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COFFEY v. DOBBS INT'L SERVS.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


April 30, 1998

PAULA L. COFFEY, Plaintiff, -vs- DOBBS INTERNATIONAL SERVICES, INC. and JOHN BRYSON, Defendants.

The opinion of the court was delivered by: MCAVOY

MEMORANDUM, DECISION & ORDER

 Plaintiff Paula L. Coffey brought this action in June of 1996 for hostile work environment and quid pro quo sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York Human Rights Law, Executive Law § 290, et seq. Plaintiff also brought common law negligence claims. The Complaint was amended in November of 1997 to include a claim for retaliatory discharge. Defendants are plaintiff's former employer, Dobbs International Services, Inc. ("Dobbs") and her former supervisor, John Bryson.

 The case was tried to a jury in Albany, New York in December of 1997. On December 16, 1997, the jury returned a verdict for plaintiff on the retaliation claim, and for defendant on the harassment claims. *fn1" The jury found plaintiff was entitled to a back pay award and punitive damages against Dobbs on the retaliation claim.

 On December 18, 1997, the Court held a hearing on the issue of punitive damages. The same day, the jury returned a punitive damage award of $ 75,000 against Dobbs. The parties stipulated to a back pay figure of $ 4,341.58, and the Clerk entered judgment in plaintiff's favor for $ 79,341.58 on January 28, 1998.

 Defendants now move, pursuant to Fed.R.Civ.P. 50(b), for judgment as a matter of law on the retaliation claim. Plaintiff moves for an award of attorneys' fees and costs.

 I. Background

 The Court recounts the facts of this case only to the extent they are relevant to the pending motions. Plaintiff was employed at Dobbs' Albany Flight Kitchen from October of 1991 until her resignation in January of 1995. Her resignation stemmed from allegations of sexual harassment by Bryson, who was then the Albany Flight Kitchen's General Manager. *fn2" In May of 1997, while this lawsuit was pending, plaintiff accepted an offer of re-employment at the Albany Flight Kitchen. The acting General Manager of the Albany Flight Kitchen at the time plaintiff returned was James Russo, a friend of Bryson's. During the same period, Dobbs was considering the sale of the Albany Flight Kitchen to Russo.

 During the summer of 1997, Russo re-hired Bryson to do consulting work in connection with Russo's pending purchase of the Albany Flight Kitchen. Upset at this turn of events, plaintiff told Russo she could not work at Dobbs with Bryson there. Plaintiff thus took an approved vacation until Bryson's consulting work was complete. Upon returning from the vacation near the end of the summer, she gave a deposition in connection with this lawsuit on August 28, 1997. Bryson was present during the deposition, during which plaintiff, in her testimony, made reference to both Bryson and Russo. Plaintiff also presented evidence at trial that Bryson and Russo communicated after the deposition.

 On September 1, 1997, plaintiff was discharged. Dobbs sold the Albany Flight Kitchen to Russo on September 3, 1997. In response to this turn of events, plaintiff's attorney contacted Magistrate Judge Ralph W. Smith, Jr. by letter dated October 27, 1997 to request permission to amend the Complaint to include a claim for retaliatory discharge. Judge Smith granted the request in an order signed November 18, 1997.

 II. Discussion

 A. Defendants' Motion for Judgment as a Matter of Law

 The Second Circuit has established the standard for granting a judgment as a matter of law. The court in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir. 1980), stated that:

 

the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n. o. v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

 Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983). *fn3" Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires pursuant to Rule 50(a), or motion after the jury has spoken pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14.

 The Court turns to defendants' arguments with this standard in mind.

 1. Leave to Amend the Complaint

 Defendants first argue the magistrate judge erred in allowing plaintiff leave to amend the Complaint to add the claim of retaliatory discharge. As plaintiff correctly notes, the present motion is not the appropriate vehicle for such an argument.

 Federal Rule of Civil Procedure 72(a) provides, as to nondispositive orders of a magistrate judge, that

 

within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made.

 Id. (emphasis added). Furthermore, Rule 72.1(b) of the Local Rules for the Northern District of New York provides that any party may appeal a magistrate judge's non-dispositive order within ten days after the order is filed. Defendants filed no such objections in this Court within the ten-day period following the November 18, 1997 order. They accordingly are foreclosed by the explicit language of Fed.R.Civ.P. 72(a) from assigning errors to the magistrate judge's order granting plaintiff leave to amend the Complaint. Their motion for judgment as a matter of law is therefore denied in this respect.

 2. Dobbs' Liability for Retaliatory Discharge

 Defendants next argue that plaintiff failed at trial to prove a prima facie case of retaliatory discharge. Specifically, defendants argue: (1) there was no proof that Dobbs' corporate hierarchy was aware that Russo terminated or declined to retain the plaintiff; (2) Dobbs had no legal control over whether Russo retained plaintiff after the sale; and (3) the retaliation claim was devoid of any evidentiary foundation logically connecting Russo's decision with any retaliatory animus on Dobbs' part.

 As to the first argument, the parties fail to address the standard to be applied in imputing liability to an employer for a supervisor's retaliatory actions. Courts generally are split on the question. See, e.g., Cross v. Weaver, F.3d , 1998 WL 16414, at *15 (8th Cir.) (where supervisory employee with power to hire, fire, demote, transfer or suspend employee is shown to have used authority to retaliate, plaintiff need not prove employer participated in or knew or should have known of retaliation); Davis v. Palmer Dodge West, Inc., 977 F. Supp. 917, 925 (S.D.Ind. 1997) ("courts must hold an employer to a strict liability standard for quid pro quo harassment, and a heightened negligence standard for hostile environment and retaliatory harassment by a supervisor."); Gary v. Washington Area Transit Auth., 886 F. Supp. 78, 88 (D.D.C. 1995) ("In a retaliation case, as in the quid pro quo case, the employer should be held strictly liable."). Though the Second Circuit has not addressed the issue, this Court finds the Eighth Circuit's rationale in Cross persuasive on the present facts, and finds that, as a matter of law, Russo's retaliatory actions were those of his employer.

 Russo was the acting General Manager of Dobbs at the time of plaintiff's termination. It is undisputed he had the power to hire and fire employees. The rationale for applying strict liability in the quid pro quo context is thus applicable to the present facts perforce; Russo, like the quid pro quo harasser, necessarily wielded Dobbs' authority in making what the jury found was a retaliatory decision to fire plaintiff. See Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert. denied, 512 U.S. 1213, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994); see also Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir.1992) ("The supervisor is deemed to act on behalf of the employer when making decisions that affect the economic status of the employee."). By wielding the authority delegated to him by Dobbs, Russo was, "by definition, acting as the employer." Cross, F.3d , 1998 WL 164414, at *13. Accordingly, the nature of Russo's position and the decisions he made with respect to plaintiff's employment warrant imputing liability for those decisions to Dobbs. *fn4"

 Dobbs next argues it had no legal control over whether Russo retained plaintiff as an employee in the new company after the sale. This argument presumes that Russo's retaliation took the form of a refusal to retain plaintiff after the sale, rather than firing plaintiff from her position with Dobbs. The jury, however, heard evidence from which it could conclude that Russo, acting as General Manager of the Albany Flight Kitchen, terminated plaintiff.

 Lastly, Dobbs argues that Russo's decision was not logically connected with any retaliatory animus on Dobbs' part. The jury's conclusion as to causation was not, however, without evidentiary support. The evidence at trial showed that plaintiff's deposition testimony on August 28, 1997, made reference to both Bryson and Russo, and that the two men met shortly thereafter but before plaintiff's termination. Plaintiff was terminated on September 1, 1997. The causal connection necessary to make out a prima facie case of retaliation "'can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.'" Reed v. A. W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)). Thus, there was neither a complete absence of evidence to support the conclusion of a causal connection nor an overwhelming amount of evidence to the contrary. See Mattivi, 618 F.2d at 167-68.

 For these reasons, defendants' motion for judgment as a matter of law is denied in this respect.

 3. The Jury Instructions

 Defendants next argue that the court erred in instructing the jury that it could infer unlawful retaliation if it found that Dobbs failed to offer plaintiff a transfer to another facility. By so doing, defendants argue, the Court directed a verdict in plaintiff's favor because no proof was presented that such an offer was made.

 Defendants mischaracterize the instruction. The Court charged the jury that Dobbs' refusal to transfer plaintiff after the sale of the Albany Flight Kitchen was one of the adverse employment actions plaintiff was alleging. It did not instruct the jury that Dobbs in fact did refuse to transfer her or that Dobbs had an obligation to transfer her. Nor did the Court instruct the jury that if it found that Dobbs refused to transfer plaintiff, it could infer unlawful retaliation from such refusal. Dobbs was free to present, and did in fact present evidence that plaintiff requested no such transfer, and that such transfers had to be negotiated through plaintiff's union. Accordingly, the jury was free to accept or reject plaintiff's allegations that she in fact suffered such an adverse employment action.

 The Court also instructed the jury that plaintiff was required to prove a causal connection between the protected activity engaged in and the adverse employment action. Nothing in the charge suggested that a finding that Dobbs refused to transfer plaintiff, in and of itself, was sufficient to show unlawful retaliation. The Court concludes the instructions, as a whole, did not mislead the jury. See, e.g., Parke-Hayden, Inc. v. Loews Theatre Management Corp., 1993 U.S. Dist. LEXIS 10318, 1993 WL 287815, at *2 (S.D.N.Y.) ("The court should grant judgment as a matter of law if the charge creates substantial and ineradicable doubt about whether the jury has been properly guided in its deliberations.") (citing Pierce v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir.1985)), aff'd, 22 F.3d 1091 (2d Cir.), cert. denied, 513 U.S. 875 (1994). Judgment as a matter of law is thus not warranted in this respect.

 4. The Punitive Damages Hearing

 Finally, Dobbs argues that the Court erred in restricting the evidence at the punitive damages hearing solely to the question of Dobbs' financial status. As plaintiff notes, Dobbs had every opportunity at the trial itself to present any and all evidence bearing on the question of the appropriateness of an award of punitive damages. The Court's bifurcated approach to the question of punitive damages was in accordance with Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 373 (2d Cir. 1988), and judgment as a matter of law accordingly is denied in this respect.

 For all the foregoing reasons, defendants' motion for judgment as a matter of law is denied in its entirety.

 B. Plaintiff's Motion for Attorneys' Fees and Costs

 Plaintiff moves as a prevailing party for attorneys' fees and costs.

 1. Standard

 Title VII provides that

 

in any action or proceeding under this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs . . .

 42 U.S.C. § 2000e-5(k). In order to determine a reasonable fee, the court must first establish a "lodestar" figure by multiplying the number of hours reasonably expended by the party's attorneys by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). *fn5" The operative term is "reasonable".

 2. Hourly Rate

 To determine hourly rate, the Supreme Court has adopted a marketplace model, Blum, 465 U.S. at 896, which contemplates "the normal rate in the legal community for substantially similar work by competent practitioners." Fiacco v. Rensselaer, 663 F. Supp. 743, 745 (N.D.N.Y. 1987); see Levy v. Scranton, 1992 U.S. Dist. LEXIS 15015, 1992 WL 265936 (N.D.N.Y. 1992); Auburn Enlarged City School District v. Coastal Environmental Safety and Control, Inc., 1990 U.S. Dist. LEXIS 2381, 1990 WL 19139 (N.D.N.Y. 1990). The district court also considers other rates that have been awarded in similar cases in the same district. Levy, supra, at 3; Miner v. City of Glens Falls, 1992 U.S. Dist. LEXIS 17370, 1992 WL 349668 (N.D.N.Y. 1992), aff'd, 999 F.2d 655 (2d Cir. 1993); Fiacco, 663 F. Supp. at 745; Auburn City School District, 1990 U.S. Dist. LEXIS 2381, 1990 WL 19139 at *2.

 In Haley v. Pataki, 901 F. Supp. 85 (N.D.N.Y. 1995), aff'd, 106 F.3d 478 (2d Cir. 1997), this Court applied the prevailing market rates found within the Northern District of New York in its calculation of an award of attorneys' fees as follows: Attorney Type of Work Hourly Rate Partner Legal $ 150 Associate Legal $ 100

19980430

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