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Johnson v. Strive East Harlem Employment Group

United States District Court, S.D. New York

January 2, 2014

STRIVE EAST HARLEM EMPLOYMENT GROUP, LISA STEIN, individually, ROB CARMONA, individually, and PHIL WEINBERG, individually, Defendants

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For Brandi Johnson, Plaintiff: Alex Umansky, Marjorie Mesidor, Phillips & Phillips Attorneys At Law, PLLC, New York, NY; Jessenia Maldonado, Phillips & Phillips, New York, NY.

For Lisa Stein, Individually, Rob Carmona, Individually, Phil Weinberg, Individually, Strive East Harlem Employment Group, Defendants: Robert Modica, Jr., LEAD ATTORNEY, Lewis, Johs, Avallone & Aviles, LLP, New York, NY; Diane Krebs, Gordon & Rees, LLP (NY), New York, NY; Kuuku Angate Minnah-Donkoh, Sarir Zandi Silver, Gordon & Rees, LLP, New York, NY.


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Hon. HAROLD BAER, JR., United States District Judge.

Plaintiff Brandi Johnson brings claims of gender and race-based employment discrimination and retaliation under Title VII, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law (" NYCHRL" ), N.Y.C. Admin. Code § 8-107 et seq . Following a five-day trial concluding on September 3, 2013, the jury found STRIVE East Harlem Employment Group as well as Rob Carmona liable for unlawful discrimination. Defendants now move for judgment as a matter of law, a new trial, remittitur of damages, and dismissal for discovery violations. For the reasons below, Defendants' motion for remittitur is GRANTED. The Court therefore will grant a new trial on damages unless Plaintiff accepts a reduced compensatory award of $128,109.59. But Defendants' remaining motions are DENIED.


STRIVE is an organization designed to assist low-income individuals with securing and maintaining gainful employment. On February 19, 2010, the U.S. Department of Labor awarded STRIVE a federal grant worth over $4.7 million. (Krebs Decl. Ex. B.) The initial grant stated that its " [p]eriod of [p]erformance" would be from January 29, 2010 through January 28, 2012. ( Id.) Shortly after receiving this grant, STRIVE hired Plaintiff, an African-American woman, as an Affiliate Services Coordinator on May 3, 2010. ( Id. Ex. C.) Essentially her position was to oversee the work done under the grant. Her position was funded entirely through the grant. Plaintiff's annual salary throughout her tenure was $60,000. On January 24, 2012, the grant's period of performance was extended to June 30, 2012. (Krebs Decl. Ex. H, at JOHNSON 125.)

Carmona, STRIVE's president and founder, a dark-skinned Puerto Rican male, was Plaintiff's first supervisor. ( Id. Ex. C.) According to Plaintiff, Carmona was a difficult supervisor to work under. For example, soon after she was hired, Carmona purportedly " yelled and screamed at [Plaintiff] in an offensive tone." (Trial Tr. 49:22-50:8.) This followed a time when Carmona came to believe that Plaintiff was spreading rumors about other STRIVE employees. Carmona also told Plaintiff that she was " the kind [of] woman who [would] throw a woman under the bus" and that she " had a sick way about [her]self." ( Id. 50:8-10.) He then threatened to terminate Plaintiff if she were involved in any similar incidents. Sometime after this confrontation and within the first six months of Plaintiff's tenure, Lisa Stein, STRIVE's then-CFO, replaced Carmona as Plaintiff's direct supervisor.

Throughout her employment at STRIVE, Plaintiff testified that she " tried to initiate a friendship" with Carmona so that he would " leave [her] alone." ( Id. 53:12-15.) But at one point, Plaintiff brought to Carmona's attention that a STRIVE employee may have sexually harassed one of STRIVE's female clients. As Plaintiff testified at trial, Carmona criticized Plaintiff's judgment in bringing the issue to him, commenting that this participant was " ugly as shit" and " she would have enjoyed it anyway." ( Id. 58:5-10.) He also urged Plaintiff to " stop being so emotional." ( Id. 58:12-13.) And according to Plaintiff, Carmona's practice of forcefully berating Plaintiff for perceived transgressions continued unabated. ( Id. 60:2-15.)

At some point, Plaintiff then began to surreptitiously record her conversations

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with Carmona. One of those recordings captured an incident on March 14, 2012 during which Carmona criticized both Plaintiff and another woman. Carmona noted that while Plaintiff and this woman were " both smart," both were also " really knuckleheads." (Krebs Decl. Ex. G, at 2:11-13.) Carmona then repeatedly described Plaintiff as a " nigger" and that both she and the other woman " acted like niggers all the time." ( Id. 2:20-6:4.) When Plaintiff complained that she was " really offended by that," Carmona repeated his statement and noted that " niggers let their feelings rule them." ( Id. 3:2-9.) Despite this exchange's heated nature, Carmona urged that he was not " using the term 'nigger'" in a " derogatory" manner because " sometimes it's good to know when to act like a nigger." ( Id. 2:21-24.) Carmona also testified at trial that in this instance, he had used the term " out of love" and to motivate Plaintiff to improve her behavior. (Trial Tr. 398:21-12; 429:23-25.) According to Carmona, by using the term " nigger," he meant to convey that Plaintiff was " [t]oo emotional" and too " wrapped up in . . . the negative aspects of human nature" for her to succeed professionally. ( Id. 398:25-399:12.)

Carmona also made other comments during Plaintiff's employment at STRIVE that could be construed as demonstrating his discriminatory animus. First, Carmona acknowledged that he " may have" told Plaintiff that " black women get in the way of themselves." (Trial Tr. 421:14-18.) While he claimed not to remember this specific conversation, Carmona then affirmed that he truly believed black women could " get in the way of themselves." ( Id. 422:23-424:7.) In his defense, Carmona then urged that while he was at times " a male chauvinist[,] . . . in [his] head [he] knew it didn't make sense because [he] was raised by a woman that defied all of that stereotypical type of thinking." ( Id. 388:4-17.) Nevertheless, Carmona acknowledged that he had a " tendency" as a " Puerto Rican male" to feel that " the man . . . rules in his house," that a man's " word is law," and that women " are too emotional" while men are not. ( Id. 418:3-13.)

Less than one month after the March 14 incident, Plaintiff's counsel sent a draft complaint to Phil Weinberg, STRIVE's chief executive officer, on April 11, 2012. In response, Weinberg headed an internal investigation into Plaintiff's allegations of employment discrimination. ( Id. 474:9-20.) And by April 26, a STRIVE attorney interviewed Carmona regarding Plaintiff's complaints. ( Id. 432:22-25.) Yet after Plaintiff complained about discrimination, Carmona had another dispute with Plaintiff. This time, Carmona complained about Plaintiff eating her lunch with other STRIVE employees outside of Carmona's office. ( Id. 400:3-11.) After telling the group to " wrap it up," Carmona advised Plaintiff's lunch companions that they should " not allow [themselves] to be used." ( Id. 70:11-21; 402:4-10.) Carmona also asked a STRIVE client to stop associating with Plaintiff " because there [was] something going on with her and the company, and [Carmona] didn't really want [the client] to get mixed up in it." ( Id. 215:11-16.) Plaintiff further testified that at one point after notifying STRIVE of her potential lawsuit, Carmona walked by her desk and threatened that he would " [p]ut this bitch in a smash." ( Id. 72:20-23.) Although the parties were precluded from introducing evidence of Plaintiff's text messages at trial, one text message indicated that Plaintiff had previously reported that Carmona had used the word " [s]hit" instead of " bitch." (Krebs Decl. Ex. J.) And the text message suggested that Plaintiff had some uncertainty as to whether Carmona had directed the comment at her.

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On June 11, 2012, two months after she complained of discrimination and just over two years after she was first hired, Weinberg informed Plaintiff that STRIVE was terminating her. That termination, according to Weinberg, became necessary with the expiration on June 30 of the grant funding Plaintiff's employment. Indeed, that grant allocated $135,171.49 to Plaintiff's position. (Krebs Decl. Ex. H, at JOHNSON 128.) But the same grant also assigned $522,328.51 to other positions, including $19,326.08 to Carmona as STRIVE's president and $3,690.84 to Weinberg as STRIVE's CEO. ( Id.) And the grant apportioned $113,538.58 to the " Outcomes Data Specialist" --an amount comparable with the allocation to Plaintiff's position. ( Id.) Yet the grant's expiration did not affect anyone else's employment or salary. (Trial Tr. 75:13-17; 332:23-333:12.)

Carmona also testified that he played no role in Plaintiff's termination. ( Id. 404:13-16.) But it is undisputed that Weinberg communicated to Carmona the results of his investigation of Plaintiff's complaints before her ultimate termination. ( Id. 492:20-22.) STRIVE's board of directors also admonished Carmona following that investigation. ( Id. 497:6-10.) Yet despite this reprimand, Plaintiff testified that Carmona's role at STRIVE " never changed." ( Id. 76:25-77:4.) And in general, testimony revealed that Carmona played a significant role in personnel actions at STRIVE, including with regard to Plaintiff. Indeed, Carmona interviewed Plaintiff when she was first hired. ( Id. 95:7-8.) And Plaintiff testified to previous occasions where Carmona had threatened to terminate her " on the spot." ( Id. 50:11-23.) Finally, Carmona still remains " the face of STRIVE." ( Id. 76:25-77:4; 509:6-8.)

After her termination, Plaintiff was unemployed for just over six months. On January 7, 2013, Plaintiff obtained a new position that pays $50,000 annually. ( Id. 80:13-81:20.) Plaintiff also testified that while she was still employed at STRIVE, she began seeing a therapist as a result of these events. But Plaintiff declined to take any prescribed medication. ( Id. 80:5-8.) Nor did Plaintiff testify as to any physical manifestations of her distress. Instead, she urged that when Carmona " call[ed] [her] a nigger" and implied that she was " low class," it " sh[ook] [her] character." ( Id. 78:4-14.) Yet at trial, current STRIVE employees testified that Plaintiff also used the word " nigger" in the workplace, including to describe her own son. (Trial Tr. 235:1-18; 247:5-13; 399:13-18.) Nevertheless, despite counsel's claim that this testimony was " unrefuted," Plaintiff unequivocally disputes these accounts. ( Id. 90:7-11.) And immediately following the confrontation with Carmona, Plaintiff urges that she cried in the bathroom for " about 45 minutes." ( Id. 66:12-22.) She also had trouble sleeping that night, crying again at home. ( Id. 66:25-67:4.) Ultimately, as a result of her treatment, Plaintiff claims she has suffered from reduced confidence, has become a less effective parent, and sometimes needs to " muster up the energy to get [herself] together" just to get out of bed. ( Id. 78:18-24.)

Following the trial, the jury concluded that both STRIVE and Carmona had (1) " subjected [Plaintiff] to a hostile work environment," (2) " discriminated against [Plaintiff] because of her gender or race when STRIVE East Harlem Employment Group terminated her employment," and (3) " retaliated against [Plaintiff] because of her complaints of gender or race discrimination." (Ct. Ex. F.) The jury awarded Plaintiff $250,000 in compensatory damages. Following a subsequent bifurcated proceeding, the jury also awarded punitive damages in the amounts of $25,000 against Carmona and $5,000 against STRIVE.

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But the jury absolved Weinberg and Stein of all liability.


A. Sufficiency of the Evidence

On these facts, Defendants first move for judgment as a matter of law or a new trial based upon the sufficiency of the evidence. To succeed on their motion for judgment as a matter of law under Rule 50, Defendants must demonstrate that " there exists 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 the evidence in favor of the movant is so overwhelming that reasonable and fair minded [persons] could not arrive at a verdict against [it]." Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011) (alterations in original) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008)) (internal quotation marks omitted); see Fed.R.Civ.P. 50. And " [i]n assessing the sufficiency of evidence to support a jury verdict, [the Court] must view the record in the light ...

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