14‐1753‐cv

Adam Wiercinski v. Mangia 57, Inc., et al.

In the

United States Court of Appeals

For the Second Circuit ________

August Term, 2014

No. 14‐1753‐cv

ADAM WIERCINSKI,

Plaintiff‐Appellant,

v.

MANGIA 57, INC., SASHA MUNIAK, ARTUR ZBOZIEN, MALGORZATA

CYMANOW, GRZEGORZ SAROSIEK, ROBERT BAZGIER, AND DARIUSZ

MASLANKA,

Defendants‐Appellees.

________

Appeal from the United States District Court

for the Eastern District of New York.

No. 09‐cv‐4413 (ILG) ― I. Leo Glasser, Judge.

________

Submitted: February 6, 2015

Decided: May 21, 2015

________

Before: PARKER, HALL, and LIVINGSTON, Circuit Judges.

________

Plaintiff‐appellant Adam Wiercinski appeals from a judgment

of the United States District Court for the Eastern District of New

York (I. Leo Glasser, Judge).  The jury returned a verdict in favor of
No. 14‐1753‐cv

Wiercinski on his claim of hostile work environment in violation of

42 U.S.C. § 1981 and awarded him nominal damages of $1 and

punitive damages of $900,000.    Following the verdict, defendants‐

appellees moved pursuant to Rule 50(b) of the Federal Rules of Civil

Procedure for remittitur of the jury’s punitive damages award, or in

the alternative, for a new trial on punitive damages, while

Wiercinski applied for fees and costs.  The district court vacated the

jury’s liability verdict and denied Wiercinski’s application for fees.

We AFFIRM the district court’s ruling only to the extent that it

vacated the award of punitive damages.  We  REVERSE the district

court’s denial of Wiercinski’s application for fees and costs, and

REMAND for the calculation and award of appropriate fees.

________

MATTHEW J. BLIT, Levine & Blit, PLLC, New York,

NY, for Plaintiff‐Appellant Adam Wiercinski.

DANIEL J. KAISER (Henry L. Saurborn, Jr., on the

brief), Kaiser Saurborn & Mair, P.C., New York,

NY, for Defendants‐Appellees Mangia 57 Inc., Sasha

Muniak, Artur Zbozien, Malgorzata Cymanow,

Grzegorz Sarosiek, Robert Bazgier, and Dariusz

Maslanka.

________

BARRINGTON D. PARKER, Circuit Judge:

Adam Wiercinski, a Polish man of Jewish descent, immigrated

to the United States in 1981 with the assistance of Rav‐Tov

International Jewish Rescue Organization (“Rav‐Tov”), a community

organization helping Jews resettle in Israel and the United States.

Starting in approximately 1984 and continuing until December 2007,

Wiercinski worked as a deliveryman for Mangia, a food catering

company with several locations in Manhattan.1

  All Mangia locations

1 For purposes of this opinion, “Mangia” refers either to the umbrella entity, or to the

appellees.  All references to specific Mangia locations will include the branch name.

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No. 14‐1753‐cv

are owned by Sasha Muniak.    Malgorzata Cymanow, Muniak’s

sister, served as the general manager of all Mangia locations

throughout the period of Wiercinski’s employment.

There were only two notable breaks in Wiercinski’s

employment by Mangia during this 23 year period.  Wiercinski left

the Mangia 56 location in approximately 1989 and worked as a

security officer until he returned to work at the Mangia 48 location

in 1992.  In 1998, Wiercinski was fired by his manager at the Mangia

48 location, allegedly because of that manager’s anti‐Semitism.

Shortly thereafter Wiercinski asked his friend and Rav‐Tov sponsor,

Zindel Zelmanovitch, to help him get his job back.   Zelmanovitch

approached Muniak and Cymanow and convinced them to rehire

Wiercinski.  They did so and Wiercinski then worked at  Mangia’s

Wall Street branch.

In 1999, Wiercinski asked Zelmanovitch to help him transfer

from the Wall Street location to the Mangia 57 location because it

“was the busiest location in the midtown” and Wiercinski believed

he would “be able to earn some decent money” at that branch.  JA

89, 91.  Wiercinski worked at Mangia 57 until he took an extended

leave of absence to visit family in Poland in late 2007.    When he

returned in early 2008, he asked to be rehired at Mangia and was

rejected.

In October 2009, Wiercinski sued Mangia 57 and six

individual defendants (together, “Mangia”), alleging discrimination

on the basis of religion and national origin, retaliation, conspiracy,

wrongful termination, and violation of various New York State and

City laws.    Wiercinski alleged that a night shift manager, Artur

Zbozien, verbally harassed and abused him with anti‐Semitic slurs

such as “stinking jew,” “dirty Jew,” “Jewish pederast,” and “kike”

throughout Wiercinski’s eight year period of employment at Mangia

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No. 14‐1753‐cv

57.  In October 2013, following several years of motion practice, the

parties proceeded to trial on Wiercinksi’s sole remaining claim –

hostile work environment under Section 1981.

The evidence presented by both sides was almost entirely

testimonial. Wiercinski recounted multiple instances of Zbozien’s

harassing conduct.  For example, Wiercinski testified that on the first

day of work, he accidentally bumped into Zbozien while carrying

boxes, to which Zbozien responded, “did anybody ever fuck you up,

you stupid fucking Jew.”  JA 93.  Wiercinski also said that, on several

occasions, Zbozien paid out Wiercinski’s tips in pennies and threw

them on the floor.    JA 96‐97.    Wiercinski recalled that Zbozien

sometimes passed gas in front of him, laughed, and said, “here is

your Zyklon B that was used to gas Jews in the concentration

camps.”  JA 100.  According to Wiercinski, Zbozien used anti‐Semitic

slurs “at least a dozen times” over the eight years during which

Wiercinski worked at Mangia 57.  JA 102.  

Wiercinski also introduced testimony from three former co‐

workers, who testified in detail about the specific instances

described above and explained that Wiercinski commonly

complained to them and others about the anti‐Semitic slurs he was

subject to.    See, e.g., JA 106‐107, 179‐180, 195, 202.    Nevertheless,

Wiercinski admitted that he never looked for another job during the

eight years of harassment from Zbozien, and in fact, asked to be

transferred to Zbozien’s night shift, a request that Mangia granted.

Wiercinski testified that he complained to Cymanow about

the harassment “on several occasions, but then she always

discouraged [him] [from] com[ing] back.”    JA 109.    According to

Wiercinski, he spoke with Cymanow “at least ten times” about

Zbozien and other individuals “calling [him] dirty names about [his]

Jewish religion.”    JA 110.    The only result of these conversations,

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No. 14‐1753‐cv

according to Wiercinski, was Cymanow’s decision to transfer

Zbozien to Mangia Wall Street.    Zbozien returned to Mangia 57

approximately three weeks later.    Shortly after Zbozien returned,

Wiercinski was transferred to a different shift, again apparently

upon his own request.    See JA 366‐367 (8/8/07 affidavit of Artur

Zbozien) (“Wiercinski was transferred to work on the day shift,

while I continued to work the night shift.    Since then, I have had

very limited contact with [him].”); JA 108 (testimony of Wiercinski)

(“At th[e] time [that Zbozien returned] I think I was off the night

shift. . . . I quit the night shift and became [a] part‐time delivery

person”).  According to Wiercinski, Cymanow was herself  “known

for being anti‐Semitic,” although his only specific allegation of such

behavior was her occasional use of a Polish term for Jews that

Wiercinski characterized as “not very derogatory.”   JA 124.   Other

than these alleged complaints to Cymanow, Wiercinski testified that

he commonly complained to his coworkers and brought the issue to

Muniak’s attention in 2007.    Wiercinski stated that as a result of

Zbozien’s harassment, he suffered from depression, anxiety, and

sleep issues, although he did not present any medical evidence as to

these problems.

On cross‐examination, Mangia undertook to impeach

Wiercinski’s credibility but was thwarted as a result of his repeated

invocation of the Fifth Amendment privilege against self‐

incrimination. Specifically, Wiercinski invoked the Fifth

Amendment privilege when cross‐examined about his use of a

different name for payroll purposes while at Mangia, his failure to

report income earned at Mangia on tax returns, his application for

and receipt of Social Security and other public assistance benefits

without reporting income earned at Mangia, and his failure to report

income earned at Cucina, a catering company where Wiercinski

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No. 14‐1753‐cv

worked after his termination in 2007.2

  See JA 125‐131, 134‐136, 153‐

159.    Although Mangia was, at times, able to impeach Wiercinski

using prior deposition testimony, see, e.g., JA 130 (Wiercinski

deposition testimony admitting that he used a different name to

receive income earned at Mangia in order to conceal it from

government authorities), its ability to present a defense was

significantly hampered by Wiercinski’s obstructive behavior during

cross‐examination. In total, Wiercinski invoked the Fifth

Amendment at least twenty four times over the course of a brief

cross‐examination, including in response to questions as basic as

whether or not he recalled giving prior deposition testimony.  See JA

127‐129.  

Mangia also attacked the credibility of Wiercinski’s witnesses

by impeaching their trial testimony with prior inconsistent

deposition testimony. See, e.g., JA 182 (deposition testimony of

Marian Krajewski stating that he could not remember instances of

anti‐Semitic slurs directed at Wiercinski); JA 202, 215‐216 (deposition

testimony of Marcin Swiderski and Jaroslaw Ubowski stating that

2 The district court instructed the jury about the invocation of the Fifth Amendment as

follows:

During the course of the trial, you have heard Mr. Wiercinski assert the

Fifth Amendment to a series of questions which were put to him.  You

may, I suppose, during the course of your common experience and life,

have heard references to a person taking the Fifth.  It is refusing to

answer a question because the claim is that if I answered it I might be

incriminating myself.  That’s the basis of the Fifth Amendment.

In a civil case when a person takes the Fifth Amendment, the jury has a

right to infer – they may, but they are not required to infer – an adverse

inference by virtue of the fact that the witness asserted the Fifth

Amendment.  The jury may infer but they are not required to infer that

the answer which the witness would have given, had he answered it,

would have been unfavorable to him.

JA 345.

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No. 14‐1753‐cv

Wiercinski never complained to them about anti‐Semitism).  At the

conclusion of plaintiff’s case, Mangia moved for a directed verdict

on the ground that Wiercinski’s testimony was not credible, citing to

the inconsistencies in his testimony and his pervasive invocation of

the Fifth Amendment.  The district court denied the motion because

it was “based on questions of credibility,” which are in the domain

of the jury.  JA 221.

Mangia introduced five witnesses in its case‐in‐chief.  Robert

Ranfranz, a former co‐worker of Wiercinski’s and Mangia’s current

director of operations, testified that he received a phone call from

Wiercinski in August 2007, shortly before Wiercinski left the

company and that he offered him a bribe.    Specifically Wiercinski

told Ranfranz that “he is not happy with the way that things are

going at Mangia [or] Zbozien, and he said he is thinking about

opening a case, suing the company, and he asked [Ranfranz] if [he]

will testify for him. [Wiercinski] said that he will offer [Ranfranz]

[one] thousand or $2,000 as an exchange, and that if he wins the

lawsuit [they] can speak about additional money after the case.”  JA

225.  

Zelmanovitch also testified about his extensive relationship

with Wiercinski, and recalled that even though Wiercinski

frequently spoke to him about work and compensation issues, he

never mentioned that he was subject to anti‐Semitic harassment at

work.  Zbozien testified and denied using anti‐Semitic slurs against

Wiercinski.    Zbozien admitted that Cymanow transferred him to

Mangia Wall Street for a brief period because of Wiercinski’s

complaints, but could not remember whether he knew at the time

that those complaints alleged anti‐Semitic remarks.    Cymanow

denied ever being told by Wiercinski of alleged anti‐Semitic

remarks, and claimed that she fired Wiercinski in 2007 because of job

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No. 14‐1753‐cv

performance issues and because he requested too much vacation

time.    Finally, another former deliveryman testified that he never

heard Zbozien make anti‐Semitic remarks, and that Wiercinski never

complained to him about anti‐Semitism in the office, even though

they were both Jewish and discussed Jewish holidays and other

topics.

The jury found Mangia liable under Section 1981, concluding

on a special verdict form that Wiercinski was subjected to a hostile

work environment based on conduct “perpetrated by his

supervisor(s)” but not “perpetrated by his coworker(s).”    The jury

awarded Wiercinski nominal damages in the amount of $1 and

punitive damages in the amount of $900,000.  The verdict form did

not require the jury to name which supervisor, or supervisors,

subjected Wiercinski to a hostile work environment.3

  Following the

verdict, Wiercinski applied for an award of attorneys’ fees and costs,

and Mangia moved, pursuant to Rules 50 and 59, for remittitur of

the punitive damages award, or in the alternative, a new trial on the

issue of punitive damages.  

Although Mangia moved only for relief as to the punitive

damages award, the district court vacated the jury’s liability verdict,

conditionally granted Mangia’s motion for a new trial on the issue of

punitive damages, and denied Wiercinski’s application for fees and

costs.    Wiercinski v. Mangia 57, Inc., 33 F. Supp. 3d 118 (E.D.N.Y.

2014).  In reaching this decision, the district court concluded,

[h]aving seen and heard the witnesses and having a firm hold on

and not merely a feel, for every jot and title of this case, I am

driven to the determination that a judgment entered for the

defendant pursuant to Rule 50(b) notwithstanding the verdict, is

3 Neither party requested a more detailed verdict form or a jury instruction on

the definition of “supervisor,” which was the subject of the Supreme Court’s decision

in Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).  

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No. 14‐1753‐cv

the only determination that reasonable and fair‐minded persons

could arrive at and to do less would be to endorse a gross

miscarriage of justice.

Id. at 128.    The district court found that Wiercinski’s repeated

invocation of the Fifth Amendment severely impacted his credibility

and limited Mangia’s opportunity to mount a defense. The district

court was, no doubt, also deeply troubled by essentially unrebutted

testimony that Wiercinski had offered to purchase the testimony of a

witness. Further, the district court found the plaintiff’s witnesses to

be incredible, finding that “[t]heirs was the glib testimony of school

witnesses reciting a lesson, a parody of Wiercinski’s.    The glaring

inconsistencies between their testimony at trial and at depositions

years earlier are vital to note for their relevance in arriving at a

reasoned and comprehensive disposition . . . .”  Id. at 134 (internal

quotation marks omitted).    The district court also concluded there

was no evidence in the record to support a conclusion that Zbozien

was a supervisor as that term has been defined by the Supreme

Court.  See id. at 136.

By contrast, the district court found the testimony of Mangiaʹs

witnesses to be more credible.  Specifically, the district court noted

that Cymanow had been family friends with Wiercinski for 30 years,

and testified that she never directed or heard anyone direct any

anti‐Semitic remarks at Wiercinski at work.   The district court also

noted that Zelmanovitch testified that he knew Wiercinski for 25

years, and that Wiercinski had never told him that he was facing this

kind of harassment at work, even though Wiercinski had come to

him with many other problems over the years.    See id. at 133.

Finally, the district court cited evidence that Wiercinski stayed at the

job for years, despite the allegedly hostile environment and in fact,

asked to be assigned to the night shift where Zbozien is the

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No. 14‐1753‐cv

dispatcher, as undermining Wiercinski’s testimony and supporting

Mangia’s witnesses. See id. at 134.  Wiercinski filed a timely appeal

from this decision.

STANDARD OF REVIEW

This Court reviews de novo a district court’s decision to vacate

a jury verdict pursuant to Rule 50(b).    See Tepperwien v. Entergy

Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011).  A judgment

notwithstanding the verdict “‘may only be granted if there exists

such a complete absence of evidence supporting the verdict that the

jury’s findings could only have been the result of sheer surmise and

conjecture, or the evidence in favor of the movant is so

overwhelming that reasonable and fair minded [persons] could not

arrive at a verdict against [it].’” Brady v. Wal‐Mart Stores, Inc., 531

F.3d 127, 133 (2d Cir. 2008) (quoting Luciano v. Olsten Corp., 110 F.3d

210, 214 (2d Cir. 1997) (alterations in original)).  “The motion should

be granted only if the court can conclude that, with credibility

assessments made against the moving party and all inferences

drawn against the moving party, a reasonable juror would have

been compelled to accept the view of the moving party.  The court

cannot assess the weight of conflicting evidence, pass on the

credibility of witnesses, or substitute its judgment for that of the

jury.”  Fairbrother v. Morrison, 412 F.3d 39, 48 (2d Cir. 2005) (internal

citation, quotation marks, and brackets omitted).

DISCUSSION

I. Liability Verdict

Section 1981 provides, in pertinent part, that “[a]ll persons

within the jurisdiction of the United States shall have the same right

. . . to make and enforce contracts . . . as is enjoyed by white citizens .

. . .” 42 U.S.C. § 1981(a).  “This section thus outlaws discrimination

with respect to the enjoyment of benefits, privileges, terms, and

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No. 14‐1753‐cv

conditions of a contractual relationship, such as employment . . . .”

Patterson v. Cnty. of Oneida, 375 F.3d 206, 224 (2d Cir. 2004).    The

same “core substantive standards that apply to claims of

discriminatory conduct in violation of Title VII [of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq.] are also applicable to claims of

discrimination in employment in violation of § 1981 . . . .” Id. at 225.

To prove a hostile work environment claim under Title VII, a

plaintiff must show that his “workplace is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations and

quotation marks omitted). “[T]he conduct complained of must be

severe or pervasive enough that a reasonable person would find it

hostile or abusive, and the victim must subjectively perceive the

work environment to be abusive.”  Raspardo v. Carlone, 770 F.3d 97,

114 (2d Cir. 2014) (citation omitted).  Relevant factors in determining

whether the conduct is sufficiently pervasive “include the frequency

of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work

performance.”  Harris, 510 U.S. at 23.

An employer’s liability for hostile work environment claims

depends on whether the underlying harassment is perpetrated by

the plaintiff’s supervisor or his non‐supervisory co‐workers.   If the

harassment is perpetrated by the plaintiff’s “non‐supervisory co‐

workers, an employer’s vicarious liability depends on the plaintiff

showing that the employer knew (or reasonably should have

known) about the harassment but failed to take appropriate

remedial action.” Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir.

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No. 14‐1753‐cv

2004).  An employer is strictly liable for harassment perpetrated by a

supervisor, unless the employer is able to establish an affirmative

defense showing that it “exercised reasonable care to prevent and

correct [] any . . . harassing behavior” and that the plaintiff

“unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer to avoid harm

otherwise.”  Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).  

In Vance v. Ball State University, the Supreme Court explained

that an employee is a “supervisor” for purposes of the employer’s

vicarious liability under Title VII if he or she is empowered by the

employer “to take tangible employment actions against the victim,

i.e., to effect a ‘significant change in employment status, such as

hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change

in benefits.’”  133 S. Ct. 2434 , 2443 (2013) (quoting Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).  In other words, a supervisor

is an individual “‘empowered by the company as a distinct class of

agent to make economic decisions affecting other employees under

his or her control.’” Id. at 2448 (quoting Ellerth, 524 U.S. at 762)

(emphasis omitted).  

The district court “determined that a judgment should be

entered for the defendant notwithstanding the verdict (pursuant to

Rule 50(b)) because [it] ha[d] a feel of this case that is indelibly

engraved upon [its] consciousness for having seen and heard the

witnesses and with an awareness of the nuances of their testimony . .

. .”  Wiercinski, 33 F. Supp. 3d at 135.  Although we fully understand

the district court’s concerns, we cannot agree with its explanation for

vacating the liability verdict.    This was a case based entirely on

testimonial evidence from both parties.    The district court was

“required to consider the evidence in the light most favorable to the

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No. 14‐1753‐cv

party against whom the motion was made,” and to “disregard all

evidence favorable to the moving party that the jury is not required

to believe.”    Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001)

(internal citations omitted) (emphasis omitted). Although the district

court was justifiably concerned by what it correctly perceived to be

troubling conduct by Wiercinski and his witnesses, the jury was

properly instructed on how to consider Wiercinski’s testimony in

light of the invocation of the Fifth Amendment and chose to credit

his version of the events, as well as the testimony of his witnesses.

Given that testimony, the jury could rationally have concluded that

Zbozien subjected Wiercinski to a hostile work environment.    The

district court’s rejection of the jury’s conclusion was essentially

grounded in the type of evidence weighing and credibility

determinations that are not permitted by Rule 50(b).  

Alternatively, the district court found that the jury’s verdict of

supervisory liability could not be sustained because Zbozien was not

a “supervisor” as defined by the Supreme Court in Vance.    The

district court held that Zbozien “was merely a dispatcher who

assigned catering orders to individual delivery boys, one of whom

was Wiercinski.    Although these assignments could affect the

amount earned in tips [because larger deliveries typically have

larger tips], this is insufficient to establish supervisor status because

such assignments do not constitute tangible employment action.”

Wiercinski, 33 F. Supp. 3d at 136 (internal citations and quotation

marks omitted).  

Similarly, in light of the circumstances of this case, we cannot

accept this alternative basis.    We need not determine whether

Zbozien satisfies the Vance definition of “supervisor,” because the

district court failed to acknowledge that the jury’s conclusion that

the harassment was not perpetrated by co‐workers is necessarily

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No. 14‐1753‐cv

based on its determination that Zbozien is a supervisor.    Neither

party requested an instruction as to the definition of “supervisor”

under Vance, nor was the jury provided a list of potential supervisors

or co‐workers who allegedly harassed Wiercinski.  Thus, even if the

jury had been instructed that Zbozien could not be a “supervisor” as

a matter of law, he certainly would have been a “co‐worker.”  The

jury could have credited Wiercinski’s testimony that he informed

Cymanow of the harassment and concluded that Mangia was

vicariously liable for the harassing conduct of a co‐worker (that is,

Zbozien) because Cymanow, a supervisory agent of Mangia, knew,

or should have known, of his conduct and failed to remedy the

harassment.  For these reasons, we reverse the district court’s ruling

insofar as it vacates the liability verdict and award of nominal

damages in the amount of $1.

II. Punitive Damages

Punitive damages are “‘a discretionary moral judgment’ that

the defendant has engaged in conduct that is so reprehensible that it

warrants punishment.”    Tolbert, 242 F.3d at 77 (quoting Smith v.

Wade, 461 U.S. 30, 52 (1983)).  The showing required for an award of

punitive damages is not the same as that required for liability.

Rather, punitive damages may be awarded for claims of

employment discrimination only where the employer “engaged in a

discriminatory practice or discriminatory practices with malice or

reckless indifference to the federally protected rights of an aggrieved

individual.”    42 U.S.C. § 1981a(b)(1) (emphasis added).    The

Supreme Court has explained that punitive damages are appropriate

only “when the defendant’s conduct is shown to be motivated by

evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.”   Kolstad v.

Am. Dental Ass’n, 527 U.S. 526, 536 (1999) (quotation marks omitted).

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No. 14‐1753‐cv

“A plaintiff may establish the requisite state of mind for an

award of punitive damages with evidence (1) that the defendant

discriminated in the face of a perceived risk that its actions violated

federal law, or (2) of egregious or outrageous acts that may serve as

evidence supporting an inference of the requisite evil motive.”

United States v. Space Hunters, Inc., 429 F.3d 416, 427 (2d Cir. 2005)

(internal quotation marks, citation, and brackets omitted).  “[I]n the

punitive damages context, an employer may not be vicariously liable

for the discriminatory employment decisions of managerial agents

where these decisions are contrary to the employer’s good‐faith

efforts to comply with [federal law].”    Kolstad, 527 U.S. at 545

(internal quotation omitted); accord Carrion v. Agfa Constr., Inc., 720

F.3d 382, 387 (2d Cir. 2013) (affirming vacatur of punitive damages

where the record lacked evidence “that defendant’s conduct was

driven by an evil motive or intent or that it involved a reckless or

callous indifference to plaintiff’s federally protected rights”)

(quotation mark omitted).

There is no evidence in the record that Mangia “discriminated

(or retaliated) against [Wiercinski] with conscious knowledge it was

violating the law, or that it engaged in egregious or outrageous

conduct from which an inference of malice or reckless indifference

could be drawn.” Tepperwien, 663 F.3d at 573.  The only conduct that

can be imputed to Mangia that Wiercinski alleges was “malicious”

or “recklessly indifferent” was Cymanow’s alleged failure to act

after Wiercinski complained to her about the discrimination.  Even if

this fact could establish an employer’s liability for co‐worker

harassment, it does not, by itself, warrant an award of punitive

damages.

Even if we credit Wiercinski’s version of the facts, the

remaining evidence shows that Wiercinski “was a friend of []

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No. 14‐1753‐cv

Cymanow’s family for years, was a frequent visitor in her home,

invited to participate on festive occasions[,] and was re‐hired by her

after he was discharged.” Wiercinski, 33 F. Supp. 3d at 138.

Additionally, Wiercinski was an employee of Mangia for over 20

years, during which period the company granted his requests to be

transferred to more preferential locations and even his own request

to continue to work on Zbozien’s shift.    When Wiercinski

complained to Cymanow about Zbozien’s conduct, she transferred

Zbozien to a different location.  After Zbozien returned, Cymanow

granted Wiercinski’s request to be transferred to a different shift.

Even if these efforts were not sufficient to remedy the harassment,

the evidence shows that, “[f]ar from acting maliciously or

indifferently or egregiously,” Mangia and Cymanow “sought to, and

did, address [Wiercinski’s] complaints in good faith.”    Tepperwien,

663 F.3d at 574.    No reasonable jury could conclude that Mangia’s

conduct was “driven by an evil motive or intent, or that it involved a

reckless or callous indifference to [Wiercinski’s] federally protected

rights.”  Carrion, 720 F.3d at 387 (internal quotation mark omitted).

Given the high standard for punitive damages set forth in Section

1981a and by the Supreme Court in Kolstad, we affirm the district

court’s ruling to the extent it vacated the award of punitive

damages.  

III. Attorneys’ Fees and Costs

A plaintiff who recovers only nominal damages is still a

prevailing party and may be entitled to fees and costs in Title VII

cases.  Farrar v. Hobby, 506 U.S. 103, 112‐13 (1992) (“[A] plaintiff who

wins nominal damages is a prevailing party under § 1988 [which

permits recovery of attorney’s fees in civil rights cases]. . . . A

judgment for damages in any amount, whether compensatory

or nominal, modifies the defendant’s behavior for the plaintiff’s

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No. 14‐1753‐cv

benefit by forcing the defendant to pay an amount of money he

otherwise would not pay.”).  Accordingly, we remand to the district

court to determine what fees and costs, if any, Wiercinski may

recover.    Given the highly unusual facts of this case, the district

court would be well within its discretion to conclude that this is a

rare instance where a plaintiff who “formally prevails under § 1988

should receive no attorney’s fees at all.”   Id. at 115 (internal marks

omitted).

CONCLUSION

For these reasons, we AFFIRM the district court’s judgment to

the extent that it vacates the award of punitive damages, REVERSE

to the extent that it vacates the jury’s finding of liability and award

of nominal damages, and REMAND for determination of

appropriate fees and costs.

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