Daily Developments in EEO Law
by Paul Mollica ©2007
Tuesday, October 30, 2007
The WARN Act requires that “[a]n employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order.” 29 U.S.C. § 2102(a). Under this rubric, can an employer shut down its plant at once if it is willing to serve written notice then and there, and bear the expense of keeping employees in the payroll for 60 days of doing nuttin’? The Fourth Circuit, in Long v. Dunlop Sports Group Americas, Inc., No. 06-2143 (4th Cir. Oct. 29, 2007) says “yes.”
A group of 22 employees, fired when Dunlap closed a golf-ball manufacturing plant, brought suit against the employer on the ground that the plant closure without notice violated WARN. The employer gave the workforce written notice that they would be paid their salaries for the next 60 days unless they found other jobs. The employees all found replacement employment before 60 days expired, but claimed that they were entitled to the full 60-day pay as (in effect) liquidated damages. The Fourth Circuit disagreed: “[I]n the WARN Act, Congress sought to protect employees’ expectation of wages and benefits, not their expectation of performing work. The Act requires an employer to compensate employees for back pay and employee benefits when the employer fails to provide the required 60-day notice period. See 29 U.S.C.A. § 2104(a). But nothing in the Act suggests that Congress sought to protect an individual’s ability to continue performing labor during the 60-day period, as the Employees contend.”
Thursday, October 25, 2007
So here I am, writing about the Eleventh Circuit again, and — like last Tuesday’s entry — I have kind words for a reasonably progressive decision concerning the disabled: Annette Sheely v. MRI Radiology Network, No. 06-13791(11th Cir. Oct. 24, 2007).
The decision (under Title III of the ADA, Rehabilitation Act and Florida Civil Rights Act) concerns an MRI clinic’s former — and possibly future — unwritten policy to deny access to patients and family members who use guide dogs. The plaintiff was a parent of a child undergoing a scan, who was barred from entering the MRI room with her child because she was accompanied by eighty-pound Labrador retriever. The record included other recent incidents where the same clinic barred animals from the exam room.
The reader will not be shocked to hear that, after nine months of defending this policy hammer-and-tongs in litigation, the clinic abandoned it — just two days before filing a motion to dismiss the case on mootness grounds. (Funnily enough, it also filed a motion for summary judgment at the same time, denying any liability under the various statutes — “arguing in the alternative” run riot.)
Does this gambit work? Well, the district court granted the motion and dismissed on jurisdictional grounds, but the Eleventh Circuit reversed. The panel majority holds that cessation of a challenged policy under such circumstances might not moot the claim: “MRN says that its treatment of Sheely was ‘an isolated incident’ rather than the result of a ‘prior entrenched policy.’ The undisputed testimony of MRN’s own employees, however, strongly suggests that Sheely’s treatment was the result of a years-long policy created by MRN’s owner, communicated through MRN’s ranks, and enforced on multiple occasions, sometimes vehemently.”
Indeed, the panel found that the sudden reversal appeared calculated to avoid liability, rather than reflecting a sincere change of heart: “Rick Steinberg, MRN’s Vice President of Finance and Business Administration, conceded as much in his affidavit, stating that ‘[t]he purpose of the written policy was to . . . avoid future disputes such as the one at issue [in the instant case].’ The timing of MRN’s new policy reinforces our conclusion. MRN’s change in policy — and litigation strategy — came almost nine months into this lawsuit, after eight months of discovery and nearly five months of mediation, and appears to have coincided with a change in counsel. It was immediately after terminating one law firm in favor of another that MRN employed the services of ADA help, Inc., to help it draft its new policy. Nor did it take long for it to occur to MRN that this new policy might make the lawsuit against it moot; MRN moved for summary judgment on the grounds of mootness just two days later.”
The panel also holds, in an issue of apparent first impression in the U.S. Courts of Appeals, that non-economic, emotional distress damages are available under the Rehabilitation Act:
“When an entity accepts funding from the federal government, it does so in exchange for a promise not to discriminate against third-party users of its services. A foreseeable consequence of discrimination is emotional distress to the victim, and emotional damages have long been available for contract breach in the public accommodations context. Thus, where one of the benefits the government has bargained for is the funding recipient’s promise not to discriminate, the recipient cannot claim to lack fair notice that it may be liable for emotional damages when it intentionally breaches that promise. The Supreme Court’s concern with notice in awarding remedies for violations of Spending Clause legislation — which operates as a constraint on the Bell v. Hood presumption — is thus satisfied, and we are obliged to adhere to Bell’s presumption that we may award ‘any available remedy to make good the wrong done.’ In short, we conclude that emotional damages are available to make whole the victims of violations of § 504 of the Rehabilitation Act, and accordingly, we reverse the district court.”
A partial dissent (by Judge Cox) would have remanded the mootness issue for further hearing by the district court.
Tuesday, October 23, 2007
Even though the Eleventh Circuit has become — from my read of the case law, anyway — the most management-friendly forum in the federal judiciary, sometimes (if only by happenstance) the stars must align themselves in the employee’s favor.
So in Scarborough v. Board of Trustees, No. 07-10195 (11th Cir. Oct. 22, 2007), a Title VII retaliation case, the panel reversed summary judgment in a case where the alleged harassment had grown so severe — including tire slashing — that the plaintiff (who is male) called the campus police for protection. The college then fired him for “unprofessional” conduct, that is, getting the police involved in a harassment dispute.
Was calling campus security a “protected activity” for purposes of the Title VII opposition-prong of the anti-retaliation section, 42 U.S.C. § 2000e-3(a)? Wrote the panel: “Viewing the facts in the light most favorable to Scarborough, his alleged ‘unprofessional’ conduct, which, if it consisted solely of complaints of sexual harassment and was at all times found to be inextricably intertwined with his attempt to protect himself from harassment and retaliatory threats of physical violence, cannot constitute a legitimate, non-discriminatory basis for termination. Thus, we find that whether Florida A&M’s proffered reason for termination is legitimate and non-discriminatory is a jury question.”
Wednesday, October 17, 2007
Stevenson v. Hyre Electric Co., No. 06-3501 (7th Cir. Oct. 16, 2007), though a Family and Medical Leave Act case (usually off this blog’s beat), casts into real-life terms the tragedy of mental illness, and the murky frontier between personality and disability.
A model employee’s undiagnosed stress disorder erupts one morning when a stray dog entered her worksite through an open window:
“She immediately felt physical symptoms, including a headache, a rush of blood to her head, and a tightening of her neck and back. Stevenson’s supervisor Mary Cicchetti recounted that immediately after the dog incident, she entered the office area where Stevenson worked and found Stevenson very agitated and ‘spraying Glade,’ a room deodorizer. Upon seeing Cicchetti, Stevenson began yelling and cursing, screaming that ‘f**king animals shouldn’t be in the workplace.’ Cicchetti said that Stevenson was ‘very intimidating’ and belligerent, and that her agitated behavior lasted three or four minutes.”
There ensues a two-week cycle of absences, doctors visits, recurring bouts of screaming at the workplace and an order that the employee be locked out of her office and fired. The employee sues under the FMLA, claiming that she was fired instead of being granted needed medical leave. The district court granted the employer summary judgment, finding, inter alia, that Stevenson never gave the employer notice that leave might be required.
The Seventh Circuit (2-1) reverses summary judgment, finding there was a fact question presented about whether Stevenson’s abrupt change in behavior put the employer on constructive notice of her illness. The panel majority relied upon Byrne v. Avon Products, 328 F.3d 379 (7th Cir. 2003), a memorably progressive decision that held that an employee’s inability to communicate his illness to his employer, or patent abnormalities, may constitute constructive notice of a serious health condition. “It is enough under the FMLA if the employer knows of the employee’s need for leave; the employee need not mention the statute or demand its benefits.” Id. at 382.
Here, the panel majority found that:
“Lengthy encounters of yelling and swearing at one’s superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employee’s calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give Hyre notice of a serious mental health condition. Of course, the factfinder could find that Stevenson just had a bad temper that erupted during the period in question. The point here is that this is not a decision the court can make as a matter of law.”
P.S. for dog lovers: “We also note that Hyre insists on characterizing the February 9 dog incident as involving ‘a stray puppy,’ which would serve only to make Stevenson’s subsequent responses to the incident more unusual than if the incident had involved a large, menacing dog. The record does not otherwise reveal the size or breed of the dog.”
Tuesday, October 16, 2007
A recurring problem in employment discrimination cases is the employer that plays the shell-game with the identity of the manager who made the adverse employment decision. The decision inevitably gets pinned on some upper-management figure who naturally had no idea that the employee’s direct supervisor was a raging bigot. Fortunately for plaintiffs, sometimes the direct supervisor lets slip to a co-worker that he had a hand in the decision. The issue is how to navigate that statement to admissibility.
Blair v. Henry Filters, Inc., No. 05-2437 (6th Cir. Oct. 15, 2007) presents one such case. The supervisor here, a vice president named Tsolis, made a lot of intemperate remarks about older employees, plaintiff Blair in particular. At one point near the time of plaintiff’s termination, Tsolis was heard to say that “he needed to set up a younger work force.” The district court excluded the remark because it held that Tsolis lacked the authority to terminate Blair
The Sixth Circuit reversed summary judgment. It held that Tsolis’s remark came in as an party admission and bolstered Tsolis’s authority to terminate Blair. First, it restated the obvious point that the remark was not admitted for the truth of the matter asserted (i.e. that Tsolis, in fact, needed a younger workforce), and therefore not hearsay. But even if the statement were presented as substantive evidence of his intent, it would be admissible under Fed. R. Evid. 801(d)(2)(D). The panel here reminded litigants here of an important intermediate step:
“Accordingly, to decide whether Tsolis’s “younger sales force” statement is admissible under Rule 801(d)(2)(D), we must determine whether personnel matters were a matter within the scope of Tsolis’s employment.
“To ascertain the scope of Tsolis’s employment, we must make a preliminary determination, under Federal Rule of Evidence 104(a), whether Tsolis had the authority to hire and fire salespeople. In this inquiry, we generally are “not bound by the rules of evidence,” FED. R. EVID. 104(a), and accordingly may consider the statement itself, FED. R. EVID. 801(d)(2). Also, we apply the preponderance-of-the-evidence standard for the burden of persuasion in this analysis.”
The panel then found that there was sufficient evidence of Tsolis’s authority to warrant admitting the remark (citations to record omitted): “For instance, [VP Mark] Jackson’s former secretary stated that Tsolis ‘had a high degree of influence’ over personnel matters and that in the spring of 2003, he threatened to terminate salespeople. She further stated that although Jackson was dismayed by these threats, he never indicated that Tsolis lacked the authority to terminate salespeople. Roger Brodeur, a former Durr Automation employee, echoed this sentiment. Brodeur also stated that he was personally involved in some discussions with Tsolis and Jackson regarding whether particular salespeople should be terminated. Based upon these discussions, Brodeur stated that ‘Tsolis was consulted by Mark Jackson and participated in the decisions of who would be fired and who would be hired at Henry Filters and Durr Automation.” Additionally, Tsolis directly told Duncum that he (Tsolis) had made the decision to terminate Roger Brodeur, as well as others.”
Monday, October 15, 2007
It appears that university student research assistants who complain about disability discrimination (or retaliation) may have more than one string to their bow under federal law. For in addition to Title I of the Americans With Disabilities Act (concerning employment discrimination), the Second Circuit also recognizes a claim under Title III (public accommodations) in McInerney v. Rensselaer Polytechnic Institute, No. 06-1746 (2d Cir. Oct. 15, 2007). The plaintiff suffered from brain damage as a result of a bacterial brain abcess; he was also a Ph.D candidate in the Mechanical Aeronautical Nuclear Engineering (MANE) program. He made a variety of complaints about his advisors failed to accommodate his disability, who then allegedly retaliated against him because of his complaints. He filed suit (pro se) without first filing charges with the EEOC or state civil rights agency.
Although the district court dismissed the suit (on jurisdictional grounds), the Second Circuit reversed. The panel — in a per curiam opinion — recognized that the Title III provisions of ADA governing public accommodations (and Title V retaliation claims associated with them) do not require the filing of a charge. The panel then held: “In defending the judgment of dismissal, Defendants argue that McInerney’s allegations concerning his work as a research assistant arise under Title I. However, we need not resolve whether such work qualifies as “employment” for purposes of the ADA-a question not addressed by the district court-because the complaint contains ample Title III-based allegations. For example, McInerney alleges that Defendants failed: (1) to appoint him an adequate thesis advisor, (2) to assist him with funding for his research as they did for other students, (3) to provide extra instruction or a tutor, and (4) to accommodate his disability at or after his doctoral candidacy exam. The district court therefore erred by dismissing McInerney’s ADA claims for failure to exhaust administrative remedies.”
Friday, October 12, 2007
There is an enduring split in the circuits on what analysis a federal court should bring to a point of state law on which the state intermediate appellate court has spoken, but the state’s highest court has not. The Seventh Circuit takes the most assertive supreme-court-predictive approach, holding that the intermediate court decisions are persuasive authority only. Judge Easterbrook in Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004), once wrote that intermediate court decisions are “prognostications” of state law and are not binding on the district court in the face of contrary Seventh Circuit precedent interpreting state law. More recently, the court described state intermediate court decisions as having “great,” but not determinative, weight. Pisciotta v. Old Nat. Bancorp, No. 06-3818, 2007 WL 2389770 (7th Cir. 2007).
Today, a panel of the Ninth Circuit tugged the other direction, holding that the single Oregon appellate decision construing the retaliation section of the Oregon Family Leave Act (OFLA) was determinative, Ryman v. Sears, Roebuck & Co., No. 06-35630 (9th Cir. Oct. 12, 2007): “we reiterate the rule that when (1) a federal court is required to apply state law, and (2) there is no relevant precedent from the state’s highest court, but (3) there is relevant precedent from the state’s intermediate appellate court, the federal court must follow the state intermediate appellate court decision unless the federal court finds convincing evidence that the state’s supreme court likely would not follow it.” With increasingly aggressive state legislation in the employment (and other progressive) arenas, it is a matter of time before this issue becomes outcome determinative in a high-stakes diversity case.
I would be very curious to see what the Roberts Court would do with this.
Thursday, October 11, 2007
After a week-long drought, here’s two EEO cases against federal agencies worthy of note.
Washburn v. Harvey, No. 06-41232 (5th Cir. Oct. 10, 2007) is notable, for one thing, because a fairly conservative panel of a tough court for employees still found it had to reverse summary judgment in an Rehabilitation Act case against the U.S. Army Corps of Engineers (USACE). And the reason was one that too often trips up judges: the “otherwise qualified” element of the McDonnell Douglas prima facie case.
Sometimes employers argue that plaintiffs were not otherwise-qualified because they were missing some kind of certification, educational attainment, test score or other objective standard. There are two ways employees can fight this: show that the qualification doesn’t really exist, or that people outside the protected classification who lacked the qualification were waved through anyway. Here the plaintiff did both. Over an argument that the plaintiff was not a “Certified Appraiser,” and not qualified to serve as a Supervisory Appraiser, the panel reversed:
“USACE’s motion for summary judgment relied exclusively on the declaration of the Chief of Real Estate for USACE, Richard Harrison (‘Harrison’), to show that Washburn was not otherwise qualified to be a Supervisory Appraiser. Harrison’s declaration states that to be eligible for the ‘permanent position’ of Supervisory Appraiser, an appraiser must be a ‘Certified Appraiser,’ which Washburn was not because ‘he did not have a General State Certification from any State as a General Appraiser.’ Washburn countered Harrison’s declaration by submitting the original job posting for the temporary Supervisory Appraiser position, which does not list a General State Certification as a qualification for the position. Moreover, the Acting Supervisory Appraiser, Richardson, does not hold a General State Certification. Neither party submitted evidence or explained whether the qualifications for the Supervisory Appraiser position differ based on whether an appointment to the position is in a permanent, temporary, or acting capacity. We construe this lack of evidence in favor of Washburn.”
Yet in another suit, against the Transportation Security Administration (TSA), the plaintiff bombed out by suing under the wrong statute. The employee in Francis v. Mineta, No. 06-1293 (3d Cir. Oct. 10, 2007), cited religious reasons to wear dreadlocks, barred by a grooming standard for agents. He sued under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., to demand an accommodation. Although the panel held that the district court incorrectly dismissed his suit on subject-matter jurisdiction grounds, it entered judgment against him on the merits on the ground that RFRA does not provide such a cause of action:
“Francis’s complaint alleges, inter alia, that in firing him for not cutting his dreadlocks, the TSA violated his right to freely exercise his religion. He claims that he was terminated because his religious practice (wearing dreadlocks) was inconsistent with TSA’s grooming policy. He is suing because that policy failed to accommodate his religiously-based conduct. But that is an attempt to use RFRA to force the TSA to accommodate wearing dreadlocks because they have religious significance. The legislative history that we have discussed demonstrates that Congress did not intend RFRA to create a vehicle for allowing religious accommodation claims in the context of federal employment to do an end run around the legislative scheme of Title VII.”
A concurring judge would have rested the decision on the additional ground that Title VII provides the exclusive remedy for religion-based employment discrimination by federal employees. Brown v. GSA, 425 U.S. 820, 829 (1976).
Monday, October 8, 2007
If the EEOC (or the employee herself) mis-enters the date of the last discriminatory event on the charge form, can she be bound by that date (as a form of admission) on the limitations defense? The D.C. Circuit holds “no,” in Carter v. WMATA, No. 06-7174a (D.C. Cir. Oct. 5, 2007). The parties agreed that the claimant was sexually assaulted on July 6, 2004, but on the charge questionnaire “Carter handwrote ‘4-6-04’ and ‘4-04’ as the dates on which she sought and obtained WMATA’s assistance in dealing with the assault. She also handwrote ‘4-6-04’ as the date on which the alleged incident occurred.” Although the employer tried (and succeeded, in the district court) to dismiss the claim on this defect alone, the D.C. Circuit promptly reverses. “Her completion of an EEOC questionnaire on October 25, 2004 fell well within the 180-day filing period that commenced on July 6, 2004. Accordingly, the district court should not have granted WMATA’s motion to dismiss.” Hurrah for decency and common sense!
Wednesday, October 3, 2007
Defendants almost never prevail on the argument, in a sex harassment case, that the employee presented a genuine issue regarding an objectively hostile work environment, but must lose on the subjective prong (that the employee personally found the behavior intolerable). Yet here’s Bannon v. University of Chicago, No. 06-2955 (7th Cir. Oct. 1, 2007), demonstrating the exception.
The excerpt below requires no elaboration:
“Bannon has not established that she considered her workplace to be subjectively offensive. She has admitted that she socialized with [alleged harasser] Reilly outside of work not once but several times during the same period when she says he was harassing her. Furthermore, one of these social events-a week-long vacation that Bannon and Reilly took together with their spouses-was more prolonged and extensive than typical socializing among office colleagues. Bannon argues that she only socialized with Reilly because she feared his anger if she refused his invitations, but we note that on at least one recent occasion in October 2002-when she invited him to lunch in the card praising him as a ‘great boss’-she initiated the contact. She also failed to report Reilly’s behavior to his superiors at Argonne even though the conduct she complains of continued for at least five years.”
Moral: Being civil and loyal to the boss who’s harassing you pays no dividends. (Oh, and Anita Hill is back in the news, too.)
Tuesday, October 2, 2007
The Sixth Circuit issues this Ohio state-law disability discrimination decision, Wysong v. The Dow Chemical Co., No. 05-4197 (6th Cir. Oct. 1, 2007), holding (2-1) that the employee presented a genuine issue of material fact about whether the employer regarded the plaintiff as substantially limited in two major life activities that usually do not succeed in these cases: lifting and drug-dependence. The employee (who worked on a production line) suffered from, and missed work owing to, a variety of serious health conditions. Most relevant here was a neck injury, which led to the employee eventually being placed on medical restrictions, including a lifting limit of five pounds.
Dow refused to clear Wysong to return to work, according to the summary judgment record, until she passed an FCE (“functional capacity examination”). “After reviewing Wysong’s medical records (obtained as a result of the medical releases signed by Wysong), [Dow regional medical director] Dr. Teter found a comment by one of Wysong’s treating physicians that Wysong was possibly exhibiting ‘drug-seeking behavior.’ . . . Without consulting with any of Wysong’s treating physicians, Dr. Teter decided that Wysong could not take the FCE unless she stopped taking all pain medication for two weeks.” Because Wysong refused the order to stop taking pain medication, she was barred from taking the FCE or returning to work, and was eventually terminated.
Along with a state law claim of wrongful discharge and an FMLA violation, Wysong alleged an Ohio state-law disabilities act “regarded as” claim. The employee lost on summary judgment below in part on the ground that the employer did not consider her disabled in major life activities beyond performing the particular task for which she was hired (operating heavy equipment). But on appeal, the panel majority held that the record permitted such an inference. Concerning the major life activity of lifting, the court observed that “a jury could make the obvious inference that, based on the work restrictions, Dr. Teter believed Wysong could not safely lift five pounds outside of work.”
Regarding the alleged drug-dependency issue (the employee denied that she had such a dependence), the court held that “A reasonable fact finder could conclude that, under the facts presented, Dow perceived Wysong as being unable to work anywhere at the plant, and thus, unable to perform the same broad class of work anywhere else.”
Monday, October 1, 2007
Update: With the Supreme Court’s opening gavel comes the routine order denying cert for the many petitions left hanging over the summer.
Notably the Court has invited briefs by the solicitor General in two EEO matters pending on cert petitions: Meacham, Clifford B., et al. V. Knolls Atomic Power Lab., et al., No. 06-1505 (second petition from a case concerning an ADEA disparate impact judgment; the first petition was granted, vacated and remanded after Smith v. City of Jackson, Miss., 125 S. Ct. 1536 (2005)), and Crawford, Vicky S. V. Nashville and Davidson Cty., Tn , No. 06-1595 (concerning the scope of the participation clause in the anti-retaliation section of Title VII, and whether it covers participation in internal investigations of civil rights allegations).
The welcoming phrase “Get on the Bus” obtains a new and sinister twist in Dixon v. Int’l Brotherhood of Police Officers, No. 06-1210 (1st Cir. Sept. 27, 2007), an opinion affirming a $2.2 million award under state and federal anti-discrimination law for female police officer subjected to extreme harassment during a union event. On a bus ride to Boston for a union rally, the all-male passengers (excepting for plaintiff) voiced thier irritation that Dixon rode along. But things took an uglier turn in the evening as the bus headed back to the hotel. Dixon had asked the bus driver as a courtesy to help one of the conventioneers (Jason Krumm) find his own lodgings. The rest of the passengers vented angrily:
“As the bus left the bar, John Leary — a police officer whom Dixon had once dated and who was sitting directly across aisle from her — started yelling at Dixon for creating a delay causing detour so late at night. The shouting escalated as other people at the back of the bus joined in. The comments, directed at Dixon and Kumm, turned sexual: ‘Why don’t you fuck her. We all have.’ ‘She gives great blowjobs.’ ‘She will do you, she’s done all of us.’ The bus driver, who testified that she had spent seven years trying to forget that night, explained that ‘the word fuck was used so often that I was turning my mind off to it.’ Kumm described the barrage as ‘totally inappropriate conversation, verbally abusive, threatening.’ [Local President Gerald] Flynn, sitting at the front of the bus, encouraged Kumm to get off before a fight broke out; the situation, he thought, ‘had the potential to explode.'”
This behavior continued (perhaps even accelerated) after Kumm was discharged at his hotel, and Dixon finally asked to be discharged at the Boston Commons rather than her hotel to flee the onslaught.
A month later when the incident began to be investigated, John Leary ran into court (one day after being notified of the investigation), and “received an ex parte temporary restraining order (‘TRO’) against Dixon under chapter 209A of the Massachusetts General Laws. Leary’s cursory affidavit, which the jury did not see, evidently alleged that Dixon had made threatening comments to him the evening of the bus incident. He did not explain why he had waited a month to seek protection from Dixon in the form of a TRO.” The incident spiralled perilously as the case began to garner local attention in the press. The officers involved in the incident largely avoided punishment as the Civil Service Commission found insufficient evidence to support Dixon’s charges. Some of the officers even filed counter-complaints against Dixon alleging perjury.
Dixon eventually won vindication, though, seven years later: “After an eleven-day jury trial in the fall of 2005, the jury found against Leary on the intentional infliction of emotional distress claim. It also found for Dixon and against Flynn and the Local on the discrimination claims and against Leary and the [international union] IBPO on the retaliation claims. Dixon lost her assault and defamation claims. In addition to compensatory damage awards totaling $1,205,000, the jury awarded punitive damages of $25,000 against the Local and $1 against Flynn for discrimination, and $1,000,000 against the IBPO and $2,500 against Leary for retaliation.”
The judgment survived the usual gauntlet of directed verdict and new trial arguments, and the sizable awards were affirmed.