13‐561
Turley v. ISG Lackawanna, Inc.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2013
4 (Argued: February 26, 2014 Decided: December 17, 2014)
5 Docket No. 13‐561
6
7 Elijah Turley,
8 Plaintiff–Appellee,
9 v.
10 ISG Lackawanna, Inc., ISG Lackawanna, LLC, Mittal Steel USA
11 Lackawanna Inc., Larry D. Sampsell, Gerald C. Marchand, Thomas
12 Jaworski, Mittal Steel USA, Inc. d/b/a/ Arcelor–Mittal USA, Inc., Mittal
13 Steel USA Inc., a/k/a/ ArcelorMittal Steel, Arcelor Mittal Lackawanna, LLC
14 f/k/a/ ISG Lackawanna, LLC,
15 Defendants–Appellants.
16
17 Before: KATZMANN, Chief Judge, SACK, Circuit Judge, and RAKOFF,
18 District Judge.
19 The defendants appeal from an amended judgment entered in the
20 United States District Court for the Western District of New York (William
21 M. Skretny, Chief Judge) on February 5, 2013, arising from employment
22 discrimination and racial harassment claims against them. We conclude
23 that the district court correctly instructed the jury as to employer liability,
The Honorable Jed S. Rakoff, United States District Judge for the Southern
District of New York, sitting by designation.
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Turley v. ISG Lackawanna, Inc.
1 that the jury could find that the plaintiffʹs direct employer and the parent
2 company constituted a single employer for the purposes of federal and
3 state non‐discrimination statutes, that the juryʹs verdict as to intentional
4 infliction of emotional distress was supported by the evidence, and that
5 the juryʹs compensatory damages award was proper. We also conclude,
6 however, that the district court erred in failing to further reduce the
7 punitive damages awards. The judgment of the district court is therefore:
8 AFFIRMED in part; VACATED and REMANDED in part for a new
9 trial, unless the plaintiff accepts a remittitur of the punitive damages
10 award as described in this opinion and imposed by the district court.
11 RICHARD T. SULLIVAN, Harris
12 Beach PLLC, Buffalo, NY (Ryan J.
13 Mills and Mary C. Fitzgerald, Brown
14 & Kelly LLP, Buffalo, NY, on the
15 brief), for Plaintiff–Appellee.
16 EVAN M. TAGER, Mayer Brown
17 LLP, Washington, DC (Miriam R.
18 Nemetz, Mayer Brown LLP,
19 Washington, DC, and Lynn A.
20 Kappelman and Dawn Reddy
21 Solowey, Seyfarth Shaw LLP, Boston,
22 MA, on the brief), for Defendants–
23 Appellants.
24
25
2
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Turley v. ISG Lackawanna, Inc.
1 SACK, Circuit Judge:
2
3 This is an appeal from an amended judgment of the United States
4 District Court for the Western District of New York (William M. Skretny,
5 Chief Judge) filed February 5, 2013, on a multimillion‐dollar jury award
6 (reduced by the district court on remittitur) for compensatory and punitive
7 damages for violations of state and federal anti‐discrimination statutes,
8 and for intentional infliction of emotional distress under New York law.
9 The case before us on appeal involves a pattern of extreme racial
10 harassment in the workplace.
11 The plaintiff, a longtime steelworker at a plant in Lackawanna, New
12 York, endured an extraordinary and steadily intensifying drumbeat of
13 racial insults, intimidation, and degradation over a period of more than
14 three years. The demeaning behavior of the plaintiffʹs tormentors included
15 insults, slurs, evocations of the Ku Klux Klan, statements comparing black
16 men to apes, death threats, and the placement of a noose dangling from
17 the plaintiffʹs automobile.1 Supervisorsʹ meager investigations and nearly
We recognize that many of these disturbing acts are not unprecedented. See,
1
e.g., Tademy v. Union Pac. Corp., 614 F.3d 1132, 1135–38 (10th Cir. 2008) (display of
a noose); Daniels v. Essex Grp., Inc., 937 F.2d 1264, 1266–68 (7th Cir. 1991) (ʺKKKʺ
3
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Turley v. ISG Lackawanna, Inc.
1 total lack of action failed to stop the escalating abuse; instead, managers
2 often appeared to condone or even participate in part in the harassment.
3 The experience left the plaintiff psychologically scarred and deflated—
4 injury for which a jury awarded $1.32 million in compensatory damages
5 for the violation of statutes prohibiting a hostile or abusive work
6 environment because of his race and the state tort of intentional infliction
7 of emotional distress. The jury also assessed $24 million in punitive
8 damages, mostly against the employer and its parent company. The
9 district court subsequently granted a motion for remittitur as to the
10 punitive damages, which remittitur was accepted by the plaintiff, and
11 reduced the punitive award by $19 million, to $5 million. The court also
12 awarded the plaintiff substantial attorneyʹs fees and costs.
13 The defendants appeal from this judgment and award. They do not
14 seriously dispute the gravity of the underlying conduct, but they raise
15 several procedural and substantive objections to the district courtʹs
scrawled on walls and black dummy hanging from doorway); Williams v. N.Y.C.
Housing Auth., 154 F. Supp. 2d 820, 824–25 (S.D.N.Y. 2001) (R. Carter, J.)
(discussing in depth the horror associated with seeing a noose displayed in the
workplace). We are unaware, however, of cases in our Circuit in which the
defendantsʹ behavior combines all of them.
4
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Turley v. ISG Lackawanna, Inc.
1 findings on liability and to its damages award. We reject most of these
2 challenges, finding no error in the district courtʹs judgment concerning
3 liability on the common‐law and statutory claims or compensatory
4 damages. We do, however, conclude that the punitive damages award,
5 even after the remittitur in the district court, is excessive in light of the
6 principles set forth in the prior case law of the Supreme Court and of this
7 Circuit.
8 We are required to police closely the size of awards rendered in the
9 trial courts within our Circuit. In recent opinions, we have addressed at
10 length the individual and social harms associated with excessive awards of
11 compensatory and punitive damages, many of which are relevant to this
12 case.2 A juryʹs assessment of damages based on intangibles such as
13 emotional harm or the need for punishment injects an additional element
14 of the immeasurable and subjective into the proceedings, which trial and
15 appellate courts are expected to oversee with care. Excessive punitive
16 damages also implicate a defendantʹs constitutional due process rights
17 insofar as they impose a substantial punishment without the safeguards,
See, e.g., Stampf v. Long Island R.R. Co., 761 F.3d 192, 205‐11 (2d Cir. 2014); Payne
2
v. Jones, 711 F.3d 85, 96‐106 (2d Cir. 2013).
5
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Turley v. ISG Lackawanna, Inc.
1 constitutional or otherwise, that attend criminal proceedings. Pursuant to
2 these concerns, we scrutinize awards for fairness, consistency,
3 proportionality, and, in the case of punitive damages, constitutionality.
4 After completing that review on the facts in the record before us, we
5 conclude, first, that the juryʹs award for compensatory damages was
6 permissible in light of the nature of the plaintiffʹs claims. Second, we
7 conclude that the punitive damages were excessive. We will remand to
8 the district court for imposition of a remittitur, requiring a new trial on the
9 issue unless the plaintiff accepts an award to be calculated by the district
10 court. The resulting damages, which will remain substantial, will be
11 appropriate and sufficient to remedy the plaintiffʹs injury and to impose
12 civil punishment on the defendants for their misbehavior.
13 BACKGROUND
14 Elijah Turley was hired at the Buffal0‐area Lackawanna Steel Plant
15 in 1995, and remained in this job despite intense racial harassment until his
16 employment was terminated when the plant closed its doors in 2009.
17 During the period relevant to this litigation, the Lackawanna plant
18 changed hands several times in a series of mergers and acquisitions that
6
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Turley v. ISG Lackawanna, Inc.
1 followed the 2003 liquidation of Bethlehem Steel, its longtime owner. For
2 purposes of this appeal, it is sufficient to note that the plant was owned
3 successively by three Delaware‐based corporations (referred to here as ʺthe
4 employerʺ or ʺLackawannaʺ) whose names reflected those of three
5 successive corporate parents (hereinafter ʺthe parent companyʺ; the last of
6 which hereinafter ʺArcelorMittal USAʺ).3
3 The district court described the series of ownerships as follows:
Defendant ISG Lackawanna Inc., a wholly‐owned subsidiary of
International Steel Group Inc., purchased the steel galvanizing
operation at the former Bethlehem Steel Plant in Lackawanna, N.Y.
in May 2003. In January 2004, ISG Lackawanna Inc. became ISG
Lackawanna LLC, a Delaware limited liability company. In April
2005, Mittal Steel Co. purchased International Steel Group, Inc., the
parent of ISG Lackawanna LLC and shortly thereafter changed the
name to Mittal Steel USA Inc. In June 2006, Mittal Steel Co. and
Arcelor merged to create ArcelorMittal Inc. Shortly thereafter the
name Mittal Steel USA Inc. was changed to Arcelor Mittal USA Inc.
ISG Lackawanna LLC was then a wholly‐owned subsidiary of
ArcelorMittal USA Inc. and changed its name to ArcelorMittal
Lackawanna LLC.
Turley v. ISG Lackawanna, Inc., 803 F. Supp. 2d 217, 227–28 (W.D.N.Y. 2011)
(footnote and citations omitted). These entities will be referred to collectively as
ʺthe corporate defendants.ʺ
7
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Turley v. ISG Lackawanna, Inc.
1 The Pattern of Racial Harassment
2 From 1997 onward, Turley worked as a process operator in the
3 Lackawanna plantʹs ʺpicklerʺ4 department. Throughout the relevant time‐
4 period, he was the only African‐American working regularly on his shift.
5 Initially, he regarded the environment as pleasant and congenial, where
6 workers treated each other ʺlike a family.ʺ 2 Trial Tr. 199, 201. But things
7 deteriorated rapidly in 2005, after Turley filed a grievance alleging that
8 Thomas Jaworski, the manager in the pickler department, was giving
9 favorable treatment to white employees. From that point onward, Turley
10 testified, life in the pickler ʺwas like hell.ʺ 2 Trial Tr. 205.
11 Throughout the remainder of his employment, Turleyʹs co‐workers
12 frequently subjected him to racist epithets, degrading treatment, and, from
13 time to time, outright threats. Co‐workers declined to speak to him or
14 interact with him socially on the job, by, for example, joining him for
15 lunch. Jaworski, Turley testified, continually referred to him as ʺboy.ʺ 3
16 Trial Tr. 4–5. Another witness estimated that thirty percent of the workers
ʺPicklingʺ is a process ʺin which heavy scale on the surface of steel is removed
4
by treating the steel with a hydrochloric acid solution.ʺ Timothy F. Malloy, The
Social Construction of Regulation: Lessons from the War Against Command and
Control, 58 Buff. L. Rev. 267, 325 & n.199 (2010) (citing 62 Fed. Reg. 49,052, 49,053
(Sept. 18, 1997)).
8
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Turley v. ISG Lackawanna, Inc.
1 in the department referred to Turley as ʺthat [fucking nigger].ʺ5 2 Trial Tr.
2 90–91. Unidentified coworkers broadcast monkey sounds over the plantʹs
3 intercom system, also using the system to threaten Turley anonymously:
4 ʺWe[ʹre] going to fucking kill you, fucking nigger, weʹre going to kill your
5 fucking Jewish lawyer too.ʺ 3 Trial Tr. 81.
6 Turleyʹs workstation became a stage for repeated intimidation and
7 harassment. Sometime in December 2005, he arrived at work to find a sign
8 hanging from his workstation, printed with the words ʺdancing gorilla.ʺ
9 Joint Stmt. of the Case ¶ 20(a). Days later, the initials ʺKKʺ were spray‐
10 painted on the wall near his workstation, and the phrases ʺKing Kongʺ and
11 ʺKing Kong livesʺ appeared on the floor plate that Turley crossed to enter
12 his booth. Id. ¶ 20(b). In July 2006, someone spray‐painted the initials
13 ʺKKKʺ on the wall near Turleyʹs workstation; the initials appeared again in
14 2007. Id. ¶ 20(f). In late 2006, after Turley had filed two harassment
Although others did, this witness did not use the words ʺfuckingʺ and ʺniggerʺ
5
at trial, substituting ʺFʹingʺ and ʺNʺ instead.ʺ 2 Trial Tr. 90. As is our ordinary
practice in opinions such as these, we employ the actual words, albeit with
distaste, for the purpose of reflecting precisely the facts of the case. The use of
ʺniggerʺ ʺin the context of this opinion,ʺ in particular, ʺserves to describe
accurately the severity of the behavior to which [the plaintiff] was subjected . . .
and not to trivialize the wordʹs significant—and even unique—power to offend,
insult, and belittle.ʺ Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 38 n.3 (2d Cir.
2014).
9
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Turley v. ISG Lackawanna, Inc.
1 complaints with the New York State Division of Human Rights, a face with
2 tears was drawn on the wall in the pickler department. Id. ¶ 20(g). In
3 2008, a graffiti drawing of an ape‐like man was found in a railroad car that
4 had been parked inside the department.
5 Although many employees harassed and threatened Turley, a
6 coworker, Frank Pelc, was responsible for some of the more extreme
7 conduct. He addressed Turley as ʺyou fucking black bitch,ʺ and ʺyou
8 fucking black piece of shit.ʺ 3 Trial Tr. 26. Pelc would make monkey
9 sounds when Turley tried to speak to him. Id. A worker who replaced
10 Turley at his workstation at shift changes testified that, on a daily basis,
11 the door handles and controls that Turley used would be covered with
12 thick, black motor grease. When the worker complained about this to co‐
13 workers, Pelc said, ʺIt must be that [ʹ]boon thatʹs doing it,ʺ referring to
14 Turley. 2 Trial Tr. 166. In May 2006, the same sort of grease was smeared
15 all over Turleyʹs chair in the processor booth. Once, Pelc told Turley:
16 ʺ[W]hen I see your black nigger ass on the outside, Iʹm going to fucking
17 shoot you.ʺ 3 Trial Tr. 28. When Turley reported the threat to
18 management, ʺ[t]hey laughed it off.ʺ Id.
10
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Turley v. ISG Lackawanna, Inc.
1 The campaign of racial harassment intensified from 2005 into 2008.
2 In one incident, on December 3, 2007, Turley was told to go check on his
3 car, which had been vandalized several times in the past. Upon arriving,
4 Turley found, dangling from his side‐view mirror, a stuffed toy monkey
5 with a noose around its neck.
6 Supervisorsʹ Actions
7 Because Turley brings this claim against his immediate employer, its
8 corporate parent, and three individually named plant managers, rather
9 than against the persons most directly involved in the daily abuse, his
10 claim depends on the adequacy of the supervisorsʹ response, or on their
11 direct involvement in the harassment. Among the named defendants,
12 Thomas Jaworski managed the pickler department from May 2003 to
13 January 2007. Gerald Marchand was the plantʹs manager of human
14 resources from May 2003 until March 2007. And Larry Sampsell was the
15 plant manager of labor relations and security during the entire relevant
16 time period.
17 Management was not wholly unresponsive to Turleyʹs complaints.
18 A foreman removed the ʺdancing gorillaʺ sign, and managers painted over
11
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Turley v. ISG Lackawanna, Inc.
1 some graffiti. After the ʺdancing gorillaʺ and ʺKing Kongʺ incidents,
2 Jaworski stated at a crew meeting that such conduct would not be
3 tolerated. The situation nonetheless continued to worsen. Plant managers
4 interviewed employees after many of Turleyʹs complaints. After the 2007
5 incident with the stuffed monkey, the company hired a lawyer to conduct
6 an investigation. And defendant Larry Sampsell, the manager of labor
7 relations and security, installed lights in the parking lot. Sampsell also
8 once arranged for a private investigator to pose as a contractor working in
9 the pickler department in order to gather information, but the plan failed
10 when employees discovered that the investigator was taking photographs.
11 On other occasions, however, supervisors were apparently
12 unresponsive; to the contrary, they appeared to encourage some of the
13 behavior. For example, a cow0rker accosted Turley while he was meeting
14 with Sampsell and Marchand, shouting, ʺShut up you fucking black
15 crybaby bitch. Fuck you. You ainʹt shit. Youʹre always crying like a bitch.ʺ
16 3 Trial Tr. 32. Turley testified that Sampsell and Marchand ʺjust stood
17 there,ʺ id., and the employee was not disciplined for the verbal assault. In
18 another incident, another coworker, David Pyanowski, apparently
12
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Turley v. ISG Lackawanna, Inc.
1 attempted to bait Turley into striking him, calling Turley a ʺblack bitch,ʺ a
2 ʺcry baby,ʺ and a ʺblack piece of shit,ʺ and saying, ʺWhy donʹt you get your
3 b[l]ack ass out of here. Get the fuck out of here. We donʹt want you here
4 anyway.ʺ 3 Trial Tr. 82. When Turley and a union representative went to
5 report the incident, they found Pyanowski and Sampsell laughing about
6 the confrontation in Sampsellʹs office. Pyanowski was not disciplined for
7 his behavior.
8 During the multiyear period in which this harassment took place,
9 only two employees were disciplined for their roles in the abuse. Frank
10 Pelc was suspended for three days for painting the ʺKing Kongʺ graffiti in
11 January 2006, and for another two days the following month for
12 threatening to ʺdeal with [Turley] on the outside.ʺ 4 Trial Tr. 19. In 2007,
13 another employee received a five‐day suspension for asking, in reference
14 to Turley, ʺDo I have to work with that black man?ʺ 2 Trial Tr. 110‐11. The
15 defendants have contended that their efforts to root out further culprits
16 were frustrated by a ʺcode of silenceʺ among the workers, 1 Trial Tr. 231,
17 but they have not explained why employees such as Pyanowski went
18 unpunished for hostile acts of which the supervisors were aware.
13
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Turley v. ISG Lackawanna, Inc.
1 Several witnesses testified that management seemed uninterested in
2 addressing the ongoing harassment. Turley testified that multiple calls to
3 the companyʹs complaint telephone line, ʺAlertline,ʺ met with no response
4 or investigation. Company managers, including Sampsell, also were
5 unresponsive to the efforts of local police to investigate the continuing
6 course of threats and harassment. Detective Daniel Cardi testified that he
7 repeatedly asked Sampsell and other plant managers for access to
8 surveillance video and other records of the companyʹs investigations. Each
9 time, managers told Cardi that they would have to check with the
10 companyʹs legal department, and failed to follow up.
11 Sampsell did, however, begin to monitor Turley closely after the
12 complaints started. After Turley had filed suit in federal court, Sampsell
13 surreptitiously installed two cameras trained on Turleyʹs workstation.
14 Although Sampsell testified that the cameras were meant to detect the
15 persons responsible for harassing Turley, it is undisputed that he did not
16 inform Turley as to their presence; indeed, he initially denied it. After the
17 cameras were removed, a spray‐painted eyeball appeared on the wall
18 where one of the cameras had been.
14
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Turley v. ISG Lackawanna, Inc.
1 Sampsell also retained a private investigator to run a background
2 check on Turley. At trial, Turleyʹs counsel reminded Sampsell that, in an
3 earlier deposition, he had testified that he ran the background check
4 because he was looking for a felony or other offense in Turleyʹs history.
5 Sampsell did not deny saying this, and admitted that his recollection
6 would have been better at the time of the deposition than it was at the time
7 of trial. The defendants did not object to this exchange, and it therefore
8 became part of the record that the jury could consider.
9 Effects on Turley
10 At trial, the union representative testified that between 2006 and
11 2008, inclusive, Turley, ʺwas losing it.ʺ 1 Trial Tr. 191. Turleyʹs
12 psychologist noted that Turley suffered serious panic attacks and engaged
13 in other abnormal behavior. The psychologist diagnosed Turley with a
14 short‐term adjustment disorder, depression, and a panic disorder. A
15 psychiatrist further diagnosed him with post‐traumatic stress disorder
16 brought on by the workplace harassment. Several times, Turley had to be
17 taken to the hospital as a result of the threats and harassment he
18 experienced. He lost thirty pounds. Turley testified that, at the time of the
15
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Turley v. ISG Lackawanna, Inc.
1 trial, he did not sleep, struggled to relate to his children, did not socialize,
2 and was frequently overcome by memories of his experience.
3 According to the district court:
4 When Turley began work at the steel plant, he enjoyed his job and
5 was a man full of confidence; he possessed a colorful and animated
6 personality. He came in, as one witness put it, displaying his
7 feathers like a ʺrooster.ʺ But the unyielding harassment took its
8 toll. And by the time he left, he was broken and dispirited. The
9 company had, again in the words of this witness, ʺcut the head off
10 the rooster.ʺ
11 Turley v. ISG Lackawanna, Inc., 960 F. Supp. 2d 425, 434–35 (W.D.N.Y. 2013)
12 (internal citations omitted).
13 Procedural History
14 Turley filed charges of discrimination with federal and state
15 authorities in 2005 and 2006. On December 6, 2006, after exhausting his
16 administrative remedies, Turley, through counsel, instituted this action in
17 the United States District Court for the Western District of New York. The
18 complaint alleges disparate treatment, retaliation, and the creation of a
19 hostile work environment, in violation of 42 U.S.C. § 1981, Title VII, 42
20 U.S.C. § 2000e et seq., and the New York Human Rights Law, N.Y. Exec.
16
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Turley v. ISG Lackawanna, Inc.
1 Law § 291 et seq.,6 as well as a common‐law claim for intentional infliction
2 of emotional distress. In 2011, the district court granted partial summary
3 judgment to the defendants as to retaliation and as to most disparate
4 treatment claims, but allowed the plaintiff to proceed on his hostile work
5 environment and emotional distress claims.7 Turley v. ISG Lackawanna,
6 Inc., 803 F. Supp. 2d 217 (W.D.N.Y. 2011).
6 The principal differences among these three statutes are as follows. A plaintiff
may bring an action against his or her employer under Title VII of the Civil
Rights Act of 1964 for, inter alia, discriminatory conduct that manifests itself in a
hostile working environment. See, e.g., Natʹl R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 (2002). A racially charged hostile work environment also may give
rise to a claim under section 1981, Whidbee v. Garzarelli Food Specialties, Inc., 223
F.3d 62, 68–69 (2d Cir. 2000), a Reconstruction‐era civil rights statute recognizing
the right of all persons to make and enforce contracts on the same terms as white
citizens. 42 U.S.C. § 1981. The substantive standards under these two statutes
are similar, but, unlike Title VII, section 1981 permits a plaintiff, under certain
circumstances, to sue persons other than employers. See Patterson v. Cnty. of
Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). Under New York law, a hostile
work environment may give rise to statutory claims against employers and, in
some circumstances, against non‐employer individuals. See Feingold v. New York,
366 F.3d 138, 158 & n.19 (2d Cir. 2004) (explaining that individuals may be liable
for aiding and abetting discriminatory conduct under N.Y. Exec. Law § 296(6));
Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542, 473 N.E.2d 11, 12 (1984) (per curiam)
(suggesting that individuals may be subject to suit if they qualify as an
ʺemployerʺ within the meaning of the statute). Claims under the New York
Human Rights Law are ʺgenerally governed by the same standards as federal
claims under Title VII.ʺ Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d
Cir. 2006).
The court also permitted the plaintiff to maintain his claim that he was given
7
unequal pay because of his race. Turley, 803 F. Supp. 2d at 238. The district court
17
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Turley v. ISG Lackawanna, Inc.
1 The trial lasted for three weeks, after which the jury deliberated for
2 less than a full day before reaching a verdict. They found all defendants
3 liable to Turley for creating a hostile work environment, and Sampsell and
4 Lackawanna liable on the emotional distress claim. Following a two‐day
5 trial on damages, the jury awarded a total of $1,320,000 in compensatory
6 and $24,005,000 in punitive damages against the defendants, broken down
7 by defendant.
8 After trial, the defendants moved under Federal Rules of Civil
9 Procedure 50(b) and 59 for judgment as a matter of law, a new trial, or
10 remittitur of damages, on several grounds. Turley v. ISG Lackawanna, Inc.,
11 960 F. Supp. 2d 425, 433 (W.D.N.Y. 2013). The district court denied the
12 defendantsʹ motion for judgment as a matter of law, but partially granted
13 the motion for a new trial based on its conclusion that the punitive
14 damages award was excessive. Id. at 450, 456. The court ordered the new
15 trial unless the plaintiff agreed for the punitive damages award to be
16 reduced to a total of $5 million on remittitur, a figure the district court
17 thought represented ʺthe upper most limit permissible under the law.ʺ Id.
later granted the defendantsʹ motion for judgment as a matter of law on this
claim.
18
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Turley v. ISG Lackawanna, Inc.
1 at 453–54. The plaintiff accepted the reduction. A final breakdown of the
2 awards is as follows:
Compensatory Punitive
Hostile Work Environment
Corporate defendants $1,000,000 $4,000,000
Sampsell $25,000 $0
Marchand $25,000 $0
Jaworski $10,000 $0
SUBTOTAL $1,060,000 $4,000,000
Intentional Infliction of
Emotional Distress
ArcelorMittal USA $250,000 $998,750
Lackawanna Inc.
Sampsell $10,000 $1,250
SUBTOTAL $260,000 $1,000,000
‐‐‐
TOTAL $1,320,000 $5,000,000
3
4 See id. at 456. The district court also awarded the plaintiff attorneyʹs fees of
5 $437,323.30 and costs of $32,711.42. Id.
6 The defendants appealed.
19
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Turley v. ISG Lackawanna, Inc.
1 DISCUSSION
2 The degree of racial intimidation and ridicule that pervaded Turleyʹs
3 workplace during the relevant period far surpassed any threshold
4 necessary to demonstrate a hostile and abusive work environment. See,
5 e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21‐22 (1993). The defendants do
6 not argue otherwise.
7 Instead, they allege five errors in the verdict and judgment, for
8 which the remedy demanded ranges from a reduction in damages to a
9 new trial. First, the defendants contend that alleged errors in the jury
10 instructions and verdict form prejudiced their case and warrant a new trial
11 on the statutory harassment claims. Second, the parent corporation in this
12 case, now named ArcelorMittal USA, Inc., argues that it was not the
13 plaintiffʹs employer, and should not have been held liable as to those
14 claims. Third, the defendants argue that, irrespective of whether the
15 alleged conduct constituted racial harassment, it does not meet the strict
16 standard set under New York law for intentional infliction of emotional
17 distress. Finally, they dispute the size of both the compensatory and
18 punitive damages awards.
20
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Turley v. ISG Lackawanna, Inc.
1 I. Jury Instructions and Verdict Form
2 We review a claim of error in the district courtʹs jury instructions de
3 novo, disturbing the district courtʹs judgment ʺonly if the appellant shows
4 that the error was prejudicial in light of the charge as a whole.ʺ8 Japan
5 Airlines Co. v. Port Auth. of N.Y. & N.J., 178 F.3d 103, 110 (2d Cir. 1999). ʺA
6 jury instruction is erroneous if it misleads the jury as to the correct legal
7 standard or does not adequately inform the jury on the law.ʺ Perry v.
8 Ethan Allen, Inc., 115 F.3d 143, 153 (2d Cir. 1997). We will not require a
9 new trial ʺ[i]f the instructions, read as a whole, presented the issues to the
10 jury in a fair and evenhanded manner.ʺ Lore v. City of Syracuse, 670 F.3d
11 127, 156 (2d Cir. 2012).
12 The asserted error in this case concerns the courtʹs instructions on
13 the standard for employer liability in a hostile work environment claim. It
14 is the plaintiffʹs burden to establish that the discriminatory conduct may be
15 imputed to the employer. See, e.g., Summa v. Hofstra Univ., 708 F.3d 115,
16 124 (2d Cir. 2013). To succeed in that endeavor, the plaintiff can
17 demonstrate that a supervisor used his or her authority ʺto further the
We agree with the defendants that their challenge to the jury instruction and
8
verdict form was properly preserved in the district court. See 14 Trial Tr. 3–4.
21
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Turley v. ISG Lackawanna, Inc.
1 creation of a discriminatorily abusive working environment,ʺ Perry, 115
2 F.3d at 153, or that the employer knew or reasonably should have known
3 about harassment by non‐supervisory co‐workers, ʺyet failed to take
4 appropriate remedial action,ʺ9 Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.
5 2009) (internal quotation marks omitted). The appropriateness of an
6 employerʹs remedial action must ʺbe assessed from the totality of the
7 circumstances.ʺ Distasio v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir. 1998).
8 The defendants contend that the district courtʹs instructions would
9 have led the jury to conduct a different, and legally unsound, inquiry. The
10 court instructed the jury that when a non‐supervisory co‐worker creates a
11 hostile work environment, the employer will be liable only if the plaintiff
12 proves that his ʺsupervisor or successively higher authority knew . . . or
13 should have known . . . of the hostile or abusive work environment and
14 permitted it to continue by failing to take remedial action.ʺ 13 Trial Tr.
15 121–22. The defendants argue that this instruction would have allowed
16 the jury to hold the company liable if any single supervisor or higher
Other avenues are available for imputing harassment to an employer, but they
9
are not relevant to this appeal. See, e.g., Howley v. Town of Stratford, 217 F.3d 141,
154 (2d Cir. 2000) (noting that harassment may be imputed if the employer failed
to provide an adequate avenue for redress).
22
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Turley v. ISG Lackawanna, Inc.
1 authority failed to adequately respond, on his own, to the harassment. If
2 the defendantsʹ interpretation is correct, then this instruction would
3 constitute legal error because the employerʹs response to harassment must
4 be assessed as a whole and in light of the totality of the circumstances. See,
5 e.g., Distasio, 157 F.3d at 65.
6 We conclude, however, that when read in context, it is clear that the
7 instruction does not contain the error that the defendants assert. In the
8 paragraph immediately following the language in question, the district
9 court explained:
10 [A]n employerʹs response need only be reasonable under the
11 circumstances. . . . Whether an employerʹs response was reasonable
12 has to be assessed from the totality of the circumstances . . . .
13 Factors to be considered in determining whether the response was
14 reasonable include – okay, weʹre talking about reasonable employer
15 response – the gravity of the harm being inflicted upon the
16 plaintiff, the nature of the employerʹs response in light of the
17 employerʹs resources, and the nature of the work environment. An
18 employerʹs response to co‐worker harassment is not unreasonable
19 simply because it has not been successful in preventing further
20 harassment.
21 Trial Tr. 13:122. This passage uses the phrase ʺemployerʹs responseʺ five
22 times, and explicitly states that the jury must consider the totality of the
23 circumstances. Id. It employs phrases, such as ʺthe employerʹs resources,ʺ
23
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Turley v. ISG Lackawanna, Inc.
1 id., that would make little sense unless the jury was being asked to
2 consider the employerʹs response as a whole.
3 We are not permitted to dissect a jury verdict by combing through a
4 trial courtʹs instructions seeking language that, when isolated from its
5 context, might be or appear to be misleading. See, e.g., Lore, 670 F.3d at 156
6 (noting that a charge must be read ʺas a wholeʺ); Clark v. John Lamula
7 Investors, Inc., 583 F.2d 594, 600–01 (2d Cir. 1978) (similar). ʺ[A] jury charge
8 should be examined in its entirety, not scrutinized strand‐by‐strand.ʺ SR
9 Intʹl Bus. Ins. Co. v. World Trade Ctr. Properties, LLC, 467 F.3d 107, 119 (2d
10 Cir. 2006) (quoting Time, Inc. v. Petersen Publʹg Co., 173 F.3d 113, 119 (2d
11 Cir. 1999)). In the case at bar, the jury instruction, when examined as a
12 whole, properly focused the juryʹs attention on the totality of the
13 employerʹs response. The district court therefore did not ʺprovide a
14 misleading impression or inadequate understanding of the law.ʺ Schwartz
15 v. Liberty Mut. Ins. Co., 539 F.3d 135, 147 (2d Cir. 2008) (internal quotation
16 marks omitted).
17 The defendants also contend, with respect to the same issue, that a
18 question on the verdict form was misleading and prejudicial. A verdict
24
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Turley v. ISG Lackawanna, Inc.
1 form ʺmust be read in conjunction with the judgeʹs charge to the jury.ʺ
2 Vichare v. AMBAC, Inc., 106 F.3d 457, 466 (2d Cir. 1996); Shah v. Pan Am.
3 World Svcs., Inc., 148 F.3d 84, 96 (2d Cir. 1998), cert. denied, 525 U.S. 1142
4 (1999); accord Lore, 670 F.3d at 159–60. Here, the form was ambiguous with
5 respect to whether any one managerʹs failure to respond adequately could
6 create liability for a hostile work environment.10 But, as we have
7 explained, the district courtʹs instructions made clear that the jury was to
8 consider the totality of the employerʹs response to the harassment. These
9 instructions thus clarified any ambiguity in the verdict form.
10 Even assuming arguendo that the jury instructions and the form had
11 been erroneous, however, we do not think that the errors would have
12 prejudiced the defendants. Defendants Sampsell, Marchand, and Jaworski
13 undertook most of the several remedial actions in response to Turleyʹs
14 complaints, conducting some investigations, holding a few employee
10 Under the heading ʺcorporate liability,ʺ the jury form asked:
Has the plaintiff proven by a preponderance of the evidence that a
supervisor with immediate or successively higher authority over
the plaintiff created or permitted the hostile or abusive work
environment by not taking reasonable action to address it?
J.A. 1679. The defendants argue that the form thus suggests that the company
might be held liable if any single ʺsupervisor . . . permitted the hostile or abusive
work environment by not taking reasonable action to address it.ʺ See id.
25
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Turley v. ISG Lackawanna, Inc.
1 meetings, and taking security precautions, such as installing lights in the
2 parking lot. The jury nonetheless decided that each of these defendants
3 had either actively participated in the harassment or had failed to take
4 adequate measures to stop or remedy it. We doubt that the presumably
5 reasonable jury could have determined that the relatively meager and
6 ultimately ineffective response efforts from a few other employees would
7 have tipped the balance and led the jury to determine that the response, as
8 a whole, was adequate.11
9 II. Parent‐Subsidiary Liability
10 The parent company – now, as noted, named ArcelorMittal USA,
11 Inc. – further argues that it cannot be held liable on the plaintiffʹs
12 harassment claims because it was not the plaintiffʹs ʺemployer,ʺ as that
13 term is understood under the relevant statutes. We review de novo the
14 district courtʹs denial of judgment as a matter of law on this issue,
15 although our review is ʺbound by the same stern standardsʺ as the district
16 courtʹs. Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005). We
We also note that the jury found that the corporate defendants failed to prove
11
that the company, as a whole, ʺexercised reasonable care to prevent and correct
promptly any racially harassing behavior in the workplace.ʺ J.A. 1684.
26
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Turley v. ISG Lackawanna, Inc.
1 therefore view all evidence and draw all inferences in favor of the party
2 opposing judgment as a matter of law, Fabri v. United Techs. Intʹl, Inc., 387
3 F.3d 109, 119 (2d Cir. 2004) – in this case, the plaintiff. We will overturn a
4 verdict only if we conclude that there is ʺsuch a complete absence of
5 evidence supporting the verdict that the juryʹs findings could only have
6 been the result of sheer surmise and conjecture, or such an overwhelming
7 amount of evidence in favor of the appellant that reasonable and fair
8 minded [jurors] could not arrive at a verdict against the appellant.ʺ
9 Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005) (internal quotation
10 marks and brackets omitted). The record supporting the juryʹs finding on
11 this issue is not so sparse as to require a reversal.
12 The jury determined that both Lackawanna and its corporate parent
13 were liable on the federal and state harassment claims.12 Of course, as a
14 general matter, the law ʺallows a corporation to organize so as to isolate
15 liabilities among separate entities.ʺ Murray v. Miner, 74 F.3d 402, 404 (2d
16 Cir. 1996). Nonetheless:
Applying a different standard of parent‐subsidiary domination, the jury
12
concluded that the parent company was not liable on the emotional distress
claim.
27
13‐561
Turley v. ISG Lackawanna, Inc.
1 there is an equally fundamental principle of corporate law,
2 applicable to the parent‐subsidiary relationship as well as
3 generally, that the corporate veil may be pierced and the
4 shareholder held liable for the corporationʹs conduct when,
5 inter alia, the corporate form would otherwise be misused to
6 accomplish certain wrongful purposes.
7 United States v. Bestfoods, 524 U.S. 51, 62 (1998). In the employment‐
8 discrimination context, we may look past the formal separation among
9 corporate affiliates when ʺextraordinary circumstancesʺ permit treating a
10 parent and a subsidiary as a ʺsingle employerʺ for the purposes of
11 applicable statutes. Murray, 74 F.3d at 404; see generally 1 Fletcher Cyclopedia
12 of the Law of Corporations § 43.90 (2014).
13 To determine whether, under Title VII,13 a parent and subsidiary
14 constitute a single employer, we apply a four‐factor test. See, e.g., Brown v.
15 Daikin Am., Inc., 756 F.3d 219, 226 (2d Cir. 2014). ʺUnder this test, ʹa parent
16 and subsidiary cannot be found to represent a single, integrated enterprise
As far as we have been able to determine, we have not previously held that
13
the ʺsingle employerʺ test applies to claims under 42 U.S.C. § 1981 as it does to
Title VII claims. Cf. Dewey v. PIT Telecom. Neth. U.S., Inc., 83 Fair Empl. Prac.
Cases (BNA) 1792 (2d Cir. 1996) (unpublished summary order) (in claim alleging
violations of Title VII, the Age Discrimination in Employment Act, and section
1981, applying the ʺsingle employerʺ test under the former two statutes but not
the latter); cf. Johnson v. Crown Enters., Inc., 398 F.3d 339, 343–44 (5th Cir. 2005)
(assuming without deciding that the single employer test applies to section 1981
cases). The defendants, however, accept that the ʺsingle employerʺ standard
applies to the federal claims in this case, and nothing in their submissions
suggests that the analysis would be different under another standard.
28
13‐561
Turley v. ISG Lackawanna, Inc.
1 in the absence of evidence of (1) interrelation of operations, (2) centralized
2 control of labor relations, (3) common management, and (4) common
3 ownership or financial control.ʹʺ Id. (brackets omitted) (quoting Cook v.
4 Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995)). Although no
5 one factor controls the analysis,14 the second, ʺcentralized control of labor
6 relations,ʺ is the most significant. See Cook, 69 F.3d at 1240–41.
7 Our case law instructs us to apply the same four‐factor inquiry to
8 determine whether two or more entities constitute a ʺsingle employerʺ
9 under the New York Human Rights Law. Brown, 756 F.3d at 226–28.
10 Applying the test under both federal and state statutes serves the stated
11 goal of the New York Court of Appeals ʺto resolve federal and state
12 employment discrimination claims consistently.ʺ15 Aurecchione v. N.Y. State
The third and fourth factors—common management and common
14
ownership—are, in particular, ʺordinary aspects of the parent‐subsidiary
relationship,ʺ which often may be of limited use in determining whether to treat
two or more corporate affiliates as a single employer. Meng v. Ipanema Shoe Corp.,
73 F. Supp. 2d 392, 403 (S.D.N.Y. 1999).
The district court suggested that state courts apply a ʺslightly differentʺ
15
standard under the Human Rights Law, which focuses on the parent companyʹs
ability to hire, fire, pay, and control the conduct of the plaintiff. Turley, 960 F.
Supp. 2d at 440 (citing Hargett v. Metro. Transit Auth., 552 F. Supp. 2d 393, 405
(S.D.N.Y. 2008)). This approach, which appears in some earlier New York State
Appellate Division cases, is drawn from general common‐law principles for
determining the existence of an employment relationship. See, e.g., State Div. of
29
13‐561
Turley v. ISG Lackawanna, Inc.
1 Div. of Human Rights, 98 N.Y.2d 21, 25, 771 N.E.2d 231, 233 (2002); see also
2 Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (explaining that New York
3 courts rely on federal case law in this area); Argyle Realty Assocs. v. N.Y.
4 State Div. of Human Rights, 65 A.D.3d 273, 277, 882 N.Y.S.2d 458, 462 (2d
5 Depʹt 2009) (adopting the Cook test in a related context).
6 The single‐employer inquiry is conceptually distinct from other
7 theories of corporate veil‐piercing. Cf. Truck Drivers Local Union No. 807 v.
8 Regʹl Imp. & Exp. Trucking Co., 944 F.2d 1037, 1046 (2d Cir. 1991) (making a
9 similar point in the context of labor relations). For example, under the
10 single‐employer test, a plaintiff need not demonstrate unlawful motive or
11 any intent to use the corporate form to avoid contractual obligations. See,
12 e.g., Lihli Fashions Corp. v. Natʹl Labor Relations Bd., 80 F.3d 743, 748 (2d Cir.
13 1996); Trustees of Pension, Welfare & Vacation Fringe Benefit Funds of IBEW
14 Local 701 v. Favia Elec. Co., 995 F.2d 785, 788–89 (7th Cir. 1993). And the
15 plaintiff need not demonstrate that the parent company exercises ʺday‐to‐
Human Rights v. GTE Corp., 109 A.D.2d 1082, 1083, 487 N.Y.S.2d 234, 235 (4th
Depʹt 1985). Although we decide that the same standard controls our inquiry
under both the federal and state statutes, we note that the defendants have not
explained how the analysis would be different under this alternative
formulation. Cf. Turley, 960 F. Supp. 2d at 440.
30
13‐561
Turley v. ISG Lackawanna, Inc.
1 day controlʺ over labor relations. See Solis v. Loretto‐Oswego Residential
2 Health Care Facility, 692 F.3d 65, 76–77 (2d Cir. 2012). The plaintiff must
3 show only that the corporate parentʹs involvement ʺis sufficient and
4 necessary to the total employment process, even absent total control or
5 ultimate authority over hiring decisions.ʺ Cook, 69 F.3d at 1241 (internal
6 quotation marks omitted).
7 In this case, there was some evidence that the parent company was
8 directly and necessarily involved in decisions relating to the plaintiffʹs
9 employment and to the course of harassment. It negotiated and entered
10 into the collective bargaining agreement with the union, and it was this
11 agreement that governed the plantʹs response to Turleyʹs complaints. A
12 2007 harassment training seminar explained that all complaints must be
13 reported to the corporate human resources department, and that any
14 settlement that changes anyoneʹs terms of employment must be approved
15 by the corporate office. Employees were directed to report harassment to
16 the ʺAlertline,ʺ a nationwide ʺhotline.ʺ Plant managers repeatedly stated
17 that they were required to check with the corporate legal department in
18 Chicago before providing information to assist police investigations
31
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Turley v. ISG Lackawanna, Inc.
1 concerning threats against Turley.16 And Turleyʹs employment ended
2 when the parent company shut down the Lackawanna plant and sold its
3 assets.
4 This evidence, along with additional facts recounted in the district
5 courtʹs opinion, see Turley, 960 F. Supp. 2d at 437–40, provided a sufficient
6 basis for the jury to conclude that the two companies constituted a single
7 employer for the purposes of the federal and state statutory claims. We do
8 not mean to imply that Lackawanna and its parent company would have
9 constituted a single entity for all purposes. And, because our review is
10 constrained by the strict standards that govern a motion for judgment as a
11 matter of law, we do not imply that we would have necessarily treated
12 these two entities as a single employer were we sitting as the trier of fact in
13 this case. But because we find neither a ʺcomplete absence of evidenceʺ
14 supporting the jury verdict nor an overwhelming amount of evidence
15 favoring the defendant, see Gronowski, 424 F.3d at 292, we will not disturb
16 the jury verdict as to corporate liability.
Because the plant did not have its own legal department, the managers seem
16
necessarily to have been referring to the corporate office when they expressed the
need to check with legal before cooperating with the police investigation.
32
13‐561
Turley v. ISG Lackawanna, Inc.
1 III. Intentional Infliction of Emotional Distress
2 The district court denied the defendantsʹ motion for judgment as a
3 matter of law on the plaintiffʹs claim for intentional infliction of emotional
4 distress (ʺIIEDʺ). Turley, 960 F. Supp. 2d at 443–45. The defendants
5 contend that the district court erred by permitting the juryʹs verdict on that
6 claim to stand. Our review is de novo, within the strict limitations
7 explained above. See, e.g., Gronowski, 424 F.3d at 292.
8 The IIED tort is problematic. It provides a remedy for the damages
9 that arise out of a defendant engaging in ʺextreme and outrageous
10 conduct, which so transcends the bounds of decency as to be regarded as
11 atrocious and intolerable in a civilized society.ʺ Freihofer v. Hearst Corp., 65
12 N.Y.2d 135, 143, 480 N.E.2d 349, 355 (1985); accord Restatement (Second) of
13 Torts § 46 cmt. d (1965).17 To prevail on such a claim, a plaintiff must
Most if not all states recognized some version of the tort. See Yeager v. Local
17
Union 20, 6 Ohio St. 3d 369, 453 N.E.2d 666, 670 (1983) (citing for that proposition
Prosser on Torts § 12, at 56 n.81 (4th ed. 1971)), abrogated on other grounds by
Welling v. Weinfeld, 113 Ohio St. 3d 464 (2007); Twyman v. Twyman, 855 S.W.2d
619, 621–22 (Tex. 1993) (ʺToday we become the forty‐seventh state to adopt the
tort of intentional infliction of emotional distress as set out in § 46(1) of the
Restatement (Second) of Torts.ʺ). Its blurry definition and vague outer limits
differ somewhat from jurisdiction to jurisdiction.
33
13‐561
Turley v. ISG Lackawanna, Inc.
1 establish that there was ʺextreme and outrageous conduct,ʺ that the
2 conduct was undertaken with ʺintent to cause, or disregard of a substantial
3 probability of causing, severe emotional distress,ʺ and that the conduct did
4 in fact cause severe emotional distress. Howell v. N.Y. Post Co., 81 N.Y.2d
5 115, 121, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350 (1993); accord Conboy v.
6 AT&T Corp., 241 F.3d 242, 258 (2d Cir. 2001).
7 Then‐Chief Judge Kaye, writing for the New York Court of Appeals
8 in Howell, explained the courtʹs reasons for reading the IIED tort narrowly:
9 Unlike other intentional torts, intentional infliction of
10 emotional distress does not proscribe specific conduct
11 (compare, e.g., Restatement [Second] of Torts § 18 [battery]; id.,
12 § 35 [false imprisonment]), but imposes liability based on
13 after‐the‐fact judgments about the actorʹs behavior.
14 Accordingly, the broadly defined standard of liability is both a
The tort is sometimes referred to simply as ʺoutrage.ʺ See, e.g., Dworkin v. Hustler
Magazine, Inc., 867 F.2d 1188, 1191 (9th Cir.), cert. denied, 493 U.S. 812 (1989)
(Wyoming law); Leidholdt v. L.F.P., Inc., 860 F.2d 890, 892 n.2 (9th Cir. 1988)
(ʺ[Appellant] has conceded on appeal that under California and New York law
the tort of outrage is not separable from intentional infliction of emotional
distress; we accordingly consider outrage and emotional distress as one claim,
though they were separately pleaded in the complaint.ʺ) Indeed, as the
Restatement (Second) of Torts has explained:
Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse his resentment
against the actor, and lead him to exclaim, “Outrageous!”
Northrup v. Farmland Indus., Inc., 372 N.W.2d 193, 198 (Iowa 1985) (quoting
Restatement (Second) of Torts § 46 cmt. d).
34
13‐561
Turley v. ISG Lackawanna, Inc.
1 virtue and a vice. The tort is as limitless as the human
2 capacity for cruelty. The price for this flexibility in redressing
3 utterly reprehensible behavior, however, is a tort that, by its
4 terms, may overlap other areas of the law, with potential
5 liability for conduct that is otherwise lawful. Moreover,
6 unlike other torts, the actor may not have notice of the precise
7 conduct proscribed.
8 Howell, 81 N.Y.2d at 122, 612 N.E.2d at 702, 596 N.Y.S.2d at 353 (citation
9 omitted). Chief Judge Kaye went on to note that because of the
10 extraordinary barriers that had therefore been erected by New York courts
11 to recovery under an IIED theory, up until and including the time of the
12 Howell opinion – April 5, 1993 – ʺevery one [of the IIED claims considered
13 by this Court] ha[d] failed because the alleged conduct was not sufficiently
14 outrageous.ʺ Id., 612 N.E.2d at 702‐703, 596 N.Y.S.2d at 353.
15 IIED, although providing relief for plaintiffs upon occasion post‐
16 Howell, remains a ʺhighly disfavored [t0rt] under New York law.ʺ Nevin v.
17 Citibank, N.A., 107 F. Supp. 2d 333, 345–46 (S.D.N.Y. 2000). It ʺis to be
18 invoked only as a last resort,ʺ McIntyre v. Manhattan Ford, Lincoln‐Mercury,
19 Inc., 256 A.D.2d 269, 270, 682 N.Y.S.2d 167, 169 (1st Depʹt 1998), appeal
20 dismissed sua sponte, 93 N.Y.2d 919, 713 N.E.2d 418, 691 N.Y.S.2d 383, leave
21 denied, 94 N.Y.2d 753, 722 N.E.2d 507, 700 N.Y.S.2d 42 (1999); see also
22 Abshier v. Sunset Recordings, Inc., 14 Civ. 3227, 3914 (CM), 2014 WL 4230124,
35
13‐561
Turley v. ISG Lackawanna, Inc.
1 at *9, 2014 U.S. Dist. LEXIS 119742, at *23 (S.D.N.Y. Aug. 5, 2014) (ʺhighly
2 disfavoredʺ); Ibraheem v. Wackenhut Servs., Inc., 122 Fair Empl. Prac. Cas.
3 (BNA) 1590, 2014 WL 1873393, at *14, 2014 U.S. Dist. LEXIS 64475, at *41
4 (E.D.N.Y. May 9, 2014) (ʺextremely disfavoredʺ); Hogan v. J.P. Morgan Chase
5 Bank, 05 Civ. 5342 (JS), 2008 WL 4185875, at *4, 2008 U.S. Dist. LEXIS
6 118373 (E.D.N.Y. Sept. 4, 2008) (same).
7 As recognized in the New York case law, the perils of a generous
8 rendering of IIED include its possible use in an attempt, successful or
9 otherwise, to punish ill‐considered but off‐hand derogatory remarks; the
10 poorly defined elements of and limitations on the tort; and the apparent
11 prevalence in daily life, however unfortunate, of excruciatingly insulting
12 speech causing hurt feelings. Meanwhile, other well‐defined torts, such as
13 libel, slander, and (outside New York State) false light invasion of privacy
14 may be available to attack false, harmful speech while typically benefiting
15 from an old – in some cases ancient – history of extensive case‐by‐case,
16 statutory, and constitutional development. These torts may therefore
17 provide carefully delineated remedies to address offending and injurious
18 words without the lack of guidance, and the likelihood of untoward
36
13‐561
Turley v. ISG Lackawanna, Inc.
1 invasions of public speech or private conversation, that may arise when
2 IIED claims are not scrupulously limited.
3 Perhaps for these reasons, although the New York Court of Appeals
4 has not set forth detailed guidelines for when the tort may be available, it
5 has cautioned that a claim for IIED may not be sustainable ʺwhere the
6 conduct complained of falls well within the ambit of other traditional tort
7 liability.ʺ Fischer v. Maloney, 43 N.Y.2d 553, 557‐58, 373 N.E.2d 1215, 1217
8 (1978).18 Other New York courts have applied this dictum to exclude
9 claims for intentional infliction where a cause of action for defamation may
10 be asserted on the facts of the case. See, e.g., Brancaleone v. Mesagna, 290
An appellate court half a continent away recently summed up the gap‐filling
18
argument this way:
[T]he tort of IIED is a ʺgap‐fillerʺ tort which was created for the
ʺlimited purpose of allowing recovery in those rare instances in
which a defendant intentionally inflicts severe emotional distress in
a manner so unusual that the victim has no other recognized theory
of redress.ʺ Hoffmann‐La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438,
447 (Tex. 2004). The tortʹs clear purpose is to supplement existing
forms of recovery by providing a cause of action for egregious
conduct that might otherwise go unremedied. The tort of IIED
simply has no application when the actor intends to invade some
other legally protected interest, even if emotional distress results.
Thus, where the gravamen of a complaint is another tort, IIED is
not available as a cause of action.
Young v. Krantz, 434 S.W.3d 335, 344 (Tex. Ct. App. May 28, 2014) (some citations
omitted).
37
13‐561
Turley v. ISG Lackawanna, Inc.
1 A.D.2d 467, 736 N.Y.S.2d 685 (2d Dep’t 2002); Herlihy v. Metro. Museum of
2 Art, 214 A.D.2d 250, 633 N.Y.S.2d 106 (1st Dep’t 1995); Butler v. Del. Otsego
3 Corp., 203 A.D.2d 783, 610 N.Y.S.2d 664 (3d Dep’t 1994).
4 More to the point, applying these principles, some New York courts
5 have determined that plaintiffs may not bring claims for IIED when the
6 conduct and injuries alleged give rise to a statutory claim for workplace
7 discrimination.19 See McIntyre, 256 A.D.2d at 270, 682 N.Y.S.2d at 169
8 (finding ʺno reason to applyʺ IIED where damages for emotional distress
9 were available under New York Human Rights Law); Conde v. Yeshiva
10 Univ., 16 A.D.3d 185, 187, 792 N.Y.S.2d 387, 389 (1st Depʹt 2005) (similar);
11 Baliva v. State Farm Mut. Auto Ins. Co., 286 A.D.2d 953, 954, 730 N.Y.S.2d
12 655, 657 (4th Depʹt 2001) (similar). But see Funk v. F & K Supply, Inc., 43 F.
13 Supp. 2d 205, 218–20 (N.D.N.Y. 1999) (finding that IIED claims may be
14 brought alongside statutory claims); Martha Chamallas, Discrimination and
There are at least two possible rationales for this approach. One would
19
preclude IIED claims on the ground that they would permit an end‐run around
the New York legislatureʹs prohibition on punitive damages for violations of the
state Human Rights Law. See Silberstein v. Advance Magazine Publishers, Inc., 988
F. Supp. 391, 392–94 (S.D.N.Y. 1997). Another would preclude IIED claims in the
face of valid statutory or common‐law claims based on ʺthe nature of the IIED
tort itselfʺ as a tort of last resort, rather than any independent effect wrought by
the state statute. See Hoffmann‐La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 451
(Tex. 2004) (Hecht, J., concurring).
38
13‐561
Turley v. ISG Lackawanna, Inc.
1 Outrage: The Migration from Civil Rights to Tort Law, 48 Wm. & Mary L. Rev.
2 2115 (2007) (discussing the view that IIED is a tort of last resort).
3 The problematic nature of an IIED claim creates two difficult issues
4 that have the potential to affect the outcome of this appeal. The first, were
5 it squarely before us, would require us to decide whether, under New
6 York law, the plaintiff was flatly barred from maintaining a common‐law
7 ʺgap‐fillerʺ claim for IIED alongside his statutory claim for workplace
8 discrimination arising out of the same conduct and alleging the same
9 injury. In order for us, or any other court, to decide the issue, it would, we
10 think, be confronted with a choice between the general perils associated
11 with the invocation of this tort and the substantial effect that ruling out
12 IIED claims might have on the ability of some harassment plaintiffs to
13 recover punitive damages which might otherwise appear to be warranted.
14 The resolution of this question would thus ʺrequire value‐laden judgments
15 or public policy choicesʺ and might be best addressed by certifying a
16 question to the New York Court of Appeals. Nguyen v. Holder, 743 F.3d
17 311, 316 (2d Cir. 2014).
39
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Turley v. ISG Lackawanna, Inc.
1 We are spared the necessity of addressing this difficult and
2 consequential question in the present case, however, because the
3 defendants did not argue below that the IIED tort is categorically
4 unavailable in light of the plaintiffʹs pursuit of statutory remedies to
5 support their motion for judgment as a matter of law. We therefore
6 consider it to have been forfeited. See, e.g., Banco de Seguros del Estado v.
7 Mutual Marine Office, Inc., 344 F.3d 255, 264 (2d Cir. 2003).20
8 The defendants principally contend, instead, that the record contains
9 insufficient evidence to hold Sampsell and Lackawanna liable in light of
10 the high hurdles presented by New Yorkʹs rendition of the tort. As to this
11 less categorical assertion, we conclude, to the contrary, that even after
12 taking into account the gravity of the misbehavior that must be established
13 before an IIED claim will be available to a plaintiff, there is sufficient
14 evidence in the record in this case to support such a judgment.
To be sure, we may exercise our discretion to entertain a forfeited defense if
20
the contention turns on a pure question of law. See, e.g., Magi XXI, Inc. v. Stato
dell Citta del Vaticano, 714 F.3d 714, 724 (2d Cir. 2013). But we decline to do so
here inasmuch as the defendants, even in their arguments to us on appeal, do not
clearly ask that we do so, having only briefly and opaquely gestured in this
general direction, and in light of the Pandoraʹs box we might open by doing so.
See Appellantʹs Br. at 24.
40
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Turley v. ISG Lackawanna, Inc.
1 Sampsell, the plantʹs head of security, was the only person the jury
2 found liable on this claim, and his acts, the defendants contend, consisted
3 largely of failing to respond appropriately to reports of harassment. The
4 defendants argue that this kind of inaction cannot, as a matter of New
5 York law, ever give rise to an IIED claim. We disagree with the
6 defendantsʹ characterization of the facts and the law.
7 Ordinarily, the failure to respond appropriately to complaints of
8 harassment, on its own, will not be sufficiently egregious – ʺoutrageousʺ –
9 to amount to intentional infliction of emotional distress under New York
10 law. See, e.g., Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 492
11 (S.D.N.Y. 1999); Gray v. Schenectady City Sch. Dist., 86 A.D.3d 771, 773, 927
12 N.Y.S.2d 442, 445 (3d Depʹt 2011); Stallings v. U.S. Elecs., Inc., 270 A.D.2d
13 188, 188, 707 N.Y.S.2d 9, 10 (1st Depʹt 2000); Shea v. Cornell Univ., 192
14 A.D.2d 857, 858, 596 N.Y.S.2d 502, 504 (3d Depʹt 1993). General
15 bureaucratic unresponsiveness, lethargy, or a failure to understand the
16 gravity of a situation, although objectionable, is rarely if ever considered so
17 beyond the pale as to reach the extreme threshold necessary for an IIED
18 claim. But, under New York law, an IIED claim does not turn on a
41
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Turley v. ISG Lackawanna, Inc.
1 distinction between action and omission. The ultimate question remains
2 whether the conduct proven at trial, in light of all the circumstances, was
3 ʺutterly intolerable in a civilized community.ʺ Gray, 86 A.D.3d at 773, 927
4 N.Y.S.2d at 445.
5 Sampsell permitted the hate‐ridden and menacing environment to
6 persist for more than three years. On multiple occasions, he ignored, and
7 failed to discipline employees responsible for, harassment of the plaintiff.
8 He blocked the efforts of local police to investigate threats against Turley.
9 Rather than address Turleyʹs complaints, Sampsell set up a hidden camera
10 that, whatever its intended purpose, in fact surveilled Turley while he
11 worked. Although Sampsell was in charge of security for the plant, he did
12 nothing when, in his presence, Turley was subjected to a vicious barrage of
13 racial slurs. And when Turley and a witness went to Sampsellʹs office to
14 report a particularly degrading verbal assault, they found Sampsell with
15 the offending co‐worker, laughing; perhaps, the jury could have
16 concluded, as though he were a co‐conspirator.
17 In these circumstances, Sampsellʹs behavior cannot be described as a
18 simple failure to take timely action in response to a harassment complaint.
42
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Turley v. ISG Lackawanna, Inc.
1 If he failed to respond to one workplace complaint, however shocking the
2 underlying behavior, that might not be sufficiently outrageous to
3 constitute intentional infliction of emotional distress under New York law.
4 Even a sluggish or incompetent response to two, three, or four complaints
5 might not rise to clear the high bar set for this tort in this State. But
6 Sampsell was a personal witness to the ongoing and severe indignity,
7 humiliation, and torment to which the plaintiff was subjected over a
8 substantial period of time — and he was in a position to do something
9 about it. Instead, he continuously failed to respond for more than three
10 years, blocking othersʹ efforts to investigate serious threats, and, at times,
11 seeming to encourage further harassment. On these facts, we see no error
12 in either the juryʹs verdict, or the district courtʹs decision to uphold the
13 juryʹs finding that the defendantʹs conduct was outrageous, shocking, and
14 beyond the bounds of decency so as to constitute tortious behavior.
15 We also decline to disturb the juryʹs finding that Lackawanna also
16 was liable for the IIED tort. An employer may be liable for the torts of an
17 employee, provided the relevant behavior fell within the scope of
18 employment. See, e.g., Riveillo v. Waldron, 47 N.Y.2d 297, 302, 391 N.E.2d
43
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Turley v. ISG Lackawanna, Inc.
1 1278, 1281 (1979). Because it is usually motivated by something personal,
2 harassment, however egregious, ordinarily does not fall within the scope
3 of employment. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756–
4 57 (1998); Gray, 86 A.D.3d at 773, 927 N.Y.S.2d at 445. That is not always
5 the case, however. Cf. Higgins v. Metro‐N. R.R. Co., 318 F.3d 422, 426 (2d
6 Cir. 2003) (stating that ʺwork‐related outburstsʺ giving rise to IIED claim
7 can be imputed, though they were not sufficiently outrageous to pass
8 summary judgment in that case).
9 In this case, Turleyʹs IIED claim was supported by evidence that
10 Sampsell refused to use his position as head of plant security to address
11 the ongoing harassment, punish those responsible, and cooperate with
12 investigating authorities. These actions and omissions fell within
13 Sampsellʹs assigned role in the company, and may fairly be imputed to his
14 employer.
15 IV. Compensatory Damages
16 We also reject the defendantsʹ claim that the compensatory damages
17 award exceeded what is permissible. The ʺcalculation of damages is the
18 province of the jury,ʺ Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990), and
44
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Turley v. ISG Lackawanna, Inc.
1 ʺwe will not ʹvacate or reduce a jury award merely because we would have
2 granted a lesser amount of damages,ʹʺ Lore v. City of Syracuse, 670 F.3d 127,
3 177 (2d Cir. 2012) (quoting Narin v. Natʹl R.R. Passenger Corp., 837 F.2d 565,
4 566–67 (2d Cir. 1988)). We accordingly review a district courtʹs decision on
5 remittitur of compensatory damages for abuse of discretion.21 Id.
6 This discretion does, however, have its limits. Dagnello v. Long Island
7 R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961). We have observed repeatedly
8 that juries have wide latitude in setting compensation for damages,
9 stressing that our review is ʺnarrow,ʺ considering only ʺwhether the award
10 is so high as to shock the judicial conscience and constitute a denial of
11 justice.ʺ DiSorbo v. Hoy, 343 F.3d 172, 183 (2d Cir. 2003) (internal quotation
12 marks omitted). But, when juries grant large compensatory awards for
13 intangible and unquantifiable injuries, such as emotional distress, pain,
14 and suffering, we are required to subject the trial courtʹs discretion to
ʺUnder New York law, which is pertinent to the extent that [the plaintiff] was
21
found entitled to recover under the [Human Rights Law], an award is deemed
excessive ʹif it deviates materially from what would be reasonable
compensation.ʹʺ Lore, 670 F.3d at 177 (citation omitted) (quoting N.Y. C.P.L.R. §
5501(c)). Only that portion of the award allocated to the IIED claim is necessarily
an award granted under state law; the harassment award, which did not
distinguish between state and federal statutes, could be allocated entirely among
Title VII and section 1981.
45
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Turley v. ISG Lackawanna, Inc.
1 ʺsubstantial constraints.ʺ Stampf v. Long Island R.R. Co., 761 F.3d 192, 205
2 (2d Cir. 2014) (quoting Payne v. Jones, 711 F.3d 85, 97‐98 (2d Cir. 2013)).
3 Awards for mental and emotional distress are inherently speculative.
4 There is no objective way to assign any particular dollar value to distress.
5 Nonetheless, as we explained in discussing a claim of excessive punitive
6 damages in Payne, ʺa legal system has an obligation to ensure that such
7 awards for intangibles be fair, reasonable, predictable, and proportionate.ʺ
8 Payne, 711 F.3d at 93.
9 We must ensure proportionality, to control for the inherent
10 randomness of jury decisions concerning appropriate compensation for
11 intangible harm, and to reduce the ʺburdensome costs on societyʺ of over‐
12 extensive damages awards. Stampf, 761 F.3d at 205 (noting that, if
13 appellate courts regularly affirm large damages awards in the name of
14 deference to the jury, ʺthe baseline of reasonableness will be constantly
15 forced upwardʺ).
16 The jury in the case at bar awarded Turley $1,320,000 for his past
17 and future emotional distress, mental anguish, inconvenience, and loss of
18 enjoyment of life. Most of the award was compensation attributed to the
46
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Turley v. ISG Lackawanna, Inc.
1 harassment claim, with $260,000 awarded under the claim for IIED. The
2 defendants argue that the compensatory award was disproportionately
3 large relative to jury awards in similar cases. They are correct insofar as
4 there are few recorded cases in which the plaintiff claimed exclusively
5 intangible harms and received a compensatory damages award of quite
6 this magnitude. For example, in a 2012 case involving a similarly
7 protracted and vicious course of harassment, we upheld an award of $1
8 million, which the district court had reduced from $1.25 million. See Zeno
9 v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 673 (2d Cir. 2012). But, as we
10 noted at the outset of the opinion, the case before us appears to be unique,
11 combining years of grotesque psychological abuse leading to a marked
12 decline in Turleyʹs mental health and well‐being. He was hospitalized and
13 diagnosed with, inter alia, post‐traumatic stress disorder, depression, and
14 panic disorder as a result of the harassment that he suffered. These
15 injuries were extensive and well documented. The plaintiff in Zeno, by
16 contrast, does not appear to have sought medical attention for his
17 emotional injuries. Id. at 673.
47
13‐561
Turley v. ISG Lackawanna, Inc.
1 Moreover, a compensatory award of this magnitude is not entirely
2 without precedent. The Sixth Circuit in Pollard v. E.I. DuPont de Nemours,
3 Inc., 412 F.3d 657 (6th Cir. 2005), affirmed a judgment granting, among
4 other things, $1.25 million for IIED in a sexual harassment claim mirroring
5 this one in terms of length and severity. Id. at 660‐63, 666; see also Pollard v.
6 E.I. DuPont de Nemours, Inc., 338 F. Supp. 2d 865, 884 (W.D. Tenn. 2003).
7 Taking inflation into account, the Sixth Circuitʹs 2005 $1.25 million award
8 exceeds the $1.32 million compensatory damages award in this case.22
9 Smaller damages awards in cases dating back ten or more years and
10 involving less severe conduct also support affirming a larger award in this
11 case. See, e.g., Phillips v. Bowen, 278 F.3d 103, 111–12 (2d Cir. 2002)
12 (sustaining $400,000 award for distress after sheriffʹs deputy was
13 ʺshunnedʺ by colleagues and mistreated for supporting an opposing
14 candidate for sheriff); Chopra v. Gen. Elec. Co., 527 F. Supp. 2d 230, 247 (D.
15 Conn. 2007) (sustaining award of $500,000 in non‐economic damages
16 where retaliatory actions by employer caused extreme stress and poor
According to the Bureau of Labor Statisticsʹ Inflation Calculator, $1.25 million
22
in 2005 has the buying power of just over $1.5 million in 2014. CPI Inflation
Calculator, United States Department of Labor,
http://www.bls.gov/data/inflation_calculator.htm (last visited Dec. 15, 2014).
48
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Turley v. ISG Lackawanna, Inc.
1 health); Town of Hempstead v. State Div. Human Rights, 233 A.D.2d 451, 452,
2 649 N.Y.S.2d 942, 942–43 (2d Dept. 1996) (upholding $500,000 award for
3 pattern of ʺextremely lewd and offensive conductʺ over period of about
4 nine months).
5 We thus acknowledge that the juryʹs compensatory award tests the
6 boundaries of proportionality and predictability. But under the
7 exceptional and egregious facts of this case, we conclude that the $1.32
8 million compensatory award was fair and reasonable. Recognizing also
9 the deference that we owe to the district court, which was ʺcloser to the
10 evidence, and [] therefore in a better position to determine whether a
11 particular award is excessive,ʺ Gasperini v. Ctr. for Humanities, Inc., 149 F.3d
12 137, 141 (2d Cir. 1998), we will not disturb that award.
13 None of this is to say that it was proper for the jury to consider or
14 award damages on the IIED claim in the first instance under the
15 circumstances presented. As we have explained, we are not deciding
16 whether New York law allows an IIED claim in the light of the
17 simultaneous pursuit by the plaintiff of statutory causes of action for the
49
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Turley v. ISG Lackawanna, Inc.
1 same or similar injury to the plaintiff because the defendants did not
2 pursue that argument.
3 V. Punitive Damages
4 We agree with the defendants, however, that the punitive damages
5 award exceeds the bounds of reasonableness. The jury assessed $20
6 million in punitive damages against all of the corporate defendants on the
7 harassment claim, $4 million against Lackawanna on the IIED claim, and
8 $5,000 against Sampsell on the IIED claim. The district court subsequently
9 granted remittitur, which the plaintiff accepted, reducing the awards to $4
10 million, $998,750, and $1,250, respectively. We leave intact the award
11 against Sampsell, but will remand the case to the district court for
12 imposition of a remittitur as to the punitive award against the corporate
13 defendants, consistent with the discussion that follows.
14 We are required to review the district courtʹs refusal to grant a more
15 substantial remittitur as to the punitive damages award under federal
16 common law, pursuant to the federal appellate courtsʹ supervisory
17 authority over trial courts. Payne, 711 F.3d at 97, 100. In such cases, ʺa
18 degree of excessiveness less extreme than ʹgrossly excessiveʹʺ will support
50
13‐561
Turley v. ISG Lackawanna, Inc.
1 remanding for a new trial or remittitur of damages.23 Id. at 97. We
2 exercise relatively stringent control over the size of punitive awards in
3 order to ensure that such damages are ʺfair, reasonable, predictable, and
4 proportionate,ʺ to avoid extensive and burdensome social costs, and to
5 reflect the fact that punitive awards are imposed without the protections of
6 criminal trials. Id. at 93–96; see also Exxon Shipping Co. v. Baker, 554 U.S.
7 471, 499 (2008) (noting ʺthe stark unpredictability of punitive awardsʺ).
8 Our review pursuant to these supervisory powers is for abuse of discretion
9 in the denial of a reduction, but ʺthe degree of discretion enjoyed by trial
10 courts in these matters is relatively narrow.ʺ Payne, 711 F.3d at 100.
11 Large punitive damages awards also implicate constitutional due
12 process principles. See Honda Motor Co. v. Oberg, 512 U.S. 415, 420 (1994);
13 accord Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436
14 (2001). ʺTo the extent an award is grossly excessive, it furthers no
15 legitimate purpose and constitutes an arbitrary deprivation of property.ʺ
Our pre‐Payne case law explained that we would disturb a punitive damages
23
award only if it ʺshocks our judicial conscience.ʺ See, e.g., Lee v. Edwards, 101 F.3d
805, 809 (2d Cir. 1996). It appears that this standard continues to apply to our
review under federal common law, although, in light of the panelʹs opinion in
Payne, it may be that the judicial conscience is now ʺmore easily shocked.ʺ Payne,
711 F.3d at 97.
51
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Turley v. ISG Lackawanna, Inc.
1 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003). We
2 review de novo a district courtʹs determination that a punitive damages
3 award is not grossly excessive in violation of the United States
4 Constitution. Cooper Indus., 592 U.S. at 436; Payne, 711 F.3d at 100.
5 Where, as here, the defendant challenges an award on both
6 constitutional and non‐constitutional grounds, we conduct our review first
7 under federal common law, asking whether the district court abused its
8 discretion in determining that the punitive damages award was
9 appropriate. Cf. Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617, 625 (7th Cir.
10 2000) (explaining that constitutional limitations should ʺcome into play
11 only after the assessment [of punitive damages] has been tested against
12 statutory and common‐law principlesʺ). If we uphold a punitive damages
13 award, or if we order the award reduced, the resulting figure ultimately
14 must survive constitutional scrutiny.
15 The Supreme Court has articulated three ʺguidepostsʺ for reviewing
16 punitive damages awards. They apply irrespective of whether our review
17 is constitutional or supervisory in nature. Payne, 711 F.3d at 101 & n.13.
18 We consider: (1) ʺthe degree of reprehensibilityʺ associated with the
52
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Turley v. ISG Lackawanna, Inc.
1 defendantsʹ actions; (2) ʺthe disparity between the harm or potential harm
2 sufferedʺ and the size of the punitive award; and (3) the difference
3 between the remedy in this case and the penalties imposed in comparable
4 cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).
5 With respect to the first aspect of our review, the district court ably
6 explained the gravity of the defendantsʹ actions:
7 The overt racist harassment lasted for more than three years. It did
8 not improve with time; it escalated. Investigations were feeble and
9 perfunctory; responses were cursory. Defendants exhibited an
10 indifference to Turleyʹs health, safety, and general well‐being. The
11 effect this had on Turley has already been detailed. It is enough to
12 note here that it was deleterious and pervasive.
13 Turley, 960 F. Supp. 2d at 451. These conclusions, wholly supported by the
14 evidence, are sufficient to support a finding that the conduct at issue was
15 egregious in the extreme. See State Farm, 538 U.S. at 419 (setting out
16 criteria for identifying reprehensibility).
17 The disparity between the punitive damages award and the already
18 sizable compensation, however, gives us pause. As a general matter, the
19 four‐to‐one ratio24 of punitive to compensatory damages awarded is ʺclose
20 to the line of constitutional impropriety.ʺ State Farm, 538 U.S. at 425 (citing
The ratio between compensatory and punitive damages is 4:1 after the district
24
courtʹs remittitur.
53
13‐561
Turley v. ISG Lackawanna, Inc.
1 Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23–24 (1991)). And where, as
2 here, the compensatory damages award is imprecise because of the nature
3 of the injury and high when compared with similar cases, ʺa lesser ratio,
4 perhaps only equal to compensatory damages, can reach the outermost
5 limit of the due process guarantee.ʺ Id. The district courtʹs extensive
6 damages judgment here therefore tests these constitutional limits.
7 Constitutional limitations aside, moreover, we are duty‐bound to
8 ensure that the award is ʺfair, reasonable, predictable, and proportionate.ʺ
9 Payne, 711 F.3d at 93. Where the compensatory award is particularly high,
10 as the one in this case assuredly was, a four‐to‐one ratio of punishment to
11 compensation, in our view, serves neither predictability nor
12 proportionality. As noted, this is particularly so where the underlying
13 compensation is, as it is in this case, for intangible—and therefore
14 immeasurable—emotional damages. Imposing extensive punitive
15 damages on top of such an award stacks one attempt to monetize highly
16 offensive behavior, which effort is necessarily to some extent visceral,
17 upon another. Cf. Baker, 554 U.S. at 500 (noting the uncertainties associated
18 with punitive damages); Cass R. Sunstein, Daniel Kahneman & David
54
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Turley v. ISG Lackawanna, Inc.
1 Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation
2 in Law), 107 Yale L.J. 2071, 2131–33, 2135 (1998) (explaining that awards for
3 emotional distress suffer from substantial unpredictability, deriving from
4 uncertainties in translating ʺunderlying moral judgments into dollar
5 amountsʺ). Our commitment to reducing arbitrariness in damages awards,
6 reining in excessiveness, and ensuring some degree of proportionality thus
7 weighs in favor of enforcing a tighter relationship between the harm
8 suffered and the punishment imposed.
9 A lower award also is necessary to bring the punitive damages in
10 this case into alignment with comparable awards in other cases. Upon
11 reviewing the Second Circuit and New York cases brought to our
12 attention, it appears that punitive awards for workplace discrimination
13 rarely exceed $1.5 million.25 See, e.g., Hill v. Airborne Freight Corp., 212 F.
The defendants contend that the award should be reduced far more
25
drastically in light of damages limitations and civil penalties imposed by certain
anti‐discrimination statutes. For example, Title VII caps total recovery, including
punitive damages, at $300,000. 42 U.S.C. § 1981a(b)(3). The New York Human
Rights Law does not permit the recovery of punitive damages, but permits the
imposition of civil penalties of up to $100,000. See N.Y. Exec. Law § 297(4)(c)(vi),
(9). Although ʺa reviewing court engaged in determining whether an award of
punitive damages is excessive should accord substantial deference to legislative
judgments concerning appropriate sanctions for the conduct at issue,ʺ Gore, 517
U.S. at 583 (internal quotation marks omitted), these examples are not so
55
13‐561
Turley v. ISG Lackawanna, Inc.
1 Supp. 2d 59, 76–77 (E.D.N.Y. 2002) (awarding $1 million, spread across
2 multiple plaintiffs, for discrimination and retaliatory conduct); Greenbaum
3 v. Handelsbanken, 67 F. Supp. 2d 228, 269–71 (S.D.N.Y. 1999) (Sotomayor, J.)
4 (upholding $1.25 million award in sex discrimination case, noting that the
5 defendantsʹ actions, while malicious and deceitful, were ʺcertainly less
6 reprehensible than the worst imaginable violationsʺ); McIntyre, 256 A.D.2d
7 at 271, 682 N.Y.S.2d at 169 (remitting award to $1.5 million in case
8 concerning harassment, retaliatory discharge, and IIED). A $5 million
9 punitive damages award that is four times higher than the underlying
10 compensation therefore appears to us to be excessive by comparison.
11 Attempting to take all of these factors into account, we conclude that
12 a roughly 2:1 ratio of punitive damages to what, by its nature, is
powerful as to require drastic reductions in the punitive damages award. The
punitive damages in this case were awarded under 42 U.S.C. § 1981, and
Congress has made a considered judgment not to cap recovery under that statute.
See 42 U.S.C. § 1981a(a)(1) (explaining that the damage limitations provision
apply only to the extent that ʺthe complaining party cannot recover under section
1981 of this titleʺ). We therefore think the cases canvassed above provide a more
apt guide than the statutory caps for gauging the appropriate degree of punitive
damages in this case. See Greenbaum v. Handelsbanken, 67 F. Supp. 2d 228, 271
(S.D.N.Y. 1999) (Sotomayor, J.) (noting that, in light of analogous case law,
applicable statutes, and the defendantʹs characteristics, it would not be
unreasonable to expect a punitive damages award of $1 million or more for
comparable misconduct).
56
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Turley v. ISG Lackawanna, Inc.
1 necessarily a largely arbitrary compensatory award, constitutes the
2 maximum allowable in these circumstances. The district courtʹs failure to
3 impose a remittitur or grant a new trial if the plaintiff would not accept an
4 award in such an amount constituted an abuse of discretion by imposing
5 excessive punitive damages that undermine systemic goals of
6 predictability and proportionality. See Payne, 711 F.3d at 93–100. Our
7 order with respect to the remittitur applies only to the portion of the
8 punitive damages award assessed against the corporate defendants. In
9 light of its modest size, the relatively limited award of $1,250 in punitive
10 damages imposed on Sampsell does not, even after taking into account
11 what may well be modest assets of this individual defendant, implicate
12 limitations of a constitutional or non‐constitutional nature.
13 Because the defendants also raise a constitutional challenge, we
14 must decide whether a reduced award yielding an approximate 2:1 ratio of
15 punitive to compensatory damages would be so grossly excessive as to fall
16 outside the boundaries of due process. See, e.g., State Farm, 538 U.S. at 417.
17 As we have noted, the Supreme Court has cautioned that, when a
18 compensatory award is particularly high, a 1:1 ratio between
57
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Turley v. ISG Lackawanna, Inc.
1 compensation and punishment may be the maximum award permitted by
2 the Constitution. Id. at 425. We do not think that a 1:1 ratio is required in
3 the case at bar, though, in light of the extreme nature of the defendantsʹ
4 conduct. Cf. Gore, 517 U.S. at 575 (explaining that reprehensibility is
5 ʺ[p]erhaps the most important indicium of the reasonableness of a punitive
6 damages awardʺ); Thomas v. iStar Fin., Inc., 652 F.3d 141, 149‐50 (2d Cir.
7 2010) (per curiam) (affirming a remittitur requiring an approximately 1.5:1
8 ratio in light of ʺthe moderate level of reprehensibility of [the defendantʹs]
9 conductʺ). We think that in the aggravated circumstances of this case, an
10 approximate 2:1 ratio is both permissible under the Constitution and
11 consistent with the established policies adopted and adhered to by this
12 Court. We are not called upon to, at least at this time, and do not, decide
13 whether a more sizable punitive award would be constitutionally
14 permissible.
15 We note, finally, a lurking question raised by this appeal; fortunately
16 one we think we can avoid deciding, at least at for the time being. We are
17 remanding for a further remittitur to be imposed with respect to punitive
18 damages. Remittiturs are a common procedure used by the courts to, in
58
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Turley v. ISG Lackawanna, Inc.
1 effect, reduce the amount of a damage award that the court concludes is
2 impermissibly high.26 They are, though, rather odd devices designed to
3 accomplish indirectly what the Constitution generally prohibits judges
4 from doing directly – overriding the verdict of a jury despite the Seventh
5 Amendmentʹs guarantee to the plaintiff of a jury trial in civil cases.
6 Remittitur is defined as the process by which a court compels a
7 plaintiff to choose between the reduction of an excessive
8 verdict and a new trial. If the plaintiff rejects the specified
9 reduction in the amount of damages, the court must grant a
10 new trial to avoid depriving the plaintiff of the Seventh
11 Amendment right to a jury trial; the court does not have the
12 option of entering judgment for the reduced amount without
13 the plaintiffʹs consent.
14 Moore et al., Mooreʹs Federal Practice § 59.13[2][g][iii][A], p. 59‐82 (3d ed.
15 2013) (footnote omitted).
16 In this appeal, we decide the issue of what we view, in our
17 supervisory function, as excessive punitive damages, concluding with a
26 This practice goes back to the opinion of Justice Story sitting at circuit
in 1822 in Blunt v. Little[, 3 F. Cas. 760 C.C.D. Mass. 1822) (No. 1578)]. A
number of Supreme Court decisions accepted Justice Storyʹs view
uncritically and the power of the court to set remittitur has been
uniformly accepted by the lower courts.
11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2815, p. 160 (3d ed. 1993); see also id. at p. 163 (discussing the opinion by
Justice Sutherland in Dimick v. Schiedt, 293 U.S. 474 (1935), a case
addressing the forbidden practice of additur, which ʺshowed the shaky
foundation on which the remittitur practice standsʺ).
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Turley v. ISG Lackawanna, Inc.
1 judgment requiring imposition of a remittitur by the district court.27 We
2 leave for another day the question of whether, if we decided that the
3 punitive award was excessive on constitutional grounds, we could or
4 would directly order a reduction in the punitive award rather than using
5 the remittitur procedure. We think this might well be permissible because,
6 unlike in the usual case of remittitur, we would be concluding that the
7 award was unconstitutional, rather than unduly high. Its
8 unconstitutionality might well give us the ability to directly order a
9 reduction of the award pursuant to the due process guarantees of the Fifth
10 Amendment despite the Seventh Amendment civil jury guarantee.28
The Circuit may impose remittitur directly, but in this case we choose to leave
27
the precise calculation of punitive damages to the district courtʹs discretion.
The observation in Mooreʹs Federal Practice, anchored by its citations to
28
judgments in other Circuits, that ʺwhen a court finds that a damages award is
excessive as a matter of law because it exceeds due‐process limits, a reduction of
the award to the constitutional maximum does not interfere with the right to a
jury trial, and the court need not offer the plaintiff the option of a new trial,ʺ
Moore et al., Mooreʹs Federal Practice § 59.13[2][g][iii][A], p. 59‐83 (3d ed. 2013),
seems to us, at first blush, to be persuasive. We note, though, that at least one
panel of this Court in a similar situation nonetheless imposed a remittitur to
vindicate a defendantʹs due process right to reduce an unconstitutionally high
punitive award. Fabri v. United Techs. Intʹl, Inc., 387 F.3d 109, 125 (2d Cir. 2004)
(holding that the punitive damages award was unconstitutionally high, but
nonetheless ordering ʺa new trial on punitive damages unless plaintiffs agree to a
reduction, in an amount to be determined by the district court, in their punitive
damagesʺ).
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Turley v. ISG Lackawanna, Inc.
1 Depending on the remittitur proceedings on remand, this issue may well
2 be or become moot in the case before us. We therefore do not decide it, at
3 least at this time.
4 CONCLUSION
5
6 For the foregoing reasons, we VACATE the district courtʹs punitive
7 damages award, and REMAND for imposition of a remittitur ordering a
8 reduced punitive damages award against the corporate defendants or, if
9 the plaintiff does not accept the reduced award, a new trial. The judgment
10 of the district court is in all other respects AFFIRMED.
61