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RIVERA v. BACCARAT

June 18, 1998

IRMA RIVERA, Plaintiff,
v.
BACCARAT, INC., Defendant.



The opinion of the court was delivered by: FRANCIS

MEMORANDUM AND ORDER

 JAMES C. FRANCIS IV

 UNITED STATES MAGISTRATE JUDGE

 Where an attorney's misconduct at trial does not affect the fundamental fairness of the proceedings, the verdict must stand. Where the jury's findings are based on its determination of credibility, the court cannot overturn the verdict, however much it disagrees with the jury's assessment of the witnesses. Both of these principles are central to the determination of posttrial motions in this case.

 The plaintiff, Irma Rivera, alleged that she was terminated by her employer, Baccarat, Inc. ("Baccarat"), because of her age and national origin in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Following a week-long trial, the jury absolved Baccarat of the age discrimination charge but found it liable under Title VII on the claim of national origin discrimination. It awarded Ms. Rivera $ 125,000 in compensatory damages for emotional distress and $ 375,000 in punitive damages. The parties agreed to reserve the issue of any award of back pay for subsequent determination by the Court.

 Baccarat has now moved pursuant to Rule 50(a) of the Federal Rules of Civil Procedure for judgment as a matter of law, contending that the record is devoid of evidence that would support a finding of discrimination on the basis of national origin. In the alternative, Baccarat moves for a new trial under Rule 59(a) on the grounds that the verdict was against the weight of the credible evidence and resulted from the introduction of inadmissible and prejudicial evidence by the plaintiff. The defendant also argues that the damages awarded by the jury are excessive.

 Background

 The summary of the evidence that follows is not intended to be comprehensive. Because the jury found that Ms. Rivera was not discriminated against on the basis of her age, I will omit reference to most of the evidence related to that issue. In other instances, I will defer detailed discussion of the facts until they are relevant to the legal analysis.

 Irma Rivera is an Hispanic woman who was born in Puerto Rico. (Tr. 223). *fn1" In September 1984, she began working for Baccarat, a distributor of fine crystal, as a sales representative in its retail store in Manhattan. (Tr. 224, 233). In 1992, J.D. Watts became the store manager and Ms. Rivera's direct supervisor. (Tr. 238, 249). He testified that the plaintiff was a good salesperson and had the best sales performance of all employees in 1994. (Tr. 197, 201). Following Ms. Rivera's discharge, as well as his own termination from Baccarat, Mr. Watts wrote her a letter of recommendation in which he stated:

 
I have known Irma Rivera for almost three years at the Baccarat retail store. She is dedicated, knowledgeable, and hard-working. She has been the top salesperson during my three-year tenure at Baccarat. She sold in excess of $ 1.2 million in net retail sales in 1994. She is fluent in Spanish and is extremely effective when dealing with South American and other Spanish-speaking customers.
 
Irma is reliable and honest. She is a team player and supports management and her co-workers. Her aggressiveness and competitiveness make her one of the best sales people I have encountered in my fifteen years in quality tabletop and gift retailing.

 (Tr. 208-09; Pl. Exh. 6). Mr. Watts' positive evaluation of the plaintiff was echoed at trial by Chantal Sironneau, who had been corporate retail manager at Baccarat (Tr. 60, 71-72), and by Janet Jowdy, who replaced Mr. Watts as store manager. (Tr. 84, 94-95).

 In October 1994, Jean Luc Negre became the new president of Baccarat, with ultimate authority for personnel decisions. (Tr. 78, 451). According to Ms. Rivera, she learned soon thereafter that she was being targeted for replacement. (Tr. 244). The plaintiff testified that Mr. Negre angrily told her that he did not like her attitude and did not want her to speak Spanish on the job. (Tr. 244, 246, 269). Further, he stated that he did not like her accent. (Tr. 244-45). At trial, the plaintiff explained that a customer had complained about employees speaking Spanish to each other. However, this arose when Ivette Brigantty, another Hispanic salesperson, initiated a conversation in Spanish with Ms. Rivera, who immediately told her in English that they should talk later. (Tr. 255-57).

 After the 1994 Christmas season, Mr. Negre began making changes in the sales staff at Baccarat. First he terminated the interior designer, and then he replaced J.D. Watts as store manager with Janet Jowdy. (Tr. 458-59). On July 14, 1995, Dennis Russell, the chief financial officer of Baccarat, notified Ms. Rivera that she was terminated. (Tr. 275-76). In the presence of Ms. Jowdy, Mr. Russell said that he knew what a good salesperson the plaintiff was, but that the termination decision had been made by Mr. Negre. (Tr. 276). When Ms. Jowdy left the room momentarily, Ms. Rivera pressed Mr. Russell to tell her why she was being fired. According to the plaintiff, he replied, "Irma, he wants younger, and he doesn't want Hispanics." (Tr. 277). Ms. Jowdy then returned, and Mr. Russell changed the subject of the conversation.

 According to Ms. Rivera's testimony, Mr. Russell also mentioned Ivette Brigantty during the termination meeting. He said, "As you know, Ivette was terminated yesterday." When the plaintiff said, "Because she's Spanish, right?," Mr. Russell replied, "Yes." (Tr. 279).

 When Ms. Rivera and Ms. Brigantty were terminated, two sales representatives remained. One was Helene Cohen, who is not Hispanic and who had worked at Baccarat since 1983. (Tr. 262, 550; Def. Exh. B). The other was Sammy Usmiani, who was also not Hispanic and had been hired about a month earlier. (Tr. 66-67, 262; Def. Exh. B).

 The evidence presented by Baccarat painted a very different picture of the basis for Ms. Rivera's termination. Prior to becoming president of the company, Mr. Negre had made several unannounced visits to the retail store, and thereafter expressed his unhappiness with the sales staff. (Tr. 78, 88-89, 452-53). He found that the employees were not friendly or attentive enough and did not approach customers at the entrance to the store. (Tr. 78, 89, 452-53). As part of an effort to revitalize sales, Mr. Negre asked Ms. Jowdy, the newly hired store manager, to assess each salesperson. Ms. Jowdy quickly decided that Ms. Brigantty could not do the work and some time thereafter reached the same conclusion with respect to the plaintiff. (Tr. 460, 486-87, 502). Mr. Negre testified that he therefore terminated Ms. Rivera because of "the attitude toward the customers, the way the customer got treated, the way we do follow up with customers. It wasn't done in the proper way." (Tr. 460). Ms. Rivera's termination report, signed by Ms. Jowdy, contains an overall negative evaluation of her performance. (Tr. 107-08; Pl. Exh. 2). However, at trial Ms. Jowdy had no recollection of completing the report and disavowed much of its content. (Tr. 107-08). Mr. Negre also fired Ms. Brigantty, but retained Ms. Cohen because of Ms. Jowdy's opinion that she had a good attitude and understood the changes that the new management wanted implemented. (Tr. 461).

 In response to the plaintiff's evidence concerning her sales success, Mr. Negre testified that the sales figures were misleading. He contended that before he became president, the store achieved sales volume by discounting prices, which in turn diminished profitability. (Tr. 483-84).

 With respect to the plaintiff's testimony that she was told not to speak Spanish, Mr. Negre testified that the only rule was that, as a matter of courtesy, employees should not speak Spanish (or another foreign language) among themselves in the presence of customers or co-workers who speak only English. (Tr. 464, 533-34). Ms. Sironneau, Ms. Jowdy, and Ms. Cohen each confirmed that this was the guideline at Baccarat, and that there was no general rule against speaking Spanish. (Tr. 70-71, 80, 123, 556-67).

 Finally, Baccarat presented evidence of the ethnic diversity of its sales staff. After Ms. Rivera's termination, the store hired an Austrian woman as an assistant manager, a Brazilian woman who speaks Spanish and Portuguese, and a Japanese man. (Tr. 467-69). Baccarat also retained an Hispanic man who works in the stock room. (Tr. 461, 562).

 Ms. Rivera went on vacation the month after her discharge in July 1995. (Tr. 301-02). Upon her return, she sought new employment, and in October she was hired as a salesperson by Bernardaud, a distributor of fine tableware. (Tr. 290, 293, 373). Bernardaud laid off the plaintiff in July 1996 when it was in the process of relocating its store (Tr. 292-93, 377-78), and she is now working in the bridal registry department of a Bloomingdales store on Long Island. (Tr. 294-95).

 On the basis of the evidence, the jury found that Baccarat terminated Ms. Rivera on the basis of her national origin in violation of Title VII. The evidence presented in connection with damages will be discussed below.

 Discussion

 A. Judgment as a Matter of Law

 Baccarat's first argument is that it is entitled to judgment as a matter of law because the plaintiff failed to present sufficient evidence of national origin discrimination. Ms. Rivera responds by identifying several categories of evidence demonstrating the discriminatory animus of Jean Luc Negre, the relevant decisionmaker. First, she points to testimony that Mr. Negre told her not to speak Spanish as proof that Baccarat had a discriminatory "English-only" rule. Next, she argues that Mr. Negre's criticism of her accent is evidence of bias. Third, the plaintiff contends that Mr. Russell's statements to her in her termination meeting provide direct proof of discriminatory intent. Finally, she argues that Baccarat's firing of two Hispanic sales representatives while it retained only non-Hispanic salespersons demonstrates discrimination.

 Judgment as a matter of law may only be granted if there is a complete absence of evidence supporting the jury's verdict or if the evidence in favor of the moving party is so overwhelming that no reasonable and fair-minded person could arrive at a verdict against it. Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 289 (2d Cir. 1998); Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir. 1997); Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir. 1994). In assessing the record, the court must view the evidence in the light most favorable to the party opposing the motion and must draw all reasonable inferences in favor of that party. Galdieri-Ambrosini, 136 F.3d at 289; Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991). Further, the court may not weigh the testimony of the witnesses, but must defer to the jury's credibility determinations. Galdieri-Ambrosini, 136 F.3d at 289; Vasbinder, 926 F.2d at 1339.

 In light of this standard, Baccarat's motion must be denied. The weakest link in the plaintiff's case is the evidence of an English-only policy. Every witness who testified about this issue except for Ms. Rivera herself denied the existence of any rule at Baccarat forbidding the use of Spanish or other foreign languages. (Tr. 80, 123, 464, 556). The plaintiff's testimony itself was ambiguous. Although she stated that Mr. Negre ordered her not to speak Spanish, she acknowledged that this arose in the context of a conversation in Spanish between employees in the presence of a customer who did not speak that language. (Tr. 244, 246, 253, 255-56). Further, Ms. Rivera agreed that as a matter of courtesy it was inappropriate to speak in front of a customer in a language the customer does not understand. (Tr. 256). Accordingly, there was no proof that Baccarat had an English-only policy as distinguished from a common sense rule against offending customers. There is no evidence that the defendant had the type of policy that would "create an atmosphere of inferiority, isolation and intimidation based on national origin that could result in a discriminatory working environment." 29 C.F.R. § 1601.7(a). Therefore, in determining Baccarat's motion, I am disregarding the contention that the defendant had an English-only policy.

 However, the plaintiff fares better with her argument that her accent was a factor in her termination. Under Equal Employment Opportunity Commission regulations, national origin discrimination includes "the denial of employment opportunity because . . . an individual has the . . . linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1. "Accent and national origin are obviously inextricably intertwined in many cases." Fragante v. City and County of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989). Thus, unless an employee's accent materially interferes with her job performance, it cannot legally be the basis for an adverse employment action. Id.; see also Carino v. University of Oklahoma Board of Regents, 750 F.2d 815, 819 (10th Cir. 1984) (plaintiff with Filipino accent improperly denied position where accent did not interfere with ability to perform tasks); Berke v. Ohio Department of Public Welfare, 628 F.2d 980, 981 (6th Cir. 1980) (employee improperly denied two positions because of accent); Liberman v. Brady, 926 F. Supp. 1197, 1207-11 (E.D.N.Y. 1996) (supervisor's remark that employee should not work at front desk because "people would possibly be offended because of his accent" showed discriminatory intent).

 In this case, Ms. Rivera testified that during her one face-to-face meeting with Mr. Negre, he specifically stated that he did not like her accent. (Tr. 244-45, 269, 339-40). While Baccarat characterizes this as a single stray remark insufficient to support a finding of discriminatory intent, its probative value, if credited, is substantial. It is a statement by the president of the company who himself made the decision to terminate Ms. Rivera. Moreover, it occurred in the context not of a casual conversation with others, but in the meeting where he was offering the plaintiff his opinion of her performance shortly before she was terminated. See Wold v. Fellows Corp., 987 F. Supp. 662, 666 (N.D. Ill. 1997) (single discriminatory remark probative when made by decisionmaker contemporaneous with plaintiff's termination). It is no less probative of bias than if a supervisor says to an employee shortly before firing her, "I don't like the color of your skin."

 As against these facts, which the jury was entitled to credit, the cases cited by Baccarat are inapposite. The Court of Appeals decision in Spence v. Maryland Casualty Co., 995 F.2d 1147 (2d Cir. 1993), for example, turned on whether the defendant's treatment of the plaintiff was so egregious as to constitute a constructive discharge. Id. at 1158. Similarly, in Bellom v. Neiman Marcus Group, Inc., 975 F. Supp. 527, 532 (S.D.N.Y. 1997), the court granted summary judgment because a supervisor's mimicking of the plaintiff's accent on one or two occasions was merely the equivalent of a stray remark. See also Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1050-51 (9th Cir. 1987) (single remark that plaintiff did not know English made year or two prior to termination by supervisor who was not identified as being involved in discharge decision; not a Title VII case); Hill v. K-Mart Corp., 699 F.2d 776, 778 (5th Cir. 1983) (no hostile environment claim based on company's alleged failure to address racial slurs made to plaintiff by her subordinates). Here, Ms. Rivera did not contend that Mr. Negre's remarks were so upsetting or pervasive that they forced her to resign or created a hostile environment. Rather, she argues that they provide evidence of discriminatory animus. They do, and they are properly considered in evaluating the sufficiency of the plaintiff's case.

 Even more difficult to overcome is the evidence that Mr. Negre indicated to Mr. Russell that he did not want Hispanic salespersons. (Tr. 277). Baccarat argues that Ms. Rivera's testimony on this point is wholly incredible because it is inconsistent with her own pretrial testimony and is contradicted by Mr. Russell's deposition evidence. These inconsistencies will be explored in more detail below, but for present purposes it is sufficient to reiterate that the Court may not second-guess the jury's credibility determinations on a motion for judgment as a matter of law. Ms. Rivera testified to an apparent admission by Mr. Negre that he did not want Hispanics at Baccarat, and that is strong evidence of discriminatory intent.

 Finally, the jury could legitimately have viewed the evidence concerning the ethnic make-up of Baccarat's sales force as supporting the plaintiff's claim. Ms. Rivera was fired at the same time as Ms. Brigantty, another Hispanic sales representative. The only salesperson retained from the period prior to Mr. Negre's becoming president was Ms. Cohen, who is not Hispanic.

 While Baccarat presented evidence that the staff subsequently hired was ethnically diverse, the jury was entitled to discount that proof. Only one of the new hires was arguably Hispanic, and she was Brazilian, so that her native language is Portuguese, not Spanish. Furthermore, the Hispanic employee who was retained worked in the stock room, not on the sales floor where employees deal with customers. An employer who discriminates on the basis of national origin acts illegally even if he is not biased against everyone whose national origin differs from his. Title VII forbids both selective discrimination and general xenophobia. Thus, the jury could have found that Baccarat's hiring pattern reflected discrimination against Hispanics even if not against other ethnic groups.

 Three of the four categories of evidence presented by the plaintiff, then, provide some support for her claim of national origin discrimination. Mr. Negre's criticism of her accent, his statement that he did not want Hispanic sales employees, and the fact that two Hispanic sales representatives were discharged while the non-Hispanic salesperson was retained all buttress the jury's finding of liability. Accordingly, Baccarat's motion for judgment as a matter of law is denied.

 B. New Trial

 In contrast to the standard for judgment as a matter of law, in determining whether to order a new trial the court may weigh conflicting evidence and need not view the record in the light most favorable to the nonmoving party. Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992); Loral Fairchild Corp. v. Victor Co. of Japan, Ltd., 931 F. Supp. 1014, 1034 (E.D.N.Y. 1996). If the court is convinced that the verdict is seriously erroneous because it is against the weight of the evidence or constitutes a miscarriage of justice, it should order a new trial. See Piesco v. Koch, 12 F.3d 332, 344-45 (2d Cir. 1993); Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988). However, matters of credibility remain the sole province of the jury. See Sorlucco v. New York City Police Department, 971 F.2d 864, 875 (2d Cir. 1992).

 Misconduct by counsel is also a basis for ordering a new trial. See Pappas v. Middle Earth Condominium Association, 963 F.2d 534, 539-40 (2d Cir. 1992). But to warrant relief, such misbehavior must have been sufficiently egregious to have ...


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