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IANNONE v. FREDERIC R. HARRIS

September 24, 1996

CARLA IANNONE, Plaintiff, against FREDERIC R. HARRIS, INC., Defendants.


The opinion of the court was delivered by: FRANCIS

 JAMES C. FRANCIS IV

 UNITED STATES MAGISTRATE JUDGE

 Obscenity, like beauty, is often in the eye of the beholder. The subjective nature of obscenity has an impact not only on First Amendment jurisprudence, see Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 84 S. Ct. 1676 (1964) (while acknowledging difficulty of defining obscenity, Justice Stewart stated, "I know it when I see it") (Stewart, J., concurring), but also, as this case demonstrates, on claims of gender discrimination.

 The parties consented to my jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c), and a jury trial was held. The jury rejected Ms. Iannone's claims of sexual harassment based on a hostile work environment, but it found that she had been subjected to a retaliatory discharge. The jury awarded the plaintiff $ 62,000 in back pay, $ 5,000 in compensatory damages, and $ 250,000 in punitive damages.

 Frederic R. Harris now moves pursuant to Rule 50 of the Federal Rules of Civil Procedure for judgment as a matter of law or, in the alternative, for a new trial pursuant to Rule 59(a). The defendant contends that it did not retaliate against Ms. Iannone for "protected activity" because she did not reasonably believe that the conduct she complained of constituted sexual harassment. Frederic R. Harris also seeks a new trial or remittitur with respect to the awards of back pay and punitive damages.

 Background

 Frederic R. Harris is an engineering consulting firm. (Tr. 42). *fn1" In January 1989, Ms. Iannone joined the company as a graphic artist (Tr. 42-43), and in 1991, she was promoted to the position of Manager of New York Graphics. (Tr. 43-44).

 At trial, Ms. Iannone testified about several incidents during her tenure at Frederic R. Harris that led to her charges of a hostile work environment. According to the plaintiff, a male employee repeatedly pinched her on the arm and waist and commented on the jogging outfit she wore for a corporate running race. (Tr. 48-50). On another occasion, Anthony Posch, the president of Frederic R. Harris, organized a dinner to recognize the accomplishments of Ms. Iannone's group. She was uncomfortable, however, because she perceived the event to be arranged like a "date" and because Mr. Posch was openly affectionate with another employee, April Dewland, who was then his girlfriend and later became his wife. (Tr. 67-69, 114-16). Ms. Iannone also testified that Frederic R. Harris had an informal policy barring women from wearing pants in the office. (Tr. 51-52). The plaintiff never complained about these incidents, in part because she did not believe that she would be taken seriously and in part because, as far as she knew, Frederic R. Harris did not have an equal employment officer at that time. (Tr. 50-51). At the conclusion of the trial, the jury determined that Ms. Iannone had not sustained her burden of demonstrating that she had been subjected to a hostile work environment.

 Ms. Iannone's claim of retaliation arose out of an incident involving a viewgraph, that is, a picture prepared for projection onto a screen. In July 1992, Mr. Posch was preparing a presentation on leadership skills for the company's Young Associates Forum, a series of training sessions. (Tr. 57-58). His secretary sent Ms. Iannone copies of the materials to be transformed by the graphics department into viewgraphs for the presentation. (Tr. 58). Among these was a photograph that Ms. Iannone considered sexually suggestive. (Tr. 58). It depicts the face and bare shoulder of a woman who appears to be removing a jacket. Def. Exh. AJ at 23. The picture had been taken from Playboy magazine (Tr. 440), and the original that the plaintiff was given had a photograph of a nude woman on the reverse side. (Tr. 58, 222). Mr. Posch intended to use the picture, along with one of the "Marlboro Man," to illustrate the point that beauty is not an attribute of leadership. (Tr. 440; Def. Exh. AJ at 24).

 After receiving the materials for the Young Associates Forum, Ms. Iannone called Jennifer Zimmerman, one of the graphics department employees, into her office. Ms. Zimmerman was shocked at the picture Mr. Posch had selected, and she asked Ms. Iannone not to be assigned to work on it. (Tr. 221-23). The plaintiff also spoke to other graphics department employees about the picture. (Tr. 59).

 Ms. Iannone then met with Mr. Posch to review the materials for the presentation. She told him that she and others in her department were uncomfortable with the picture he had selected and did not want to be involved with it. (Tr. 60-61). Mr. Posch responded heatedly that the picture was not lewd, immoral, or illegal, and he told the plaintiff that it was not something she should resign over. (Tr. 61-62). After discussing the issue further with Frederic R. Harris' general counsel and with a supervisor, Ms. Iannone ultimately prepared the viewgraph. (Tr. 62-65).

 On October 6, 1992, Ms. Iannone was terminated. She was informed of her discharge by Ms. Dewland, who told her in substance that she had not been keeping up with technological changes in computer graphics. (Tr. 75, 373-74). Following the termination, Ms. Dewland filed a performance evaluation for Ms. Iannone that reiterated this criticism, and that also found fault with her responsiveness to direction and her ability to work on team projects. (Def. Exh. W). Prior to her termination, Ms. Iannone had received three annual evaluations, including one made shortly after ...


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