applies to cases pending on appeal when the statute was enacted,
which is not the case here. Waterson also argues that, upon
motion, she was granted a jury trial, which implies that the new
statute, and the new remedies provided by it, is applicable in
this matter. Therefore, plaintiff contends, she is entitled to
present evidence concerning compensatory and punitive damages.
Finally, Waterson asserts that, contrary to the defendants'
claim, she is entitled to join her state claim in this action.
1. Retroactivity of the Civil Rights Act of 1991
Plaintiff's argument that the Civil Rights Act of 1991 is not
applied retroactively only as to cases which were pending on
appeal at the time the statute was enacted is without merit. It
is well settled that the new remedial provisions of the Civil
Rights Act of 1991 do not apply to conduct occurring before the
enactment of the statute, not merely cases pending on appeal when
the statute was enacted. See Landgraf v. USI Film Prods.,
511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Postema v.
National League of Prof'l Baseball Clubs, 998 F.2d 60, 61-62 (2d
Cir. 1993); Wisdom v. Intrepid Sea-Air Space Museum,
993 F.2d 5, 7 (2d Cir. 1993); Fair Employment Council v. BMC Mktg.
Corp., 28 F.3d 1268 (D.C.Cir. 1994); Amin v. Quad/Graphics,
Inc., 929 F. Supp. 73 (N.D.N.Y. 1996); Talada v. International
Serv. Sys., Inc., 899 F. Supp. 936 (N.D.N.Y. 1995). The alleged
conduct of which Waterson is complaining occurred prior to the
enactment of the new statute. Therefore, the presumption against
retroactivity applies here and this action is subject to the
provisions of Title VII of the Civil Rights Act of 1964, not the
Civil Rights Act of 1991.
2. Trial by Jury
On April 14, 1997, Waterson made a motion for a jury trial.
Defendants' only ground for opposition to plaintiff's motion was
that the motion was inexcusably filed late. United States
Magistrate Judge David R. Homer granted plaintiff's motion, which
was not appealed by defendants. Plaintiff submits that Judge
Homer's decision granting a jury trial implies that the Civil
Rights Act of 1991 is the "law of the case" in this matter and
therefore, plaintiff is entitled to seek compensatory and
punitive damages. While it has already been established that the
Civil Rights Act of 1964, which does not permit a trial by jury,
is the applicable statute in this case, as will be discussed
below, plaintiff is entitled to a trial by jury on her
supplemental state law claim. Therefore, Judge Homer's decision
granting plaintiff's motion does not imply that the new statute
applies to this case, but merely reflects plaintiff's right to
have a jury decide her state law claim. However, in order to
avoid confusion, an advisory jury will be utilized for
plaintiff's federal claims. See Fed.R.Civ.P. 39(c).
3. Supplemental State Law Claim
The defendant claims that plaintiff may have been able to seek
compensatory damages under a state law claim for violation of the
New York State Human Rights Law, N.Y.Exec.Law §§ 290-301
(McKinney 1993), but plaintiff waived her right to such damages
by terminating her state law complaint with the state DHR.
Plaintiff contends that, contrary to defendants' assertion, she
has not abandoned her state law claim for unlawful discrimination
and she is entitled to compensatory damages. Plaintiff claims
that her state law claim was dismissed for "administrative
convenience" and therefore, her right to join the state law claim
in this action is not precluded. See id. § 297(9).
The New York State Human Rights Law provides for a trial by
jury as well as recovery of compensatory damages. See Sanborn v.
Hunt Real Estate Corp., No. 91-CV-667A, 1994 WL 417014 (W.D.N Y
July 29, 1994) (citing Selbst v. Touche Ross & Co., 587 F. Supp. 1015,
1017 (S.D.N.Y. 1984)). However, a party seeking
relief for unlawful discriminatory practice pursuant to § 296
must pursue the claim in either a judicial forum or a state
administrative forum, but not both. See § 297(9); Promisel v.
First Am. Artificial Flowers, Inc., 943 F.2d 251 (2d Cir. 1991),
cert. denied, 502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110
(1992); DeWald v. Amsterdam Hous. Auth., 823 F. Supp. 94, 99
(N.D.N.Y. 1993). The only exception to this rule is when the DHR
dismisses the claim "for administrative convenience"; then a
claimant may litigate the same claim in a court of law. § 297(9);
DeWald, 823 F. Supp. at 99.
In the instant case, since Waterson filed a claim with the New
York State DHR, she is barred from litigating that claim in court
unless the DHR dismissed her claim for purposes of administrative
convenience. Defendant claims that the DHR did not dismiss her
claim for administrative convenience, but rather, Waterson
terminated her state law claim. Plaintiff argues that after she
requested a right to sue letter and then filed this federal court
action she did receive a dismissal from the DHR. Neither party
has submitted any evidence, such as the DHR's dismissal notice,
to establish the circumstances regarding the status of her state
law claim. Due to the lack of evidence and the conflicting
statements of the parties, it cannot be determined whether or not
plaintiff is precluded from joining her state claim in this
action. However, the defendants have not moved to dismiss
plaintiff's supplemental state law claim. Therefore, plaintiff's
supplemental state claim for unlawful discrimination shall remain
and plaintiff shall be afforded the opportunity to prove that
jurisdiction exists over her state law claim. Accordingly,
plaintiff is entitled to present evidence concerning compensatory
damages in association with her state claim for unlawful
B. Testimony of Anne Marie Malinowski
Defendants contend that Malinowski's testimony regarding her
own experiences of alleged sexual harassment and discrimination
is not relevant to whether the incidents which plaintiff
experienced were so severe as to alter plaintiff's conditions of
employment. Defendants maintain that whether or not anyone else
was subjected to acts of harassment or discrimination is not
relevant; only whether or not the alleged acts experienced by
Waterson occurred in concert or with such regularity such that
they could be considered pervasive. In addition, defendants note
that Malinowski, represented by Waterson's attorney in this
matter, filed her own complaint against defendants with the DHR
which she settled and signed a nondisclosure agreement.
Defendant argues that Malinowski should not be allowed to testify
because the defendant's would be forced to defend the truth of
her allegations as well as those of plaintiff and Malinowski
signed a nondisclosure agreement.*fn1 Plaintiff opposes the
restriction on Malinowski's testimony, arguing that Malinowski's
testimony is relevant to the issue of the defendants'
discriminatory attitude and intent as well as demonstrating a
pattern of discriminatory behavior.
A hostile work environment is one which is "permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive work environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
126 L.Ed.2d 295 (1993) (internal quotations omitted) (citations
omitted); Torres v. Pisano, 116 F.3d 625, 6302d, cert.
denied, ___ U.S. ___, 118 S.Ct. 563, 139 L.Ed.2d 404 (1997). The
conduct must be severe or pervasive
enough that an objective, reasonable person would find the work
environment hostile or abusive. Harris, 510 U.S. at 21, 114
S.Ct. 367. Additionally, the victim must subjectively perceive
the environment as abusive. Id. at 21-22, 114 S.Ct. 367.
Relevant evidence is "evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." Fed.R.Evid. 401. Generally, "[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith." Fed.R.Evid. 404(b). However, such evidence may be
admissible for other purposes such as proof of motive or intent.
Id. But the probative value must substantially outweigh the
prejudicial value. Fed.R.Evid. 403.
One of the critical issues in a hostile environment claim is
the nature of the work environment itself. See Hicks v. Gates
Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987); accord Perry
v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). Several
courts have held that evidence of discriminatory conduct directed
at other employees is relevant in establishing a generally
hostile environment and intent to create such an environment.
See Hicks, 833 F.2d at 1415-16; Perry, 115 F.3d at 149;
Leibovitz v. New York City Transit Auth., 4 F. Supp.2d 144, 151
(E.D.N.Y. 1998) (citing Hicks for the proposition that evidence
that other employees had been harassed should be considered in
determining whether plaintiff established a claim for hostile
work environment); EEOC v. A. Sam & Sons Produce Co.,
872 F. Supp. 29, 36 (W.D.N.Y. 1994) (holding that discriminatory
conduct directed at co-workers can be used as evidence of hostile
In light of these cases, it is clear that Malinowski's
testimony is relevant in showing the defendants' discriminatory
attitude toward women as well demonstrating a generally hostile
work environment permeated with ridicule and insult. The
defendants have failed to show how the probative value of
Malinowski's testimony is substantially outweighed by the danger
of unfair prejudice or confusion of issues. Therefore,
defendants' motion to restrict Malinowski's testimony is denied.
Even though plaintiff is not entitled to a jury trial or
compensatory or punitive damages under the Civil Rights Act of
1964, plaintiff is entitled to a trial by jury and compensatory
damages pursuant to her supplemental state law claim. Therefore,
plaintiff shall have a jury decide her state law claim and an
advisory jury will be utilized for plaintiff's federal claims. In
addition, the testimony of Anne Marie Malinowski has been shown
to be relevant in the instant action. The defendants are not
persuasive in their argument that Malinowski's testimony would be
unfairly prejudicial or confusing.
Accordingly, it is hereby
1. Defendants' motion to bar presentation of
testimony and/or evidence on the issue of damages
is GRANTED in part and DENIED in part;
a. Plaintiff shall not present evidence or testimony
on compensatory or punitive damages with respect to
her federal claims;
b. Plaintiff shall not present evidence or testimony
on punitive damages with respect to her state law
c. Plaintiff shall be entitled to present evidence
and/or testimony on compensatory damages with
respect to her state law claim; and
2. Defendants' motion to restrict the testimony of
Anne Marie Malinowski is DENIED.
IT IS SO ORDERED.