February 20, 2020

Employee alleges employer ignored her sexually hostile work environment and the negligent supervision claims

Plaintiff's claim of negligent supervision was based on, among other things, Office for People with Developmental Disabilities, an agency of  State of New York [collectively "Defendants"]  alleged failure to properly supervise its employees by allowing acts and words of retaliation against her following her report of patient abuse by another supervisor and her assistance in the investigation of that abuse.

Following a trial, a jury found in plaintiff's favor on the sexually hostile work environment and the negligent supervision claims against Defendants and dismissed the sexual harassment claim against a named individual defendant. Plaintiff was awarded $300,000 in damages on her sexually hostile work environment claims and $200,000 in damages on her negligent supervision claim.

Supreme Court denied Defendants' subsequent motion to set aside the jury verdict or, in the alternative, to order a new trial, and partially granted plaintiff's request for counsel fees. Defendants appeals from the judgment entered upon the jury verdict and from the order denying its postverdict motion. Plaintiff cross-appeals from that part of the order as partially denied her request for counsel fees.

Considering Defendants' argument that the jury verdict was unsupported by legally sufficient evidence and against the weight of the evidence the Appellate Division said that "A verdict may be set aside as unsupported by legally sufficient evidence where 'there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial.'" In contrast, citing Matter of Grancaric, 68 AD3d 1279 the court explained that a jury verdict will be stricken as against the weight of the evidence "where the proof so preponderated in favor of the unsuccessful party that the verdict could not have been reached on any fair interpretation of the evidence."

Addressing Plaintiff's sexually hostile work environment claims, the decision noted that "an individual plaintiff must show that his or her workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his or her] employment and create an abusive working environment" and all circumstances must be considered, including the frequency of the alleged discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with [an employee's] work performance.

In addition, the Appellate Division, citing Forrest v Jewish Guild for the Blind, 3 NY3d 298, opined that "the workplace must be both subjectively and objectively hostile" whereby a plaintiff must not only perceive that the conditions of his or her employment were altered because of discriminatory conduct, but the conduct must also "have created an objectively hostile or abusive environment — one that a reasonable person would find to be so."

However, as the Court of Appeals held in State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, "An employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it." Further, "An employer's calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct, indicate condonation," while an employer may "disprove condonation by a showing that it reasonably investigated complaints of discriminatory conduct and took corrective action.

Rejecting Defendants' argument that the verdict on the hostile work environment claims should have been set aside because it was not based on legally sufficient evidence and was contrary to the weight of the evidence, the Appellate Division held that "the evidence clearly supports the finding that Defendants knew or should have known of [the Plaintiff's coworker's] harassing conduct and failed to take appropriate action" and reached the same conclusion with regard to Plaintiff's negligent supervision claim.

Addressing Defendants' challenge to the amount of damages awarded by the jury, the Appellate Division opined that "a court may set aside a jury award of damages when that award 'deviates materially from what would be reasonable compensation' ... [and a] "A challenge to damages will only be successful where the record evidence preponderates in favor of the moving party to such a degree that the verdict could not have been reached on any fair interpretation of the evidence."

The Appellate Division, considering the jury awarding Plaintiff $300,000 on the hostile work environment claims and $200,000 on the claim against Defendants for negligent supervision, ruled that considering "limited evidence of Plaintiff's psychological trauma and the lack of medical proof as to the effects of the sexual harassment and coworker retaliation upon her" said that the award for damages on the hostile work environment claims should be reduced to $150,000 and the award on the negligent supervision claim should be reduced to $100,000, for a total award of $250,000.

Addressing Petitioner's objection to Supreme Court's reduction of counsel fees to 60% of the $344,067.94 of amount requested in fees and expenses, the Appellate Division concluded that there was no basis upon which to disturb the award made by the lower court. However, the Appellate Division's order included a provision for new trial on the issue of damages "unless, within 20 days after service of a copy of the order herein, Plaintiff stipulates to reduce the total award for said claims to $250,000, in which event said judgment and order, as so modified, are affirmed."

The decision is posted on the Internet at: