d 49, 577 N.E.2d 40 [citations...