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KARIBIAN v. COLUMBIA UNIV.

June 28, 1996

SHARON KARIBIAN, Plaintiff, against COLUMBIA UNIVERSITY, JOHN BORDEN and MARK URBAN, Defendants.


The opinion of the court was delivered by: GRIESA

 This is an action to recover damages for alleged sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and state law. Plaintiff Sharon Karibian brought suit against the alleged perpetrator, Mark Urban; against Columbia University, the former employer of Karibian and Urban; and against John Borden, a vice president at Columbia. The action has been tried. The jury returned its verdict on February 13, 1996, and certain of the parties have made post-trial motions.

 The Issues At Trial

 The issues in the case were narrowed somewhat during trial, leaving the following claims of Karibian to be decided some by the jury and some by the court, as will be described.

 (1) Karibian claimed that Urban sexually harassed her by engaging in unwelcome sexual activities with Karibian and indicating to her that she would receive employment advantages if she submitted and disadvantages in her employment if she did not. Karibian claimed that she in fact was benefitted in her employment while submitting to Urban's sexual demands and suffered detriment after she discontinued the relationship. Karibian also claimed that Urban retaliated against her because she complained to Columbia.

 (2) Although it was conceded that Urban was not personally liable under Title VII, Karibian claimed that Urban was liable under the New York Human Rights Law, Executive Law § 296, both for his sexual harassment and his retaliation against Karibian for complaining.

 (3) Karibian claimed that Columbia was liable under both Title VII and the New York Human Rights Law because Columbia was responsible for the sexual harassment and retaliation committed by Urban, and because it retaliated against her for complaining and failed to take reasonable investigative and remedial measures.

 (4) Karibian claimed that Borden was liable under the New York Human Rights Law because he retaliated against Karibian for complaining and failed to take reasonable investigative and remedial measures.

 Appropriate questions were submitted to the jury. In response, the jury found that Urban did not commit sexual harassment against Karibian, nor did he retaliate against Karibian for making a complaint. The jury further found that neither Borden nor Columbia retaliated against Karibian for complaining. The jury found that Borden did not fail to take reasonable investigative and remedial measures. However, the jury found that Columbia did fail to take reasonable investigative and remedial measures.

 As will be described more hilly at a later point, it was conceded that, under the particular circumstances of this case, if Urban was found to have committed sexual harassment, Columbia would be automatically liable under Title VII. This was one of the rulings in an earlier appeal in the present case. Karibian v. Columbia University, 14 F.3d 773, 780 (2d Cir. 1994). However, there was disagreement about whether this would be the case under the New York Human Rights Law. Columbia contended that it would be liable under the Human Rights Law only if it had notice of Urban's wrongdoing and acquiesced in or condoned it. In order to take into account Columbia's position, the jury was asked whether Columbia had notice of, and acquiesced in or condoned, sexual harassment by Urban. Despite the fact that the jury answered the question about Urban's sexual harassment in the negative, the jury answered the question about Columbia's notice of and acquiescence in or condoning of Urban's sexual harassment in the affirmative. This seeming contradiction was cleared up when the jury answered a supplemental question and indicated that its answer to Question 2 meant that it found that Columbia had notice of a complaint by Karibian beginning at the date referred to. Thus the jury did not intend to state that Columbia had notice of actual sexual harassment by Urban, but only notice of Karibian's then version, which the jury has now rejected based on the evidence at trial.

 The following are the questions addressed to the jury and the jury's answers:

 
1. Do you find that Urban committed sexual harassment against Karibian?
 
Yes No X
 
2. Do you find that Columbia had notice of, and acquiesced in or condoned, Urban's sexual harassment beginning in September 1988?
 
Yes X No
 
The following questions relate to the events subsequent to Karibian's complaint to de la Osa in January or February 1990.
 
3. Do you find that Urban retaliated against Karibian for making her complaint?
 
Yes No X
 
4. Do you find that Borden unlawfully failed to take reasonable steps to determine the facts about Karibian's complaint and take appropriate remedial action?
 
Yes No X
 
5. Do you find that Columbia unlawfully failed to take reasonable steps to determine the facts about Karibian's complaint and take appropriate remedial action?
 
Yes X No
 
6. Do you find that Borden retaliated against Karibian for making her complaint?
 
Yes No X
 
7. Do you find that Columbia retaliated against Karibian for making her complaint?
 
Yes No X

 The supplemental question asking for clarification of the answer to Question 2, was as follows:

 
2A. Does your answer to question 2 mean that you find that Columbia had notice of a complaint by Karibian of sexual harassment beginning in September 1988?
 
Yes X No

 The jury found damages against Columbia in the amount of $ 150,000 for lost earnings, and $ 300,000 for pain and suffering.

 Prior to the time Title VII was amended in 1991, there was no right of jury trial under that statute. It was conceded that the pre-amendment law applied in this case. It was assumed by the parties and the Court that therefore Karibian's Title VII claim would be decided by the Court while the Human Rights Law claims would be decided by the jury. While the jury was deliberating, the Court announced its ruling that Karibian had not proved the Title VII case against Columbia on any basis and that the Title VII claim should be dismissed (Tr. 2158-65). Subsequent to this and prior to the jury verdict, Karibian's attorneys submitted a brief indicating that, where a Title VII claim is tried along with a New York Human Rights Law claim, both claims having the same elements, the Court should apply the jury verdict on the Human Rights Law claim to the Title VII claim. See Song v. Ives Laboratories, 957 F.2d 1041, 1048 (2d Cir. 1992). The present status of the Court's Title VII ruling will be discussed later in this opinion.

 Both Karibian and Columbia have made post-trial motions. Karibian's applications are as follows:

 
(1) Karibian moves under Fed. R. Civ. P. 50(b) for judgment as a matter of law, setting aside the jury's answer to Question 1 and finding that Urban committed sexual harassment.
 
(2) In the event that Motion (1) is denied, Karibian moves under Rules 50(b) and 59 for a new trial on the issue of Urban's alleged sexual harassment because the jury's answer to Question 1 is in conflict with the jury's answers to Questions 2, 2A and 5.
 
(3) Karibian moves under Rules 50(b) and 59 for a new trial on the issues of Urban's alleged sexual harassment and retaliation, claiming that the Court erred in excluding some of the proffered testimony of Susan Xenarios; that the Court erroneously failed to order the production of certain documents in discovery; and that there were errors in the Court's instructions to the jury.
 
(4) Karibian moves under Rule 50(b) for judgment as a matter of law setting aside the jury's answer to Question 7 and finding that Columbia engaged in retaliation.

 Karibian has made no motions regarding Borden.

 Columbia moves under Rule 50(b) for judgment as a matter of law, setting aside the jury's answers to Questions 2 and 5, and setting aside the award of damages against Columbia. In the alternative, Columbia moves for a new trial on these issues.

 Summary of Rulings

 The court denies all of Karibian's motions.

 The court grants Columbia's motion for judgment as a matter of law, and in the alternative grants Columbia's motion for a new trial.

 Discussion

 Karibian Motion (1)

 There is no basis whatever for granting judgment as a matter of law setting aside the jury's answer to Question 1. The weight of the evidence strongly favored the jury's finding that Karibian had not proved sexual harassment committed against her by Urban.

 Karibian Motion (2)

 Prior to instructing the jury, the court had extensive discussions with counsel about the issues to be decided. The first and most important issue in the case was obviously whether Urban had committed sexual harassment. This issue was embodied in Question 1. If Urban was guilty of this misconduct he would be personally liable under the New York Human Rights Law, although he would not be personally liable under Title VII. As to Columbia, although it was conceded that, in the event the jury found sexual harassment by Urban, Columbia would be automatically liable, Columbia argued that it would be liable under the Human Rights Law only if it had notice of Urban's wrongdoing and acquiesced in or condoned it. Columbia's position was supported by cases such as Totem Taxi v. New York State Human Rights Appeal Board, 65 N.Y.2d 300, 491 N.Y.S.2d 293, 295, 480 N.E.2d 1075 (N.Y. 1985); and Goering v. Nynex Information Resources Co., 209 A.D.2d 834, 619 N.Y.S.2d 167, 168 (N.Y. App. Div. 1994). Karibian argued that, on the issue of whether Columbia would be liable for sexual harassment committed by Urban, the standard under the Human Rights Law should be the same as under Title VII, citing Zveiter v. Brazilian National Superintendency of Merchant Marine, 833 F. Supp. 1089, 1095 (S.D.N.Y. 1993). Karibian went on to cite the holding of the Second Circuit in an earlier appeal in her own case, in which the Court ruled that Columbia would be liable under Title VII for Urban's sexual harassment without any showing of notice. Karibian v. Columbia University, 14 F.3d 773, 780 (2d Cir. 1994).

 Although it may be that ultimately the New York courts will bring their interpretation of the Human Rights Law in line with the interpretation of Title VII in Karibian, they have not yet done so. Indeed, the Third Department's decision in Goering v. Nynex, supra came after Karibian but did not cite the latter case.

 In any event, it was obviously necessary to pose a question to the jury in line with current New York law. Thus, Question 2 was included, which asked whether Columbia had notice of and acquiesced in or condoned the sexual harassment committed by Urban. The time of September 1988 was selected as referring to the first occasion on which Columbia might arguably have had notice.

 The intention in asking Question 2 was not to have the jury revisit the issue of Urban's sexual harassment dealt with in Question 1. It was simply to ask about Columbia's conduct in the event of an affirmative answer to Question 1.

 This intention was not made sufficiently clear to the jury, and the jury answered Question 2 even though it had answered Question 1 in the negative. The jury's answer to Question 2 was in the affirmative.

 Nevertheless, it must be concluded that, whatever significance the answer to Question 2 may have, the jury did not intend to contradict its answer to Question 1. The Court's instructions in regard to Question 2 dealt solely with the issue of what would constitute sufficient notice to Columbia. Columbia argued that the persons Karibian spoke to at Columbia in September 1988 were bound to keep the communications confidential and that therefore these communications were not sufficient notice. Karibian argued that the communications were not confidential. The Court discussed with the jury ...


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