In Saleh v. Pretty Girl, Inc. et al, No. 09-CV-1769 (RER), 2022 WL 4078150 (E.D.N.Y. Sept. 6, 2022), the court, inter alia, held that plaintiff presented sufficient evidence to support a jury verdict on plaintiff’s hostile work environment claims.
From the decision:
Plaintiff presented abundant evidence at trial to demonstrate to a jury that, under the totality of the circumstances, his workplace was sufficiently hostile such that the verdict in his favor was not “wholly without legal support” warranting judgment as a matter of law under Rule 50 or a new trial under Rule 59.
Both Saleh and his brother testified that they were subjected to near constant ridicule and insults on the basis of their race, religion, and national origin when they worked with Robinson. Among other insults, Robinson called them “dirty Arabs,” “terrorists,” “killers,” “bin Laden,” “part of al-Qaeda,” told them that their “religion [was] dirty” and that they were “not supposed to come to this country,” in front of customers, other employees, and Hamra himself. Saleh testified that he felt “tortur[ed]” by Robinson’s racist name calling and complained to his supervisor multiple times. His brother also testified that this hostility was so severe and pervasive that it contributed to his decision to quit his job rather than continue to endure Robinson’s hateful remarks. Despite Pretty Girls’ post-trial protestations, the Court finds that the evidence presented at trial was sufficient for the jury to find that Robinson’s constant insults toward Saleh and his brother were objectively offensive and were sufficiently severe and pervasive to support a finding of liability. Even if, as Pretty Girl argues, Robinson’s constant barrage of humiliating insults was not sufficiently frequent or serious to constitute pervasive abuse, the jury could have considered the single incident on September 6, 2007 when Robinson punched Saleh after calling him “bin Laden” to be a sufficiently severe, isolated incident that would merit a verdict in Saleh’s favor.
Pretty Girl also argues that it has established an affirmative defense because it had an anti-harassment policy, pursuant to which Hamra disciplined Robinson and threatened him with termination if his name-calling continued, and that “there is no evidence that the remedial action taken by Hamra was not reasonably calculated to remedy the alleged harassment, or, for that matter, was ineffectual.” However, the evidence presented at trial reflects that Pretty Girl failed to establish that Saleh ever received or was aware of the anti-harassment policy and complaint procedures; that Hamra failed to direct Saleh to report his complaints to Victor Lavy, the individual charged with receiving them under the company’s policy; that Hamra failed to bring Saleh’s complaints to Lavy himself; that Hamra failed to document Saleh’s complaints; and that Hamra did not know of a process to report Robinson up the chain of command. Indeed, Hamra personally witnessed some “name-calling,” but made a determination that it was not sufficiently serious to warrant significant intervention. (Trial Tr. 135:7– 138:24). Accordingly, considering the totality of the circumstances, a jury would not be compelled to find that Hamra’s warning to both Robinson and Saleh to knock it off was sufficient remedial action. Further, to the extent that Pretty Girl argues that Plaintiff did not provide evidence that Hamra’s stern warning was ineffectual, the Court finds that Robinson’s attack on Saleh speaks for itself, and is more than sufficient to indicate that Hamra’s warning did not have its intended effect of preventing further harassment.
Pretty Girl and Hamra also failed to take appropriate action after the incident on September 6, 2007. As manager of the store, Hamra failed to call the police or otherwise report Robinson’s assault on his employee’s behalf, and was “more concerned [about] other things.” Pretty Girl also failed to take appropriate action in the immediate aftermath of the attack, and notwithstanding the note it placed in his personnel file, permitted Robinson to continue working at a Pretty Girl store immediately after he assaulted a fellow employee. Accordingly, Pretty Girl failed to establish an affirmative defense that it took prompt and appropriate corrective action in response to Saleh’s complaints and to Robinson’s clearly abusive conduct.
Based on this, the court denied the moving defendants’ motions for judgment as a matter of law or for a new trial with respect to liability for plaintiff’s hostile work environment claims.