Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—2d Cir.: $2.5M damages award to dental hygienist was excessive, (Jan 2, 2025)

By Kathleen Kapusta, J.D.

The district court did not abuse its discretion in granting the employer’s motion for a new trial on the dental hygienist’s claims the office manager sexually harassed her, finding the jury’s damages award was excessive and indicative of unfair prejudice.

Affirming summary judgment against a dental hygienist’s Title VII, NYSHRL, and NYCHRL retaliation claims, the Second Circuit found her complaints about sexual harassment by the office manager were overly generic and insufficiently specific to constitute protected activity. Nor did the district court err in granting the dental office’s motion for a new trial after a jury awarded the hygienist $575,000 in emotional damages and $2 million in punitive damages on the remainder of her claims or in excluding, during the second trial, her psychiatric records, a portion of a coworker’s deposition testimony, and an anonymous fax complaining about the office manager’s sexual harassment (Qorrolli v. Metropolitan Dental Associates, D.D.S.-225 Broadway, P.C., No. 23-282 (2d Cir. Dec. 23, 2024)).

The hygienist, who began working for the dental office in 2009, alleged that the office manager sexually harassed her throughout her tenure, including by inappropriately touching her, commenting on her appearance, and verbally abusing her in front of the owner. She also claimed he gave preferential treatment to women who acceded to his advances and punished those who rebuffed him.

Back off. According to the hygienist, she rebuffed the office manager through nonverbal cues such as ignoring his advances, “st[anding] there frozen,” and walking away. She also claimed she told him she really needed him to “get off [her] back,” and needed “this to stop” because she was “starting to feel very uncomfortable.” In 2016, she testified, she told him to “back off and leave [her] alone because [she couldn’t] take this anymore.” After this, she alleged, his abusive behavior escalated and he began threatening to fire her.

Resigned. Although she complained to the owner, no action was taken. At some point in early 2016, she gave the owner a letter outlining her grievances against the dental office. The letter, however, did not mention sex discrimination or sexual harassment. The hygienist resigned in May, alleging that by failing to address the harassment the dental office constructively discharged her.

Lower court proceedings. She then sued, asserting claims for sex discrimination and retaliation under Title VII, the NYSCHR, and the NYCHRL. The district court granted summary judgment against her retaliation claims. After a trial on the remainder of the claims, a jury awarded her $575,000 in compensatory damages for pain and suffering and $2 million in punitive damages.

The dental office moved for a new trial and the district court, finding the hygienist had introduced inadmissible and prejudicial hearsay evidence at trial, and that the damages award was not based on the admissible evidence, granted the motion. Prior to the second trial, the district court precluded the hygienist from introducing her psychiatric records, an anonymous fax purportedly sent to the office complaining about the office manager’s sexual harassment, and the deposition transcript of a coworker who refused to appear at trial. After the trial, the jury found in favor of the hygienist on her NYCHRL claim but awarded her only nominal damages of $1.

Protected activity. Appealing the grant of summary judgment on her retaliation claim, the hygienist argued that the district court erred in finding she had not engaged in any protected activity. Although she pointed to the letter she gave to the owner, the Second Circuit agreed that it contained only generalized complaints about oppressive working conditions such as excessive hours and abusive language and could not be understood as describing conduct prohibited by Title VII.

Nor did she engage in protected activity by verbally complaining to the owner, the appeals court observed, noting that the hygienist admitted the complaint focused on her objection to being treated poorly in comparison to other female coworkers who were romantically or sexually involved with the office manager. Pointing out that it has previously rejected paramour preference claims, the court found the hygienist’s complaint could not have been reasonably understood as opposing conduct that violated laws forbidding employment discrimination.

As to her verbal and non-verbal rejections of the office manager, the court noted that it had not yet ruled on whether rejecting a workplace harasser’s sexual advances could qualify as protected activity under Title VII and the NYSHRL. Finding it did not need to address this issue, the court explained that the hygienist’s purported actions were not sufficiently clear to communicate an opposition to sexual harassment and thus did not constitute protected activity.

The hygienist, the court pointed out, never directly told the office manager to stop sexually harassing her and her broad requests to back off could not reasonably be understood as opposing his sexual advances rather than his abrasive nonsexual behavior, especially in light of her failure to allege that any such statements were made immediately after any sexual harassment. Thus, the court affirmed summary judgment against her retaliation claims.

New trial. As to the district court’s finding that the jury’s award of damages was sufficiently excessive as to merit a new trial, it noted that courts in the Second Circuit generally categorize emotional damages as either garden-variety, significant, or egregious and that garden-variety claims generally merits damage awards between $30,000 and $125,000 while significant claims generally merit awards between $50,000 and $200,000.

“After accurately reciting the law,” observed the appeals court, “the district court then found that the [hygienist’s] ‘emotional distress straddles the line between garden-variety and significant’” as she alleged serious psychological harm but did not provide corroborating medical testimony and produced limited evidence regarding the severity of the office manager’s conduct. The district court, the appeals court continued, also correctly noted that the jury’s emotional distress award was significantly larger than other awards deemed worthy of remittitur in cases with more extreme facts.

Further, said the appeals court, the district court’s concerns about the emotional distress award were justifiably compounded by the $2 million punitive damages award against the dental office. Not only was the award, according to the district court, “dozens of times larger than a reasonable compensatory damages award,” the conduct attributable to the dental office did not rise “to the level of reprehensibility needed to justify a large punitive damages award.” In addition, the jury awarded punitive damages against the dental office only even though the only conduct attributable to it was its failure to maintain a sexual harassment policy.

Noting the district court’s conclusion that the damages awards could only be explained by the unfair prejudice to the dental office from the hygienist’s hearsay evidence, the court found this reasoning was not based on an error of law or a clearly erroneous factual finding. Accordingly, the court affirmed the lower court’s grant of a new trial.

Evidentiary rulings. Finally, addressing the district court’s ruling that the hygienist’s psychiatric records were inadmissible because their probative value was outweighed by the risk of unfair prejudice to the dental office, the appeals court observed that the records, according to the district court, were “general descriptions of plaintiff’s wellbeing” with limited references to the office manager. The records described him as “very manipulative” and “verbally abusive” but contained no description of any specific event and no mention of sexual harassment. Pointing out that the hygienist was allowed to testify about the dates of her psychiatric appointments and her medications, the court found no abuse of discretion in excluding the records.

Nor did the district court abuse its discretion in excluding the deposition testimony of the hygienist’s coworker who refused, for various reasons—including a bout of flu and anxiety—to testify at the first trial and then refused to testify at the second trial due to breast cancer and other health conditions. The coworker, observed the appeals court, was still traveling to and from work and her physician’s letters were vague and produced at the eleventh hour.

As to the anonymous 2015 fax the hygienist sought to admit that contained allegations the office manager was sexually harassing employees at the office, the appeals court found the district court acted well within its discretion in determining that the potential probative value of allegations in the fax would be significantly outweighed by the prejudice it would introduce.

The case is No. 23-282.

Judge: Merchant, O.

Attorneys: Stephen Bergstein (Bergstein & Ullrich) for Fortessa Qorrolli. David C. Wims (Law Office of David Wims) for Metropolitan Dental Associates, D.D.S.-225 Broadway, P.C., and Metropolitan Dental Associates, D.D.S., P.C.

Companies: Metropolitan Dental Associates, D.D.S.-225 Broadway, P.C.; Metropolitan Dental Associates, D.D.S., P.C.

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