Court Upholds Jury Verdict in “Instagram Planet of the Apes” National Origin Discrimination Lawsuit

In Fisher v. Mermaid Manor Home for Adults, LLC, No. 1:14-CV-03461-WFK-JO, 2016 WL 7330554 (E.D.N.Y. Dec. 16, 2016), the court upheld a jury verdict for an African American plaintiff on her employment discrimination claims.

This employment discrimination case, asserted under Title VII of the Civil Rights Act of 1964 and the NYC Human Rights Law, “began with an Instagram photo comparing Plaintiff, an African American Home Health Aid, to a fictional chimpanzee from the movie Planet of the Apes.”

I wrote about the court’s decision denying defendant’s motion for summary judgment here.

National Origin Discrimination / Hostile Work Environment

Defendant argued that plaintiff “failed to introduce any evidence which would meet her burden to establish discrimination on the basis of her national origin” and described “the harassment towards Plaintiff to be either racial in nature or simply a neutral attack on Plaintiff as a person, i.e., neither because of race nor because of national origin.”

Judge William F. Kuntz rejected this argument, reasoning:

As with Defendant’s exhaustion argument[], Defendant attempts to draw a distinction where none exists. Defendant claims Plaintiff failed to introduce any evidence which would meet her burden to establish discrimination on the basis of her national origin.” Defendant describes the harassment towards Plaintiff to be either racial in nature or simply a neutral attack on Plaintiff as a person, i.e., neither because of race nor because of national origin. For example, Defendant attempts to conceal the damage caused by the Instagram photo, which compared Plaintiff to a fictional chimpanzee from The Planet of the Apes, by declaring the photo race-based, [having] nothing to do with Plaintiff’s national origin.

[]The question of whether the harassment Plaintiff suffered was because of her national origin or simply because her co-workers disliked her was a factual question resolved by a jury, and not a question to be relitigated in post-trial motions. … Viewed in the light most favorable to Plaintiff, the jury found, and this Court finds, that Ms. Yvonne Kelly, a black Jamaican co-worker, and Ms. Lisi Laurent, a black Haitian co-worker, posted the Instagram photo because of Plaintiff’s national origin.

The Court does not make this finding based merely on the fact that Plaintiff and her two coworkers are of different national origins. The focus of Title VII is individualize to the person and does not require harm to a group of individuals based on some characteristic, such as national origin. … In this case, the harassment of Plaintiff was because of her national origin. The fact that identical harassment suffered by employees in another hypothetical case may be “neutral” is irrelevant. (Emphasis added.)

Imputing Liability

As to the issue of imputing liability, the court explained that where, as here, “harassment is perpetrated by the plaintiff’s co workers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.”

While defendant immediately investigated the offending Instagram photo, it “did not exercise reasonable care in attempt to eliminate the conditions of which Plaintiff complained.” Specifically:

Defendant focuses too heavily on the Instagram photo and relies too much on the fact that “another similar photograph of Plaintiff was never thereafter posted on Instagram.” As became clear during trial, the Instagram photo was merely a symptom of the hostile work environment created by Defendant, and treatment of the symptom failed to cure the disease: “hostility” between African American and Caribbean workers. In other words, Defendant overlooks the appropriateness of its remedial action. … Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be held liable if plaintiff can show that they knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action. … Even with actual knowledge of a hostile work environment, Defendant did nothing to lessen the hostility between the “coconuts” and the African Americans. See Tr. Trans. 228:6-12 (“[W]hen I[, Ms. Kelly] started working [at Mermaid Manor] I heard they had two sides. You have the coconut. I said what is [a] coconut, they said those are the people that are the immigrants [from the Caribbean and West Indies.”); id. at 119:23-120:3 (reporting when Plaintiff learned of the term “coconuts”). This is supported by the numerous complaints made and recorded by Plaintiff regarding her continued harassment.

Retaliatory Hostile Work Environment

The court also found that there was sufficient evidence to support plaintiff’s claim of retaliatory hostile work environment, finding that “arguably minor annoyances when viewed by themselves in isolation” were “sufficient to create a retaliatory hostile work environment when viewed in the totality of the circumstances”. Specifically: “Plaintiff regularly, and unsuccessfully, reported Ms. Kelly’s conduct to Defendant, but to no avail. Defendant, despite having actual knowledge of these numerous incidents, took no meaningful action to protect Plaintiff and to rectify the hostile work environment that resulted from Ms. Kelly’s unceasing harassment.”

Punitive Damages

As to damages, the court reduced the jury’s punitive damages award of $250,000 to $50,000.

“[P]unitive 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.”

The court explained and applied the three “guideposts” identified by the Supreme Court for determining whether punitive damages are excessive, namely: “(1) the degree of reprehensibility; (2) the ratio of the harm or potential harm suffered due to the defendant’s conduct and the punitive damages awarded; and (3) the difference between the remedy and any civil penalties authorized or imposed in comparable cases.”

Applying these principles, the court concluded:

Upon review of the cases in the Second Circuit, the jury’s award of a ten-to-one punitive damages ratio shocks the judicial conscious [sic]. While Defendant acted reprehensibly, the disparity between the compensatory damages and punitive damages awarded to Plaintiff is inappropriate. Here, Plaintiff sought solely compensatory damages for alleged emotion[al] distress, and the jury award of $25,000.00 for emotional distress is sizeable when compared to the $50,000.00 cap provided for compensatory and punitive damages allowed under Title VII. … Where the compensatory award is particularly high, … a four-to-one ratio of punishment to compensation … serves neither predictability nor proportionality. This is even more so here, where the sizeable compensatory damages is amplified by a ten-to-one ratio of punishment to compensation. The Court finds a two-to-one ratio of punitive damages to compensatory damages appropriate in this case.

Jury Instructions

The court rejected defendant’s various challenges to the court’s jury instructions, finding, for example, that they properly stated that plaintiff had the “burden of proving that the adverse employment decision was motivated at least in part by an impermissible reason, i.e., a discriminatory reason.”