N.L.R.B. v. Thalbo Corp.

• Decision Date: 16 March 1999
• Docket Number: No. 98-4017,98-4017
• Citation: 171 F.3d 102
• Parties: 160 L.R.R.M. (BNA) 2750, 137 Lab.Cas. P 10,384 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THALBO CORPORATION and G.B. Motel Management, d/b/a Ramada Inn Newburgh, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

Page 102

171 F.3d 102

160 L.R.R.M. (BNA) 2750, 137 Lab.Cas. P 10,384

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THALBO CORPORATION and G.B. Motel Management, d/b/a Ramada

Inn Newburgh, Respondents.

No. 98-4017.

United States Court of Appeals, Second Circuit.

Argued Nov. 6, 1998.

Decided March 16, 1999.

Sonya Spielberg, National Labor Relations Board, Washington, D.C. (Frederick Havard, Supervisory Attorney, Frederick L. Feinstein, Acting General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Washington, D.C., on the brief), for Petitioner.

Joseph A. Saccomano, Jr., White Plains, New York (Jackson, Lewis, Schnitzler & Krupman, White Plains, New York, on the brief), for Respondent.

Before: KEARSE, CARDAMONE, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner National Labor Relations Board ("NLRB" or the "Board") petitions for enforcement of its April 30, 1997 remedial order requiring respondents Thalbo Corporation ("Thalbo") et al. to pay former employee Paulette DiMilta $40,410.24, plus interest, as backpay from February 7, 1991, through July 25, 1995, for violations of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1994) ("NLRA" or the "Act"). The Board's original order finding that Thalbo violated §§ 8(a)(1) and (3) of the Act by discriminating against DiMilta because of her participation in union activities, see Thalbo Corp., 314 N.L.R.B. 367 (1994) ("Thalbo I "), was enforced by this Court in NLRB v. Thalbo Corp., 57 F.3d 1063 (2d Cir.1995) (table) ("Thalbo II "). Thalbo opposes enforcement of the remedial order, contending principally that any award of backpay is foreclosed (a) by collateral estoppel in light of a court suit brought by DiMilta against Thalbo under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and (b) by insufficiency of the credible evidence. Alternatively, Thalbo contends that the period for which the Board could properly order backpay ended in August 1994 or May 1995. For the reasons that follow, we reject Thalbo's contentions and grant the petition for enforcement.

I. BACKGROUND

The facts as to Thalbo's liability for discriminating against DiMilta in violation of the NLRA have been established in Thalbo I and II. For most of the pertinent period, Thalbo and its affiliate, respondent G.B. Motel Management ("G.B.Motel") (collectively "the Company"), operated a Ramada Inn in Newburgh, New York (the "Hotel"). G.B. Motel was in charge of the bar, restaurant, and banquet rooms ("bar/restaurant operations"). As discussed in Part II.C.1. below, G.B. Motel was dissolved in 1994, and its bar/restaurant operations at the Hotel were contracted out to an entity unrelated to the Company.

DiMilta began working at the Hotel on weekdays in April 1985 primarily as a bartender. In July 1990, for medical reasons, she began an extended leave of absence, with the mutual understanding that she would, upon her recovery, be reinstated. During the approximately six months that she was on leave, she remained on the G.B. Motel payroll, though she received no salary.

As found in Thalbo I, while DiMilta was on sick leave, a union-organizing campaign at the Hotel began, and DiMilta was an open supporter of the union. In February 1991, following DiMilta's request to return to work, the Company refused to reinstate her. The Board, finding that the refusal was the result of DiMilta's support of the union and hence violated §§ 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), ordered the Company to, inter alia, offer DiMilta

immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimination against her.

Thalbo I, 314 N.L.R.B. at 370.

Thalbo I was decided in July 1994 and was enforced in Thalbo II in May 1995. A. DiMilta's Title VII Suit Against Thalbo

When satisfactory compliance had not been achieved by November 1995, the Board issued a "compliance specification," leading to a Supplemental Decision by an administrative law judge ("ALJ"), which was adopted by the Board in the April 30, 1997 remedial order at issue here, Thalbo Corp, 323 N.L.R.B. 630 (1997) ("Thalbo III "), see Part I.B. below.

In the meantime, after the Company refused to reinstate her, DiMilta commenced an action in federal district court, asserting sexual harassment claims under Title VII, along with claims under state law, against the Company and her former supervisor Helmut Rothermel for events that had occurred prior to her leave of absence (the "Title VII lawsuit"). The case was tried before a magistrate judge, who, in a decision issued in March 1995, dismissed the complaint against Rothermel but found the Company liable. See DiMilta v. G.B. Motel Management, Inc., 92 Civ. 6468 (S.D.N.Y. Mar. 20, 1995) ("DiMilta v. G.B. Motel ").

In analyzing DiMilta's sexual harassment claims, the magistrate judge noted that in order to succeed, DiMilta was required to show that "the harassment affected a term, condition or privilege of [her] employment," DiMilta v. G.B. Motel, slip op. at 8 (internal quotation marks omitted), and that the harm targeted by Title VII " ' "is not limited to 'economic' or 'tangible' discrimination," ' " id. at 9 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986))). The magistrate judge noted that " '[a] discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will ... discourage employees from remaining on the job ....' " DiMilta v. G.B. Motel, slip op. at 9 (quoting Harris v. Forklift Systems, Inc., 510 U.S. at 22, 114 S.Ct. 367) (emphasis in magistrate judge's opinion). He proceeded to find that

Rothermel's conduct, which might have subjected him to a criminal sanction, was physically threatening and humiliating. It would have discouraged a reasonable individual from remaining on the job.... The Court is persuaded that the test for an abusive work environment has been met in this case.

DiMilta v. G.B. Motel, slip op. at 9.

But the magistrate judge did not find that DiMilta herself had been discouraged from remaining on the job or from seeking to return after recovery from her illness. For example, although DiMilta contended that the ailment that forced her leave of absence was caused by the stress engendered by Rothermel's sexual harassment, the magistrate judge apparently rejected that contention, as he found that "she voluntarily undertook sick leave," id. at 11, and concluded that she therefore was "not entitled to back pay for the period of time that she was disabled and unable to work because she would not have been entitled to her salary during this time," id. at 12.

Further, the magistrate judge found that Rothermel's sexual harassment was not the reason DiMilta did not return to work at the Hotel. He noted that "in most cases the victim of this type of behavior would not be eager to return to working for the same errant supervisor"; in this case, however, DiMilta, believing the circumstances would eventually be changed or could be controlled, wanted to return to work. Id. at 7 n. 9. Nor was the sexual harassment related to Thalbo's refusal to reinstate DiMilta. The magistrate judge found that "the reason for Defendant's failure to rehire her stemmed from her employer's retaliation for activity protected by federal labor law and not from Rothermel's pique." Id. at 7 n. 7; see also id. at 8 ("[T]he reprisal visited upon [DiMilta] in the form of not being rehired was not the result of Plaintiff's reaction to Rothermel's conduct, but rather stemmed from her employer's In sum, the magistrate judge did not find that DiMilta was constructively discharged, for he did not find that she had left her job at the Hotel as a result of the sexual harassment, or that she had been loath to seek reinstatement, or that the refusal to reinstate her had any relationship to sexual harassment. Nor did he find that while working at the Hotel she had suffered any diminution in her compensation as a result of the sexual harassment.

reaction to her union organizing efforts.").

Nonetheless, in fashioning relief for the abusive work environment it found had existed, the court awarded DiMilta what it termed "back pay," e.g., id. at 12, 13, for a period beginning with Thalbo's denial of reinstatement and ending in August 1991 when DiMilta found work as a bartender at a military academy bar called the Stewart Officers' Club ("Stewart"). DiMilta's job at Stewart lasted only until October 1992, when she was laid off. The magistrate judge concluded that no award was appropriate for the period following her layoff at Stewart, in light of a deposition given by DiMilta in the lawsuit, in which she stated in part as follows:

Q Besides the job at Stewart ..., have you had any other jobs since you left Ramada?

A No.

Q And why did you leave that job at Stewart?

A At Stewart, my husband and I had a deal that when I turned 45, I can retire. I just pushed it up six months.

Q So, is it fair to say that you are in retirement at this point?

A Yes.

(Deposition of Paulette DiMilta, February 9, 1993, at 48.) The magistrate judge stated that, as to the period following DiMilta's employment with Stewart, her

deposition testimony supports the conclusion that since then she has not been aggressive in seeking another job because, through an arrangement with her husband, she is currently in retirement, a retirement the commencement of which coincides with the layoff in October 1992.

DiMilta v. G.B. Motel, slip op. at 12.

The district court...