Rivera v. United Parcel Serv., Inc.

• Decision Date: 24 December 2015
• Docket Number: Index No.: 303092/2008
• Parties: DENISE RIVERA Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
• Court: New York Supreme Court

2015 NY Slip Op 32695(U)

DENISE RIVERA Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.

Index No.: 303092/2008

SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF THE BRONX - Trial Part IA - 24

December 24, 2015

Hon. Sharon A. M. Aarons:

After a jury trial on plaintiff's claims of sexual harassment and retaliation, the jury awarded plaintiff damages in the total amount of $1,330,000 - i.e., $420,000 for back pay, $310,000 for front pay, $300,000 for emotional distress, and $300,00 for punitive damages. Defendant UPS now moves post-trial pursuant to CPLR 4404 to set aside the jury verdict, and for an order granting a new trial, or in the alternative, for a grant of remittitur. By separate motion, plaintiff moves for attorney's fees, pre-judgment interest and costs.

The foregoing motions are consolidated for disposition and decided as follows.

Facts

Plaintiff commenced this action for damages for alleged sexual harassment and retaliation under the New York City Human Rights Law (NYCHRL) as codified in the Administrative Code of the City of New York (Admin. Code).¹

Plaintiff was first employed by defendant UPS effective September 11, 2001. She was promoted several times, eventually to the position of "on-car supervisor" in August 2004. In that capacity, she worked with fellow on-car supervisor Greg Devany, at the Eastside Center in LongIsland City. There was testimony that Devany was the "lead " on-car supervisor.

In March 2006, plaintiff made an internal complaint to Michael Coscia, a Labor Manager, that she was being sexually harassed by on-car supervisor Greg Devany. Mr. Devany frequently called the plaintiff at her home late at night, and on one occasion visited her apartment in an inebriated condition "in the middle of the night." While plaintiff testified at trial that Mr. Devany's late night calls were laced with sexual commentary, she admittedly did not report these lewd comments to Mr. Coscia.

While the defendant argues on the present motion that the alleged unwanted contact occurred only off-premises and after work hours, plaintiff testified that Devany frequently walked by and remarked, "I wish I could f— you," leading to arguments which occurred in front of other drivers.²

Mr. Coscia reviewed these complaints in a joint meeting with Mr. Devany and his manager, George Finelli, the day following the plaintiff's complaint. Mr. Devany admitted the calls, but stated that he had never been requested to stop. Mr. Coscia directed Mr. Devany to stop calling the plaintiff. Mr. Coscia viewed the situation as involving a consensual relationship, because the plaintiff herself admitted that she had frequently called Mr. Devany late at night and on weekends.

Three months after making her complaint, in June, 2006, the plaintiff was transferred toanother UPS facility called "The Remote." The pay and other terms of employment remained the same.

In December 2006, the wife of driver Rob Cosentino, one of the full-time drivers who reported to the plaintiff, complained to UPS supervisors that the plaintiff was calling her husband outside of business hours. Mrs. Cosentino believed her husband was having an affair with the plaintiff. According to the defendant, on numerous occasions, co-workers observed the plaintiff in the company of two other male subordinates, Anthony Brikes and David Gaitan, leading to rumors that she was having extra-marital affairs.

On December 16, 2006, plaintiff was directed to meet with Henry Beards, a Human Resources Manager, concerning these allegations. Plaintiff denied any inappropriate conduct with Rob Cosentino, but admitted that she had gone to dinner and attended a UPS Christmas party with a different driver. Plaintiff also reported to Mr. Beards that she had been the subject of rumors spread by drivers that she was having extra-marital affairs.³

Following the meeting, UPS Security Manager, Tim Almquist, investigated the allegedrumors surrounding plaintiff's conduct by speaking with the drivers identified by plaintiff as "spreading rumors." None of the drivers admitted to spreading rumors concerning the plaintiff.⁴

In January 2007, Mr. Beards transferred the plaintiff to Manhattan North. This was done to remove her from contact with the drivers who were allegedly spreading rumors concerning the plaintiff's conduct. A few months later, in March, 2007, she was transferred to Manhattan South. Within a few days of the transfer, she was observed having coffee with driver Anthony Brikes (who was still assigned to Eastside) in lower Manhattan, far beyond his midtown driving route. Plaintiff was interviewed concerning this conduct, but not disciplined.

Subsequently, plaintiff was investigated for four incidents, i.e, (1) a customer complaint; (2) the failure to deliver packages to a building; (3) a security breach, where she permitted an employee to re-enter the building after he had left for the day; and, (4) falsification of delivery scans. After an investigation by UPS security officers, plaintiff met with Division Manager, Andrew Jurasits, to explain her conduct. Mr. Jurasist testified at trial that he was not satisfied with plaintiff's explanations,⁵ and thus made the decision to terminate her employment based on the conduct relating to the security breach and the falsification of the delivery scans. He testified that he had no knowledge of plaintiff's prior complaints to Mr. Coscia or Mr. Beards.

Following her termination at UPS, at which time she was making $75,000, plaintiff obtainedtemporary employment at odd jobs. In January 2008, she was hired by Binder & Binder as a clerical worker at a salary of $26,000. She was terminated from Binder & Binder in March, 2009, although after her union grieved her termination, she was offered, and declined, continued employment.

The Court's Charge

With respect to the key issues of gender discrimination and retaliation, the Court fashioned the following charges:

SEXUAL HARASSMENT

Plaintiff seeks to recover for alleged sexual harassment under the New York City Human Rights Law. What is commonly referred to as sexual harassment is a form of gender discrimination under the NYCHRL.

In order to establish a claim of gender discrimination under New York City Human Rights Law (NYCHRL), plaintiff must prove by a preponderance of the evidence each of the following elements:

(1) That she belongs to a protected group (in this case, there is no dispute that Ms. Rivera is a female and as such is a member of a protected group)

(2) That she was subjected to unwelcome harassment; and

(3) That the harassment was based upon her gender.

In order for plaintiff to establish her claim that she was sexually harassed, she must show that she was treated less well at least in part because of her gender. You must consider the totality of the circumstances because "the overall context in which the challenged conduct occurs cannot be ignored."

The NYCHRL is not a general civility code. Petty slights and minor inconveniences do not constitute harassment. However, the burden of proof on the issue of whether the harassing conduct (if you find there to be any) was slight or trivial is on the defendant.

The alleged sexual conduct must have been "unwelcome." "In determining whether conduct was unwelcome, the nature of the sexual advances and the context in which they occurred are to be viewed in light of the totality of the circumstances at issue." If plaintiff's actions in the workplace show that she was a "willing participant" in the conduct at issue, the conduct is not "unwelcome." If you find that plaintiff has proven that she was harassed on the basis of gender by employees of defendant UPS, youmust next decide whether defendant UPS should be held liable for those actions. Defendant UPS is not automatically liable for the actions of every one of its employees. An employer is liable for harassment or retaliation by its employees under the NYCHRL when:

(1) The harassing conduct was by an employee with "managerial or supervisory responsibility" over the plaintiff; or,

(2) Defendant UPS knew about the harassing conduct and acquiesced to the conduct or failed to take immediate and appropriate corrective action. An employer is deemed to have knowledge of harassing conduct if it was known by an employee with managerial or supervisory authority.

In order to determine whether an employee is a "managerial or supervisory employee," you must consider whether the employee had the authority to affect the terms and conditions of plaintiff's employment. In making this decision, you should consider the nature of the relationship and whether the individual had the authority to direct daily work activities, hire, fire, promote, transfer or discipline the plaintiff.

If the harassing conduct was by an employee with managerial or supervisory authority over the plaintiff, or if UPS knew of the conduct and acquiesced to it or failed to take immediate and appropriate action, then defendant UPS is liable.

If, on the other hand, the harassing conduct was not by an employee with managerial or supervisory authority, or if defendant UPS did not know of the harassing conduct, you will consider whether UPS should have known of the harassing conduct and failed to exercise reasonable care to prevent it. In considering whether defendant UPS exercised reasonable care, you must consider whether UPS established and complied with policies, programs and procedures for the prevention and detection of harassing conduct by employees, agents and persons employed as independent contractors, including but not limited to:

a. A meaningful and responsive procedure for investigating complaints of discriminatory practices by employees and for taking appropriate action against those persons who are found to have engaged in such practices;

b. A firm policy against such practices which is effectively communicated to employees;

c. A program to educate employees about unlawful discriminatory practices under local, state and federal law; and

d. Procedures

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