Tonia Cush-Crawford v. Adchem Corp. 00-7617 00-7745 00-7617,-7745 ______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________________________________ TONIA CUSH-CRAWFORD, Plaintiff-Appellee-Cross-Appellant, v. ADCHEM CORP., Defendant-Appellant-Cross-Appellee. _____________________________________________________________ On Appeal from the United States District Court for the Eastern District of New York ______________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE AND AFFIRMANCE OF THE DISTRICT COURT'S RULING ON PUNITIVE DAMAGES _____________________________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF JURISDICTION 2 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 3 Course of Proceedings 3 Statement of Facts 3 District Court Decision 5 STANDARD OF REVIEW 6 SUMMARY OF ARGUMENT 6 ARGUMENT I. A PLAINTIFF WHO MEETS THE STATUTORY STANDARD FOR AN AWARD OF PUNITIVE DAMAGES UNDER TITLE VII BY SHOWING THAT THE DEFENDANT ACTED WITH RECKLESS DISREGARD FOR HER RIGHTS UNDER TITLE VII MAY BE AWARDED PUNITIVE DAMAGES REGARDLESS OF WHETHER SHE IS ALSO AWARDED ACTUAL DAMAGES. 7 II. PUNITIVE DAMAGES WERE APPROPRIATE IN THIS CASE WHERE THE EMPLOYER HAD NO SEXUAL HARASSMENT POLICY AND TOOK NO STEPS TO REMEDY THE HARASSMENT FOR OVER A YEAR DESPITE THE PLAINTIFF'S REPEATED COMPLAINTS TO MANAGEMENT. 15 CONCLUSION 17 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ Nos. 00-7617/00-7745 _________________________ TONIA CUSH-CRAWFORD, Plaintiff-Appellee-Cross-Appellant, v. ADCHEM CORP., Defendant-Appellant-Cross-Appellee. ___________________________________________________________ On Appeal from the United States District Court for the Eastern District of New York ____________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE AND AFFIRMANCE OF THE DISTRICT COURT'S RULING ON PUNITIVE DAMAGES ___________________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Section 1977A of the Civil Rights Act of 1991 provides that punitive damages may be awarded against a nongovernmental defendant if the plaintiff establishes that it acted "with malice or reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The defendant argues in this appeal that the award of punitive damages to the plaintiff in this action must be reversed because the jury did not award her any actual damages. This argument, if accepted, would impose a condition on the award of punitive damages that is not contained in the statute and that would undermine the congressional objective of deterring employment discrimination by imposing a monetary penalty on employers who knowingly or recklessly flout the law. The Commission therefore offers its views to the Court. STATEMENT OF JURISDICTION The district court had jurisdiction over this action pursuant to 28 U.S.C. § 1331. The district court entered final judgment on May 1, 2000, resolving all claims as to all parties, and defendant filed a timely notice of appeal on May 11, 2000. Plaintiff filed a cross-appeal on May 25, 2000. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether a jury may award punitive damages for a violation of Title VII regardless of whether it also awards compensatory damages. 2. Whether the district court correctly decided that there was sufficient evidence to support the jury's finding that the defendant acted with malice or reckless indifference to plaintiff's rights in this case. STATEMENT OF THE CASE Course of Proceedings This is an appeal from a final judgment based on a jury verdict finding, inter alia, that the defendant violated Title VII by subjecting plaintiff to a hostile work environment based on her sex. Joint Appendix ("JA") 1138 (Trans. of verdict). The jury awarded no compensatory damages, but awarded $100,000 in punitive damages. Id. at 1140-41. Following the verdict, plaintiff filed a motion for a new trial on damages, contending that the jury's failure to award compensatory damages was due to erroneous rulings of the district court limiting the medical evidence she could introduce. JA 1239-42. Defendant filed a motion for judgment as a matter of law on the hostile environment claim and the claim for punitive damages. JA 1256-79. The district court denied both motions, JA 1318-37, and both parties appealed. JA 1340-43. Statement of Facts Tonia Cush-Crawford was hired as a lab technician at Adchem Corporation's Westbury, New York facility in June 1993. JA 1147 (Adchem letter dated June 23, 1993 offering position). Cush-Crawford testified that throughout her employment with Adchem, she was subjected to unwelcome sexual advances and suggestive remarks by her supervisor, Collin Mars. See, e.g., JA 335-381, 426-430, 436. At the time, Adchem had no sexual harassment policy in place. JA 90 (Test. of Robert Pufahl at 52). Nonetheless, Cush-Crawford repeatedly complained to management about her supervisor's conduct. See JA 375-77, 381-82, 405-17, 430, 438-443. Cush-Crawford testified that, in September 1993, she complained to Tom Rauen, Adchem's Production Control Supervisor, that "Collin Mars was coming on to me and he was calling me and he kept asking me out . . . if I didn't go out with him he would get upset." JA 376. Also in September 1993, Cush-Crawford spoke to Adchem Vice President Rob Pufahl. JA 381-82. Pufahl indicated that he had heard from Rauen about Cush-Crawford's complaints and was "aware of the situation." JA 382. Cush-Crawford also testified that she complained about Mars in September 1993, JA 398-99; June 1994, JA 409-10; July 1994, JA 416; and again in November 1994. JA 438-40. No action was taken in response until the November 1994 complaint, after which Cush-Crawford was permitted to transfer to another facility. JA 443-44. Cush-Crawford soon asked to return to the Westbury facility. JA 447. She was again supervised by Mars. JA 805 (Test. of Robert Kneuer at 767). Several months later, Cush-Crawford left Adchem following an unrelated on-the-job injury. JA 520 (Test. of Cush-Crawford at 482). On January 30, 1998, Cush-Crawford filed this action against Adchem alleging, inter alia, that Adchem violated Title VII by subjecting her to a hostile work environment on the basis of her sex. JA 12-20 (Complaint). Following a six-day trial, the jury returned a verdict in favor of Cush-Crawford on her hostile environment claim, awarded no compensatory damages, and $100,000 in punitive damages. JA 1138-41. District Court Decision In denying Adchem's motion for judgment as a matter of law on punitive damages, the district court held that Title VII permits an award of punitive damages regardless of whether actual damages are awarded. JA 1325-28 (Memorandum of Decision and Order ["Mem."] at 8-11). In reaching this conclusion, the court followed Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1009 (7th Cir. 1998), where the Seventh Circuit equated Title VII claims with civil rights actions brought under § 1983. JA 1325-26 (Mem. at 8-9). Because compensatory damages are not a prerequisite to punitive damages in § 1983 cases, the district court agreed that there was no reason to limit the award of punitive damages in Title VII cases to cases where actual damages are awarded. Id. The court also held that there was sufficient evidence to support a finding that the company acted with malice or reckless disregard for Cush-Crawford's rights. The court noted that there was evidence that Cush-Crawford was sexually harassed throughout her employment and management did nothing to remedy the situation until more than a year after she first complained. JA 1327-28 (Mem. at 10-11). Finally, the court concluded that Adchem waived its argument that the amount was excessive because it did not argue the figure "shocks the conscience." JA 1328 (Mem. at 11), quoting Luciano v. Olsten Corp., 110 F.3d 210, 222 (2nd Cir. 1997). STANDARD OF REVIEW This Court reviews the denial of a motion for judgment as a matter of law de novo. See, e.g., Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999). SUMMARY OF ARGUMENT The district court correctly held that a jury may award punitive damages under 42 U.S.C. § 1981a(b)(1) whether or not it also awards actual damages. By its terms, this provision permits an award of punitive damages upon a finding that a defendant violated Title VII with "malice or reckless indifference to the federally protected rights of an aggrieved individual." There is nothing in the language of § 1981a(b)(1) limiting punitive damage awards to cases where actual damages are awarded. The legislative history indicates that Congress enacted § 1981a in part to make Title VII remedies consistent with remedies available in civil rights actions brought under other federal statutes. Because it is well established that punitive damages may be awarded under 42 U.S.C. § 1983 regardless of whether actual damages are awarded, the district court correctly concluded that no such limitation should be read into § 1981a(b)(1). ARGUMENT I. A PLAINTIFF WHO MEETS THE STATUTORY STANDARD FOR AN AWARD OF PUNITIVE DAMAGES UNDER TITLE VII BY SHOWING THAT THE DEFENDANT ACTED WITH RECKLESS DISREGARD FOR HER RIGHTS UNDER TITLE VII MAY BE AWARDED PUNITIVE DAMAGES REGARDLESS OF WHETHER SHE IS ALSO AWARDED ACTUAL DAMAGES. The district court's ruling that an award of punitive damages need not be conditioned on an award of actual damages is consistent with the language and intent of Title VII's damages provision. Title VII, as amended by Section 1977A of the 1991 Civil Rights Act, allows a jury to award punitive damages "if the complaining party demonstrates that the respondent engaged in a discriminatory practice . . . with malice or with reckless indifference to [her] federally protected rights." 42 U.S.C. § 1981a(b)(1). Nothing in the language of the statute expressly or implicitly conditions a recovery of punitive damages on an award of compensatory damages. See Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1352 (7th Cir. 1995); Timm, 137 F.3d at 1010 ("Extra-statutory requirements for recovery should not be invented."). Because the statutory language is clear, the district court correctly followed its mandate and did not require a compensatory award. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982)(court's "task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, 'that language must ordinarily be regarded as conclusive'") (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)); cf. Rodriquez v. Compass Shipping Co., Ltd., 451 U.S. 596, 613 (1981) (court required to reject construction that appears nowhere in statute, was never mentioned by Congress during legislative process, does not comport with Congressional intent, and restricts remedial act). In any event, the legislative history of § 1981a is consistent with its plain language. The language of § 1981a is taken directly from civil rights case law, where punitive damages are available under § 1981 and § 1983 "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." See H.R. Rep. No. 102-40(II), at 29 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 722, (quoting Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir. 1985)(§ 1981 and § 1983 case), and Smith v. Wade, 461 U.S. 30, 56 (1983) (§ 1983 case)). In incorporating this language in § 1981a, Congress expressed its intent to create uniform standards on damages for all employment discrimination cases. Specifically, Congress indicated that punitive damages under Title VII were to be imposed in the same manner and under the same standards as punitive damages under § 1981. See, e.g., H.R. Rep. No. 102-40(I), at 74 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 612 (stating intent that punitive damages under Title VII be imposed in the same manner and under the same standards as punitive damages under § 1981); 137 Cong. Rec. H9527 (daily ed. Nov. 7, 1991) (interpretive memorandum of Rep. Edwards stating: "Punitive damages are available under [§ 1981a] to the same extent and under the same standards that they are available to plaintiffs under 42 U.S.C. § 1981."). See also Luciano, 110 F.3d at 220 (noting that punitive damages provision duplicates that used in other civil rights laws and citing to legislative history). It is established that punitive damages may be awarded in civil rights actions brought under § 1983 regardless of whether actual damages are awarded. See, e.g., Robinson v. Cattaraugus County, 147 F.3d 153, 161 (2d Cir. 1998); King v. Macri, 993 F.2d 294, 298 (2d Cir. 1993). Accordingly, the district court correctly concluded that the same standard should apply under Title VII. See Timm, 137 F.3d at 1010 (there is no reason to read § 1981a to require actual damages as a predicate for punitive damages in a Title VII action when no such requirement exists under § 1983); see also Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (punitive damages without nominal or compensatory damages are permitted in Fair Housing Act actions as they are permitted for constitutional violations). Adchem argues that cases under § 1983 are inapposite because they involve violations of constitutional rights, whereas this case involves only statutory violations. Adchem Br. at 31-32. This is a distinction without a difference. The statutory violation upon which the award of punitive damages is based in this case is not meaningfully different from the sort of constitutional violation that could justify an award of punitive damages under § 1983. See, e.g., Alexander, 208 F.3d at 429 (lower court's dichotomy between "merely" a violation of "purely statutory rights" and constitutional rights "trivializes the role of civil rights law in eradicating discrimination"); Edwards v. Jewish Hospital, 855 F.2d 1345, 1350 (8th Cir. 1988)("We believe it cannot seriously be disputed that the right to be free from intentional racial employment discrimination is absolute in the same sense [as fundamental right to procedural due process]."); H.R. Rep. No. 102-40(I), at 65, reprinted in 1991 U.S.C.C.A.N. 603 ("Gender and religious discrimination are as reprehensible as race discrimination, and should be treated the same for purposes of making victims whole, encouraging private enforcement, and deterring future violations of federal law."). Sex discrimination violates the Fourteenth Amendment's equal protection guarantee as well as Title VII. As with constitutional civil rights violations, discrimination in the workplace infringes on fundamental individual rights and impedes equal access to and participation in employment opportunities. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357 (1995) (Age Discrimination in Employment Act was enacted as part of an ongoing effort to eradicate discrimination in the workplace, and reflects societal condemnation of invidious bias in employment decisions); Price Waterhouse v. Hopkins, 490 U.S. 228, 265 (1989) (O'Connor, J., concurring in judgment) ("There is no doubt that Congress considered reliance on gender or race in making employment decisions an evil in itself. . . . [T]he inclusion of race or sex as a consideration [in making employment decisions] . . . harms both society and the individual."). Indeed, if the defendant were a public employer, there would have been no reason why Cush-Crawford could not have brought her sexual harassment claim under § 1983. See, e.g., Stewart v. S.U.N.Y. Maritime College, 2000 WL 1218379, *5-6 (S.D.N.Y. Aug. 25, 2000) (sexual harassment action based on § 1983). Adchem also argues that punitive damages should not have been awarded to Cush-Crawford because New York law does not permit an award of punitive damages on a tort claim in the absence of actual damages. Adchem Br. at 31. Defendant's reliance upon state tort law is misplaced. The standard for awarding punitive damages in a federal civil rights action is a matter of federal law, not state law. See Louisiana Acorn Fair Housing v. LeBlanc, 211 F.3d 298, 301 (5th Cir. 2000) ("When applying civil rights statutes, federal common law must be applied to effect uniformity . . . ."); Hennessy, 69 F.3d at 1352 (whether punitive damages are available under state law is irrelevant to a federal civil rights action brought under Title VII); Basista v. Weir, 340 F.2d 74, 86 (3d Cir. 1965) (federal common law must be applied to Civil Rights Acts to effect the purposes and ends that Congress intended). Adchem points out that nominal damages are mandatory upon a finding of a constitutional violation, but not upon a finding of a statutory violation. Adchem Br. at 33. According to Adchem, this supports its argument that constitutional violations should also be distinguished from statutory violations with respect to "the propriety of punitive damages in the absence of compensatory damages." Id. Once again Adchem misses the point. Even if the company is correct that the common law rule mandating an award of nominal damages upon a finding of a constitutional violation derives from the same considerations as the rule excepting constitutional violations from the general common law rule that compensatory damages are a prerequisite to punitive damages, plaintiff's claim for punitive damages in this case is not based on the common law. It is based on an express statutory provision authorizing the award of punitive damages. Accordingly, this Court is not faced with the task of deriving standards for the award of punitive damages from common law principles. Therefore, the question addressed at length by Adchem - whether the standard for constitutional claims would be the appropriate common law standard for the award of punitive damages for a claim of sex discrimination under Title VII - is beside the point. Congress provided a statutory standard for the award of punitive damages for violations of Title VII, and it does not require an award of actual damages.<1> Furthermore, the limitation that Adchem asks this Court to read into § 1981a(b)(1) is contrary to the purpose of the provision. Congress authorized the award of punitive damages to deter employers from willfully or recklessly violating Title VII. See 42 U.S.C. § 1981a(b)(1); Kolstad v. American Dental Assoc., 527 U.S. 526, 535 (1999) (standard ultimately focuses on the actor's state of mind). Adchem's proposal, if accepted, would exempt some employers who maliciously or recklessly violate Title VII from punitive damages for a reason that has no relation to the objective of punitive damages. Compensatory damages and punitive damages serve two independent purposes. Compensatory damages are based on the victim's injury; punitive damages are based on the company's conduct. See Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 87 (1988) (punitive damages are awarded not to compensate for injury, but to punish and deter reprehensible conduct). A rule conditioning punitive damages on the recovery of compensatory damages would allow some culpable employers to go unpunished and undeterred. Moreover, if punitive damages are conditioned on an underlying award of compensatory damages, plaintiffs in some cases will have no remedy because "punitive damages may be the only significant remedy available . . . . where . . . rights are maliciously violated but the victim cannot prove compensable injury." Carlson v. Green, 446 U.S. 14, 22 n.9 (1980) (allowing punitive damages award in § 1983 action). Such a rule would thus discourage some employees from filing meritorious discrimination claims. II. PUNITIVE DAMAGES WERE APPROPRIATE IN THIS CASE WHERE THE EMPLOYER HAD NO SEXUAL HARASSMENT POLICY AND TOOK NO STEPS TO REMEDY THE HARASSMENT FOR OVER A YEAR DESPITE THE PLAINTIFF'S REPEATED COMPLAINTS TO MANAGEMENT. Section 1981a(b)(1) allows recovery of punitive damages if "the respondent engaged in a discriminatory practice or discriminatory practices with malice or reckless indifference to the federally protected rights of an aggrieved individual." The terms "malice" and "reckless indifference" refer not to the egregiousness of the conduct but rather to the employer's knowledge that it may be acting in violation of federal law. See Kolstad, 527 U.S. at 535 (plaintiff must demonstrate the employer knew or should have known it may have been acting in violation of federal law); see also Alexander, 208 F.3d at 431. The district court correctly concluded that the jury's punitive damages award was justified under this standard. The district court properly determined that the jury's finding that Adchem was recklessly indifferent to plaintiff's right to a workplace free of sexual harassment is supported by the record. There is evidence that plaintiff experienced repeated harassment throughout her employment and repeatedly complained to management, beginning in August 1993. Despite her complaints, no action was taken for over a year until plaintiff transferred to a different facility. See JA 1327-28 (Mem. at 10-11); JA 377, 415, 443 (Test. of Tonia Cush-Crawford). In addition, defendant had no sexual harassment policy in 1993 or 1994, despite the Supreme Court's recognition of a hostile work environment as actionable sex discrimination as early as 1986 in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). See also Molnar v. Booth, 2000 WL 1456883, *9 (7th Cir. Oct. 2, 2000)(punitive damages were not excessive when "[t]he events here took place in 1994, long after the law of sexual harassment had become well established by the Supreme Court."). In Meritor, the Court stated that the existence of a grievance procedure and policy against discrimination was "plainly relevant" but not dispositive on whether an employer is liable for a supervisor's harassment of another employee. 477 U.S. at 72. Accordingly, there was ample evidence that Adchem acted with malice or reckless indifference toward Cush-Crawford's right to have a workplace free of sexual harassment. CONCLUSION For the reasons stated above, the judgment of the district court should be affirmed insofar as it denies defendant's motion for judgment as a matter of law with respect to punitive damages. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 November 15, 2000 CERTIFICATE OF COMPLIANCE Pursuant to 2d Cir. R. 32(b), I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). The brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and contains 3489 words. See FRAP 29(d) & 32(a)(5). _________________________ Julie L. Gantz CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been mailed first class, postage prepaid, to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLEE-CROSS APPELLANT TONIA CUSH-CRAWFORD: Charmaine M. Stewart CHARMAINE M. STEWART & ASSOCIATES P.O. Box 030479 Elmont, NY 11003 COUNSEL FOR DEFENDANT-APPELLANT-CROSS APPELLEE ADCHEM CORP.: Ira G. Rosenstein Siobhan A. Handley Cathleen O'Donnell ORRICK, HERRINGTON & SUTCLIFFE LLP 666 Fifth Avenue New York, NY 10103 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 November 15, 2000 1 Adchem does not argue that the plaintiff's failure to request an award of nominal damages in this case should disqualify her from receiving an award of punitive damages. This argument would fail for the same reason that Adchem's argument concerning actual damages fails - it advocates a limitation on punitive damages that is not contained in the statutory language. See Timm, 137 F.3d at 1010 (allowing punitive damages award without nominal or compensatory damages in Title VII action). But see Kerr-Selgas v. American Airlines, 69 F.3d 1205, 1215 (1st Cir. 1995) (request for nominal damages or compensatory damages required for a punitive damages award). The absence of nominal damages makes no practical difference, and, therefore, should not affect plaintiff's eligibility for punitive damages. See Basista, 340 F.2d at 88 (in § 1983 case,"'there is neither sense nor reason in the proposition that [punitive damages] be recovered by a plaintiff who is able to show that he has lost $10, and may not be recovered by some other plaintiff who has sustained, it may be, far greater injury, but is unable to prove that he is poorer in pocket by the wrongdoing of defendant.'") (quoting Press Pub. Co. v. Monroe, 73 F. 196, 201 (C.C.S.D.N.Y.), appeal dismissed, 164 U.S. 105 (1896)).