2dCir upholds malicious prosecution verdict against employee who accused co-worker of breast-grabbing
By Brandi O. Brown, J.D.
Upholding a jury’s decision finding malicious prosecution against an employee who took her complaint that a coworker had grabbed her breast to the police, a Second Circuit panel found the essential elements of a malicious prosecution claim had been satisfied. But the appeals court found the jury’s damages award of $480,000 was excessive; unless the employee accepted a remittitur to $250,000 in total damages, the appeals court would order a new trial as to damages (Stampf v Trigg, July 30, 2014, Leval, P).
Alleged “breast-grabbing.” The two employees involved had worked for a railroad company for over ten years. The complaining employee (one of the defendants in the malicious prosecution case) told her supervisor that she had been assaulted by the accused employee (the plaintiff) and filed a report. She claimed that the accused employee had reached into her car and grabbed her breast, an accusation the accused employee denied, saying she had only squeezed the other employee’s shoulder.
The arrest. Later, the complaining employee made a statement to the Metropolitan Transportation Authority police about the incident, which resulted in the accused employee being arrested at work in front of other employees, including the complaining employee (who later stated that she had “flagged down” police officers and asked them to make the arrest). Handcuffed, placed in a police car, and held in a locked cell for four hours, the accused employee was issued a desk appearance ticket (DAT) with “Forcible Touching” as the charged offense. Borrowing money from her father, which required him to take out a second mortgage, the accused employee paid a $25,000 fee to an attorney to handle the charges.
No criminal complaint was ever filed, however; the district attorney’s office declined to prosecute, believing the case could not “be proven beyond a reasonable doubt.” But the railroad conducted an investigation finding that the accused employee had violated its anti-harassment policy. Following her attorney’s advice, the accused employee did not testify because of the potential for criminal charges in which her statement could be used. She received a 20-day suspension without pay, but that was later reduced by an arbitration panel to ten days with compensation awarded for lost time.
Malicious prosecution suit. In response, the accused employee sued her coworker and employer in federal court, alleging Sec. 1983 violations, among others, as well as malicious prosecution. With the exception of her malicious prosecution claim against her individual coworker and a discrimination claim against her employer, the district court granted summary judgment dismissing her claims. A jury found the complaining employee liable for malicious prosecution, awarding the accused employee $480,000 total damages, including $150,000 in punitive damages. After the trial court denied her motion for judgment as a matter of law, motion for new trial, and motion for a new trial on damages, she appealed.
Criminal proceedings initiated? On appeal, the complaining employee contended her coworker had failed to establish a claim for malicious prosecution, asserting that the DAT did not initiate a criminal proceeding. Although the answer was not clearly established in New York law, the appeals panel disagreed, citing 1979 Second Circuit precedent that found a DAT did commence a prosecution for purposes of malicious prosecution. Although a New York civil court declined to follow that holding, two appellate division courts had, and one of those courts had adopted the Second Circuit case to support its holding. On that basis, the appeals panel adhered to the earlier Second Circuit decision.
Active role in prosecution. Contrary to her assertion, there was evidence that the complaining employee had played a role in the DAT’s issuance. In fact, there was ample evidence that she had played an active role in the prosecution, which was enough even if she had not “explicitly named each element” of the crime. Her accusation itself supported an inference that the accused employee had touched her breast for the purposes required by the offense of “forcible touching”: to degrade, abuse, or for purposes of sexual gratification. Even though the complaining employee so claimed, “her accusation implicitly supports such an inference.”
Termination of case in accused’s favor. Moreover, the court explained that declining to prosecute was sufficient to establish termination of the proceedings in the accused employee’s favor even if, theoretically, the prosecutor could resurrect the case. If it were to hold otherwise, the court explained, malicious prosecution claims could not be brought in those cases “where the accusations had the least substance” and were abandoned without pursuit.
Damages excessive. But the damages award was excessive. As to the $200,000 award for past emotional distress, the court found that precedent did not support an award of that size, even if the accused employee might have suffered something more than “garden variety” emotional distress. Unless the accused employee agreed to a remitter reducing the award to $100,000, the court would grant a new trial on that damages issue. Similarly, the appeals panel found that an award of $20,000, not the $100,000 awarded, would appropriately reflect damages for future mental and emotional distress, which the lower court had upheld on “highly speculative grounds.”
And, although the complaining employee’s conduct was requisitely “reprehensible,” and not out of proportion with the compensatory damages awarded by the jury, the panel determined that based on the totality of the factors, the punitive damages award was excessive. Therefore, it concluded that $100,000 was the maximum sustainable punitive award. The aggregate damages award (including an economic damages award of $30,000) was $250,000.
Evidence admitted. In her appeal, the complaining employee argued that evidence of her prior sexual behavior on the job should not have been admitted. As to evidence that she had been “a regular participant in a culture of sexually tainted locker room jocularity” among employees, including evidence that she had slapped a male conductor on the backside and rubbed her breasts on a male employee, the appeals panel found no abuse of discretion in the lower court’s admission of that evidence.
- See more at: http://www.employmentlawdaily.com/index.php/news/2dcir-upholds-malicious-prosecution-verdict-against-employee-who-accused-co-worker-of-breast-grabbing/#sthash.qME5hUz8.dpuf
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