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Freddrick Macmillan v. Millenium Broadway Hotel

June 11, 2012


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


In this action, Plaintiff Freddrick McMillan alleges that Defendant Millennium Broadway Hotel subjected him to a hostile work environment based on his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq. Following a four-day trial, a jury returned a verdict in Plaintiff's favor, awarding him $125,000 in compensatory damages for emotional distress and $1 million in punitive damages.

Defendant has moved under Fed. R. Civ. P. 50 for judgment as a matter of law, and under Fed. R. Civ. P. 59 for a new trial and/or a remittitur concerning the damage awards. For the reasons stated below, Defendant's motion for judgment as a matter of law will be denied. Defendant's motion for a new trial will be granted with respect to the compensatory and punitive damage awards unless Plaintiff accepts a remittitur reducing the amount of compensatory damages to $30,000 and the amount of punitive damages to $100,000.



McMillan has worked at the Millennium Broadway Hotel (the "Hotel") for more than twenty years.*fn1 (Tr. 175) After fourteen years in the Hotel's Housekeeping Department, McMillan transferred to the Engineering Department in 2003. After his transfer, McMillan was initially supervised by Ray Cypress and Christina Canette. (Tr. 176-79) McMillan did not suffer any discrimination under their supervision. (Tr. 179)

According to McMillan, his working conditions changed in 2004 when Tom Scudero became the Hotel's Director of Property Operations. Scudero supervised the Engineering Department and relegated McMillan to undesirable tasks, such as dealing with complaints -- "house calls" -- from Hotel guests. McMillan considered this assignment undesirable because it required less skill than other jobs. (Tr. 184) McMillan's requests for other assignments were denied. (Tr. 185) McMillan also testified that he was disciplined for minor mistakes, and felt that he had to "go back to calls four [or] five times to make sure that nothing was done wrong, because anything that [his supervisors] would find . . . they would write me up for." (Tr. 197) On one occasion, McMillan was disciplined for a white employee's mistake. (Tr. 199) McMillan testified that Scudero did not treat white employees in the same demeaning manner. (Tr. 201-02)

McMillan testified that it was "horrible" working under Scudero, and complained that Scudero "allow[ed] an atmosphere where you're called the 'N' word all the time" by co-workers. (Tr. 185-86) McMillan cited an April 18, 2007 incident, in which co-worker Cromwell Bodden*fn2 said "What's up N***A" to McMillan and others in the Engineering Office.*fn3 (Tr. 187; Dx K) McMillan also testified that on May 24, 2007, another Hotel employee, Jarek Zgoda, referred to McMillan as "boy,"*fn4 and that on another occasion in 2007, Bodden used the phrase "us Negroes" in McMillan's presence.*fn5 (Tr. 191)*fn6

Two incidents at the Hotel were the focus of Plaintiff's liability case at trial: (1) the display of a black voodoo doll in January 2008; and (2) the use of a racial epithet by one of McMillan's co-workers in June 2009.

A.The January 2008 Voodoo Doll Incident

In January 2008, Scudero traveled to New Orleans on vacation. (Tr. 270) While there, he purchased six voodoo dolls as souvenirs for his management team. (Tr. 270-71) Scudero testified that he thought the dolls "would be a cute . . . souvenir. Thought, you know, typical New Orleans. We had seen them all around as we were traveling and I figured I could kind of personalize them just so I could basically give them a gift." (Tr. 271-72)

On January 23, 2008, Scudero brought the voodoo dolls to work and laid them out on his desk so that he could decorate them for each recipient.*fn7 (Tr. 272-73) McMillan entered Scudero's office that morning and noticed the voodoo dolls on Scudero's desk. (Tr. 191-92, 273) McMillan said to Scudero, "Tom, shouldn't I be offended by those dolls?" Scudero answered no, explaining that he had bought the dolls as gifts for his managers.*fn8 (Tr. 192) McMillan then said, "Tom, those dolls better not be about me." (Tr. 192) Scudero replied that the dolls "were not about you," and repeated that he had bought the dolls for his managers. (Id.) McMillan testified that he nonetheless believed that the dolls were "about black people." (Tr. 221)

Scudero subsequently distributed the dolls to his management team. Chief Engineer Joe Fariello was not in the office at that time, however, so Scudero pinned Fariello's doll to a bulletin board above Fariello's desk in the Engineering Department. (Tr. 278, 254-55)

Three days after McMillan saw the dolls in Scudero's office, he noticed the doll hanging from the bulletin board above Fariello's desk. (Tr. 193) McMillan regularly entered the Engineering Department office in which Fariello sat: he borrowed tools that were kept behind Fariello's desk, he frequently asked Fariello -- the Chief Engineer -- whether he needed assistance; and he entered the office to pick up his paycheck. (Tr. 183) McMillan testified that "[t]he [voodoo] doll was hanging to the side [of the bulletin board] with a noose around its neck." (Tr. 193; Def. Ex. LL) The doll had a black face and pink lips. (Tr. 51; Dx LL) McMillan was "very upset" about the display (Tr. 194) and complained to Vincent Foster, his union delegate. (Tr. 152-53)

Other Hotel employees were likewise offended by the display of the doll. (Tr. 160, 50) Foster testified that he was "disgusted" by the doll. (Tr. 160) Hotel employee Colin Taylor testified that the manner in which the doll was displayed evoked a lynching. (Tr. 172)

On January 28, 2008, Nowratan Paray, a supervisor in the Engineering Department (Tr. 55), told McMillan that the doll represented him. (Tr. 74-78, 101-04, 144, 156, 245-46) McMillan was offended by Paray's comment. (Tr. 75, 96)

On January 30, 2008, Eddie Cedeno, another union official, complained to Kathleen Pyne, then the Hotel's Director of Human Resources, about the voodoo doll display. (Tr. 49-50) The doll had been hanging on Fariello's bulletin board since January 24, 2008. (PX 23) Pyne accompanied Cedeno to the Engineering Department. (Tr. 49) After Pyne saw the doll on the bulletin board, either she or Cedeno immediately took it down. (Tr. 134-35)

Pyne testified that the display of the doll on the bulletin board created "chaos" at the Hotel, and ultimately led the union to call a "work stoppage." Many employees -- mostly minority employees -- congregated in the Hotel lobby. (Tr. 50-52) Concerned about Scudero and Fariello's safety, Pyne asked them to leave the building. (Tr. 51-52) Pyne then addressed the assembled employees and promised them that she would conduct an investigation and take corrective action if appropriate. (Tr. 52-53)

Pyne commenced her investigation immediately, and she interviewed 33 employees over the next two weeks. (Tr. 87; Px 23) She began her investigation by speaking with Scudero and Fariello, and then interviewed recipients of the dolls as well as Hotel employees who had seen or might have seen the doll pinned to Fariello's bulletin board. (Tr. 87)

Pyne took notes at each interview, and then prepared a written memorandum for each interview. (Tr. 56; Px 23) Pyne concluded that some employees were offended by the voodoo doll display, while others were not. (Tr. 55, 133) All of the employees who were offended were minorities. (Tr. 55)

The Hotel took several steps as a result of this incident. The General Manager issued a letter of apology to all employees and stated that harassment of any sort would not be tolerated at the hotel. (Dx CC; Tr. 133) When Scudero -- who was on paid leave while the investigation was pending -- returned to work, he gave a public apology to the Hotel's employees. The Hotel also offered "dignity-at-work" training after this incident. (Tr. 81-82, 133, 260)

No one was disciplined or terminated as a result of the voodoo doll incident, however. (Tr. 81-82, 132-33, 260) Scudero returned to his position as Director of Property Operations, and he testified that "no one from the hotel" ever told him that he had done anything wrong in displaying the voodoo doll. (Tr. 81, 260)

B.The June 2009 Luis Sierra Incident

On June 22, 2009, while sitting at a desk in the Engineering Department office, McMillan overheard Hotel co-worker Luis Sierra repeatedly use the word "nigger" in the hallway outside. (Tr. 196, 390; Dx Q) Sierra then entered the Engineering Department office, and he continued to say "N this and N that." (Tr. 390) McMillan told Sierra, "give me a break," and Sierra patted him on the shoulder and said, "Ok man, Ok." (Tr. 196) McMillan was "very upset" about the incident and immediately reported it to the Human Resources Department. (Tr. 196, 386) Robert Lafferty, who was then Director of Human Resources, conducted an investigation. (Tr. 386; Dx Q) Lafferty asked McMillan to prepare a written statement. (Tr. 389-91) Because McMillan had identified Izlau Chin, an Engineering Department employee, as a witness to Sierra's conduct, Lafferty "immediately" contacted her. (Tr. 391, 401) Chin told Lafferty that although she did not hear Sierra use the word "nigger," she overheard McMillan say, "I would appreciate it if you didn't use that word." McMillan then entered Chin's office and said, "sometimes I really hate working here." (Tr. 392; Dx Q) Lafferty asked Chin to prepare a written statement. (Tr. 392)

The following day, Chin provided a written statement to Lafferty. (Dx Q; Tr. 393) Chin's written statement did not include McMillan's alleged remark to Sierra that he "would appreciate it if you didn't use that word." (Dx Q; Tr. 393) Lafferty noted the omission and asked Chin to explain. (Dx Q; Tr. 393) Chin responded that she was not certain that McMillan had made that statement and, accordingly, she had omitted it from her written account. (Dx Q; Tr. 394)

Because McMillan had told Lafferty that Sierra's misconduct had taken place at about 3:45 during a shift change -- when employees were punching in and out -- Lafferty obtained time cards in an attempt to identify possible witnesses. (Tr. 387-88) Lafferty then interviewed all employees who punched in or out around the time of the alleged incident. (Dx Q; Tr. 387, 395) Lafferty interviewed nine employees in total, and took contemporaneous notes during the interviews. (Tr. 387, 395; Dx Q) None of the employees corroborated McMillan's allegations. (Tr. 396; Dx Q) Lafferty also interviewed Sierra, who denied using the word "nigger" on June 22, 2009, or on any other occasion at the Hotel. (Dx Q) At the end of his investigation, Lafferty prepared a report concluding that McMillan's allegation was not corroborated. Lafferty shared a one-page summary of his report with McMillan and advised him that his allegation had not been corroborated. (Tr. 387, 396; Dx Q) Lafferty told McMillan that if he wished to submit any additional evidence, Lafferty would be happy to consider it. (Tr. 397)

C.McMillan's Damages Evidence

Because McMillan remained employed in the Hotel's Engineering Department throughout the pendency of this litigation, he asserted no claim for economic damages. Instead, he sought damages for alleged emotional distress and punitive damages.

McMillan's evidence concerning emotional distress was quite limited. He testified that he found working in the Engineering Department "horrible," but otherwise did not testify about any emotional distress he suffered. (Tr. 185) When asked by his counsel how Scudero's conduct "made you feel," McMillan merely said that "[i]t made me feel like Tom was being racist against me for no particular reason." (Tr. 201)

McMillan's daughter testified that her father "was always sad" when he was working under Scudero, and that he felt that no one believed his complaints of discrimination or listened to him. (Tr. 301) She explained that after Scudero became his supervisor, McMillan "changed his temperament," "wasn't as happy anymore," and "wasn't his same self." (Tr. 301-02) McMillan told his daughter on several occasions that he would prefer to work in the Housekeeping Department. (Tr. 302) Foster testified that "it was hard" for McMillan to work in the Engineering Department and that he had "watched [McMillan] constantly going through all the stress." (Tr. 154, 156) McMillan told Foster that the voodoo doll incident was "very detrimental to me." (Tr. 156)

The jury found that McMillan proved all elements of his racial harassment hostile work environment claims under Title VII, Section 1981, and the NYCHRL, and that the Hotel had not proven its affirmative defense to McMillan's claims. The jury awarded McMillan $125,000 in compensatory ...

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