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Decisions and Settlements


Decisions 00-03-07 Appellate Decision in Rio Mar v. NYSDHR

Appeal from the decision of the NYS Division of Human Rights after trial, awarding plaintiff $500,000 for emotional distress, and $65,850 in back pay. The appellate court affirmed the Division's decision in favor of plaintiff, including damages for the period she was unable to work, due to the psychiatric injury inflicted on plaintiff, and the addition of her harasser as a party. However, it reduced to $125,000 the award for emotional distress, with only the following explanation: "the award of $ 500,000 in compensatory damages was excessive and we reduce said award to $125,000."

03-04-04 Plaintiff's Motion for Protective Order Granted

Plaintiff had secretly recorded a conversation with a witness. Defendant demanded that she produce all recordings. Plaintiff did not want to produce the recording until she had first deposed the witness with whom she had the conversation, to prevent him from tailoring his testimony to the recording. We moved for a protective order allowing plaintiff to withhold production until after the witnesses was deposed. The Court came up with the creative solution, which met plaintiff's objectives, of ordering that the recordings be places in a safety deposit box, where plaintiff and defendant's counsel had the two keys required for access, which insured that neither side would have an advantage, until after the deposition.

06-06-19 Plaintiff's Motion to Compel Against School District Granted in Part

Sexual harassment of a high school student by a teacher. The Court grants plaintiff's motion requiring disclosure of the names of other victims, and information about similar incidents, in the year before plaintiff started at the HS. The Court denied plaintiff's motion to depose the attorney who advised the school to discipline rather than fire the harasser.

06-10-20 Plaintiff's Motion to Compel Against School District Granted

Sexual harassment of a high school student by a teacher. The Court granted her motion to force the school to disclose the name of another sexual harassment victim, and to provide details about another incident.

07-02-26 Arbitration Decision After Hearing Jackson v. Kellogg Brown & Root

In this decision after an evidentiary hearing, arbitrator Kathleen Roberts held that military contractor Kellogg Brown & Root had illegally discriminated against Robert Jackson. The decision maker in the hiring process, who had claimed Jackson did worse on an exam than the white applicant KBR hired, had to admit the evidence did not support his claim. That, and evidence that the decision maker had used a racial slur, was enough to convince the arbitrator that KBR had discriminated on the basis of Jackson's race. See pages 23-26.

08-03-03 Denying Defendant's Motion to Sever

Plaintiffs are permitted to bring their claims together, in a single action, if they arise from the same basic set of facts. These plaintiffs brought their sexual harassment claims in a single action, because they had been sexual harassed by the same coworker, their complaints had been ignored by the same managers, and they were both subjected to retaliation, while working at defendant. Defendant moved to have the Court order separate trials in separate actions, claiming that plaintiffs suffered different injuries and worked at different times. The Court denied defendant's motion, because plaintiffs would be deposing the same witnesses, and offering the same evidence, at trial, and defendant's motion would lead to a waste of judicial resources.

08-05-12 Defendant's Motion for Summary Judgment Denied

Plaintiffs, two African-American parents and their minor child, sued a school district for barring them from their child's school, following their complaint of racial discrimination. Initially, plaintiffs went to the Tennessee Department of Education, which warned the school district that if it did not reverse the ban, it could lose federal funding. When the district still refuse, the plaintiffs retained counsel. The Court agreed with plaintiffs that there was enough evidence for a jury to find the district, its superintendent, and board of education members liable. The case settled following the decision.

08-06-03 Granting Plaintiff's Motion to Quash a Subpoena to Her Current Employer

To harass plaintiffs, defendants may serve a subpoena on plaintiffs' current employers. Courts will generally not permit this tactic. Obviously, what happened after plaintiff left her employer is not relevant to her lawsuit, with the exception of how much money she made after leaving (information the plaintiff could provide). This Court quashed the subpoena, and told the defendant it should have simply asked the plaintiff, if it wanted to know.

08-07-23 Defendant's Motion to Compel Denied

This was one of the truly inane motions we have encountered. We wrote a letter to our client's current employer asking that it excuse her from work to attend a deposition. When she testified to this fact at her deposition, the defendant belatedly asked us to produce the letter. When we refused, because the letter was obviously irrelevant to the events at issue many years earlier at defendant, it inexplicably moved to compel production, on the theory that the letter "may contain plaintiff's impressions of defendant." The Court was not amused, and denied the motion, as "far too speculative and tenuous to merit any serious consideration."

09-03-31 Defendants' Motion for Summary Judgment Denied in Part

This is a school peer-on-peer racial harassment case. The plaintiff was subjected to numerous slurs by his classmates, and eventually, his parents tired of the school's failure to remedy the situation, and brought suit. Defendants asked the Court to dismiss all of plaintiff's claims. One was dismissed, but the dismissal had no impact, since others which were identical were not dismissed. As a result, plaintiff prevailed completely against defendant's motion, and the case was ordered to trial. It settled before trial.

10-03-17 Granting Plaintiff's Motion to Dismiss Declaratory Judgment Action

Plaintiff is entitled to choose the court in which he files suit. In this case, plaintiff contacted defendant to make a good faith effort to settle, before filing suit in the state he lived, Tennessee. Defendant pretended to be prepared to negotiate a settlement, all the while preparing its own suit, which it filed in its home state, Kentucky. The Court did not appreciate the deception, and dismissed the defendant's suit, allowing plaintiff to proceed in his home state.

10-03-30 Denying Defendant's Motion for Summary Judgment in Part

This is a fascinating decision. African-American children in Northern High School, in Port Huron, were being subjected to peer racial harassment. The school district had know about it for years, but failed to respond adequately. The year before the case was filed, numerous African-American students were included in an anonymous "Hit List," which suggested they would be killed. Our firm represented twelve of the students. The Court denied defendant's motion (with one minor exception), ruling that the case should go to trial against the board of education on racial harassment. The Court also ruled that the individual school board members were not entitled to immunity. Defendants appealed. The United States Department of Justice joined the plaintiffs on appeal. The appellate court affirmed the lower court's decision to send the case to trial, but over a dissent, ruled that the individual board members were entitled to immunity.

10-07-03 Defendant's Motion for Summary Judgment Denied

This was a sexual harassment case against the University Club and one of its Banquet Captains, Mel Guzman. Plaintiffs alleged a sexually hostile work environment and quid pro quo sexual harassment. Defendant moved for summary judgment on all of plaintiffs' claims, and the motion was denied in its entirety. A jury eventually concluded that the plaintiffs were subjected to sexual harassment.

10-11-02 Defendant's Motion for Summary Judgment Denied

A motion is a written request to a court. A motion for summary judgment asks the court to dismiss the case because it is so weak no competent jury could find for the plaintiff. As the judge in this case noted, it is rare for race discrimination plaintiffs to survive summary judgment in this part of the country. Thus, we were particularly gratified, that the Court ruled in favor of the 60 courageous men and women we represented in this case.

11-03-04 Defendant's Motion for Summary Judgment Denied in Part

This was a challenging case. Plaintiff, an openly gay man, was called a "pussy" and a "fag," by his coworker, with whom he had been friends. His former friend, and current harasser, was not bigoted against gays. As a consequence, this case could not be brought under NY State law which prohibits discrimination on the basis of sexual orientation. Plaintiff believed his harasser was trying to humiliate him with these remarks, by implying he did not meet the accepted standards of behavior for a man (which is gender stereotyping, not anti-gay discrimination), so the case was brought under Title VII, which prohibits gender stereotyping, but not anti-gay discrimination. Unfortunately, the plaintiff had written a letter to the defendant complaining that it was discriminating against him because he was a gay man. The Court seized upon this letter as proof that the discrimination at issue was anti-gay, not gender stereotyping (not covered under Title VII), and granted summary judgment as to that claim. We asked the court to reconsider its decision, because the letter reflected only the plaintiff's opinion, and did not explain why the harasser was harassing him, however, the Court refused to change his opinion. Fortunately, the retaliation claim survived, and the case settled.

11-03-04 Defendant's Motion to Strike Denied

Rule 12(f) allows a court to "strike" impertinent or scandalous allegations from a complaint. The defendant asked the Court to strike (dismiss) the entire complaint because it supposedly contained transcripts of recordings made in violation of Nevada law, where it is generally illegal secretly to tape. The Court denied the motion because, it reasoned, even if the tape was made illegally, the defendant would have the opportunity to keep it out of evidence at trial. The irony was that the writing at issue was not a transcript but notes of a conversation. We use Allison & Taylor to call our clients' former employers, to make sure they are not giving them bad references. In this case, we included the reference that the defendant gave the plaintiff, as evidence of retaliation.

12-02-10 Plaintiff's Motion for Permission to Introduce Harasser's Sex Crime Conviction Granted

The United States Department of Justice brought this case against a landlord and his superintendent for sexual harassment of tenants. The superintendent had previously plead guilty to raping children, and the U.S. wanted to prove that landlord hired him aware of his criminal history, in order to establish liability against the landlord. Our firm intervened on behalf of five of his victims. In this decision, the Court held that the U.S. was permitted to introduce evidence of his prior conviction, and that the landlord was aware of his criminal history, when he hired the harasser.

12-04-16 Defendant's Motion to Dismiss Denied in Part

Plaintiff was a corrections officer, who was harassed by his coworkers and inmates, due to an injury to a sensitive area of his body, and the fact that he took time off due to the injury. Pictures of the officer were photo-shopped to an image of a man with that body part displayed. Plaintiff claimed that he was harassed due to a disability, that he was sexually harassed, and that he was harassed because he did not conform to norms of gender behavior. Defendant moved to dismiss the complaint. The Court granted the portion of the motion seeking dismissal of the sexual harassment claim, noting that the inmates and coworkers were not acting due to romantic interest, however, relying on the same conduct, the Court found that the plaintiff was harassed because he did not conform to gender norms. The Court denied the portion of the motion seeking dismissal of the disability harassment claim.

12-05-18 Defendant's Motion for Summary Judgment Denied in Part

Employers are allowed to require, as a condition of employment, that employees agree to abide by shorter statutes of limitations than our laws provide. This is maddeningly unfair. The plaintiffs in this case did not even realize that they had signed the forms, waiving their rights. Plaintiffs had filed their sexual harassment claims within three years, as required by Kentucky law. The defendant moved for summary judgment arguing that the form required that they bring the claims within six months. Defendant also moved to dismiss all of plaintiffs claims, on the ground that it had taken prompt remedial action in response to complaints. The Court denied that part of the motion, finding that it had done virtually nothing in response to complaints, however, it dismissed the claims under the shortened statute of limitations.

12-10-01 Defendant's Motion for Protective Order Denied

This defendant is known for its penchant for secrecy. It moved for an order requiring that plaintiff treat all of the employment records produced in litigation as confidential. The Court denied the motion because the defendant failed to identify any document which required such protection, or otherwise explain why such protection is necessary. Protesting, picketing, holding sit-ins, and other means of letting the public know how the defendant is violating our clients civil rights, are age old and honorable means of forcing defendants to stop violating the law, so our firm ordinarily opposes attempts by defendants to keep secrets.

12-10-02 Motion to Compel Granted in Freeman v. Dal-Tile

This was an important decision for our firm and our clients, present and future. In our sex and race harassment cases, we always demand discovery of emails from/to supervisors or managers, which contain inappropriate sexual or racial content. We do this because it is such supervisors and managers who are charged with preventing sexual and racial harassment, and if they are engaged in inappropriate communications, it is unlikely they are doing their jobs. We ask for this material in discovery irrespective of whether our client was harassed with emails. We typically get two objections from defendants: no harassing emails were sent to your client, and the supervisors and managers in question did not harass your client. In this decision, the court rejected exactly those arguments, finding that the defendant's claim that the supervisors and managers took appropriate "steps to halt" the harassment, required that the emails be produced.

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Settlements

Since 1988 Mr. Friedman has represented numerous clients in sexual harassment, age, race, sex and disability discrimination cases, in federal and state courts, arbitration and mediation. He has also represented plaintiffs in sexual orientation discrimination, same-sex sexual harassment cases, and class action suits. Here is selection of some of the matters he has litigated to verdict or settlement.

Jackson et al v. Halliburton and Kellogg Brown and Root Arbitrations

We recently acted as counsel in two separate hearings on behalf of three African-American KBR employees who had worked in Hungary and the Balkans supporting our troops, who brought suit against the defendants under The Civil Rights Act of 1964. Halliburton requires, as a condition of employment, that their employees waive their right to trial by jury of their civil rights claims, and sign an "agreement" to arbitrate their civil rights claims. In our view mandatory pre-dispute arbitration agreements are a violation of the spirit of the Civil Rights Act of 1964 -- which Dr. King and others strugled long and hard to enact -- which expressly allows a jury trial. The U.S. Supreme Court has ruled that mandatory arbitration is legal, however, Congress is currently considering legislation which would overrule the Supreme Court’s decision.

Click on the links to read the decisions: In the JACKSON DECISION the arbitrator found that Halliburton and KBR had discriminated against Mr. Jackson based on his race. In the OTHER DECISION, the arbitrator denied claims of racial discrimination.

In re Rio Mar Restaurant 98/115964

Trial before the New York State Division of Human Rights (NYSDHR). The facts involved non-consensual digital penetration, one other violent sexual assault, and other incidents that were in the nature of a hostile work environment harassment, perpetrated by the individual owner of two restaurants. The Judge awarded $500,000 for emotional pain and suffering plus approximately $80,000 for economic loss. The Commissioner affirmed.

The award for pain and suffering is the highest affirmed by the Commissioner of the NYSDHR. In his decision the Commissioner found that the defendant's credibility had been destroyed on cross-examination, which warranted the trier of fact believing the complaining witness's testimony on the two sexual assaults, in the absence of a third-party witnesses. The General Counsel of the NYSDHR stated that the transcript of the trial would be used as a "road map" for the use of psychologists as expert witnesses.

The defendants appealed to the First Department, which reduced the pain and suffering award to $125,000 without opinion.

Out-Of-Court Settlement of Sex and Race Discrimination Claims

This was a sex and race discrimination matter that was settled before suit (the parties' names are non-public). The settlement amount was slightly in excess of $1 million. The client did not have a strong case at the outset. She had run several of its subsidiary companies for a number of years, was an Executive Vice President, and had a good track record, however, the white male chosen for the position had roughly equal experience and was well thought of as well.

Our initial contact at the company was with the General Counsel. We were able to take advantage of pre-filing correspondence, in which he admitted key facts; e.g., that our client was a good performer. Consequently,we were able to drive the initial offer, which was in the low six figures, to over $1 million, by pointing out that he had conceded certain defenses.

Slader et al v. Pearle Vision Inc. et al. S.D.N.Y. 00-Civ.2797:

This was a class-action suit, that alleged that Pearle Vision, a national optical chain, systematically underpays minority employees. It is a disparate impact case. The factual basis for the claims is the statistical analysis we conducted, with the assistance of a statistician, of the defendant's personnel files. The court ordered the files produced and eventually concluded that there was evidence that established disparate impact. The court declined to certify a class at this stage because he concluded that the four representative plaintiffs lacked standing.

Arbitration of Sexual Harassment Claims against NASD Member Firm

Case against a member of the N.A.S.D. brought by a registered representative, alleging hostile work environment sexual harassment and disability discrimination. We initially brought this case in the Southern District of New York under federal, state and local laws. We opposed a motion to compel arbitration at a time when the N.A.S.D. was considering a rule exempting employment discrimination cases from compulsory arbitration. Once a national consensus to grant such motions was apparent, we dismissed the case without prejudice, as of right. We waited until the proposed new rule was adopted and became effective, and then brought the state and local claims in New York State Supreme Court, thereby circumventing the mandatory arbitration rule that was in effect when the client initially contacted us. The case was eventually settled for more than weI would have expected to obtain had the matter been subject to compulsory arbitration.

Joel "Doe" v. Big-Six Accounting Firm

This was a same sex quid pro quo harassment matter. We settled it pre-filing for $300,000. The client alleged that the chairman of a Big-Six accounting firm, who was then running for reelection, had sexually molested him. There was no evidence other that our client's recollection.

Quid Pro Quo Sexual Harassment Case in Michigan (2005)

This case featured truly horrific facts, which we will not describe. During her deposition the plaintiff gave a graphic description of how the harassment had degraded her and destroyed her confidence. The settlement amount was in the $400,000 range.

Settlement of a Sexual Harassment Hostile Work Environment1 Claim

The fact that our client had saved her harasser’s love letters, and the fact that this case was brought in the Bronx, NY convinced the employer’s insurance carrier to approach us immediately after suit was filed to request that we consider settlement. The case settled in the $500,000 range. This case was a rare exception to the general rule that if and when a case settles, it is after discovery2 is complete, just before trial, once the defendant’s attorneys have gained an understanding of the strength of the plaintiff’s case. Discovery can take one or two years, and in some complex cases, longer. We will not represent someone based on the assumption that a case will settle. If we take a case, we make a commitment to try it to a jury, if it does not settle.

1 A hostile work environment claim is a claim that an employer or school made the environment hostile to the plaintiff based on sex, race, disability, religion, sexual orientation, or some other illegal reason. Examples are unwanted sexual attention, language or conduct, which creates a hostile environment based on sex, or the use of racial slurs, which creates a hostile environment based on race. Unfortunately, many of us work in hostile environments where we are humiliated, insulted and bullied. While undoubtedly such conduct creates a "hostile" work environment, it is only an illegal hostile work environment if the harassment is done for some illegal reason, such as sex, race, disability, religion, sexual orientation, or some other illegal reason.

2 Discovery is the process whereby the plaintiff and the defendant learn about the strengths and weaknesses of each other’s cases. During discovery the parties examine the documents each side possess and answer written questions from opposing counsel through affidavits called interrogatories. After this, the parties, and other witnesses, give depositions, in which they are asked questions by the opposing attorney under oath, and the questions and answers are transcribed by a court reporter.

Prior Results do not Guarantee a Similar Outcome

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