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FUNK v. F & K SUPPLY
March 9, 1999
SHIRLEYANNE FUNK, PLAINTIFF,
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
For the reasons that follow, defendants' motion is granted in part and
denied in part, and plaintiffs' motion is granted as modified herein.
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
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.
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
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.
(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.
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
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
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
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
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
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
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.
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