In Bouveng v. NYG Capital LLC et al, No. 14 CIV. 5474 (PGG), 2016 WL 1312139 (S.D.N.Y. Mar. 31, 2016), Judge Gardephe – in a lengthy and thoughtful opinion – ruled on defendants’ post-trial motions following a jury’s verdict in favor of, and considerable award to, Hanna Bouveng in her sexual harassment lawsuit against various defendants, including Benjamin Wey.
Among other rulings, the court denied defendants’ motion for judgment as a matter of law and for a new trial on plaintiff’s quid pro quo sexual harassment claims under the New York State and City Human Rights Law.
The court noted that plaintiff could prevail on such a claim in one of two ways, namely, that “she submitted to Wey’s unwelcome sexual advances in order to avoid employment-related consequences or (2) she rejected Wey’s unwelcome sexual advances and suffered employment-related consequences as a result” (the “submission” and “rejection” theory, respectively).
As to the “submission” theory, the court held that such a claim was viable notwithstanding the jury’s rejection of her battery claim against Wey, since the two causes of action have different elements.
Specifically, battery requires that the conduct be “non-consensual”, whereas “[t]he correct inquiry [for her sexual harassment claims] is whether [Plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary or consensual.”
Here, “[b]ased on the evidence at trial, a reasonable jury could conclude that Wey s sexual advances towards Plaintiff were unwelcome, and that he knew they were unwelcome.”
Plaintiff testified that, during their November 2013 trip to Boston, she told Wey that she didn’t want to do anything” when he attempted to have sex with her, and that she slept on the couch the following night to avoid his advances. Similarly, during their trip to Dubai, Plaintiff ignored Wey and pretended to be asleep when he attempted to have sex with her. (Id. at 931) Plaintiff also testified that, during their second sexual encounter, she pulled away when Wey “tried to kiss [her].” Plaintiff also testified that she did not kiss Wey, hug him, or reciprocate in any way when they had sex. Accordingly, a reasonable jury could find that Plaintiff “ by her conduct indicated that the alleged sexual advances were unwelcome.”
A reasonable jury could also conclude that Plaintiff’ submitted to Wey’s unwelcome sexual advances in order to protect her job at NYGG. Plaintiff testified that she was afraid to reject Wey’s advances because she “didn’t want to upset him.” Plaintiff “saw how he could get [en]raged at the office[,] [t]hat he would scream to people, and she thought that if she objected to Wey’s sexual advances “he would get angry, kick [her] out or … fire [her], revoke [her] visa.” Plaintiff also referenced her early conversation with Wey, in which he told her that “no one ever said no to him….”
As to the “rejection” theory, the court held that
A reasonable jury could conclude that Wey fired Plaintiff when it became clear to him not only that she had rejected his sexual advances, but indeed had moved on to another man. Finding Chauvet in Bouveng’s bed confirmed for Wey that Bouveng would not be succumbing to his sexual advances in the future. Indeed, Wey saw Bouveng’s relationship with Chauvet as a “betrayal.” He told Bouveng’s friend Chemme Koluman on the day of Bouveng’s firing that Bouveng had betrayed him, and in a call with Bouveng a few days later, Wey accused her of “cheating on [him] since the end of February.” In sum, there is ample evidence here that Wey terminated Bouveng’s employment in retaliation for her sexual rejection of him.
The court also conducted a significant analysis of the damages awarded by the jury, finding (inter alia) that while the $500,000 compensatory award on plaintiff’s quid pro quo sexual harassment claims was too high and that a remittitur to $150,000 was warranted, the $1.5 million compensatory award on her defamation claim was proper.