Saleh v. Pretty Girl, Inc.

• Decision Date: 06 September 2022
• Docket Number: 09-CV-1769 (RER))
• Parties: OSAMA HAZZA SALEH, Plaintiff, v. PRETTY GIRL, INC., HIGH STYLES, INC., JAMES ROBINSON, AND ALBERT HAMRA, Defendants,
• Court: U.S. District Court — Eastern District of New York

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OSAMA HAZZA SALEH, Plaintiff,
v.
PRETTY GIRL, INC., HIGH STYLES, INC., JAMES ROBINSON, AND ALBERT HAMRA, Defendants,

No. 09-CV-1769 (RER))

United States District Court, E.D. New York

September 6, 2022

MEMORANDUM AND ORDER

RAMON E. REYES, JR. UNITED STATES MAGISTRATE JUDGE

Osama Hazza Saleh (“Plaintiff” or “Saleh”) brought this action in April 2009 against his joint-and-single former employer, Pretty Girl, Inc. (“Pretty Girl”) and High Styles, Inc. (“High Styles”), his former manager, Albert Hamra (with Pretty Girl and High Styles, the “Moving Defendants”), and his former co-worker, James Robinson (together, the “Defendants”), after Robinson had continually harassed Saleh at the workplace on the basis of his race, religion, and national origin, and physically attacked him in the store's basement on September 6, 2007. Plaintiff alleged that Defendants' conduct constituted, inter alia: (1) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); 42 U.S.C. § 1981 (“Section 1981”); and N.Y. Exec. Law § 296 (the “New York State Human Rights Law” or “NYSHRL”); (2) common law

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negligence; and (3) common law assault and battery. (ECF No. 1 (“Compl”); ECF No. 37 (“Second Am. Compl.”) ¶ 1).^[1]

After a four-day trial held from June 2, 2014 through June 6, 2014, a jury found that: (1) each of the Defendants subjected Saleh to a hostile work environment; (2) the Moving Defendants were negligent in hiring, supervising, or retaining Robinson; and (3) each of the Defendants was liable- vicariously as to the Moving Defendants, and directly as to Robinson-for the assault and battery on September 6, 2007. (See ECF No. 86 (“Special Verdict Sheet”)).^[2] Across all claims and defendants, the jury found that Saleh was entitled to $300,000 for emotional suffering and distress, $450,000 for past physical pain and suffering, $1,400,000 for future physical pain and suffering (covering a period of 54.8 years) and $15,000 in medical expenses. (Id.). In addition to those sums, the jury found that Saleh was entitled to punitive damages comprising: $1,200,000 from Pretty Girl, $1,200,000 from High Styles, and $50,000 from Hamra for the hostile work environment and negligence claims, and $100,000 from Robinson for the hostile work environment and assault and battery claims. (Id.). On June 13, 2014, the Court entered a judgment in Saleh's favor, awarding him damages as determined by the jury plus post-judgment interest. (ECF No. 95).

Shortly after the entry of judgment, Pretty Girl filed for bankruptcy and became subject to the bankruptcy code's automatic stay provision, 11 U.S.C. § 362. (Minute Entry dated 07/02/2014; see also ECF No. 1, Voluntary Petition, In re Pretty Girl, Inc., No. 14-11979 (SHL) (Bankr. S.D.N.Y. July 2, 2014). Although post-trial motions were fully briefed, the automatic stay limited

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this Court's ability to resolve them. The motions were therefore “terminated without prejudice to renewal pending the bankruptcy litigation” in January 2015. (Order dated 1/12/2015). Both Plaintiff and the court-appointed trustee of Pretty Girl's estate have since kept this Court apprised of the status of the bankruptcy case, and on February 18, 2021, consented to limited relief from the stay in order permit the adjudication of these post-trial motions. (ECF Nos. 131-140, 142; see also ECF No. 384, Stipulation Providing Relief from Automatic Stay, No. 14-11979 (SHL) (Bankr. S.D.N.Y. Feb. 18, 2021)).

Currently before the Court are the Moving Defendants' motions under Federal Rules of Civil Procedure 50 and 59, for judgment as a matter of law (“JMOL”) or, in the alternative, for a new trial or remittitur of damages. (ECF No. 105 (“High Styles & Hamra Mot.”); ECF No. 116 (“Pretty Girl Mot.”)). The Moving Defendants primarily argue that relief is warranted because: (1) the jury instructions and verdict sheet contained fundamental errors; (2) Plaintiff's tort claims were barred by New York's Workers' Compensation Law; (3) the verdicts on the negligence and vicarious liability claims were inconsistent; (4) the verdict on each claim was against the weight of the evidence; and (5) the damages awards were excessive. Also before the Court is Plaintiff's application pursuant to 42 U.S.C. § 1988 and Local Rule 54.1, for an award of $213,362.25 in attorneys' fees and $11,728.80 in costs through June 2014. (ECF No. 97 (“Pl's Fee App.”)).^[3]

For the foregoing reasons, the Moving Defendants' motions are granted in part and denied in part, and Plaintiff's application for attorneys' fees and costs is granted in part and denied in part. Specifically:

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(1) The Moving Defendants' motions for judgment as a matter of law are denied.

(2) The Moving Defendants' motions for a new trial are granted with respect to the Moving Defendants' liability and appropriate damages for Plaintiff's common law negligence and assault and battery claims.

(3) The Moving Defendants' motion for a new trial pursuant to Rule 59 is denied with respect to liability and compensatory damages for Plaintiff's hostile work environment claims.

(4) The Moving Defendants' motion for a new trial pursuant to Rule 59 is granted with respect to punitive damages on Plaintiff's hostile work environment claims if Plaintiff refuses the remittitur amounts established below. That is, a new trial will be ordered unless Plaintiff agrees within thirty (30) days from the date of this Memorandum and Order, in writing, filed electronically with the Court and served on Defendants, to accept a remittitur of the punitive damages award to $475,000 as described below.

(5) The Court awards Plaintiff $157,332.50 in attorneys' fees and $11,728.80 in expenses.

BACKGROUND

I. Pre-Trial Proceedings

Saleh commenced this action in April 2009. (Compl.). After the close of discovery, Saleh filed a Second Amended Complaint asserting claims under Title VII, Section 1981, and the NYSHRL; assault and battery; negligence; vicarious liability; breach of contract; and intentional and negligent infliction of emotional distress; all in connection with Robinson's continual harassment during the course of their employment at Pretty Girl and an incident in which Robinson punched Saleh in the face in the store's basement on September 6, 2007. (Second Am. Compl.; see also Minute Entry dated 06/23/2010 (noting imminent close of discovery)).

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On December 10, 2010, Pretty Girl moved for summary judgment with respect to all claims asserted against it, arguing that Saleh and Robinson were employed exclusively by High Styles- the entity that owned and operated the Pretty Girl store where the incident occurred-and that it therefore could not be held accountable for those employees' actions. (ECF No. 48). Pretty Girl also argued that it was not aware of any harassment prior to the assault, that High Styles' preassault response to Saleh's complaints was reasonable, and that its own response post-assault was reasonable. (Id.). On September 19, 2012, the Honorable Eric N. Vitaliano, United States District Court Judge, denied Pretty Girl's motion for summary judgment in its entirety. (ECF No. 52). The parties subsequently consented to my jurisdiction on May 8, 2013. (ECF No. 53).

II. The Evidence at Trial

Testimony at trial revealed that, soon after immigrating to the United States, Saleh, a Yemeni Muslim, began working as a clerk at a store in Flatbush, Brooklyn, for Pretty Girl, a retail chain selling women's clothing. (Trial Tr. 29:12-19; 33:6-9; 37:7-24). After a few months, Saleh requested and received a transfer to a different Pretty Girl location on Graham Avenue in Brooklyn, where he began working with a new supervisor, defendant Albert Hamra. (Trial Tr. 37:24-39:8). When Hamra was transferred to supervise a third store on Knickerbocker Avenue, he asked that Saleh, a top performer, be transferred with him. (Trial Tr. 39:16-25; 122:9-125:12). Pursuant to Hamra's request, Saleh was transferred to the Knickerbocker store, where he began working with his brother, Mohamed Saleh, and with defendant James Robinson, both of whom were already working there as informal security personnel tasked with monitoring outdoor clothing racks for potential shoplifting and reporting any theft to the store's manager. (Trial Tr. 42:16-44:6; 127:13128:11; 307:2-308:13; 327:18-328:17; 342:23-343:21).

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At trial, Mohamed testified that Robinson harassed him when they worked together by calling him a “terrorist,” a “dirty Arab,” and “Bin Laden” countless times in front of customers and other employees, and that when he complained about Robinson's behavior, Hamra and other supervisors recommended that he simply try avoiding Robinson. (Trial Tr. 308:14-312:12; 328:18-330:16). Mohamed warned his brother about his experience with Robinson's harassment and advised him not to transfer to the Knickerbocker store, but Saleh accepted the transfer because he was handpicked by Hamra. (Trial Tr. 39:11-40:2; 344:3-346:11). Although the brothers worked together for a short period of time, Mohamed left the store after Plaintiff began working there to seek a better opportunity and to get away from Robinson's harassment. (Trial Tr. 43:10-44:8; 312:13-313:25).

Saleh testified that, as Mohamed predicted, Robinson began harassing him when he started working at the store, calling Saleh “bin Laden,” “terrorist,” and “killer,” saying that his “religion [was] dirty,” and saying that he was “not supposed to come to this country” in front of other employees, including Hamra. (Trial Tr. 44:9-24; 48:4-51:25). Mohamed confirmed that he also saw and heard Robinson call Saleh a “dirty Arab,” a “terrorist,” “part of al-Qaeda,” and “Bin Laden” during their overlapping period of employment at the store, (Trial Tr. 312:13-313:13), and Saleh's step-mother, Catherine Reilly, testified that her son regularly complained to her at the time about Robinson's harassment. (Trial Tr. 383:12-384:23)...