14‐1753‐cv
Adam Wiercinski v. Mangia 57, Inc., et al.
In the
United States Court of Appeals
For the Second Circuit
________
August Term, 2014
No. 14‐1753‐cv
ADAM WIERCINSKI,
Plaintiff‐Appellant,
v.
MANGIA 57, INC., SASHA MUNIAK, ARTUR ZBOZIEN, MALGORZATA
CYMANOW, GRZEGORZ SAROSIEK, ROBERT BAZGIER, AND DARIUSZ
MASLANKA,
Defendants‐Appellees.
________
Appeal from the United States District Court
for the Eastern District of New York.
No. 09‐cv‐4413 (ILG) ― I. Leo Glasser, Judge.
________
Submitted: February 6, 2015
Decided: May 21, 2015
________
Before: PARKER, HALL, and LIVINGSTON, Circuit Judges.
________
Plaintiff‐appellant Adam Wiercinski appeals from a judgment
of the United States District Court for the Eastern District of New
York (I. Leo Glasser, Judge). The jury returned a verdict in favor of
No. 14‐1753‐cv
Wiercinski on his claim of hostile work environment in violation of
42 U.S.C. § 1981 and awarded him nominal damages of $1 and
punitive damages of $900,000. Following the verdict, defendants‐
appellees moved pursuant to Rule 50(b) of the Federal Rules of Civil
Procedure for remittitur of the jury’s punitive damages award, or in
the alternative, for a new trial on punitive damages, while
Wiercinski applied for fees and costs. The district court vacated the
jury’s liability verdict and denied Wiercinski’s application for fees.
We AFFIRM the district court’s ruling only to the extent that it
vacated the award of punitive damages. We REVERSE the district
court’s denial of Wiercinski’s application for fees and costs, and
REMAND for the calculation and award of appropriate fees.
________
MATTHEW J. BLIT, Levine & Blit, PLLC, New York,
NY, for Plaintiff‐Appellant Adam Wiercinski.
DANIEL J. KAISER (Henry L. Saurborn, Jr., on the
brief), Kaiser Saurborn & Mair, P.C., New York,
NY, for Defendants‐Appellees Mangia 57 Inc., Sasha
Muniak, Artur Zbozien, Malgorzata Cymanow,
Grzegorz Sarosiek, Robert Bazgier, and Dariusz
Maslanka.
________
BARRINGTON D. PARKER, Circuit Judge:
Adam Wiercinski, a Polish man of Jewish descent, immigrated
to the United States in 1981 with the assistance of Rav‐Tov
International Jewish Rescue Organization (“Rav‐Tov”), a community
organization helping Jews resettle in Israel and the United States.
Starting in approximately 1984 and continuing until December 2007,
Wiercinski worked as a deliveryman for Mangia, a food catering
company with several locations in Manhattan.1 All Mangia locations
1
For purposes of this opinion, “Mangia” refers either to the umbrella entity, or to the
appellees. All references to specific Mangia locations will include the branch name.
2
No. 14‐1753‐cv
are owned by Sasha Muniak. Malgorzata Cymanow, Muniak’s
sister, served as the general manager of all Mangia locations
throughout the period of Wiercinski’s employment.
There were only two notable breaks in Wiercinski’s
employment by Mangia during this 23 year period. Wiercinski left
the Mangia 56 location in approximately 1989 and worked as a
security officer until he returned to work at the Mangia 48 location
in 1992. In 1998, Wiercinski was fired by his manager at the Mangia
48 location, allegedly because of that manager’s anti‐Semitism.
Shortly thereafter Wiercinski asked his friend and Rav‐Tov sponsor,
Zindel Zelmanovitch, to help him get his job back. Zelmanovitch
approached Muniak and Cymanow and convinced them to rehire
Wiercinski. They did so and Wiercinski then worked at Mangia’s
Wall Street branch.
In 1999, Wiercinski asked Zelmanovitch to help him transfer
from the Wall Street location to the Mangia 57 location because it
“was the busiest location in the midtown” and Wiercinski believed
he would “be able to earn some decent money” at that branch. JA
89, 91. Wiercinski worked at Mangia 57 until he took an extended
leave of absence to visit family in Poland in late 2007. When he
returned in early 2008, he asked to be rehired at Mangia and was
rejected.
In October 2009, Wiercinski sued Mangia 57 and six
individual defendants (together, “Mangia”), alleging discrimination
on the basis of religion and national origin, retaliation, conspiracy,
wrongful termination, and violation of various New York State and
City laws. Wiercinski alleged that a night shift manager, Artur
Zbozien, verbally harassed and abused him with anti‐Semitic slurs
such as “stinking jew,” “dirty Jew,” “Jewish pederast,” and “kike”
throughout Wiercinski’s eight year period of employment at Mangia
3
No. 14‐1753‐cv
57. In October 2013, following several years of motion practice, the
parties proceeded to trial on Wiercinksi’s sole remaining claim –
hostile work environment under Section 1981.
The evidence presented by both sides was almost entirely
testimonial. Wiercinski recounted multiple instances of Zbozien’s
harassing conduct. For example, Wiercinski testified that on the first
day of work, he accidentally bumped into Zbozien while carrying
boxes, to which Zbozien responded, “did anybody ever fuck you up,
you stupid fucking Jew.” JA 93. Wiercinski also said that, on several
occasions, Zbozien paid out Wiercinski’s tips in pennies and threw
them on the floor. JA 96‐97. Wiercinski recalled that Zbozien
sometimes passed gas in front of him, laughed, and said, “here is
your Zyklon B that was used to gas Jews in the concentration
camps.” JA 100. According to Wiercinski, Zbozien used anti‐Semitic
slurs “at least a dozen times” over the eight years during which
Wiercinski worked at Mangia 57. JA 102.
Wiercinski also introduced testimony from three former co‐
workers, who testified in detail about the specific instances
described above and explained that Wiercinski commonly
complained to them and others about the anti‐Semitic slurs he was
subject to. See, e.g., JA 106‐107, 179‐180, 195, 202. Nevertheless,
Wiercinski admitted that he never looked for another job during the
eight years of harassment from Zbozien, and in fact, asked to be
transferred to Zbozien’s night shift, a request that Mangia granted.
Wiercinski testified that he complained to Cymanow about
the harassment “on several occasions, but then she always
discouraged [him] [from] com[ing] back.” JA 109. According to
Wiercinski, he spoke with Cymanow “at least ten times” about
Zbozien and other individuals “calling [him] dirty names about [his]
Jewish religion.” JA 110. The only result of these conversations,
4
No. 14‐1753‐cv
according to Wiercinski, was Cymanow’s decision to transfer
Zbozien to Mangia Wall Street. Zbozien returned to Mangia 57
approximately three weeks later. Shortly after Zbozien returned,
Wiercinski was transferred to a different shift, again apparently
upon his own request. See JA 366‐367 (8/8/07 affidavit of Artur
Zbozien) (“Wiercinski was transferred to work on the day shift,
while I continued to work the night shift. Since then, I have had
very limited contact with [him].”); JA 108 (testimony of Wiercinski)
(“At th[e] time [that Zbozien returned] I think I was off the night
shift. . . . I quit the night shift and became [a] part‐time delivery
person”). According to Wiercinski, Cymanow was herself “known
for being anti‐Semitic,” although his only specific allegation of such
behavior was her occasional use of a Polish term for Jews that
Wiercinski characterized as “not very derogatory.” JA 124. Other
than these alleged complaints to Cymanow, Wiercinski testified that
he commonly complained to his coworkers and brought the issue to
Muniak’s attention in 2007. Wiercinski stated that as a result of
Zbozien’s harassment, he suffered from depression, anxiety, and
sleep issues, although he did not present any medical evidence as to
these problems.
On cross‐examination, Mangia undertook to impeach
Wiercinski’s credibility but was thwarted as a result of his repeated
invocation of the Fifth Amendment privilege against self‐
incrimination. Specifically, Wiercinski invoked the Fifth
Amendment privilege when cross‐examined about his use of a
different name for payroll purposes while at Mangia, his failure to
report income earned at Mangia on tax returns, his application for
and receipt of Social Security and other public assistance benefits
without reporting income earned at Mangia, and his failure to report
income earned at Cucina, a catering company where Wiercinski
5
No. 14‐1753‐cv
worked after his termination in 2007.2 See JA 125‐131, 134‐136, 153‐
159. Although Mangia was, at times, able to impeach Wiercinski
using prior deposition testimony, see, e.g., JA 130 (Wiercinski
deposition testimony admitting that he used a different name to
receive income earned at Mangia in order to conceal it from
government authorities), its ability to present a defense was
significantly hampered by Wiercinski’s obstructive behavior during
cross‐examination. In total, Wiercinski invoked the Fifth
Amendment at least twenty four times over the course of a brief
cross‐examination, including in response to questions as basic as
whether or not he recalled giving prior deposition testimony. See JA
127‐129.
Mangia also attacked the credibility of Wiercinski’s witnesses
by impeaching their trial testimony with prior inconsistent
deposition testimony. See, e.g., JA 182 (deposition testimony of
Marian Krajewski stating that he could not remember instances of
anti‐Semitic slurs directed at Wiercinski); JA 202, 215‐216 (deposition
testimony of Marcin Swiderski and Jaroslaw Ubowski stating that
2
The district court instructed the jury about the invocation of the Fifth Amendment as
follows:
During the course of the trial, you have heard Mr. Wiercinski assert the
Fifth Amendment to a series of questions which were put to him. You
may, I suppose, during the course of your common experience and life,
have heard references to a person taking the Fifth. It is refusing to
answer a question because the claim is that if I answered it I might be
incriminating myself. That’s the basis of the Fifth Amendment.
In a civil case when a person takes the Fifth Amendment, the jury has a
right to infer – they may, but they are not required to infer – an adverse
inference by virtue of the fact that the witness asserted the Fifth
Amendment. The jury may infer but they are not required to infer that
the answer which the witness would have given, had he answered it,
would have been unfavorable to him.
JA 345.
6
No. 14‐1753‐cv
Wiercinski never complained to them about anti‐Semitism). At the
conclusion of plaintiff’s case, Mangia moved for a directed verdict
on the ground that Wiercinski’s testimony was not credible, citing to
the inconsistencies in his testimony and his pervasive invocation of
the Fifth Amendment. The district court denied the motion because
it was “based on questions of credibility,” which are in the domain
of the jury. JA 221.
Mangia introduced five witnesses in its case‐in‐chief. Robert
Ranfranz, a former co‐worker of Wiercinski’s and Mangia’s current
director of operations, testified that he received a phone call from
Wiercinski in August 2007, shortly before Wiercinski left the
company and that he offered him a bribe. Specifically Wiercinski
told Ranfranz that “he is not happy with the way that things are
going at Mangia [or] Zbozien, and he said he is thinking about
opening a case, suing the company, and he asked [Ranfranz] if [he]
will testify for him. [Wiercinski] said that he will offer [Ranfranz]
[one] thousand or $2,000 as an exchange, and that if he wins the
lawsuit [they] can speak about additional money after the case.” JA
225.
Zelmanovitch also testified about his extensive relationship
with Wiercinski, and recalled that even though Wiercinski
frequently spoke to him about work and compensation issues, he
never mentioned that he was subject to anti‐Semitic harassment at
work. Zbozien testified and denied using anti‐Semitic slurs against
Wiercinski. Zbozien admitted that Cymanow transferred him to
Mangia Wall Street for a brief period because of Wiercinski’s
complaints, but could not remember whether he knew at the time
that those complaints alleged anti‐Semitic remarks. Cymanow
denied ever being told by Wiercinski of alleged anti‐Semitic
remarks, and claimed that she fired Wiercinski in 2007 because of job
7
No. 14‐1753‐cv
performance issues and because he requested too much vacation
time. Finally, another former deliveryman testified that he never
heard Zbozien make anti‐Semitic remarks, and that Wiercinski never
complained to him about anti‐Semitism in the office, even though
they were both Jewish and discussed Jewish holidays and other
topics.
The jury found Mangia liable under Section 1981, concluding
on a special verdict form that Wiercinski was subjected to a hostile
work environment based on conduct “perpetrated by his
supervisor(s)” but not “perpetrated by his coworker(s).” The jury
awarded Wiercinski nominal damages in the amount of $1 and
punitive damages in the amount of $900,000. The verdict form did
not require the jury to name which supervisor, or supervisors,
subjected Wiercinski to a hostile work environment.3 Following the
verdict, Wiercinski applied for an award of attorneys’ fees and costs,
and Mangia moved, pursuant to Rules 50 and 59, for remittitur of
the punitive damages award, or in the alternative, a new trial on the
issue of punitive damages.
Although Mangia moved only for relief as to the punitive
damages award, the district court vacated the jury’s liability verdict,
conditionally granted Mangia’s motion for a new trial on the issue of
punitive damages, and denied Wiercinski’s application for fees and
costs. Wiercinski v. Mangia 57, Inc., 33 F. Supp. 3d 118 (E.D.N.Y.
2014). In reaching this decision, the district court concluded,
[h]aving seen and heard the witnesses and having a firm hold on
and not merely a feel, for every jot and title of this case, I am
driven to the determination that a judgment entered for the
defendant pursuant to Rule 50(b) notwithstanding the verdict, is
3
Neither party requested a more detailed verdict form or a jury instruction on
the definition of “supervisor,” which was the subject of the Supreme Court’s decision
in Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
8
No. 14‐1753‐cv
the only determination that reasonable and fair‐minded persons
could arrive at and to do less would be to endorse a gross
miscarriage of justice.
Id. at 128. The district court found that Wiercinski’s repeated
invocation of the Fifth Amendment severely impacted his credibility
and limited Mangia’s opportunity to mount a defense. The district
court was, no doubt, also deeply troubled by essentially unrebutted
testimony that Wiercinski had offered to purchase the testimony of a
witness. Further, the district court found the plaintiff’s witnesses to
be incredible, finding that “[t]heirs was the glib testimony of school
witnesses reciting a lesson, a parody of Wiercinski’s. The glaring
inconsistencies between their testimony at trial and at depositions
years earlier are vital to note for their relevance in arriving at a
reasoned and comprehensive disposition . . . .” Id. at 134 (internal
quotation marks omitted). The district court also concluded there
was no evidence in the record to support a conclusion that Zbozien
was a supervisor as that term has been defined by the Supreme
Court. See id. at 136.
By contrast, the district court found the testimony of Mangiaʹs
witnesses to be more credible. Specifically, the district court noted
that Cymanow had been family friends with Wiercinski for 30 years,
and testified that she never directed or heard anyone direct any
anti‐Semitic remarks at Wiercinski at work. The district court also
noted that Zelmanovitch testified that he knew Wiercinski for 25
years, and that Wiercinski had never told him that he was facing this
kind of harassment at work, even though Wiercinski had come to
him with many other problems over the years. See id. at 133.
Finally, the district court cited evidence that Wiercinski stayed at the
job for years, despite the allegedly hostile environment and in fact,
asked to be assigned to the night shift where Zbozien is the
9
No. 14‐1753‐cv
dispatcher, as undermining Wiercinski’s testimony and supporting
Mangia’s witnesses. See id. at 134. Wiercinski filed a timely appeal
from this decision.
STANDARD OF REVIEW
This Court reviews de novo a district court’s decision to vacate
a jury verdict pursuant to Rule 50(b). See Tepperwien v. Entergy
Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011). A judgment
notwithstanding the verdict “‘may only be granted if there exists
such a complete absence of evidence supporting the verdict that the
jury’s findings could only have been the result of sheer surmise and
conjecture, or the evidence in favor of the movant is so
overwhelming that reasonable and fair minded [persons] could not
arrive at a verdict against [it].’” Brady v. Wal‐Mart Stores, Inc., 531
F.3d 127, 133 (2d Cir. 2008) (quoting Luciano v. Olsten Corp., 110 F.3d
210, 214 (2d Cir. 1997) (alterations in original)). “The motion should
be granted only if the court can conclude that, with credibility
assessments made against the moving party and all inferences
drawn against the moving party, a reasonable juror would have
been compelled to accept the view of the moving party. The court
cannot assess the weight of conflicting evidence, pass on the
credibility of witnesses, or substitute its judgment for that of the
jury.” Fairbrother v. Morrison, 412 F.3d 39, 48 (2d Cir. 2005) (internal
citation, quotation marks, and brackets omitted).
DISCUSSION
I. Liability Verdict
Section 1981 provides, in pertinent part, that “[a]ll persons
within the jurisdiction of the United States shall have the same right
. . . to make and enforce contracts . . . as is enjoyed by white citizens .
. . .” 42 U.S.C. § 1981(a). “This section thus outlaws discrimination
with respect to the enjoyment of benefits, privileges, terms, and
10
No. 14‐1753‐cv
conditions of a contractual relationship, such as employment . . . .”
Patterson v. Cnty. of Oneida, 375 F.3d 206, 224 (2d Cir. 2004). The
same “core substantive standards that apply to claims of
discriminatory conduct in violation of Title VII [of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.] are also applicable to claims of
discrimination in employment in violation of § 1981 . . . .” Id. at 225.
To prove a hostile work environment claim under Title VII, a
plaintiff must show that his “workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations and
quotation marks omitted). “[T]he conduct complained of must be
severe or pervasive enough that a reasonable person would find it
hostile or abusive, and the victim must subjectively perceive the
work environment to be abusive.” Raspardo v. Carlone, 770 F.3d 97,
114 (2d Cir. 2014) (citation omitted). Relevant factors in determining
whether the conduct is sufficiently pervasive “include the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Harris, 510 U.S. at 23.
An employer’s liability for hostile work environment claims
depends on whether the underlying harassment is perpetrated by
the plaintiff’s supervisor or his non‐supervisory co‐workers. If the
harassment is perpetrated by the plaintiff’s “non‐supervisory co‐
workers, an employer’s vicarious liability depends on the plaintiff
showing that the employer knew (or reasonably should have
known) about the harassment but failed to take appropriate
remedial action.” Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir.
11
No. 14‐1753‐cv
2004). An employer is strictly liable for harassment perpetrated by a
supervisor, unless the employer is able to establish an affirmative
defense showing that it “exercised reasonable care to prevent and
correct [] any . . . harassing behavior” and that the plaintiff
“unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer to avoid harm
otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
In Vance v. Ball State University, the Supreme Court explained
that an employee is a “supervisor” for purposes of the employer’s
vicarious liability under Title VII if he or she is empowered by the
employer “to take tangible employment actions against the victim,
i.e., to effect a ‘significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change
in benefits.’” 133 S. Ct. 2434 , 2443 (2013) (quoting Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). In other words, a supervisor
is an individual “‘empowered by the company as a distinct class of
agent to make economic decisions affecting other employees under
his or her control.’” Id. at 2448 (quoting Ellerth, 524 U.S. at 762)
(emphasis omitted).
The district court “determined that a judgment should be
entered for the defendant notwithstanding the verdict (pursuant to
Rule 50(b)) because [it] ha[d] a feel of this case that is indelibly
engraved upon [its] consciousness for having seen and heard the
witnesses and with an awareness of the nuances of their testimony . .
. .” Wiercinski, 33 F. Supp. 3d at 135. Although we fully understand
the district court’s concerns, we cannot agree with its explanation for
vacating the liability verdict. This was a case based entirely on
testimonial evidence from both parties. The district court was
“required to consider the evidence in the light most favorable to the
12
No. 14‐1753‐cv
party against whom the motion was made,” and to “disregard all
evidence favorable to the moving party that the jury is not required
to believe.” Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001)
(internal citations omitted) (emphasis omitted). Although the district
court was justifiably concerned by what it correctly perceived to be
troubling conduct by Wiercinski and his witnesses, the jury was
properly instructed on how to consider Wiercinski’s testimony in
light of the invocation of the Fifth Amendment and chose to credit
his version of the events, as well as the testimony of his witnesses.
Given that testimony, the jury could rationally have concluded that
Zbozien subjected Wiercinski to a hostile work environment. The
district court’s rejection of the jury’s conclusion was essentially
grounded in the type of evidence weighing and credibility
determinations that are not permitted by Rule 50(b).
Alternatively, the district court found that the jury’s verdict of
supervisory liability could not be sustained because Zbozien was not
a “supervisor” as defined by the Supreme Court in Vance. The
district court held that Zbozien “was merely a dispatcher who
assigned catering orders to individual delivery boys, one of whom
was Wiercinski. Although these assignments could affect the
amount earned in tips [because larger deliveries typically have
larger tips], this is insufficient to establish supervisor status because
such assignments do not constitute tangible employment action.”
Wiercinski, 33 F. Supp. 3d at 136 (internal citations and quotation
marks omitted).
Similarly, in light of the circumstances of this case, we cannot
accept this alternative basis. We need not determine whether
Zbozien satisfies the Vance definition of “supervisor,” because the
district court failed to acknowledge that the jury’s conclusion that
the harassment was not perpetrated by co‐workers is necessarily
13
No. 14‐1753‐cv
based on its determination that Zbozien is a supervisor. Neither
party requested an instruction as to the definition of “supervisor”
under Vance, nor was the jury provided a list of potential supervisors
or co‐workers who allegedly harassed Wiercinski. Thus, even if the
jury had been instructed that Zbozien could not be a “supervisor” as
a matter of law, he certainly would have been a “co‐worker.” The
jury could have credited Wiercinski’s testimony that he informed
Cymanow of the harassment and concluded that Mangia was
vicariously liable for the harassing conduct of a co‐worker (that is,
Zbozien) because Cymanow, a supervisory agent of Mangia, knew,
or should have known, of his conduct and failed to remedy the
harassment. For these reasons, we reverse the district court’s ruling
insofar as it vacates the liability verdict and award of nominal
damages in the amount of $1.
II. Punitive Damages
Punitive damages are “‘a discretionary moral judgment’ that
the defendant has engaged in conduct that is so reprehensible that it
warrants punishment.” Tolbert, 242 F.3d at 77 (quoting Smith v.
Wade, 461 U.S. 30, 52 (1983)). The showing required for an award of
punitive damages is not the same as that required for liability.
Rather, punitive damages may be awarded for claims of
employment discrimination only where the employer “engaged in a
discriminatory practice or discriminatory practices with malice or
reckless indifference to the federally protected rights of an aggrieved
individual.” 42 U.S.C. § 1981a(b)(1) (emphasis added). The
Supreme Court has explained that punitive damages are appropriate
only “when the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.” Kolstad v.
Am. Dental Ass’n, 527 U.S. 526, 536 (1999) (quotation marks omitted).
14
No. 14‐1753‐cv
“A plaintiff may establish the requisite state of mind for an
award of punitive damages with evidence (1) that the defendant
discriminated in the face of a perceived risk that its actions violated
federal law, or (2) of egregious or outrageous acts that may serve as
evidence supporting an inference of the requisite evil motive.”
United States v. Space Hunters, Inc., 429 F.3d 416, 427 (2d Cir. 2005)
(internal quotation marks, citation, and brackets omitted). “[I]n the
punitive damages context, an employer may not be vicariously liable
for the discriminatory employment decisions of managerial agents
where these decisions are contrary to the employer’s good‐faith
efforts to comply with [federal law].” Kolstad, 527 U.S. at 545
(internal quotation omitted); accord Carrion v. Agfa Constr., Inc., 720
F.3d 382, 387 (2d Cir. 2013) (affirming vacatur of punitive damages
where the record lacked evidence “that defendant’s conduct was
driven by an evil motive or intent or that it involved a reckless or
callous indifference to plaintiff’s federally protected rights”)
(quotation mark omitted).
There is no evidence in the record that Mangia “discriminated
(or retaliated) against [Wiercinski] with conscious knowledge it was
violating the law, or that it engaged in egregious or outrageous
conduct from which an inference of malice or reckless indifference
could be drawn.” Tepperwien, 663 F.3d at 573. The only conduct that
can be imputed to Mangia that Wiercinski alleges was “malicious”
or “recklessly indifferent” was Cymanow’s alleged failure to act
after Wiercinski complained to her about the discrimination. Even if
this fact could establish an employer’s liability for co‐worker
harassment, it does not, by itself, warrant an award of punitive
damages.
Even if we credit Wiercinski’s version of the facts, the
remaining evidence shows that Wiercinski “was a friend of []
15
No. 14‐1753‐cv
Cymanow’s family for years, was a frequent visitor in her home,
invited to participate on festive occasions[,] and was re‐hired by her
after he was discharged.” Wiercinski, 33 F. Supp. 3d at 138.
Additionally, Wiercinski was an employee of Mangia for over 20
years, during which period the company granted his requests to be
transferred to more preferential locations and even his own request
to continue to work on Zbozien’s shift. When Wiercinski
complained to Cymanow about Zbozien’s conduct, she transferred
Zbozien to a different location. After Zbozien returned, Cymanow
granted Wiercinski’s request to be transferred to a different shift.
Even if these efforts were not sufficient to remedy the harassment,
the evidence shows that, “[f]ar from acting maliciously or
indifferently or egregiously,” Mangia and Cymanow “sought to, and
did, address [Wiercinski’s] complaints in good faith.” Tepperwien,
663 F.3d at 574. No reasonable jury could conclude that Mangia’s
conduct was “driven by an evil motive or intent, or that it involved a
reckless or callous indifference to [Wiercinski’s] federally protected
rights.” Carrion, 720 F.3d at 387 (internal quotation mark omitted).
Given the high standard for punitive damages set forth in Section
1981a and by the Supreme Court in Kolstad, we affirm the district
court’s ruling to the extent it vacated the award of punitive
damages.
III. Attorneys’ Fees and Costs
A plaintiff who recovers only nominal damages is still a
prevailing party and may be entitled to fees and costs in Title VII
cases. Farrar v. Hobby, 506 U.S. 103, 112‐13 (1992) (“[A] plaintiff who
wins nominal damages is a prevailing party under § 1988 [which
permits recovery of attorney’s fees in civil rights cases]. . . . A
judgment for damages in any amount, whether compensatory
or nominal, modifies the defendant’s behavior for the plaintiff’s
16
No. 14‐1753‐cv
benefit by forcing the defendant to pay an amount of money he
otherwise would not pay.”). Accordingly, we remand to the district
court to determine what fees and costs, if any, Wiercinski may
recover. Given the highly unusual facts of this case, the district
court would be well within its discretion to conclude that this is a
rare instance where a plaintiff who “formally prevails under § 1988
should receive no attorney’s fees at all.” Id. at 115 (internal marks
omitted).
CONCLUSION
For these reasons, we AFFIRM the district court’s judgment to
the extent that it vacates the award of punitive damages, REVERSE
to the extent that it vacates the jury’s finding of liability and award
of nominal damages, and REMAND for determination of
appropriate fees and costs.
17
Adam Wiercinski v. Mangia 57, Inc.
Court: Court of Appeals for the Second Circuit
Date filed: 2015-05-21
Citations: 787 F.3d 106, 91 Fed. R. Serv. 3d 1595, 2015 U.S. App. LEXIS 8378, 127 Fair Empl. Prac. Cas. (BNA) 176, 2015 WL 2402654
Copy CitationsCombined Opinion