Russell v. KSL Hotel Corp.

Decision Date22 September 2004
Docket Number No. 3D02-2141, No. 3D02-1870.
Citation887 So.2d 372
PartiesNisaratana ("Kitty") RUSSELL and George Russell, Appellants, v. KSL HOTEL CORP., a Delaware Corp., d/b/a Doral Golf Resort & Spa, et al., Appellees.
CourtFlorida District Court of Appeals

Wetherington, Klein & Hubbart and Phillip A. Hubbart; Lauri Waldman Ross, Miami; Rasco Reininger Perez & Esquenazi and Steven R. Reininger, Miami, for appellants.

Gunster, Yoakley & Stewart and Jack J. Aiello (West Palm Beach); Shankman & Westerman and David S. Shankman (Tampa), for appellees.

Before SCHWARTZ, C.J., and COPE and LEVY, JJ.

LEVY, Judge.

Nisaratana Russell and George Russell, the Plaintiffs below, appeal from a Final Judgment. We reverse and remand with directions to reinstate the jury verdict in its entirety. Mrs. Russell and her husband filed an amended complaint against her former employer, KSL Hotel Corporation d/b/a Doral Golf Resort & Spa ("Doral"), alleging hostile work environment sexual harassment; retaliatory discharge (1) for complaining of sexual harassment to Doral management, and (2) for filing a Workers' Compensation claim; negligent retention based upon the continued employment of the Doral employee who allegedly harassed Mrs. Russell; and the husband's loss of consortium.

At trial, Mrs. Russell testified that she worked as a pastry chef at the Doral Golf Resort & Spa from November 1997 until early March 1998. Her immediate supervisor was a woman named Vandee McDaniel, the supervisor of the Doral pastry kitchen. Mrs. Russell testified that on her first day of work, Elman Holder, who was also employed by Doral as a pastry chef, stated that he was expecting Doral to hire a man and expressed his dissatisfaction because Doral hired a woman for the position. Mrs. Russell further testified that when she introduced herself, Holder shook her hand but also pulled her towards him and kissed her on the cheek. According to Mrs. Russell, she protested but Holder laughed at her and made kissing noises. Mrs. Russell testified that she reported this incident to McDaniel.

Mrs. Russell further testified that, over the next few months, Holder frequently came up behind her, made kissing noises, cursed at her, tapped her on the back, and laughed at her. On one occasion, according to Mrs. Russell, he pushed her ear very hard. Mrs. Russell testified that in November or December 1997, the severity of the incidents escalated and that on several occasions, Holder approached her from the rear, rammed his erect penis into her buttocks and whispered in her ear, "Fuck you, Kitty. Fuck you." Mrs. Russell testified that she reported all of these incidents to McDaniel and that McDaniel responded that she would complete a discipline report on Holder. McDaniel never completed such a report. According to McDaniel, Mrs. Russell reported no incidents other than the ear incident and another incident involving a sheet pan.

Mrs. Russell testified that in January 1998, she was inside a pastry kitchen freezer when she was hit in the neck by a plastic water bottle. Mrs. Russell reported the incident to Doral Security, which subsequently informed Human Resources. Diana Allen, the Director of Human Resources, spoke with Mrs. Russell. During this conversation, Mrs. Russell identified Holder as the individual who threw the bottle. Allen asked Mrs. Russell to document in writing the problems she had been having with Holder. After Mrs. Russell completed her account of the incidents, Gina Diaz, the Assistant Director of Human Resources, investigated the complaints and concluded that Mrs. Russell's complaints were unfounded. In the course of the investigation, however, Holder admitted that he touched Mrs. Russell on one occasion. In response, Diaz issued him a written disciplinary warning that directed him not to touch other employees. Diaz also spoke with the pastry kitchen employees about sexual harassment.

At the end of February 1998, Mrs. Russell's husband, George Russell, called Holder to confront him regarding the various incidents. Holder did not respond. The next day, according to Mrs. Russell, when she returned to work Holder said to Didier Schmielowski, another pastry kitchen employee, in a voice loud enough for Mrs. Russell to hear, "How many times should we fuck her? Should we call her husband? How many times can we fuck her?" Mrs. Russell testified that the two men then laughed.

Mrs. Russell further testified that, one hour later, Schmielowski came up behind her and punched her in her back and her elbow. She complained to McDaniel and begged McDaniel to leave work because of the severity of the pain. McDaniel refused and required her to remain at work late to finish inventory. The next morning, the Russells called the police and filed a police report. Mrs. Russell took the next two days off from work. On March 3, 1998, she returned to work and met with Eric Akel, Doral's General Manager. She told him about the incidents involving Holder and Schmielowski and indicated that she needed to see a doctor. Doral arranged for a taxi to take Mrs. Russell to the doctor, where she filed a Workers' Compensation claim. The doctor confirmed that she had contusions on her back and elbow and limited range of motion in her back. He prescribed her medication and had her return to work. Gina Diaz investigated this incident. Because Schmielowski denied the incident and because there were no witnesses to corroborate Mrs. Russell's claim that the injury occurred at work, Diaz put the Workers' Compensation claim into question.

Mrs. Russell returned to work after seeing the doctor. When her shift ended, McDaniel required her to work overtime. Mrs. Russell begged McDaniel to allow her to leave work because of the pain, but McDaniel refused. Mrs. Russell then consulted Executive Sous Chef Klaus Mueller, McDaniel's supervisor. According to Mrs. Russell, Mueller permitted her to go home after her shift and requested that she leave McDaniel a note to that effect. The note was admitted into evidence at trial.

At the end of her shift on March 4, 1998, the following day, Mrs. Russell was called to Human Resources where Allen and McDaniel fired her. Doral's reasoning for the dismissal was that Mrs. Russell "[d]id not work her scheduled shift, [and] left without permission."

After the trial, the jury returned a verdict in which it found for Mrs. Russell on the claims of sexual harassment and retaliatory discharge and for Mr. Russell on the loss of consortium claim. The jury awarded Mrs. Russell $1,516,000 in damages and Mr. Russell $55,000 in damages. The jury found for Doral on the claim of negligent retention.

After the jury verdict, Doral filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial in which it also moved for a remittitur. The trial court granted the motion, granting judgment notwithstanding the verdict for Doral on the retaliatory discharge claims, the claim of sexual harassment, and the loss of consortium claim. The trial court also noted that it would, in the event that it was determined on review that judgment notwithstanding the verdict was improvidently entered, grant Doral's alternative motions for new trial and remittitur.

On the sexual harassment claim, the trial court found that Mrs. Russell's testimony was inherently incredible and so thoroughly contradicted by her actions that there was not sufficient evidence to support the jury's determination that she was subjected to conduct of a sexually offensive nature, and that she had complained about it to Doral. On the claim for retaliation for making a sexual harassment complaint, the trial court found that the non-sexual conduct described above did not constitute sexual harassment, and therefore Mrs. Russell's complaints about those matters were not complaints of sexual harassment. The trial court further found that, as to the allegation of the groin attacks, (1) there was not sufficient evidence to establish that any decisionmaker was aware of any complaint about that conduct, and (2) McDaniel, who was Mrs. Russell's immediate supervisor, was not a decisionmaker. As for the claim for retaliation for filing a Workers' Compensation claim, the trial court found that the decisionmakers reasonably believed that Mrs. Russell did not have permission to leave work. Thus, according to the trial court, Mrs. Russell was discharged for a legitimate non-retaliatory reason, and there was not sufficient evidence to show that the reason was a pretext for retaliation. On the loss of consortium claim, the trial court ruled that because the loss of consortium claim was a derivative claim based upon the negligent retention claim, and because the jury found in Doral's favor on that claim, the derivative action must fail. The trial court alternatively found that there was insufficient evidence to conclude that Doral was negligent in its retention of Elman Holder such that the trial court would have directed a verdict on negligent retention even if the jury had found for Mrs. Russell on that claim. Based upon that, according to the trial court, the loss of consortium claim would likewise fail. As stated above, the trial court explained that it would grant Doral's alternative motion for new trial if it was determined on review that judgment notwithstanding the verdict should not have been entered. In its Final Judgment, the trial court, based upon its discussion of the evidence in granting judgment notwithstanding the verdict, found that the manifest weight of the evidence was contrary to the jury's verdict on each of the claims as to which the jury found in favor of the Russells. Finally, on the alternative motion for remittitur, if the judgment notwithstanding the verdict should not have been entered, the trial court stated that it would order a remittitur to the amount of $75,000. The trial court also entered an order denying the plaintiffs' ...

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