Citations
- 153 F. Supp. 2d 219
Full opinion text
AMENDED OPINION
GRIESA, District Judge.
In this action plaintiff Fitzgerald sues for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. At the trial before a jury, Fitzgerald asserted two claims of sex harassment against defendant Ford Marrin — (1) the creation of a hostile work environment, and (2) constructive discharge. The jury found for Fitzgerald on the first claim and against her on the second. The jury awarded $80,000 in compensatory damages on the first claim, but declined to award punitive damages.
Following the verdict, Ford Marrin moved for judgment as a matter of law setting aside the verdict on the first claim, or, in the alternative, for a new trial. At the oral argument the court denied the motion for a new trial, a ruling which the court now confirms. The court reserved decision on the motion for judgment as a matter of law. The latter motion is the subject of the present opinion.
For the reasons to be explained, the court grants Ford Marrin’s motion to have the court enter judgment as a matter of law setting aside the verdict holding it liable for creation of a hostile work environment. The court notes that the jury’s findings on this subject occurred in two phases. First, the jury found that there was a hostile work environment at Ford Marrin and that it was created by a partner alone or in conjunction with associates. Second, the jury found that Ford Marrin had not shown reasonable care to prevent and correct sexually harassing behavior and had not shown any neglect by Fitzgerald to take advantage of preventive or corrective avenues or to otherwise avoid harm. This second finding related to the issue of whether the firm could be liable for a hostile work environment created by certain persons at the firm. In ruling on the present motion the court is setting aside the first finding as to the existence of a hostile work environment. There is no need to deal with the second finding, because it assumed the first, which is now set aside.
The factual issues in this case were and still are hotly contested, with difficult questions of credibility. In fact, there have been two trials. The first resulted in a mistrial. It was only in the second that the jury was able to agree.
The court wishes to make it clear at the outset that the verdict of the jury is supported by sufficient evidence on the facts. What the court is referring to relates to the issues regarding whether persons at Ford Marrin engaged in the conduct alleged by Fitzgerald. The jury did not, of course, make detailed findings on Fitzgerald’s specific contentions, but rather answered certain conclusory questions necessary to establish liability for hostile work environment. Nevertheless, for the sake of deciding the present motion it will be assumed that the jury resolved the essential factual issues in favor of Fitzgerald. On the evidence presented, the jury was justified in doing so.
What remains as an issue is whether Fitzgerald’s version of the facts does or does not add up to a valid case of hostile work environment under the law. The discussion of the law will appear later in this opinion. However, there is a point which needs to be made at the outset. After reviewing the briefs on the present motion, the court requested each side to provide the decision or decisions most closely in point factually in relation to the present case, as well as factual summaries of as many additional cases as they wished to refer the court to. This turned out to be a most useful exercise. Neither side could refer the court to a case really in point on its facts. The parties brought the attention of the court to a host of decisions. But all of them, without any exception, dealt with conduct substantially different in its nature and severity from what Fitzgerald claims to have occurred in the present case. This means that this is a case of first impression.
Facts
The following statement is based on Fitzgerald’s version of the facts, except to the extent that Ford Marrin’s evidence is uncontradicted. In fairness it must be emphasized that Ford Marrin’s witnesses fervently disputed Fitzgerald’s factual contentions. The issues of credibility were unusually difficult. Fitzgerald is an attorney, and her two principal corroborating witnesses, Suzanne O’Neil (Suzanne Bernard when she was at Ford Marrin) and Katherine Scott, are attorneys, and they were all associates together at Ford Mar-rin. As far as one can tell they are professional persons of high character. At the same time, Ford Marrin is a successful law firm, in which the partners and associates are hard-working professionals of high character. On the essential issues, the testimony of the two sides was in direct conflict. The jury was instructed on the applicable preponderance of the evidence standard, and found for plaintiff.
Fitzgerald graduated from law school in 1990, worked for a New York law firm, then a Connecticut law firm for family reasons, and started at Ford Marrin in November 1993. At this time she was 29 years old. She remained at Ford Marrin until February 1995, when she resigned to go to another law firm.
During Fitzgerald’s stay at Ford Marrin there were 9 partners, one of whom was a woman. There were 15 associates, three of whom (including Fitzgerald) were women. A fourth woman associate was added at some point, bringing the total number of associates to 16.
Hostile Work Environment
The sexual harassment alleged by Fitzgerald consisted of conduct which, for purposes of this opinion, will be considered in two categories. First, there were conversations and remarks about sex by male associates not directed at Fitzgerald, but which Fitzgerald overheard. She says that this kind of thing continued throughout her stay at Ford Marrin. Her allegations in this regard are directed mainly at associates James Adrian, David Beke and Michael Tricarico. Second, there were certain incidents of conduct directed at Fitzgerald. Under this second category, Fitzgerald makes her accusations against partner Michael Anania, and at the associate level, principally against James Adrian.
Although Fitzgerald does not accuse any partner except Anania of the offensive conduct, she does allege that other partners heard or observed at least some of such conduct.
The court will now elaborate to some extent on the evidence regarding the two categories, starting with the first.
a. Associates’ Talk
Fitzgerald and her two supporting witnesses, O’Neil and Scott, and the accused male associates, were essentially contemporaries in age and in their time in the practice of law. Both these female and these male associates were well educated, generally well mannered and had remarkably likeable and attractive personalities. Moreover, except for a temporary coolness between Fitzgerald and one of the male associates, David Beke, they all existed at the firm on a most friendly basis. For instance, one of the accused associates, Michael Tricarico, has testified without contradiction that Fitzgerald was his closest friend at the firm and that when they were both in the office they talked daily and frequently lunched together. O’Neil testified that the male associates were generally very nice and that she liked them.
Nevertheless, Fitzgerald accuses certain of the male associates of open talk about sex which was acutely offensive to her as a woman. Fitzgerald was exposed to this talk and heard it, but did not participate. Fitzgerald testified that the sexual talk which she heard and deemed offensive occurred two or three times a week during the entire time she was at the firm.
According to Fitzgerald’s evidence, Adrian, Beke and Tricarico, occasionally joined by one or two other male associates, talked about “sex lives” and told jokes about sex and women. At least two of them were not married and there was talk about their sexual prowess and whether they were “getting any.” They speculated about the sex lives of certain partners, including speculation about possible homosexual activity with associates on business trips. There was joking about masturbation in slang terms. Slang words for the male sex organ were part of the conversation. The word “fuck” was uttered — for instance, when a copy machine malfunctioned.
The conversations about sex and the sexual jokes would take place to some extent at lunch in the lunchroom. But O’Neil testified that the conversation became “quite vulgar” in the evening, when the associates had worked a long day and after most of the staff had left; and that, as the office got emptier and emptier, and people felt freer and freer, “people’s conversations loosened up as time went on.” The sexual talk among the male associates at times took place in halls or in the offices of these associates and this was usually in the evening when there were not a lot of people around.
The sexual conversations were in a “humorous context,” in O’Neil’s words, and “nonsensical” as Scott put it. As indicated by O’Neil, they were a form of relaxation from intense work. Basically Fitzgerald’s evidence about the male associates’ talk is that they intended to have fun among themselves by talking and joking about sex.
The sexual conversations and remarks by the associates described thus far, falling into what the court refers to as the first category, were not about Fitzgerald. They did not contain comments about her or her person. Nevertheless, Fitzgerald’s witnesses testified that occasionally the male associates showed a realization that they were embarrassing Fitzgerald.
As already stated, there were three male associates named by Fitzgerald and her two supporting witnesses as the principal sources of the sexual talk described above, joined in a few instances by one or two others. This total number of four or five was part of an associate population of 15 and later 16. Moreover, Fitzgerald has testified that at least two of the male associates, James Aiosa and Artemis Le-kakis, were offended by the talk.
b. Conduct Directed At Fitzgerald
The second category of allegations relates to conduct directed at Fitzgerald. The incidents she relies on will now be summarized, except for what is too trivial to recount.
The associates at Ford Marrin worked in teams under the supervision of a partner. Fitzgerald was in the team headed by partner Michael Anania. Fitzgerald testified that on three occasions Anania referred to her by terms meaning lesbian. She testified that after the first occasion Adrian and some associates did the same for a short time. According to Fitzgerald—
(1) In April or May of 1994 Fitzgerald was in Anania’s office discussing a case. It appears that a person connected with the firm’s client was a known lesbian. Anania referred to this person and stated, “She’s a dyke, kind of like you, Ellen,” laughing as he did so. Partner William Ford was present and said nothing.
(2) After Anania had called her dyke and she “had shared that with Jim Adrian,” Adrian referred to her half a dozen or so times as butch, including saying over the office intercom, “Butch, go to the kitchen.” Another associate called her butch once. O’Neil testified that male associates used the terms butch or dyke to Fitzgerald in a teasing way, knowing that it made her uncomfortable, and that it was a way of joking around with her, although, on further questioning, O’Neil could specifically recall only Adrian doing it. Scott testified that for a time the male associates referred to Fitzgerald as butch outside of her presence, and that this went on for a couple of weeks. Scott told one of the associates that Fitzgerald was bothered by this conduct, and it stopped.
(3) In June 1994 Anania observed Fitzgerald in a pants suit, and said that her attire was unprofessional. Fitzgerald disagreed and said, “You know it’s completely professional.” She was then leaving the office, and Anania said,