authority good morning please the court my name is kathleen miller i'm an attorney for the port authority of new york in new jersey and kerry for telling the defendants in this case the verdict in this hostile work environment case should be set aside because it's based upon multiple errors of law st the jury was improperly given a verdict sheet which allowed joint liability against both the port authority of new york new jersey and the individual defendant gary  plaintiff had to establish a custom and practice a motion was made for summary judgment before the trial charge that motion was denied and put in no three of the decision the judge stated that the port authority was not entitled to any limitations period of one hundred and eighty days prior to the filing of the e e o c charge which was filed on july th two thousand and fourteen that date was january th two thousand and fourteen what happened in this this was discrete acts of conduct were allowed to go to the jury as part of the six so called continuing violation hostile work environment claim and my nd point your honor some of them were clearly comments and things like that which would be consistent with you know there are some discrete acts and you're referring to but some things that occurred before the limitations period were things like comments that certainly could be part of a continuing violation right t could go in as part of the the hostile work environment claim and he didn't specify that they were going in as just background he indicated that it was part of the hostile work environment claim and i would like to look at a motion to dismiss based on and the court knew what my grounds were because i'd already clearly articulated them in a summary judgment motion and in the world of the trial law the judge had indicated that we were going to finish this trial by friday plaintiff didn't complete her case until around four o'clock on thursday afternoon so i had one hour on thursday have to noon and probably up until around three o'clock on friday to present the entire defense case so we reserved on the motion but the plaintiff clearly knew what the grounds for the motion were because they had already been set forth at length in written papers on the motion for summary judgment and those grounds were that there were three alleged statements of discrimination not arguing the other two comments that plaintiff attributed to mr for tall they were discriminatory one of them involve saying are you actually indian and the other involved you know you're not white i'm not arguing that the  that certain conduct namely his suspension in october was retaliatory i certainly made objections in the course of the trial of their nature of evidentiary to testimony involving his application for the junior supervisory  program which was a discrete act that was prior to the limitations period i certainly objected to some of his testimony concerning the denial of the boiler training and i certainly objected to some of his testimony concerning the thanksgiving meal reimbursement those are the three acts that were outside the scope of the one hundred and eighty days and there were three acts which he testified to at length i mean this was not just put in as i was denied the boiler training well wait we believe your honor that they didn't go in as fact that there was no way for the jury to know this if the point is if you had asked to the judge even prior to their going in or said counsel you're going to elicit testimony about this judge may we have a limiting instruction ladies and gentlemen of the jury you're about to hear testimony about things that happened x y and z you may consider this as background information these are you may not consider them with respect jury would you please remind them that these acts which we said shouldn't have been considered can only be considered as background information and may not be considered when they are determining damages if they indeed reach and were reached consideration of an award for damages your work your i didn't go that rd step i made the motion i made the objection sorry i didn't go the rd step well let me go when you as we're getting into instructions i'd like this court to look at the jury instructions in this case this judge instructed the jury that a hostile work environment was satisfied if it affected the terms of the individual's employment the standard is not affected it's altered sentence i looked at it last night but next sentence but effect an alternate to completely different things affected anything affects you altered is to change to transform the conditions of your employment all that did was confuse the jury affected more interchangeable words and we requested here we did specifically tell the court that this standard was altered we submitted a charge on altered we have checked into the charge to the term affected and the judge went ahead and used the term affected so we believe that he substantially misled the jury as to what a hostile work environment was in addition he did your red lights on at this point and when you stand up for a model you might comment on damage i want to say the word it if you disagree with me about all this the war is clearly excessive it's  an offer to work as an oil man for ninety two thousand dollars a year much more than he would have gotten as a watch engineer but the standard there is for a garden variety claim it's one hundred dollars fifty if the hostile environment just the environment is dreadful it's just the worst imaginable but he's got another job because there's that it's too garden variety despite the level the hostility in the world well the courts have said this court has said that it has to be some out of the ordinary act they create the hostility number one here we only have the three comments number two and he needs medical testimony here he really didn't have medical testimony he had mr shiner who is incorrectly described as a psychiatrist he's a clinical social worker some fourteen times he went to his internist three times the st time was for a physical and all he was complaining about was stress and insomnia the nd time he went there was no evidence in this record that he suffered from e d as a result of this ok that's that's what i kind of want to know i was just thrown off by the core thought that the clinical social work is testimony that he was depressed but he got better after three months and the fact that he was given mild doses of ellabella by his internist for insomnia even if you thought that no stood over into significant it's going to be at the bottom of the list and the top awards sustain where there is just emotional pain and suffering not know what the consequences bend around two hundred thousand so this case i submit would i will not submit to cross examination the case is the case is that all the cases that i looked at in that there were some form of public humiliation in this case we have no corroboration that gary made any of these statements for people  are also black and from the caribbean who worked under gary never heard him made a racist comment in all the years they worked for him one of them came back who was retired who was from india who said never heard gary make a racist comment in all the years he'd worked there but i would ask this court for just a moment the punitive damage award here is really based on additional of due process the witness was not able to put before the jury any of the facts and circumstances of his financial condition we tried but the judge said on the record he was not going to let me an engaged in that line of questioning and i'm taken by that argument because back when mercedes benz came down from the supreme court and sort of talked about the due process issue i was doing a fair amount of both to found sam plaintiff's work and man did we beat that horse to death so what case do you have  proposition that in the circumstances presented here an individual who is potentially subject to putative damages has the right has a right some derived somewhere to put in his own financial condition well i can't recall exactly but i had them in my brief your honor that the individual who's being sued for punitive damages it's in the nature of a criminal complaint and the person because they are liable for those damages which gary testified he was he said if if i am found liable for punitive damages i could lose my house and then when i attempted to go into what his financial circumstances were the court told me i would not be allowed to do that so he cut off the line  reader to know that at that point that's where you're going with them on a question you didn't even tell the judge what the purpose of the questioning was well the judge should really give me an opportunity to do that he told me to move on and i when i'm in a trial court in front of a jury i tend not known at that point you're suddenly going into the financial circumstances for punitive damages because we had the charging conference before gary fertile it was on the stand and the judge indicated that he was charging punitive damages at that time when he sent the case to the jury and he had a line for punitive damages on the verdict so he knew that explain the purpose of the question is what i'm saying you didn't explain the purpose of that questioning to the judge whatever the charge conference was obviously there was a punitive damage  cases i can only say your honor in other cases where there's been a punitive damage came and i have certainly been able to ask the person who's being charged with a punitive damage claim about their financial circumstances but without explaining it to the court  a district judges although sometimes they themselves really are not mind readers all the time anyway and it's helpful to the court and therefore helpful to us when we review the record for some further indication to have been made to the court as to why you needed to ask that question or when you asked that question you were going to elicit the following information and at least then we would see in the record that the court had an opportunity to rule on that and perhaps got it wrong good morning your honour's may please the court my name is marjorie messer door and i represent the plaintiff appellee the jury had evidence three bases to find the defendant subject the plaintiff to a hostile work environment based on race and national origin and the trial record also supports damages supports the damage award as as as rendered your honor there are three buckets in which this court could respond to each one of the questions presented by defend in each circumstance the court should affirm the court's going to firm on the basis of the fact that the findings of fact the damage in wards the exciter are dark square within the purview of the jury that they are the ones who are best within this court's ability to decide if your honor but what we are indicating is that the jury had sufficient evidence to find the two point three million dollars award that they had here your office and the court has specifically said that it will not substitute its own judgment for the jury just because they would have otherwise risen a given a lower amount and the record yes the fundamental problem is this is an abuse of discretion issue for the court reviewing the jury award correct yes your honor the trial to notification sustaining the outcome of the trial including the damages right with the reasoning so how can we've said over and over again in many other contexts and we can't review a decision for abuse of discretion if no reasons were given and for the fee award the same thing happened we were trying to ignore for granting your fee application entirely from one hundred and seventy seven thousand dollars something like that before their time to respond and even expired thirteen days later so again how can we sustain the trial court so the trial and should give reasons for why what is a very high warning that you recognize two million dollars is an extremely high ward  that the matter was fully briefed and considered by the court it's outright denial of defendant's motion is an adaptation of plaintiff's arguments that the record is sufficient and which included your honor the erectile dysfunction that did not exist prior to prior to working at the at the port authority the the binge drinking that took place over a series of nights to the point of passing out the sexual promiscuity extramarital affairs  the paying for sex your honor we're talking about an individual who went from a god fearing family man to being completely destroyed and is a life like lifestyle and fabric of a person to the to being a shell of a person he went to a licensed clinical social worker yes your honor the fact is no he's comparing it to other verdicts and it's mentioned one i saw one give me any case state or federal with garden variety motional damages that has million dollars war they simply are not but we says we maintain that this is not that that this is agreed as and not garden variety and there are a number of cases your honor including thorson ravinia phillips duarte hughes brady versus wal mart and turley that sustain that when it is agreed just emotional distress damages as evidenced here your honor when there is a completely change in lifestyle debilitating fact factors your honor that in award of this amount at the very least you to find or at least consider were the result of that one act of hostility we can't say well ma'am that's that's way out of proportion to the act to you or to the plaintiffs his way out of proportion to the one act of hostility that's not a consideration for us that is absolutely a consideration for this court your honor and the court is free to do that but in that circumstance your honor it would clearly have to changing effect on my client here and the case that you're referring to turley your honor i understand that we were dealing in nooses in that case and the n word but that can't be the only bar of discrimination you're honest and it's important  between the facts here and internally mr fatality a th mr bali's name toward the investigators as it relates to the boiler being sabotage which bared criminal liability and would have been career ending his position is a high security position at an airport to be accused of sabotage your honor it borderlines all it borderlines on terrorism in and in since certain respects and would've destroyed him both from a economic perspective justifies over two million dollars i mean this is the case even though it's a difference between the jury find a hostile work environment can justify two million dollars it may justify a hostile work environment but it was three comments this incident that you would come off on days of work and follow him around the airport intimidating him physically with his presence and putting pressure on him to do the work that every said every moment that he that mr soon as a mr fratelli used his physical presence to intimidate him to harass him that the comments were not just three comments your honor both within and without of the area of purview here they include fucking indian as whole you're stupid this is why you people are the way you are you're not an american you're a wannabe what do you think you're white you type of people all of these specifically targeting his in intelligence in his capability to just really elevate and be promoted your honor my client is an immigrant coming to this country and did everything right he went to school he did well on his job he supported his family he did everything that we as a new that immigrants come here and do and mr fertile he never gave them a solid chance not even once he always thought that because he was in and i quote a fucking indian asshole he did not have the where with all the intelligence or the purview to be able to do basic things like pass tests and to be elevated each one of the individuals that they brought before the court indicating that they never heard him make the comment not one of them had tried to get a promotion or elevat any way not one of them and that was what for tally did he interjected himself at every point to block my client from being promoted he interjected him on to j s a didn't give the document he interjected him after he passed the boiler the boiler exam and was qualified to be on the tests he found out what he had on one portion of the test and tried to use that's a block and he tried to block him every stand in the way and when it didn't work he accused them of boiler sabotage your honor for your time is up about the port them summary judgment on that isn't that sufficient you're on a case all indicates that preservation on that issue only on the summary judgment level is insufficient to two to preserve it on appeal specifically when they go to the when they start making arguments as to whether or not there sufficiency of evidence when they start making arguments of sufficiency of evidence and don't request the appropriate charge do not put the parties put me on notice that i have failed to meet my standard in a way that i could cure the record fatalities boss regarding the racial slurs they did nothing he complained to him are they did nothing he complained c e o they did nothing the director of eat those sat in front of a courtroom in front of twelve jurors and said that they didn't make even basic fact inquiries as to whether or not the discrimination was based on race my client he said that he understood that my client said he was being singled out they didn't ask about the race of the other individuals and so how they were charging he clearly admitted that some of the actions that my client described  although we believe that it can go either way that they are in use is a paladin we maintain that they are not if the court disagrees with us we have sufficient evidence of custom and i'll be at all of that if the court says they are municipality and the custom is not sufficient there's still a section one hundred and eighty one sorry math is not my strong suit she could be could be could could be laid over to mr to mr fatality and it does not show the fact that that at at the root of this that defendants did not appropriately preserve the issue yes here and as it relates to the customer record it also shows that there was no ego investigation even though the documents themselves mr specifically place that he put in the discrimination and when i turner why did you not even ask him whether it was based on race the race of the other people involved he said there was fabricated evidence why didn't you look at that he had a clean record before he came to you why didn't you look at that and all that he says is that he basically indicated that he didn't find it remarkable and this is the way that they always do it your honor and at the very least if they had raised this mono issue we could have highlighted this in our summation we could have highlighted these in every every morning but what they are essentially doing is that they failed to preserve and they're asking this court to do the for them and that is not it's not appropriate it's prejudicial both to plaintiff and to the district court judge because then at the very least the record could have been cured as opposed to now coming before the appellate court which by the way well i just wanted to mind one page of the brief are you looking at ms matt was where the ms miller page of the brief are you looking at page fifty three dollars of the main break your honor and then that's where the supreme court talked about punitive damages being in the nature of a criminal penalty and then i also said it's our cone versus perry which is a court decision from this court that said that under these circumstances where the defendant is being at risk of punitive damages he has the burden to demonstrate his or her financial means to pay that i'd like to respond to a few comments that were made by counsel wanted she referred to excessive emotional distress binge drinking and sexual risky sexual conduct none of that was ever testified to by plaintiff in his deposition he never told that to his to the clinical trials no one was aware of that the st time he home that went on he simply testified that he did that he never told his doctor he didn't that the internet well there is no substantiation for it in the medical record so again you get into the you don't get out of the garden variety claim where you have emotional pain and suffering unless you have some substantiation some medical substantiation there was no medical substantiation for any of that so he still within the framework of the garden variety claim council mentioned life changing events there was no life changing event testified to he never left his family no friends came in and  testified on his behalf that he behaved differently family and community as to find his behalf that there was something that happened to him in his personal life no one came in from work to testify that he was subjected to any of this harassment the only testimo his boss saying that he was going to take back the time when he wanted to but all of the other incidents were substantiated instance and he admitted to them he tried to explain away his conduct and in addition to that  held by this court in the weeks case or something like counseling memo to just be criticism and criticism is not in itself discrimination counsel mentioned the criminal accusations of sabotage that's exploded october th the i g report states they were tall but john newton that because plaintiff had filed or circulated the port authority a discrimination complaint it had been decided he was going to be suspended that day player should be suspended because there was no evidence to support it and that stated in the record and there was no testimony to the contrary except played a speculative testimony that gary retaliated against him and had him suspended i objected to it he was still allowed to testify to it so there's no connection between the suspension and sabotage and caring for that was decided by other people he was suspended with pay prior to the ever interview and caring for counsel also mentioned that there was plenty of testify the care for telly followed him around and micromanaged well micro management is discrimination half the supervisors in the city are going to be held brought to this court  undiscriminating charges micromanagement may not be the best style but it's certainly a lot of people style of management he never testified that any time during that so called micro management to see subjected to any discriminatory remarks other than the three discriminatory remarks which have been brought to this court which were litigated in the summary judgment motion which she testified to more or less at trial there was no additional discriminatory remarks ever testified to thank you ms miller