Leibovitz v. NYC Trans. Authority

• Decision Date: 01 August 1999
• Docket Number: JOSEPH,99-7313,Nos. 325,DEFENDANT-APPELLAN,PLAINTIFF-APPELLEE,326--,Docket Nos. 98-7757,s. 325
• Citation: 252 F.3d 179
• Parties: (2nd Cir. 2001) DIANE LEIBOVITZ,, v. NEW YORK CITY TRANSIT AUTHORITY,HOFFMAN AND MONROE EASTER, DEFENDANTS
• Court: U.S. Court of Appeals — Second Circuit

Page 179

252 F.3d 179 (2nd Cir. 2001)

DIANE LEIBOVITZ, PLAINTIFF-APPELLEE, v. NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT-APPELLANT, JOSEPH HOFFMAN AND MONROE EASTER, DEFENDANTS.

Docket Nos. 98-7757, 99-7313

Nos. 325, 326--August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: November 1, 1999

Decided June 6, 2001

Appeal from the judgment of the United States District Court for the Eastern District of New York (Weinstein, J.), following a jury trial, imposing $60,000 in damages on the New York City Transit Authority for sexual harassment under Title VII of the Civil Rights Act of 1964.

Reversed.

[Copyrighted Material Omitted] Merrick T. Rossein, Steel, Bellman, Ritz & Clark, New York, N.Y., for Plaintiff-Appellee.

Barbara C. Neale, New York, N.Y. (Martin B. Schnabel, Vice President and General Counsel, Ira J. Lipton, New York City Transit Authority, on the brief), for Defendant-Appellant.

Herbert Eisenberg, Davis & Eisenberg, New York, N.Y. (Samuel R. Bagenstos, Paula A. Brantner, on the brief), for Amicus Curiae the National Employment Lawyers Association.

Ann Elizabeth Reesman, McGuiness & Williams, Washington, Dc, for Amicus Curiae The Equal Employment Advisory Council.

Before: McLAUGHLIN, Jacobs and Sack, Circuit Judges.

Jacobs, Circuit Judge

The New York City Transit Authority (the "Transit Authority") appeals from the judgment of the United States District Court for the Eastern District of New York (Weinstein, J.), after a jury trial, imposing $60,000 in damages for sexual harassment under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. Plaintiff Diane Leibovitz prevailed on the theory that Title VII afforded her a remedy because she was emotionally distressed (i) by hearsay alleging that other women in other parts of her workplace were subjected to sexual harassment and (ii) by her employer's inadequate response to her complaints about the alleged harassment. The Transit Authority claims error in the trial court's refusal to enter judgment as a matter of law, grant a new trial or amend the judgment pursuant to Fed. R. Civ. P. 50(b) and 59(a) and (e), respectively. The Transit Authority also appeals the court's supplemental judgment granting attorneys' fees of $129,575.

We conclude, based on the evidence adduced at trial, that Leibovitz was not subject to the kind of pervasive and severe hostile work environment required to recover damages under Title VII and therefore presented no cognizable claim. Her claim rests on emotional trauma allegedly suffered due to her belief that other women in other parts of her workplace were harassed and that the defendant was not vigorously investigating those complaints. We hold that Title VII's prohibition against hostile work environment discrimination affords no claim to a person who experiences it by hearsay. We therefore reverse the district court's ruling that sufficient evidence existed to support the jury's finding that Leibovitz's work environment was hostile and abusive. As this holding requires dismissal of the only claim on which Leibovitz prevailed at trial, and thus disposes of this appeal, we do not reach the Transit Authority's other claims of error.

BACKGROUND

A. Facts

We recount only those facts bearing upon Leibovitz's claim for hostile work environment discrimination, which is the only claim on which she prevailed in the district court and the only claim that is the subject of this appeal.

Diane Leibovitz was hired by the Transit Authority in 1985. Beginning in 1990, and at all relevant times, she was one of 40 Deputy Superintendents (out of 44,000 total employees). Starting in the fall of 1992, Leibovitz was stationed at the 240th Street Maintenance Shop (the "Shop"). She worked as Deputy Superintendent of Inspections (overseeing the process of inspecting subway cars) until August 1993, when she became Deputy Superintendent of Repairs (in charge of the unscheduled repair of subway cars and facilitating traffic).

In September 1993, Leibovitz learned from Marva Jones, a car inspector, that a female subway car cleaner named Velma Lorrick had complained that she was being harassed by the male Deputy Superintendent who supervised her, Russell Woodley.¹ Jones also told Leibovitz that another female car cleaner, Joanne Medina--who had previously complained to Leibovitz about Woodley's behavior--had been transferred to another shop that was closer to her home.² According to Jones, Woodley engaged in a pattern of harassing women by making remarks, touching them and "coming on to them."

Leibovitz admits that she was unaware of the alleged harassment when it was happening. Specifically, she was not present for the alleged incident between Lorrick and Woodley and never spoke to Lorrick about Lorrick's complaint. In any event, Lorrick and Medina did complain about Woodley to others in management. A lengthy investigation ensued, but the parties disagree as to the vigor with which it was carried out.

Leibovitz claimed that she suffered a major depressive disorder during the years she was in the Shop, and that the disorder flowed from her frustrated attempts to secure a remedy for the women alleging harassment.

Leibovitz also alleged that she herself was harassed, but the jury rejected that claim. That rejected claim was the sole allegation that Leibovitz had any first-hand experience or knowledge of harassment in the Shop. When asked at oral argument in this Court whether Leibovitz witnessed harassment, counsel for Leibovitz responded, "No. There is no evidence [of that] except that which occurred against her," and conceded that "[s]he did not see any of these incidents." Leibovitz's injury therefore was wholly psychological and rests solely on the alleged harassment of other women out of her presence: "She was never discriminated against on the basis of her sex, nor was she personally the target of inappropriate sexual behavior. There was, however, evidence of sexual harassment of other women in her shop that caused her emotional distress." Leibovitz v. New York City Transit Auth., 4 F.Supp. 2d 144, 146 (E.D.N.Y. 1998).

B. Proceedings below

Leibovitz's complaint, filed on September 22, 1995, asserted claims under Title VII, the United States Constitution and New York State law. The case went to trial on January 12, 1998. The constitutional claims were dismissed by Judge Weinstein prior to jury deliberation.³ As to the Title VII claims, Judge Weinstein asked the jury to answer three questions: (1) "Did the defendant New York City Transit Authority discriminate against plaintiff because of her gender . . . ?"; (2) "[D]id the Transit Authority retaliate against plaintiff for complaining of discrimination on behalf of other women, yes or no?"; and (3) "[D]id the Transit Authority violate [plaintiff Diane Leibovitz's] rights by deliberate indifference to widespread discriminatory practices [and] sexual misconduct against others, yes or no?" As to the last question, the jury instruction read as follows:

Plaintiff also claims that she was the victim of sex discrimination adverse to herself, in that the Transit Authority was deliberately indifferent to sexual harassment generally.

Plaintiff must show that her workplace was so permeated with discriminatory sexual behavior that was so severe or pervasive that it altered the conditions of her employment and created an abusive working environment for her. To be pervasive, the incidents of discrimination must be repeated and substantially continuous--over a substantial period of time.

The jury returned a verdict for the Transit Authority on the first two questions and for Leibovitz on the third question, and awarded her $60,000.

Following the verdict, the Transit Authority moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b), or, in the alternative, for a new trial or amended judgment, pursuant to Fed. R. Civ. P. 59(a) and (e), respectively. Judge Weinstein denied the motions and memorialized the jury's finding in an Order dated May 5, 1998. See Leibovitz v. New York City Transit Auth., 4 F. Supp. 2d 144 (E.D.N.Y. 1998). On February 25, 1999, Judge Weinstein awarded counsel for Leibovitz $129,575 in attorneys' fees and $13,194.10 in costs and expenses, for a total of $142,769.10.

This appeal followed.

DISCUSSION

This Court has jurisdiction to review the final judgment of the district court pursuant to 28 U.S.C. § 1291. Notices of appeal were timely filed on May 27, 1998 (as to the judgment on liability) and on March 12, 1999 (as to the judgment on attorneys' fees).

The Order denying the motion for judgment as a matter of law is reviewed de novo. See Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997); Valley Juice Ltd. v. Evian Waters of France, Inc., 87 F.3d 604, 613 (2d Cir. 1996). The denial of a motion for new trial is reviewed for abuse of discretion. See Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000).

I. Standing

The district court ruled that Leibovitz had standing to raise a hostile work environment claim, see Leibovitz, 4 F. Supp. 2d at 150, and both parties identify standing as a determinative threshold issue. "[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975). Prudential and constitutional rules of standing are alike "threshold determinants of the propriety of judicial intervention." Warth, 422 U.S. at 518.

We agree with the district court that Leibovitz has standing under Article III to raise a claim of hostile work environment to redress psychological and emotional injuries. Unlike the district court, however, we do not believe that the facts of this case present an issue as to whether Congress intended prudential...