Decisions of Interest

Attorneys' Fees

Appellate attorney's fees are awardable to a prevailing party even if she loses on her cross-appeal. Cush-Crawford v. Adchem Corp., 2002 WL 31777890 (E.D.N.Y. 12/12/2002) (Spatt, J.) Plaintiff here was considered a prevailing party for purposes of attorneys' fees after a jury awarded her $100,000 in punitive damages on her sexual harassment claim, but nothing in actual damages. The district court denied defendant's motion for a judgment as a matter of law on the punitive damages award, and also denied plaintiff's motion for a new trial. After both sides appealed, the Second Circuit affirmed the district court's decisions in their entirety. A few months later, plaintiff filed an application for her appellate attorneys' fees.

In a case of first impression, Judge Spatt of the Eastern District ruled that a Title VII plaintiff has a 'reasonable time' to make an application for attorneys' fees rather than the 14-day limit set forth by Rule 14 of the Federal Rules of Civil Procedure. Moreover, although plaintiff was not successful on her cross-appeal, she was still a prevailing party for purposes of appellate attorneys' fees because the Second Circuit affirmed the $100,000 punitive damages award. Finally, in utilizing the lodestar method to calculate the fees, the court found a partner's billable rate of $350 per hour to be excessive and reduced the rate to $250 per hour. The court also reduced the total appellate attorneys' fee award by 10% for plaintiff's unsuccessful attempt at the cross-appeal.

For plaintiff: Charmaine M. Stewart, Rosedale, NY.
For defendant: Ciarelli & Dempsey, Melville, NY, by John L. Ciarelli.

Breach of Loyalty/Damages

An employee diverts a corporate opportunity and breaches his duty of loyalty when he tells his employer's prospective client that he will contact it after he resigns from his current employment. Gomez v. Bicknell  2002 WL 31890825 (2d Dep't 12/23/2002) (Feuerstein, Justice Presiding, Schmidt, Adams, and Crane, Justices).

The Appellate Division rejected the employee's argument that his breach of loyalty was not completed at the time he resigned: 'To adopt such an argument would license any faithless employee to steal a corporate opportunity but conceal the theft until he or she has departed from employment.'

The Appellate Division also held that the trial court erroneously charged the jury on damages by limiting its calculation to the employee's profit. An employer may elect either the employee's profit or what the employer would have made of the diverted opportunity as its damages, the Appellate Division held.

For appellant-respondent: Mischel, Newman & Horn, P.C., New York, by Scott T. Horn.For respondent-appellant, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York by Edward J. Boyle and Peter J. Larkin.

Damages

A former air traffic controller won a jury verdict on her Title VII causes of action, but failed to establish damages for either front pay or back pay. Hine v. Mineta, 2003 WL 23104 (E.D.N.Y. 1/02/03) (Spatt, D.J.).

The jury issued an advisory verdict adopted by the court awarding the employee no back pay. The jury found that the employee failed to mitigate her damages because she never looked for similar employment in the 7 years after she left her position, and had looked for other dissimilar work for only 3 months of that time. The jury and the court also declined to award the employee front pay because her  failure to seek any alternative employment for 7 years was not reasonably diligent.

For plaintiff: Jeffrey B. Hulse, Hauppauge, NY.
For defendant: Roslynn Mauskopf, US Attorney, Central Islip, by assistant US attorneys Susan L. Riley, Charles P. Kelly.

Expert Testimony

An expert's testimony is inadmissible if it cannot assist the trier of fact to understand or determine an issue relevant to the case at hand. Byrne v. Liquid Asphalt Systems, Inc., 2002 WL 31898071 (E.D.N.Y. 12/19/02) (Carman, J.). In applying the standard set forth by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court here ruled that expert testimony offered by the plaintiff to impose liability on a manufacturer was neither relevant nor reliable. Although plaintiff's expert had 50 years of experience in the industry for which he offered his expert opinion, he lacked knowledge on the specific defect alleged by plaintiff. Because the expert lacked adequate training and experience in the specific defect that led to plaintiff's injuries, the court found his testimony to be merely speculation and conjecture, and therefore, inadmissible to impose liability upon defendant.

No attorneys listed.

Foreign Immunity

Dismissal of a Title VII complaint is warranted when an employee fails to establish that she was engaged in commercial activity. Kato v. Ishihara, 2002 WL 31898341 (S.D.N.Y. 12/27/02) (Berman, D. J.).

Plaintiff, a civil servant of the Tokyo metropolitan government, sued her employer and the governor of Tokyo, alleging sexual harassment and retaliation in violation of Title VII. The plaintiff argued that because she appeared in New York on behalf of her employer at trade shows, where she promoted its products, she was a commercial employee. The court dismissed the complaint, holding that the plaintiff failed to establish that she was a commercial employee because she was a civil servant of Japan. Because her employment was subject to Japan's local public servant laws, the defendants were immune to suit in the U.S.

For plaintiff: Law Offices of Jeffrey Schreiber, New York, by F. Fredric Fouad and Raquel Crespi.
For defendant: no attorneys listed.

Fraudulent Inducement

An employee failed to establish his claim that he accepted employment in Romania in reliance on false assurances from his employer that he would be transferred to a different country in 3 years or less. Macdiarmid v. ING Bank, N.V., 2003 WL 41995 (S.D.N.Y. 1/6/03) (Baer, D.J.).

The employee, who has a law degree, executed an employment agreement just hours after he submitted a letter to the employer stating that he understood that there were no guarantees regarding a change of conditions of his employment. The court held that the employee failed to establish that the employer made any misrepresentations or intended to defraud him. The court also found that the employee could not have reasonably relied on any promises that contradicted the express terms of the contract: 'Assuming such a promise was made, it taxes credulity that a reasonably intelligent person with a law degree ' did not realize what his employer had in mind when he was asked to ' sign an agreement that expressly states defendant reserves all rights to change [plaintiff's] employment status and location.'

No attorneys listed

Retaliation

Retaliation by an employer may be inferred from actions such as the assignment of undesirable work and completion of negative evaluations. Treglia v. Town of Manlius, 313 F.3d 713 (2d Cir. 2002) (Feinberg, Cardamone and Sack, Circuit Judges). In reversing the district court's grant of summary judgment, the Second Circuit held that nonretaliatory reasons given by the employer may be pretextual explanations meant to hide the employer's unlawful motive. Thus, even when the retaliatory actions appear to be nothing more than decisions concerning work assignments, administrative matters and departmental procedures, summary judgment is inappropriate where the employee has raised an issue of fact as to the employer's intent on taking such administrative decisions.

For plaintiff: Green & Seitfter, PLLC, Syracuse, NY, by John L. Valentino.
For defendant: Hiscock & Barclay, LLP, Syracuse, NY, by Alan R. Peterman.

Attorneys' Fees

Appellate attorney's fees are awardable to a prevailing party even if she loses on her cross-appeal. Cush-Crawford v. Adchem Corp., 2002 WL 31777890 (E.D.N.Y. 12/12/2002) (Spatt, J.) Plaintiff here was considered a prevailing party for purposes of attorneys' fees after a jury awarded her $100,000 in punitive damages on her sexual harassment claim, but nothing in actual damages. The district court denied defendant's motion for a judgment as a matter of law on the punitive damages award, and also denied plaintiff's motion for a new trial. After both sides appealed, the Second Circuit affirmed the district court's decisions in their entirety. A few months later, plaintiff filed an application for her appellate attorneys' fees.

In a case of first impression, Judge Spatt of the Eastern District ruled that a Title VII plaintiff has a 'reasonable time' to make an application for attorneys' fees rather than the 14-day limit set forth by Rule 14 of the Federal Rules of Civil Procedure. Moreover, although plaintiff was not successful on her cross-appeal, she was still a prevailing party for purposes of appellate attorneys' fees because the Second Circuit affirmed the $100,000 punitive damages award. Finally, in utilizing the lodestar method to calculate the fees, the court found a partner's billable rate of $350 per hour to be excessive and reduced the rate to $250 per hour. The court also reduced the total appellate attorneys' fee award by 10% for plaintiff's unsuccessful attempt at the cross-appeal.

For plaintiff: Charmaine M. Stewart, Rosedale, NY.
For defendant: Ciarelli & Dempsey, Melville, NY, by John L. Ciarelli.

Breach of Loyalty/Damages

An employee diverts a corporate opportunity and breaches his duty of loyalty when he tells his employer's prospective client that he will contact it after he resigns from his current employment. Gomez v. Bicknell  2002 WL 31890825 (2d Dep't 12/23/2002) (Feuerstein, Justice Presiding, Schmidt, Adams, and Crane, Justices).

The Appellate Division rejected the employee's argument that his breach of loyalty was not completed at the time he resigned: 'To adopt such an argument would license any faithless employee to steal a corporate opportunity but conceal the theft until he or she has departed from employment.'

The Appellate Division also held that the trial court erroneously charged the jury on damages by limiting its calculation to the employee's profit. An employer may elect either the employee's profit or what the employer would have made of the diverted opportunity as its damages, the Appellate Division held.

For appellant-respondent: Mischel, Newman & Horn, P.C., New York, by Scott T. Horn.For respondent-appellant, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York by Edward J. Boyle and Peter J. Larkin.

Damages

A former air traffic controller won a jury verdict on her Title VII causes of action, but failed to establish damages for either front pay or back pay. Hine v. Mineta, 2003 WL 23104 (E.D.N.Y. 1/02/03) (Spatt, D.J.).

The jury issued an advisory verdict adopted by the court awarding the employee no back pay. The jury found that the employee failed to mitigate her damages because she never looked for similar employment in the 7 years after she left her position, and had looked for other dissimilar work for only 3 months of that time. The jury and the court also declined to award the employee front pay because her  failure to seek any alternative employment for 7 years was not reasonably diligent.

For plaintiff: Jeffrey B. Hulse, Hauppauge, NY.
For defendant: Roslynn Mauskopf, US Attorney, Central Islip, by assistant US attorneys Susan L. Riley, Charles P. Kelly.

Expert Testimony

An expert's testimony is inadmissible if it cannot assist the trier of fact to understand or determine an issue relevant to the case at hand. Byrne v. Liquid Asphalt Systems, Inc., 2002 WL 31898071 (E.D.N.Y. 12/19/02) (Carman, J.). In applying the standard set forth by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), the district court here ruled that expert testimony offered by the plaintiff to impose liability on a manufacturer was neither relevant nor reliable. Although plaintiff's expert had 50 years of experience in the industry for which he offered his expert opinion, he lacked knowledge on the specific defect alleged by plaintiff. Because the expert lacked adequate training and experience in the specific defect that led to plaintiff's injuries, the court found his testimony to be merely speculation and conjecture, and therefore, inadmissible to impose liability upon defendant.

No attorneys listed.

Foreign Immunity

Dismissal of a Title VII complaint is warranted when an employee fails to establish that she was engaged in commercial activity. Kato v. Ishihara, 2002 WL 31898341 (S.D.N.Y. 12/27/02) (Berman, D. J.).

Plaintiff, a civil servant of the Tokyo metropolitan government, sued her employer and the governor of Tokyo, alleging sexual harassment and retaliation in violation of Title VII. The plaintiff argued that because she appeared in New York on behalf of her employer at trade shows, where she promoted its products, she was a commercial employee. The court dismissed the complaint, holding that the plaintiff failed to establish that she was a commercial employee because she was a civil servant of Japan. Because her employment was subject to Japan's local public servant laws, the defendants were immune to suit in the U.S.

For plaintiff: Law Offices of Jeffrey Schreiber, New York, by F. Fredric Fouad and Raquel Crespi.
For defendant: no attorneys listed.

Fraudulent Inducement

An employee failed to establish his claim that he accepted employment in Romania in reliance on false assurances from his employer that he would be transferred to a different country in 3 years or less. Macdiarmid v. ING Bank, N.V., 2003 WL 41995 (S.D.N.Y. 1/6/03) (Baer, D.J.).

The employee, who has a law degree, executed an employment agreement just hours after he submitted a letter to the employer stating that he understood that there were no guarantees regarding a change of conditions of his employment. The court held that the employee failed to establish that the employer made any misrepresentations or intended to defraud him. The court also found that the employee could not have reasonably relied on any promises that contradicted the express terms of the contract: 'Assuming such a promise was made, it taxes credulity that a reasonably intelligent person with a law degree ' did not realize what his employer had in mind when he was asked to ' sign an agreement that expressly states defendant reserves all rights to change [plaintiff's] employment status and location.'

No attorneys listed

Retaliation

Retaliation by an employer may be inferred from actions such as the assignment of undesirable work and completion of negative evaluations. Treglia v. Town of Manlius , 313 F.3d 713 (2d Cir. 2002) (Feinberg, Cardamone and Sack, Circuit Judges). In reversing the district court's grant of summary judgment, the Second Circuit held that nonretaliatory reasons given by the employer may be pretextual explanations meant to hide the employer's unlawful motive. Thus, even when the retaliatory actions appear to be nothing more than decisions concerning work assignments, administrative matters and departmental procedures, summary judgment is inappropriate where the employee has raised an issue of fact as to the employer's intent on taking such administrative decisions.

For plaintiff: Green & Seitfter, PLLC, Syracuse, NY, by John L. Valentino.
For defendant: Hiscock & Barclay, LLP, Syracuse, NY, by Alan R. Peterman.