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Home / Expert Opinion / Workplace Issues: Tape recording proves bias but reduces damages

Workplace Issues: Tape recording proves bias but reduces damages

Lindy Korn

Lindy Korn

The plaintiff began working for a nonprofit organization as an affiliate services coordinator in May 2010 and was assigned to oversee work performed by the organization under a $4.7 million Labor Department grant. Her relationship with the organization’s president, her original supervisor, was difficult as he frequently “yelled and screamed” at her in an offensive tone and often urged her to “stop being so emotional.”

The plaintiff, who claimed the president also often, called her a “n*****,” began secretly recording conversations with him. She recorded a March 12, 2010 conversation in which the president criticized the plaintiff and another unnamed female worker saying both women were “smart,” but also “really knuckleheads.” The president went on to repeatedly refer to plaintiff as “n*****” and said that she and the other worker “act like n*****s all the time.”

The plaintiff said she complained about the president’s behavior to a new supervisor and that the president retaliated against her in response by continuing to harass her and by preventing her from communicating or socializing with colleagues at the office.

When she complained to the supervisor again, the plaintiff alleged he blamed her for the situation, saying that she was “out of line” and “emotional.” The plaintiff claimed that the nonprofit ultimately fired her from her job as a result of the complaints.

The jury later returned a verdict for the plaintiff on her race and sex discrimination and retaliation claims against the nonprofit and its president, awarding her $250,000 in compensatory damages, $25,000 in punitive damages against the president and $5,000 in punitive damages against the nonprofit. It did not categorize the compensatory damages award or identify the specific amounts awarded for front and back pay and emotional distress.

The U.S. District Court for the Southern District of New York held Jan. 2 that the plaintiff provided sufficient evidence to support her claims for race and sex discrimination, but ruled the jury award of $250,000 in compensatory damages was excessive, (Johnson v. STRIVE E. Harlem Emp’t Grp., SDNY No. 1:12-cv-04460, Jan. 2).

The court said the jury verdict was excessive in part because the plaintiff’s efforts to induce the nonprofit president to make offensive statements during secretly recorded conversations showed that she didn’t suffer more than “garden variety” emotional distress.

“Plaintiff’s recordings, while surely helpful in proving her case, also demonstrated a willingness to engage the president to document his animus,” the court wrote. “And while not detracting from the fact that these comments were made, they pretty clearly reveal plaintiff’s efforts to invite a confrontation with the president and fail to bolster support for an award that is founded on extreme emotional distress.”

Query: Could expert testimony have been able to explain that tape recording, although intentional and planned, does not diminish the emotional distress, which the contents of the recording provide?

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).