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A federal judge has set aside a jury verdict in the case of a lawyer who sued her former firm, alleging hostile work environment. Senior Judge Thomas P. Griesa of the U.S. District Court for the Southern District of New York granted the defendant’s motion for judgment as a matter of law and dismissed the case — despite the jury’s decision to award former associate Ellen FitzGerald $80,000 in compensatory damages. Griesa said the facts of FitzGerald v. Ford Marrin, 96 Civ. 7491, taken as a whole, had “no real analogue” in cases that have been the subject of a judicial ruling on sexual harassment under Title VII. FitzGerald started at Ford Marrin in 1993 and stayed at the firm until February 1995, two months after she had received a negative performance review. Her complaint alleged generalized joking about sex by some male associates who were aware the comments made her uncomfortable. A second component concerned conduct allegedly directed at her by partner Michael Anania and associate James Adrian. On one occasion, FitzGerald claimed Anania referred to her, in the presence of partner William Ford, as a “butch” or a “dyke,” and laughed as he did so. After she related the conversation to Adrian, he referred to her in the same terms, albeit jokingly, on a half-dozen occasions. In June 1994, on a day when FitzGerald was wearing a pants suit, Anania said it was unprofessional attire and laughed as he said, “When are you coming back, butch?” And on a third occasion, FitzGerald, in a reference to the earlier conversations, referred to herself as “butch,” and Anania allegedly responded that he had never addressed her in those terms, but went on to call her “butch” anyway. FitzGerald claimed in her suit, filed under Title VII of the Civil Rights Act of 1964, that the hostile environment caused her to suffer headaches, a loss of sleep and diminished morale. In a trial that ended in June 2000, the jury concluded that there was a hostile work environment at the firm. But aside from awarding $80,000 in compensatory damages, the jury declined to award FitzGerald punitive damages and rejected her claim of constructive discharge. NO COMPARABLE CASE Judge Griesa said he wanted to make clear “at the outset that the verdict of the jury is supported by sufficient evidence on the facts.” He then began consideration of the firm’s request for judgment as a matter of law by asking both sides to submit cases that had comparable fact patterns to the FitzGerald matter. Griesa concluded that a search produced no case. Griesa first addressed the allegations of sexual comments by the associates. “The court concludes that this joking and nonsensical sexual talk among certain male associates and the utterance of vulgar terms and epithets, while gross and offensive to a woman such as FitzGerald, was not hostile or abusive, much less hostile or abusive to a severe or extreme degree,” he said. “It did not impose upon FitzGerald the severe or pervasive discriminatory intimidation, ridicule and insult spoken of by the Supreme Court.” Turning to the allegations against Anania and Adrian, Judge Griesa said those claims presented “the most difficult issue” in the case. Nonetheless, Griesa said that, overall, the evidence did not show a hostile environment. He reached that conclusion, in part, because FitzGerald enjoyed a good working relationship with Anania and others at the firm until the months leading up to her poor performance review. “Looking at all the circumstances, the overall conduct of Anania and Ford at the time of the ‘dyke’ incident and the ‘pants suit’ incident was on balance neither hostile nor abusive and it did not create or contribute to an abusive working environment,” Griesa said. “In fact the uncontradicted evidence shows that the conduct of Anania and Ford, taken as a whole, was highly supportive of FitzGerald at the time in question, creating what was in fact a beneficial working environment.” WORKING ENVIRONMENT Judge Griesa said, “The underlying characteristic of the conversations, remarks and acts complained of, taken as a whole, is that they were in a humorous vein, joking, teasing relaxation from the rigors of demanding legal work. “Even references to FitzGerald as ‘dyke’ and ‘butch’ were something other than serious attempts to paint FitzGerald as a lesbian. The same is surely true of her own remark that she was a butch,” he said. All told, Griesa said, the “overall picture of the working environment” at the firm was “virtually the opposite of an abusive one.” And while the court accepted as true that FitzGerald suffered from headaches and other problems as a result of the sexually oriented comments, he said “there was no evidence that FitzGerald mentioned these problems to anyone at the firm, at least not to someone in a management capacity. “Thus the problems were entirely subjective and personal,” he said. “As the court explained earlier, FitzGerald must make out a case under both an objective and subjective standard.” Anne L. Clark and Debra L. Raskin, of Vladeck, Waldman, Elias & Engelhard, represented FitzGerald. Paul Majkowski of Ford Marrin Esposito Witmeyer & Gleser was lead counsel for the firm.

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