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MacCluskey v. University of Connecticut Health Center

United States District Court, D. Connecticut

February 21, 2017



          MICHAEL P. SHEA, U.S.D.J.

         I. Introduction

         Plaintiff Mindy MacCluskey brought this lawsuit against her employer, Defendant University of Connecticut Health Center (“UConn Health”), for violations of Title VII of the Civil Rights Act (“Title VII”). Specifically, Ms. MacCluskey claimed that she was repeatedly sexually harassed by another UConn Health employee named Michael Young while he was a dentist and she a dental assistant, and that UConn Health failed to respond appropriately. On August 31, 2016, after a four-day trial, a jury agreed, awarding Ms. MacCluskey $200, 000 in damages. Before me now are three post-verdict motions filed by UConn Health: (1) a motion for judgment as a matter of law under Fed.R.Civ.P. 50(b), (2) a motion for a new trial under Fed.R.Civ.P. 59 challenging the jury instructions and the exclusion of an e-mail from evidence, and (3) a motion for remittitur, i.e., reduction of the damages award. (ECF No. 100.) As set forth more fully below, I DENY UConn Health's motions for judgment as a matter of law and a new trial, because there was legally sufficient evidence to support the verdict, the jury instructions accurately stated the law, and I properly excluded the e-mail. However, I GRANT the motion for remittitur, as the damages award was excessive and should be reduced to $125, 000.

         II. Procedural History

         Ms. MacCluskey filed a complaint against UConn Health on September 25, 2013, bringing claims of hostile work environment and gender discrimination under Title VII. (ECF No. 1.) On February 19, 2016, I granted in part and denied in part UConn Health's motion for summary judgment. (ECF No. 48.) I determined that that Dr. Young was not Ms. MacCluskey's “supervisor” under Title VII within the meaning articulated in Vance v. Ball State Univ., 133 S.Ct. 2434 (2013), and therefore UConn Health was not strictly liable for the hostile work environment created by his sexual harassment. But I found that there was a genuine dispute of material fact as to whether UConn Health was negligent. I also deemed the separate gender discrimination claim abandoned.

         In preparation for trial, Ms. MacCluskey and UConn Health submitted a joint trial memorandum, which included both parties' proposed jury instructions. (ECF No. 68.) I held jury selection on August 25, 2016, and the trial began the same day, continuing until August 30, 2016. (ECF Nos. 80; 81; 83; 87.) I also heard and ruled on UConn Health's objections to the draft jury instructions at an August 30, 2016 charge conference. (ECF No. 87.)

         On August 31, 2016, the jury returned its verdict in favor of Ms. MacCluskey, awarding her $200, 000 in compensatory damages. (ECF No. 89.) The jury found that “Plaintiff has proven that she was subjected to a hostile work environment due to sexual harassment by Dr. Michael Young” and “Plaintiff has proven that the Defendant knew, or in the exercise of reasonable care should have known, about the harassment but failed to take appropriate remedial action.” (Id.) UConn Health then filed post-verdict motions for judgment as a matter of law, a new trial, and remittitur. (ECF No. 100.)

         III. Motion for Judgment as a Matter of Law A.Facts the Jury Reasonably Could Have Found[1]

         When the evidence presented at trial is construed in the light most favorable to the plaintiff, and all reasonable inferences are drawn in her favor, the jury could have found the following facts.

         The story of this case begins in late 1999-early 2000, when a female dental assistant (not the plaintiff) complained about the behavior of Dr. Michael Young, the dentist she worked with at UConn Health, to the Connecticut Commission on Human Rights and Opportunities. Though the parties disputed the nature of the conduct underlying that complaint at trial, the jury could reasonably have concluded that Dr. Young sexually harassed this dental assistant. Witness Karen Duffy Wallace, Director of Labor Relations for UConn Health at the time, testified that Dr. Young's conduct involved sending anonymous notes and gifts, and that the notes included “middle school crush” messages, such as “[y]ou're beautiful” and “I love your smile.” (ECF No. 111 at 134-38.) Ms. Wallace, however, was an employee of UConn Health, and the evidence showed that she was involved in formulating the discipline for Dr. Young both in connection with the earlier complaint and in connection with his later sexual harassment of Ms. MacCluskey. The jury could thus reasonably have concluded that Ms. Wallace had an incentive to minimize the seriousness of Dr. Young's earlier conduct, including by characterizing the behavior of a grown man as juvenile “middle school” behavior. Further, as Ms. MacCluskey's counsel pointed out during the trial, both the resignation agreement that Dr. Young ultimately signed in 2011 following his sexual harassment of Ms. MacCluskey and the agreement he signed in 2000 used the same characterization: “offensive conduct.” (ECF No. 37-6 at 2.) From this, the jury could have reasonably inferred that the 1999-2000 conduct, like the 2011 conduct, included sexual harassment.

         The earlier dental assistant's complaint resulted in a “last chance” agreement between Dr. Young and UConn Health, signed in February of 2000. (Id.) The last chance agreement included a ten-day suspension for “offensive conduct towards a co-worker, poor judgment, and not cooperating during the initial investigation” and provided that Dr. Young could be fired for “any future instances of unsolicited flirtatious letters or comments to any employee, or any behavior similar to this.” (Id.) Dr. Young was also required to see a psychiatrist, which the jury could have understood as further evidence of the seriousness of the underlying conduct and UConn Health's awareness of it. (Id.; ECF No. 111 at 157-58.)

         Ms. MacCluskey introduced evidence that Dr. Young received no extra attention, monitoring, or training as a result of the 2000 complaint and last chance agreement. In fact, the three or so trainings he received over the decade between the earlier complaint and Ms. MacCluskey's 2011 complaint were simply the standard trainings for UConn Health employees. (ECF Nos. 111 at 138; 112 at 56-58.) Two of those training sessions were self-administered by the employee at his/her computer terminal, and there was thus no way to be sure that Dr. Young had, in fact, participated in those training sessions. (Id.) Although UConn Health's own policy required it to “monitor” Dr. Young's conduct, UConn Health took no steps to do that, even after the earlier complaint and last chance agreement. (ECF Nos. 111 at 139; 112 at 14.) Ms. MacCluskey also introduced evidence that UConn Health did not make Dr. Young's later supervisors aware that he had been the subject of a sexual harassment complaint and had received discipline as a result of that complaint in the form of the last chance agreement. (ECF No. 111 at 142-145.) Instead, after 2000, UConn Health simply “moved on.” (Id.)

         In March 2008, UConn Health hired Ms. MacCluskey as a dental assistant, and on December 5, 2008, she began working two days a week at a Department of Corrections facility called Manson Youth Institute (“Manson”) with Dr. Young. (ECF No. 110 at 25-26.) Both UConn Health and the Department of Corrections had policies in place prohibiting sexual harassment, and Ms. MacCluskey was aware of these policies. (Id. at 70.)

         About six months after Ms. MacCluskey began working at Manson, Dr. Young started making comments about her appearance and what she was wearing, such as that she was “so young and beautiful” and he was surprised that she had three children. (ECF No. 110 at 28.) He asked personal questions that made her feel uncomfortable, including about her relationship with her children's father and whether “anybody had ever cheated.” (Id. at 28-29.) Dr. Young also stood too close to Ms. MacCluskey when he asked her questions, in a way she described as “creepy” and “weird.” (Id.)

         Ms. MacCluskey testified that while at Manson, in 2009 or 2010, she reported Dr. Young's conduct to both a co-worker and a nurse who was a union representative. (Id. at 29-30.) Someone then reported that there was a concern in the dental clinic to Dr. Alexis Gendell, who was both Ms. MacCluskey's and Dr. Young's supervisor at Manson. (ECF No. 112 at 11.) According to Ms. MacCluskey, Dr. Gendell stopped her in the hallway and asked, “if there was a situation, is everything okay.” (ECF No. 110 at 30, 67-68.) According to Ms. MacCluskey, she told Dr. Gendell that, “there is a situation and I'm all set. It is under control.” (Id. at 69). She testified that this conversation took place in the hallway, where others were present, and that she felt “embarrassed” and “uncomfortable.” (Id. at 30-31.) Ms. MacCluskey said, “I felt at this point in time that he [Dr. Young] was respecting my boundaries when I reminded him to.” (ECF No. 111 at 46.) Dr. Gendell contradicted some of this account. She testified that she summoned Ms. MacCluskey to her office, where the conversation was held in private. (ECF No. 112 at 12.) She testified that she asked Ms. MacCluskey “[w]hat's the concern” and that Ms. MacCluskey responded that “she was all set. And if there were any concerns that she would take care of them and that things were okay.” (Id. at 12-13.) As the judges of the facts and the credibility of the witnesses, the jury was, of course, entitled to accept Ms. MacCluskey's testimony and reject Dr. Gendell's.

         Ms. MacCluskey introduced evidence that Dr. Gendell did not follow up on this conversation. (ECF No. 111 at 46.) After questioning Ms. MacCluskey in the hallway about unspecified concerns, Dr. Gendell did not inquire what those concerns were, or make an effort to investigate whether Dr. Young had a history of “concerns” with other co-workers. As noted, UConn Health did not make Dr. Gendell aware of Dr. Young's previous conduct or discipline. Further, as already discussed, UConn Health did not monitor Dr. Young's conduct, and Dr. Gendell did not do so even after her conversations with Ms. MacCluskey. The dental clinic at Manson was at the end of a U-shaped hallway and there were few visits by supervisors to the interior. (ECF No. 110 at 26-27, 67-68.) A witness from UConn Health's Office of Diversity and Equity (“ODE”) testified that the nature of the prison work environment raised a “concern” in that the “nature of the work the dental assistant does with the dentist keeps them in close proximity and in a separate area in the Dental Clinics, ” which was removed from “the population at large” or “the larger medical unit.” (ECF No. 111 at 62.) Nonetheless, Ms. MacCluskey testified that no one came into the clinic to examine the work environment, even after her conversation with Dr. Gendell. (ECF No. 110 at 52.) There were no cameras in the clinic. (Id. at 26-27.)

         In August 2010, Ms. MacCluskey asked to be transferred to MacDougal-Walker Correctional Institution (“Walker”), where she would be assigned to work with Dr. Young three days a week. (ECF No. 110 at 32-33.) In requesting the transfer, Ms. MacCluskey reported that she and Dr. Young worked “extremely well together.” (ECF No. 37-8 at 27.) She testified that she needed to take the job at Walker because she needed more hours to support her family and that, though she had concerns about working an extra day with Dr. Young, she “thought that [she] could handle it.” (ECF No. 110 at 34.) UConn Health approved the transfer, and Ms. MacCluskey began working at Walker on December 2010. (Id. at 40.) Again, there were no cameras in the clinic, even though it was located in a prison in which cameras were otherwise ubiquitous. (Id. at 33; ECF No. 111 at 62.)

         Over a series of months, Dr. Young's harassment of Ms. MacCluskey escalated. Dr. Young repeatedly commented on Ms. MacCluskey's appearance and asked her out. (ECF No. 110 at 36-50.) She testified that he brought a Victoria's Secret lingerie catalogue to work, “chased [her] around the clinic, ” and asked her to model lingerie for him (id. at 41); later, he pulled out a swimsuit catalogue and asked her to model swimsuits. (Id.) E-mails presented at trial showed that Dr. Young emailed Ms. MacCluskey asking how he could make her “blush, ” telling her that there were “rules” in her new position as a dental assistant working with him such as “we kiss each other before work and when leaving, ” asking her about “crazy hookups, ” and telling her, “I love you 2.” (ECF No. 37-9 at 42, 59, 61, 62.) Ms. MacCluskey testified that Dr. Young told her that he had helped her get the job, and that she “owed him.” (ECF No. 110 at 39.) She also testified that Dr. Young repeatedly bumped into her, touched her hair and her hands, and gave her shoulder rubs. (ECF No. 110 at 40.) He would sometimes stand in the doorway silently for sustained periods, watching while she worked. (Id. at 40, 46.) He sent a Valentine's Day gift to her house, even though she had never given him her home address; as someone who worked in a prison, she kept her home address a closely guarded secret. (Id. at 53.) On one occasion, he stood in the doorway to block her from leaving a room in the dental suite, and when she tried to do so, he grabbed her waist, pulled her close, and put his hand up her shirt. (Id. at 46.) Ms. MacCluskey also testified that if she asked or told him to stop, at times that would only make him more persistent in his behavior. (Id. at 50.) There were no other witnesses to Dr. Young's conduct. (Id. at 41.)

         A jury crediting her testimony could easily have found that Ms. MacCluskey-who was crying during portions of the trial-subjectively found the environment created by the harassment to be abusive, and that a reasonable woman in her position would have found the harassment to be severe or pervasive enough to create an objectively hostile work environment.

         On February 24, 2011, after Dr. Young put his hand up her shirt, Ms. MacCluskey reported the sexual harassment to her supervisor at Walker, Rikel Lightner, and filed an incident report. (ECF No. 110 at 47.) That same day, Ms. Lightner reported the complaint to ODE and Ms. Wallace, the Director of Labor Relations. (ECF No. 112 at 99-100.) On February 25, 2011, UConn Health placed Dr. Young on paid administrative leave. (Id.) ODE conducted an investigation in which Dr. Young admitted that he had given “shoulder rubs” to two other dental assistants as well. (ECF No. 37-9 at 16.) Although there was no evidence that that conduct was reported, Ms. MacCluskey argued that it had also been allowed to occur due to UConn Health's failure to monitor Dr. Young, as required by its own policy. (ECF No. 113 at 32.)

         The ODE investigation concluded that Dr. Young “violated [the internal policy] prohibition against sexual harassment, ” that Ms. MacCluskey's complaint of sexual harassment was credible, and that Dr. Young's suggestions that his conduct-much of which he admitted- was welcome was not credible. (ECF Nos. 37-9 at 31; 111 at 55-56.) Dr. Young chose to resign rather than be fired.

         B. Legal Standard

         “Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor.” Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998).

In considering a motion for judgment as a matter of law, the district court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Thus, although the Court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.

Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (citation, quotation marks, and alterations omitted). “Although a party making a Rule 50 motion always faces a heavy burden, that burden is particularly heavy, where, as here, the jury has deliberated in the case and actually returned its verdict in favor of the non-movant.” Newton v. City of New York, 779 F.3d 140, 146 (2d Cir. 2015) (citation, quotation marks, and alteration omitted). In that circumstance, the Court may only grant judgment as a matter of law where “there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [jurors] could not arrive at a verdict against him.” Cross v. N.Y. City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005) (citation, quotation marks, and alterations omitted).

         C. Discussion

         To prevail on her Title VII hostile work environment claim against UConn Health, Ms. MacCluskey needed to prove: “(1) that the harassment was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (citation and quotation marks omitted). In a case such as this one, “when the harassment is attributable to a coworker, rather than a supervisor, the employer will be held liable only for its own negligence.” Id. (citation, quotation marks, and alteration omitted.) “Accordingly, [the plaintiff] must demonstrate that her employer failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Id. (internal citation and quotation marks omitted).

         At issue in this motion is not the hostile work environment itself, but whether there was sufficient evidence for a reasonable jury to impute the conduct that created the hostile work environment to the defendant, UConn Health. UConn Health argues that the evidence is legally insufficient to prove that “in the exercise of reasonable care [it] should have known, about the harassment yet failed to take appropriate remedial action.” Id. (citation and quotation marks omitted). I disagree.

         1.Constructive Notice

         Contrary to UConn Health's assertion, there was sufficient evidence to support the jury's finding that, in the exercise of reasonable care, UConn Health should have known about Dr. Young's harassment of Ms. MacCluskey, i.e., constructive notice. When the evidence presented at trial is construed in the light most favorable to Ms. MacCluskey and all reasonable inferences are drawn in her favor, the jury could have found the following.

• A different female dental assistant complained to UConn Health about Dr. Young's sexual harassment in 1999-2000. UConn Health disciplined Dr. Young for that incident and subjected him to a “last chance agreement.”
• In the exercise of reasonable care, Ms. MacCluskey and Dr. Young's supervisors, including Dr. Gendell, should have been made aware of the 2000 complaint, Dr. Young's prior sexual harassment of a dental assistant, and the discipline imposed on him. They were not.
• In the exercise of reasonable care, per UConn Health's own policy, Dr. Gendell and other supervisors should have been monitoring Dr. Young for warning signs of similar conduct towards dental assistants, for example, through cameras, visits to the interior of the clinic, and sexual harassment training sessions beyond the standard, self-administered trainings for all UConn Health employees. They did not. The remote location of the dental clinics in the prisons, and the close physical proximity between the dentist and dental assistant, which raised a “concern” later in the eyes of the ODE, only underscored the need for monitoring.
• In 2009 or 2010, Ms. MacCluskey complained about Dr. Young's harassment to two coworkers, and someone reported a concern in ...

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