The importance of following through on staff complaints

The Second Circuit Court of Appeals has held that under Title VII, an award of compensatory or nominal damages is not a prerequisite to an award of punitive damages (Cush-Crawford v. Adchem Corp., U.S. Court of Appeals, 2nd Cir., decided Nov. 16, 2001; docket no. 00-7617, 00-7745).

The situation

On June 16, 1993, defendant Adchem hired plaintiff Tanya Cush-Crawford as a laboratory technician. The Adchem Corp. is an adhesive tape manufacturing company with locations in Westbury and Riverhead employing approximately 150 persons. (Under Title VII, the statutory cap for punitive damages for a company under 200 employees is $100,000).

Cush-Crawford was hired to work at the Westbury plant, where she reported to a laboratory supervisor named Collin Mars, who had interviewed Cush-Crawford for the position.

Cush-Crawford testified that Mars began to contact her even before she appeared for work at Adchem. In the week prior to the start of her employment, he called her several times at her home saying that he was in Florida and asking her whether she was excited about starting the job.

Within Cush-Crawford’s first week on the job, she testified, Mars began to tell her she looked beautiful and that he loved the dresses she wore. Further, he would page her over the intercom and, when she called back, he would ask her what she was doing later and asked her whether she would like to go to the gym with him after work. Cush-Crawford testified that in the beginning she said no, but that Mars did not stop asking. She also said that Mars began complaining about her work performance and that she believed that his complaints were tied to her refusal to go out with him. As a result, Cush-Crawford testified, she eventually went to the gym with Mars on one or two occasions.

Mounting pressure

Two or three weeks into her employment at Adchem, Mars asked Cush-Crawford to go to Toronto with him to attend a Caribbean Festival. Cush-Crawford testified that she refused to go, but that she agreed after a few days because defendant Mars would remind her of the “weekly evaluation” that he controlled as her supervisor. Cush-Crawford further testified that Mars’ behavior toward her changed and that his evaluations of her work improved after she agreed to go with him to the festival.

They drove to Toronto early on a Saturday morning in August of 1993. While Cush-Crawford expected to have her own room, Mars informed her that only one room was available in the bed-and-breakfast where they were staying. Cush-Crawford testified that after the carnival that night, Mars tried to kiss her and touch her breasts, but that she pulled away, and that Mars did not bother her again during the remainder of the weekend.

After returning from Canada, Mars began to comment negatively on Cush-Crawford’s work habits. Approximately one week after the trip to Canada, Mars asked Cush-Crawford to go on a second trip with him, a one-day trip to Boston for another carnival. Cush-Crawford testified that although she initially said no, she eventually changed her mind and agreed to go in fear that if she did not, she would not survive the three-month probationary period at Adchem. On the drive back from Boston, Mars claimed that he was too tired to drive and pulled off the highway into a motel. He booked one room, and once inside the room, told Cush-Crawford that he wanted to “make love”. Cush-Crawford testified that when she refused, Mars told her that he had hired her and that he could also fire her.

Upon their return to work, Mars once again complained about her work performance. Around August 24, 1993, Mars and Cush-Crawford went out for Cush-Crawford’s birthday. Cush-Crawford testified that she agreed to do so because she did not want to get a bad evaluation. At dinner, Mars told Cush-Crawford that he “wanted to sleep with her”, that “he wished he could make love to her on her birthday” and that he wanted to go to a hotel with her. Cush-Crawford again refused.

The last straw

She testified that she and Mars went out one last time during the winter of 1993-94. Mars told her that she was up for an evaluation and then he asked her to go to dinner with him. Although Cush-Crawford and Mars apparently did not see one another outside work again, Mars continued to ask her out into early 1994, even after she told him that she was “fed up with him”. Cush-Crawford further testified that Mars sent her a number of greeting cards in the mail and that he made comments as late as February 1994 to the effect that she looked “good” or “sexy”.

Finally, in August 1994, he asked her to accompany him on a company trip to the Riverhead plant and to stay overnight in a hotel with him. She refused.

Cush-Crawford testified that she reported Mars’ advances to Adchem supervisors beginning in September 1993, telling a production control supervisor, “Mars was coming on to me and he was calling me and he kept asking me out, and if I didn’t go out with him, he would get upset, and if I didn’t return his pages, he would be upset with me the next day”. Cush-Crawford also testified that in the same month, she told Adchem’s vice president about the situation, and that the executive told her that he “was aware” of the situation.

Cush-Crawford testified further that she told the vice president about similar matters on July 14, 1994, and in November 1994. In the November 1994 meeting, Cush-Crawford testified that she used the words “sexual harassment” for the first time.

Adchem then reassigned her to its Riverhead facility and suspended Mars. After Cush-Crawford grew dissatisfied with working at the Riverhead plant, she returned to the Westbury facility, where she was again put under the supervision of Mars, although this time separated by an intermediate layer of supervision. A few months later, Cush-Crawford suffered an on-the-job injury and did not return to Adchem.

Procedural history

On April 21, 1995, Cush-Crawford filed a complaint with the New York State Commission on Human Rights alleging unlawful discrimination. The EEOC issued a right-to-sue letter on Nov. 8, 1997.

One January 30, 1998, Cush-Crawford filed this action in the U.S. District Court for the Eastern District of New York. The complaint alleged hostile environment, sexual harassment and quid pro quo sexual harassment, as well as retaliation for lodging a sexual harassment complaint, in violation of Title VII. After a six-day jury trial, the jury returned a verdict in favor of Adchem on the quid pro quo and retaliation claims, and in favor of Cush-Crawford on the hostile environment claim. The jury awarded Cush-Crawford no actual damages, and $100,000 in punitive damages.

Cush-Crawford moved for a new trial on the issue of compensatory damages and for an award of attorney’s fees. The defendant moved to set aside the jury’s verdict on the hostile environment claim and to set aside the award of punitive damages. Adchem appealed and Cush-Crawford cross-appealed.


Title VII provides that a plaintiff may recover punitive damages where it is demonstrated that the defendant “engaged in a discriminatory practice…with malice or reckless indifference to the federally protected rights of an aggrieved individual” (2 U.S.C. d1981ab1). In order to establish malice or reckless indifference, a plaintiff need only demonstrate that the defendant had the requisite state of mind of malice or reckless indifference (Colstad v. American Dental Ass’n, 537 U.S. 526, 538, 1999). The Second Circuit had not yet decided whether a plaintiff may receive punitive damages in Title VII cases where the plaintiff has been awarded neither actual damages nor nominal damages.

This case supports the proposition that in Title VII cases, there is no reason to make an award of actual or nominal damages a prerequisite to the award of punitive damages. Rather, where the fact-finder, in this case the jury, has found in the plaintiff’s favor that the defendant engaged in prohibitive discrimination, punitive damages may be awarded within the limits of statutory caps if the defendant has been shown to have acted with the state of mind that makes punitive damages appropriate, regardless of whether the plaintiff also receives an award of compensatory or nominal damages.

The Court of Appeals noted that the plaintiff, Cush-Crawford, testified that she was not only the victim of persistent egregious sexual harassment by a supervisor, but also that she notified company officials about the harassment as early as September 1993, just tow months into her employment and over one year before Adchem took any remedial action. The fact that the hostile environment once reported was allowed to continue justified the malice or reckless indifference required to award punitive damages, as discrimination in the face of a reported risk violates federal law.

Take-home lesson

Attention to an employer’s complaint process seems to be the initial seed for preventing malice or reckless indifference. In this case, Adchem’s action seems to have come too late in preventing the hostile environment. The reckless indifference that the company was then punished for could have been prevented if the company had notice and acted upon the plaintiff initial complaint.

Cush-Crawford made her first complaint in 1993. Although she did not use the word sexual harassment at that time, she did complain about multiple issues. Hindsight demonstrates that the person who heard this complaint did not investigate or follow up with the complainant regarding the hostile environment during that initial reporting period.

The message of this case is that when any complaint is made, the follow-through with the complainant to make sure that the issues that were the basis of the initial complaint are not continuing is crucial in management. While it may be difficult be aware of issues of discrimination with the workplace, it is through active listening that punitive damages can be avoided.

Lindy Korn is president of Divers Training-Workplace Solutions Inc. and of counsel to Siegel Kelleher and Kahn representing plaintiffs in discrimination claims.