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Emotional Distress Pain and Suffering and Punitive Damages Awards Affirmed in Workplace Sexual Harassment Suit

Posted in Psychological Damages, Punitive Damages

Denise Rivera began working for United Parcel Service, Inc. (UPS) in 2001 at a facility in the Bronx. She was promoted several times, eventually to a supervisor position in 2004. Shortly thereafter, a fellow supervisor began a  campaign of sexual harassment which ended with her termination from UPS on July 10, 2007.

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Ms. Ramos, then 40 years old and earning about $75,000 annually, sued UPS for damages for sexual harassment and retaliation. At the conclusion of a seven week trial in March 2014, the judge charged the jury and the Manhattan jurors then found in plaintiff’s favor on both of her claims and awarded emotional distress pain and suffering damages in the sum of $300,000 (all past – six and a half years) as well as loss of earnings in the sum of $730,000 ($420,000 past, $310,000 future) and punitive damages in the sum of $300,000.

The trial judge issued a post-trial decision ordering a reduction in the loss of earnings awards to $607,750 (discussed below) to which plaintiff consented.

In Rivera v. United Parcel Service, Inc. (1st Dept. 2017), the appellate court affirmed the emotional distress and punitive damages awards as well as the reduced lost earnings awards.

Plaintiff’s problems at UPS began after she became separated from her husband when her fellow supervisor started making advances towards her. She testified that he told her he was available and she should be with him. He called her at all hours but she told him she was not interested in him. Then, she said, he tuned on her started making vulgar and obscene comments to her and was abusive towards her at work. The day after she formally complained, she was assigned to another location, an undesirable one entailing additional work. Then, rumors of her sexual promiscuity with other UPS drivers were spread throughout the workplace. Again she formally complained and again she was promptly transferred to other locations and then fired.

UPS claimed  that the supervisor’s conduct was neither unwanted nor unwelcome and that this case was not about retaliation but instead about plaintiff’s “lies and deception.” Further, defendant claimed, plaintiff falsified records and improperly authorized a premises security breach (allowing a driver to avoid passing through the metal detector at day’s end) and these were the justifiable reasons she was fired.

Defendant argued that $300,000 for emotional distress damages was excessive because, while plaintiff began counseling at the end of 2007 in connection with her failed marriage, it was not until September 2009 that she went for counseling which she attributed to her experiences at UPS (and the counseling was intermittent and lasted only a few months). Defendant urged that this aspect of the award should be reduced to no more than $50,000.

There was no testimony from any health care professional or therapist; instead, plaintiff relied upon her own testimony and records which she argued supported the emotional distress award.

The jury’s past loss of earnings award was reduced by $112,250 because (a)  the jury failed to take into account the amounts which plaintiff earned at several jobs after her termination and (b) plaintiff’s decision (after wrongful termination from one of those jobs) to forego comparable employment constituted a failure mitigate her damages. The future loss of earnings award was reduced by $10,000; plaintiff’s attorney only asked for $300,000 based upon a claimed loss of $30,000 per year for 10 years.

The jury determined that UPS, through its employees, acted with malice and reckless indifference to plaintiff’s rights and to the risk that its conduct might violate the law, its conduct was reprehensible and that plaintiff was thus entitled to an award of punitive damages. After the verdict was rendered, plaintiff elicited the testimony from a UPS finance director confirming public filings showing that in 2013 UPS had net income of $4,372,000,000. The attorneys then made closing arguments as to the punitive damages claim and the judge charged the jury as to the law on punitive damages. The appellate court affirmed the $300,000 punitive damages award after noting the defendant’s “substantial income” and comparing the award with those in similar cases.

Inside Information:

  • Prior to trial, plaintiff successfully moved to preclude evidence of a consensual sexual relationship she had engaged in with a co-employee unrelated to her claims in the lawsuit. The judge ruled that private sexual relationships are essentially irrelevant in sexual harassment cases and that a plaintiff’s private sexual behavior does not change his or her expectations or entitlement to a workplace free of sexual harassment.