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Wiercinski v. Mangia 57, Inc.

United States District Court, E.D. New York

April 28, 2014

ADAM WIERCINSKI, Plaintiff,
v.
MANGIA 57, INC., et al., Defendants

For Adam Wiercinski, Plaintiff: Matthew J. Blit, LEAD ATTORNEY, Justin Stedman Clark, Russell S. Moriarty, Levine & Blit, PLLC, New York, NY.

Mangia 57, Inc., Defendant, Pro se, New York, NY.

For Mangia 57, Inc., Defendant: Daniel J. Kaiser, LEAD ATTORNEY, Kaiser Sauborn & Mair, P.C., New York, NY.

Page 119

MEMORANDUM AND ORDER

I. Leo Glasser, United States District Judge.

The plaintiff (" Wiercinski" ) filed a 28 page complaint on October 14, 2009, Dkt. No. 1, alleging 12 causes of action in 119 paragraphs, against corporate defendant Mangia 57 and six individual defendants, namely, Sasha Muniak, Margaret Cymanow, Grzegorz Sarosiek, Arthur Zbozien, Robert Bazgier and Dariusz Maslanka. Charged against all, jointly and severally, are violations of 42 U.S.C. § § 2000e et seq., 1981, 1985, 1986 (Title VII), claiming disparate treatment based on religion and national origin; retaliation, conspiracy, unlawful discharge and violation of NYSHRL and NYCHRL.

The litigation history reflected in a docket sheet of 165 entries embraced a motion to dismiss that complaint, Dkt. No. 12, and a Memorandum and Order (" M& O" ), Dkt. No. 19, familiarity with which is assumed, granting the motion as based upon the New York State and New York City Human Rights laws, but denying it as regards the federal claims. Extensive pretrial activity presided over by Magistrate Judge Orenstein during the next few years led to a Stipulation of Partial Dismissal

Page 120

With Prejudice filed on November 29, 2011, Dkt. No. 80, by the terms of which all individual defendants were dismissed and all causes of action were dismissed excepting the Title VII claim for hostile work environment based on religion and hostile work environment based on ancestry/ethnicity pursuant to 42 U.S.C. § 1981.

On January 20, 2012, a motion for summary judgment was filed by Mangia 57, the only remaining defendant. Dkt. No. 83. In a M& O dated June 18, 2012, Dkt. No. 91, the motion was granted as to the Title VII claims and denied as to the § 1981 claim. After approximately 17 months of seemingly never-ending pretrial stumbling over one obstacle or another, a jury was selected and the trial commenced on October 21 and concluded on October 23, 2013. The jury returned a verdict finding supervisor responsibility for a hostile work environment for which the defendant employer was held liable and awarded plaintiff no compensatory damages, nominal damages of $1 and punitive damages in the amount of $900,000.

Pending before the Court is defendant's motion seeking an Order pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure " remitting the jury's punitive damage award and/or for a new trial on punitive damages, and/or for a judgment notwithstanding the verdict that vacates the punitive damages award in its entirety and for such other and further relief as the Court should deem appropriate." Dkt. No. 163.

Background

The facts briefly stated are that the plaintiff, who is Jewish, Tr. at 21, was employed by the defendant as a deliveryman from 1999-2007. The defendant (" Mangia" ) is a caterer who prepares food ordered by employees in surrounding office buildings which is then delivered to them by defendant's employees, deliverymen such as the plaintiff. In addition to their salaries, deliverymen receive tips from the customers to whom the orders are delivered. The tips constitute a significant part of their earnings. A manager in charge of a work-shift assigns to the deliveryman orders to be delivered. The size of the order bears upon the amount of the tip which, in total on any given day, can exceed one's hourly pay and is usually the main source of the deliveryman's earnings. Among the nine witnesses who testified (4 for the plaintiff and 5 for the defendant), the principal protagonists, besides the plaintiff, were Arthur Zbozien (" Zbozien" ), the night shift manager, Tr. at 35, and Margaret Cymanow (" Cymanow" ), the general manager of Mangia, Tr. at 210.

The plaintiff's case hinged, essentially, on his telling of the incriminating events and on the testimony of three former co-workers. His telling of it was a recitation of anti-Semitic epithets and vulgarities, which, he testified, were spewed at him continually by Zbozien during the entire eight years of his employment at Mangia. Those epithets were alleged in his complaint in paragraphs 39-45 and repeatedly recounted by him on his direct examination. Among them were " you m--f-ing jew," " stinking jew," " dirty jew," " Jewish pederast," " dumb jew," " kike." In addition, two specific events were recalled in furtherance of his claimed hostile environment and offered as emblematic of it. The first occurred on the very first day of his employment at Mangia. While carrying boxes, he accidently bumped into Zbozien, who angrily turned on him and said, " did anybody every f. . . you up, you stupid f-ing jew." Tr. at 34. The second incident occurred at the end of a shift when, as related in the complaint more coherently than in the testimony, employees lined up at a cash register to account for monies

Page 121

received from customers of food orders and to receive the tips as indicated on the bills. Mr. Zbozien generally sat at the register. When the plaintiff's turn to account came, Zbozien stood up and said he is not " going to deal with this f-ing jew." If what was due in tips to the plaintiff was less than a dollar, Zbozien would pay part of it in pennies that were thrown at him. Tr. 36-38. Repetition of these vile, anti-Semitic slurs aimed at him was elicited throughout his direct examination as were his assertions that he repeatedly complained about them to Ms. Cymanow, who ignored them and who he also gratuitously labeled as a " known anti-Semite." Tr. 65-66. His explanation for having stayed so long in the defendant's employ and endured his claimed abuse was that he was afraid of not finding another job if he left or got fired. Tr. 58. The effect of the abuse he endured was sleep disorder and depression for which he sought psychiatric help, Tr. 60, but called no mental health provider to support his claim.

Telling in this regard, however, is his initial denial that he asked his therapist if she could tie his emotional injury to his lawsuit. When then shown a document to refresh his recollection that he did make that request of her, his response was, " If I said so, it's in writing, it may have happened." Tr. at 99 (emphasis mine).

The Court is impelled to set out at some length, portions of the cross-examination of this witness which can only be seen as casting an ominous shadow on the tale he told on his direct examination. The very first question put to him presaged what was to follow and represented the brazen essence of his testimony.

Q: Mr. Wiercinski, when you were working at Mangia, did you get paid using a different name?
A: At this time, I would like to ask the jury and Your Honor to permit me to use the Fifth Amendment because I believe that to answer this question it may incriminate me.
THE COURT: What was the answer to that question? Would you repeat it.
THE WITNESS: At this time, I would like to seek the right to hide behind the Fifth Amendment, and I respectfully decline to answer this question on the ground it may incriminate me.

Tr. at 66-67.

* * *
Q: Mr. Wiercinski, did you get paid under a different name in order to conceal income from the United States government?
A: At this time, Your Honor and members of the jury, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer the question on the ground it may incriminate me.
Q: Finally, on that particular issue, did you conceal -- did you desire to conceal your income from the United States Government so that you could obtain benefits from the Social Security system that you were not entitled to?
A: Your Honor and members of the jury, at this time I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer this question on the ground it may incriminate me.

Tr. at 67-68.

Q: Mr. Wiercinski, do you recall providing sworn testimony at an administrative hearing related to this litigation?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer

Page 122

this question on the ground that it may incriminate me.

Tr. at 68.

Q: I would like to read to you, Mr. Wiercinski, your answer to these questions from that administrative hearing. Page 196, line 9:
" QUESTION: " __
THE COURT: Excuse me. Before you get to that, do I understand that you are asserting your Fifth Amendment right to respond whether you were or were not deposed at a prior occasion? Is that what you are taking the Fifth Amendment to?
THE WITNESS: Yes.

Tr. at 68-69.

Q: (Reading)
" QUESTION: And what name did you give to Mangia to pay you under?
ANSWER: I was giving Adam Jamroz.
QUESTION: Is there an Adam Jamroz?
ANSWER: Yes. He is a cousin. He is no longer with us because he is not in the country anymore, but I used his name. Because, we, in 1991 opened a joint account together when he was with me, and we used to deposit money in that account. So when the account was opened I called Martha and she said, you know, no problem with that."
Do you recall that testimony?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer this question on the ground it may incriminate me.

Tr. at 69.

* * *
Q: Mr. Wiercinski, in that same proceeding which you were under oath, did you provide this answer to this question. It was a question by the Court in that case:
" THE COURT: So your purpose was to have the income shown in someone else's name so that the governmental agency wouldn't know that you were making that income?
THE WITNESS: Uh-huh.
THE COURT: " Yes?"
THE WITNESS: Yes, yes."
Do you recall that question and that answer that you provided at this proceeding?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer this question on the ground that it may incriminate me.
Q: This is the final question that I have for you on this issue, Mr. Wiercinski. And I understand how you responded to these questions, but the final question on the Social Security issue is this. How much did you receive in Social Security benefits while you were receiving income under the name of Adam Jamroz at Mangia?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and actually decline to answer this question on the ground that it may incriminate me.

Tr. at 71-72.

* * *
Q: Mr. Wiercinski, in the year 2006 you filed a tax return with the U.S. Government, is that correct?
A: I do not recall.
And after being shown the relevant document:

Page 123

Q: Mr. Wiercinski, does that refresh your recollection that you filed a return in 2006?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer the question on the ground that it may incriminate me.
Q: Did you report your Mangia income in 2006 to the United States Government?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer this question on the ground that it may incriminate me.
Q: Mr. Wiercinski, rather than ask you a separate question for each of the successive years, I am going to ask you, do you recall filing returns for 2008, 2009, and 2010?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer this question on the ground that it may incriminate me.
Q: Finally, on this topic, Mr. Wiercinski, for those years, 2008, 2009 and 2010, did you report your income, your Mangia income to the United States Government?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer this question on the ground that it may incriminate me.
Q: In your early years at Mangia when you were working full-time in Mangia, and I am asking now separate and apart from the Social Security issues, did you receive public assistance?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer the question on the ground that it may incriminate me.
Q: The final question on this issue. At that time, were you working under and were you receiving your wages under the name, the fictitious name, Adam Jamroz to conceal your income so you could obtain the public benefit?
A: At this time, I would like to seek the refuge behind the Fifth Amendment and respectfully decline to answer the question on the ground that it may incriminate me.

Tr. at 76-77.

* * *
Q: So the discrimination, Mr. Wiercinski, began -- we now know began in 19 -- according to your testimony, your narrative, began in 1999 with Mr. Lipski. You didn't complain about that. You were fired and rehired, correct?
A: Yes.
Q: And then it continued at the other location, the other Mangia location by Mr. Zbozien, correct?
A: Yes.
Q: Mr. Bazgier also said things to you, correct?
A: Yes.
Q: Mr. Lipski?
A: Mr. Lipski was not associated with Mangia 57.
Q: Mr. Sarosiek?
A: Yes.
Q: And Ms. Simmons, correct?
Q: And all this time you continued to work at Mangia?
A: Yes.
Q: And you said, I think, on questioning from your attorney, that you needed a job, correct?
A: I needed security.
Q: But you also didn't -- Mr. Wiercinski, all these years of harassment that you're claiming went from 1999 all the

Page 124

way up to 2007, correct, eight years of what you're claiming was this constant abuse, you never looked for another job, did you?
A: At this time I would like to respectfully decline to answer

Page 125

this question on the ground that it may incriminate me.
Q: After you left -- after, ultimately, you left in 2008, Mr. Wiercinski, when you went -- sometime in 2008 you went home to Poland, correct?
A: Yes.
Q: And then you wanted to come back to Mangia, correct?
A: Yes.
Q: Even then you wanted to come back to Mangia and work there as late as 2007, despite all the harassment that occurred, all of this abuse that you're claiming occurred, is that right?
A: Yes.
Q: In fact, you weren't allowed back. That's your ...

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