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FUNK v. F & K SUPPLY

March 9, 1999

SHIRLEYANNE FUNK, PLAINTIFF,
v.
F & K SUPPLY, INC., FOWLER & KEITH SUPPLY CO., FOWLER & KEITH SUPPLY CO., INC., AND STEVE AARON, DEFENDANTS. LINDA MICHETTI, PLAINTIFF, V. F & K SUPPLY, INC., FOWLER & KEITH SUPPLY CO., FOWLER & KEITH SUPPLY CO., INC., AND STEVE AARON, DEFENDANTS.



The opinion of the court was delivered by: McAVOY, Chief Judge.

          MEMORANDUM — DECISION & ORDER

Pending before the Court are plaintiffs' and defendants' post-trial motions in this sex discrimination case. Defendants move for judgment as a, matter of law pursuant to FED.R.CIV.P. 50(b), or, alternatively, a new trial pursuant to FED.R.CIV.P. 59(a). Plaintiffs oppose defendants' motion, and move in their own right for attorneys' fees, expenses and costs.

For the reasons that follow, defendants' motion is granted in part and denied in part, and plaintiffs' motion is granted as modified herein.

I. BACKGROUND

Plaintiffs Shirleyanne Funk and Linda Michetti are former employees of defendant F & K Supply, Inc. ("F & K Supply")*fn1, a building supply business located in Kingston, New York. Each plaintiff alleges that while she was employed at F & K Supply, F & K's president and sole shareholder, defendant Steven Aaron ("Aaron"), sexually harassed her. After quitting F & K Supply, each brought a lawsuit in 1995, which the magistrate judge consolidated. Each Complaint presented claims against F & K Supply and Aaron under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. § 2000e et seq. ("Title VII"), and the New York State Human Rights Law ("HRL"), codified at N.Y.EXEC.L. § 290 et seq., for hostile work environment sexual harassment and sex-based constructive discharge. Additionally, each Complaint pressed a common-law claim against Aaron for intentional infliction of emotional distress ("IIED").

A jury trial on plaintiffs' claims was held between April 13, 1998 and April 21, 1998 in Albany, New York. At the close of plaintiffs' proof, the court granted defendants' Rule 50(a) motion seeking dismissal of plaintiffs' claims against Aaron under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). On April 21, 1998, the jury returned its verdict in favor of each plaintiff on the remaining Title VII, HRL and IIED claims. As compensatory damages, the jury awarded as follows: $885,000 to Funk, representing $850,000 for emotional pain and anguish and $35,000 for lost wages and benefits; and $465,000 to Michetti, representing $450,000 for emotional pain and anguish and $15,000 for lost wages and benefits. The jury also concluded that both Funk and Michetti were entitled to punitive damages against defendants. A punitive damage hearing was held in Albany, New York on June 6 and 7, 1998. The jury awarded each plaintiff the amounts of $50,000 and $1 against Aaron and F & K Supply, respectively.

Now before the Court are each sides' post-trial motions.

II. DISCUSSION

A. Defendants' Post-Trial motion

Defendants move for judgment as a matter of law pursuant to FED.R.CIV.P. 50(b), or, alternatively, a new trial pursuant to FED.R.CIV.P. 59(a).

With regard to their motion for judgment as a matter of law pursuant to Rule 50(b), defendants assert that they are entitled to dismissal of the following: (1) Michetti's claim under Title VII because she did not file a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"); (2) Funk's and Michetti's claims under Title VII and the HRL because neither proved at trial that Aaron's conduct was sex-based; (3) Funk's and Michetti's claims of IIED because (i) an IIED claim is not cognizable in connection with claims under Title VII or the HRL; (ii) neither plaintiff sufficiently pleaded an IIED claim; (iii) neither plaintiff proved an IIED claim at trial; and (4) Michetti's claim of IIED because it is barred by the statute of limitations.

Alternatively, defendants seek, pursuant to Rule 59(a), a new trial on the grounds that: (1) plaintiffs improperly introduced evidence of insurance at trial; (2) the verdict sheet was defective; and (3) the jury's damage awards are grossly excessive.

1. The Standard under Rule 50(b)

The Second Circuit has established the standard for granting judgment as a matter of law. The court in Mattivi v. South African Marine Corp., 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 also Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir. 1997); Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983).*fn2 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 also Samuels, 992 F.2d at 14.

2. Title VII

(i) Did Michetti satisfy the EEOC filing requirements?

Defendants first contend that because Michetti did not file a timely administrative charge of discrimination with the EEOC, her claim under Title VII, along with her state law claims (i.e., her HRL and IIED claims), which rely upon supplemental jurisdiction, must be dismissed as a matter of law.

It is well established that Title VII requires a claimant who desires
to bring a suit in federal court to file a charge of discrimination with
the EEOC within 180 days "after the alleged unlawful employment practice
occurred," or within 300 days of the alleged discrimination if the
claimant "has initially instituted proceedings with a State or local
agency with authority to grant or seek relief . . . or to institute
criminal proceedings." 42 U.S.C. § 2000e-5(e)(1). Generally, a
failure to file a timely charge with the EEOC requires dismissal of the
Title VII claim as time-barred. See, e.g., Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 734
(1982). However, this timely-filing requirement is not a jurisdictional
prerequisite to suit in federal court, but rather, a  requirement that
functions like a statute of limitations. Id.; Karen Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Thus, it is subject to
waiver, estoppel, and equitable tolling. Zipes, 455 U.S. at 393, 102
S.Ct. 1127; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir.
1998).

In the present cape, Michetti filed a charge with the EEOC on April 26, 1995. Her charge alleged discriminatory conduct by defendants, the cost recent of which occurred on June 4, 1994. Thus, her administrative charge was filed more than 300 days*fn3 after the last alleged unlawful employment practice.

Nonetheless, Michetti's claim under Title VII is not time-barred for two independent reasons. First, as the statutory timely-filing requirement with the EEOC functions as a statute of limitations, see Quinn, 159 F.3d at 765, it follows that the defense is waived if not set forth in the responsive pleading. See FED.R.CIV.P. 8(c); Zipes, 455 U.S. at 393, 1025.Ct.1127 ("We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable trolling.") (emphasis added); Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc., 967 F.2d 742, 751-52 (2d Cir. 1992) claim that a statute of limitations bars a stilt is an affirmative defense, and, as such, it is waived if not raised in the answer to the complaint.); see also discussion infra at II(A)(4)(ii) and cases cited therein. As defendants did not affirmatively plead that Michetti failed to file a timely administrative charge with the EEOC, they have waived this defense.

Second, assuming arguendo that defendants have not waived the defense, the single filing (or piggybacking) rule excuses Michetti's failure to make a timely EEOC filing. The single filing rule, adopted by the Second Circuit in Snell v. Suffolk County, 782 F.2d 1094, 1100-01 (2d Cir. 1986), allows, under certain circumstances, a non-filing or untimely-filing plaintiff to join the lawsuit of one who has filed a timely charge with the EEOC. As explained by this Circuit in Tolliver v. Xerox Corp., 918 F.2d 1052, 1056-58 (2d Cir. 1990), cert. denied, 499 U.S. 983, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991), the standard to apply "for determining whether an administrative charge suffices to permit piggybacking by a subsequent plaintiff" depends on the size of the work unit. Under the "broader" test, which applies "[w]here the grievances arise in a work unit of modest size, . . . mere similarity of the grievances within the same general time frame suffices to permit the `single filing rule.'" Id. at 1058. "However, where the grievances are alleged to arise throughout a large group," a narrower test applies requiring the administrative claim give notice that the discrimination "affects a group of individuals defined broadly enough to include those who seek to piggyback on the claim." Id. The single filing rule makes sense because the function of administrative exhaustion — encouraging settlement through conciliation and voluntary compliance — is satisfied in such circumstances. Tolliver, 918 F.2d at 1058 ("If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume the next one would he successful.") (quoting Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968)); see also Snell, 782 F.2d at 1101.

In the present case, the threshold requirement for application of the single filing rule is met — namely, that Michetti has joined the preexisting suit of Funk, who had filed a timely charge of discrimination with the EEOC. The remaining inquiry — whether piggybacking is otherwise appropriate — is governed by the "broader" standard, as F & K Supply is of modest size. See Tolliver, 918 F.2d at 1058. Applying this broader standard, there is no question that Funk's and Michetti's claims arose out of similar discriminatory treatment during the same time frame. See Snell, 782 F.2d at 1100; Tolliver, 918 F.2d at 1058. Specifically, both plaintiffs were employed by F & K Supply during the same general time frame,*fn4 and each claimed that because of her sex, she had been subjected to an abusive, demeaning, humiliating, and degrading work environment at the hands of F & K's president, Aaron. Thus, Funk's timely charge with the EEOC satisfied the primary function of the timely-filing requirement: notifying defendants of the discrimination charge and providing them an opportunity for conciliation. Accordingly, the single filing rule waives the timely-filing requirement for Michetti.

(ii) Sufficiency of the Trial Evidence

Defendants' next seek judgment as a matter of law dismissing Michetti's and Funk's claims under Title VII and the HRL on the ground that the trial evidence was insufficient to show that Aaron's conduct was sex-motivated. Specifically, defendants cite to excerpts from the trial transcript to support their view that Aaron used sex-neutral obscenities indiscriminately towards both male and female employees at F & K Supply. While defendants admit in not so many words that Aaron acted boorishly on occasion, they contend that this does not equate to sex-based discrimination.

Title VII*fn5 prohibits employers from discriminating "against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). "It is now well established that two forms of sexual harassment violate Title VII's prohibitions against workplace inequality: i) quid pro quo and ii) hostile work environment harassment." Tomka, 66 F.3d at 1304. This case involves only the second form.

To establish a claim for hostile work environment sexual harassment, a plaintiff must show "that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment." Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995). "Actionable sexual harassment must consist of more than isolated incidents or casual comments that express harassment or hostility." Babcock v. Frank, 783 F. Supp. 800, 808 (S.D.N Y 1992). Moreover, "[t]he harassment at issue must be `sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment,'" Kotcher v. Rosa and Sullivan Appliance Ctr., 957 F.2d 59, 63 (2d Cir. 1992) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). In this regard, "the incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher, 957 F.2d at 63. As the Supreme Court held in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the employee must subjectively perceive the environment to be abusive, and the environment must be one that a reasonable person would find hostile or abusive. "Although the harassment need not take the form of sexual advances or other explicitly sexual condnct in order to be actionable under Title VII, the plaintiff is required to establish that the harassment complained of was based on her gender." Galdieri-Ambrosin v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (internal citations omitted).

In this case, defendants have not established either a complete lack of evidence to support the jury's finding that the harassment was gender motivated, or an overwhelming amount of evidence in its favor. To the contrary, defendants' myopic view of the evidence is untenable. A brief review of the trial evidence is illustrative.

Plaintiff Michetti testified to an incident when Aaron called her into a conference room, where he was alone. Tr. at 459.*fn6 She testified that as "she walked in, he looked her up an down, smirked, picked up a hotel "do not disturb" sign, and placed it on the outside door handle in front of a group of other employees standing outside the conference room. Id.

Further, Michetti testified that Aaron made sexual innuendos towards her. For example, she testified that Aaron "would look at me all the time, look at me up and down, checking me out, telling me that I have nice legs, commenting on that I was thin, that I was young, that he needed a young woman." Tr. at 450, 465. Michetti also testified that he asked her what type of clothing she wore on the weekends, whether she went to the gym, and whether she wore "little leotards" and "little body suits." Tr. at 450-51. She also testified that Aaron asked her whether she was Italian and that, when she replied yes, he asked her whether "Italian women [are] good in bed." Tr. at 467 She also testified that Aaron asked her to go away with him for a weekend in Vermont rather than having to go with his "bitch" wife. Tr. at 470.

Additionally, Michetti testified to incidents of improper contacts. She said that "Aaron would reach over the frontal part of me to grab the phone, where he would brush up against my chest and come unnecessarily close to me in reaching for the phone." Tr. at 476. She also testified that when she stood next to the conference table with her chair about six inches behind her, Aaron oftentimes sidestepped in between the chair and her, so that his body was touching her behind. Tr. at 476-77. When this occurred, she testified that she "felt him rub up against me." Tr. at 477-78.

Furthermore, Michetti testified to numerous incidents in which Aaron directed vituperative remarks to employees at F & K Supply, including "stupid cunt." Tr. at 435, 442-43.

Similarly, plaintiff Funk testified that Aaron frequently screamed vulgarities and was prone to tirades. Tr. at 746, 765, 767. Funk also testified that Aaron physically threatened her. Specifically, she testified to an incident when Aaron said: "I'll knock your teeth down your throat, and I'll kick your ass down those stairs." Tr. at 768, 776. She also testified to an incident when he threatened to break her arm. Tr. at 771, 774-76.

In addition to threats of physical abuse, Funk testified that Aaron threw a computer book at her. Tr. at 770. She testified to another confrontation as follows; "He walked over to me and put his hand on my chin, and — with a big red face. And he was so close, he was within an inch, two inches tops, with his hand on my chin, saying, shut your mouth. And I said, stop it. And he said, I will not stop it. I said, yes, you will. He did take his hands away, but not until after I felt all the saliva, and he was in my face, bright red, big black olive eyes bulging out." Tr. at 782.

Funk also testified that Aaron frequently used vulgarities in the workplace, including "stupid cunt" "asshole," and "fuck you." See, e.g., Tr. at 815-16, 825. For example, she testified that he called her a "cunt," "dickbreath," "bitch," and that he told her to "blow him" and "you blow me." Tr. at 816, 828, 837-38; Michetti Testimony, Tr. at 481; see Gross v. Burggraf Const. Co., 53 F.3d 1531, 1539 (10th Cir. 1995) ("It is beyond dispute that evidence that a woman was subjected to a steady stream of vulgar and offensive epithets because of her gender would be sufficient to establish a claim under Title VII. . . ."); Burns v. McGregor Elec. Indus. Inc., 989 F.2d 959, 964 (8th Cir. 1993) (noting that use of "bitch" and "cunt" to woman was harassment based on her sex); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996) (noting that "curb side cunt" and "bitch" are "sexual epithets that have been identified as `intensely degrading' to women."); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), cert. denied 513 U.S. 1082 115 S.Ct. 733, 130 L.Ed.2d 636 (1995) ("It is one thing to call a woman `worthless,' and another to call her a `worthless broad.'"). See generally Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex From Gender, 144 U.PA.L.REV. 1, 90-92 (1095).

Debra Bushey, a former employee of F & K Supply, testified that she heard Aaron call Funk and other women at F & K Supply "cunts" and "bitches." Tr. at 121-23. Marsha Travers, also a former employee of F & K Supply, testified that Aaron called Michetti a "stupid cunt on occasion." Tr. at 190. In addition, she testified that Aaron directed these and other plebeian words at Funk, including calling her a "whore," "stupid cunt," and "drunken bitch." Tr. at 210-11.

Accordingly, based on the trial evidence of Aaron's sexually offensive contacts, threats of physical violence, episodic tirades, physical assaults, sexually opprobrious remarks and innuendos, and frequent sexual epithets that were intensely degrading and extremely humiliating, defendants' assertion that the evidence does not support the jury's finding of sex-motivated harassment simply does not wash.

Furthermore, this evidence belies defendants' sophistical assertion that because Aaron's conduct was targeted indiscriminately at both male and female employees, there is no evidence of sex-based discrimination. As the Ninth Circuit has recognized, "even if [the harasser] used sexual epithets equal in intensity and in an equally degrading manner against male employees, he cannot thereby `cure' his conduct toward women." Steiner, 25 F.3d at 1464. To the contrary, it may be in such instances "that both men and women working [for defendant] have viable claims . . . for sexual harassment." Id.; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (same sex harassment is actionable under Title VII). Similarly, the Seventh Circuit has espoused that it "would not seem to matter that the harasser might simultaneously be harassing a male co-worker with comparable epithets and comparable physical molestation. . . . [T]he victim's gender not only supplies the lexicon of the harassment, it affects how he or she will experience that harassment." Doe v. City of Belleville, Ill., 119 F.3d 563, 578 (7th Cir. 1997), vacated on other grounds, ___ U.S. ___))), 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998).

Accordingly, defendants' Rule 50(b) motion seeking dismissal of plaintiffs' claims under Title VII and the HRL on the ground that Aaron's conduct ...


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