Greta FAIRBROTHER, Plaintiff-Appellant, v. Pamela MORRISON, Chief of Human Resource Operations, I/O, and Jo-Anne Libera, Material Witness, Defendants, STATE of Connecticut, Department of Mental Health and Addiction Services, Defendant-Appellee.
Docket No. 03-9242-CV.
United States Court of Appeals, Second Circuit.
Argued: December 17, 2004. Decided: June 14, 2005.
412 F.3d 39
KATZMANN, Circuit Judge.
Before: NEWMAN, POOLER, and KATZMANN, Circuit Judges.
Appearing for Defendant-Appellee: Joseph A. Jordano, Esq., Assistant Attorney General, Office of the Attorney General, for Richard Blumenthal, Attorney General, Hartford, CT.
At trial, Greta Fairbrother presented significant evidence of sexual harassment that was sharply disputed by her employer, the State of Connecticut‘s Department of Mental Health and Addiction Services (“DMHAS“) and the other defendants. The jury returned a unanimous verdict in Fairbrother‘s favor on her claims of both sexually hostile work environment harassment under
BACKGROUND
We present first the evidence generally supporting Fairbrother‘s case, followed by that generally supporting the defendants’ case. We then summarize briefly the procedural history.
A. Fairbrother‘s Case
Unless otherwise noted, the following facts are either undisputed, or based on Fairbrother‘s testimony or other evidence introduced by Fairbrother at trial.
Fairbrother began working for the State of Connecticut in September 1983, and, as of March 1996, worked for the state‘s Whiting Forensic Institute (“Whiting“), a division of DMHAS, which serves as a maximum-security facility for the criminally insane. At Whiting, Fairbrother worked as a Forensic Treatment Specialist, and in that capacity, provided care and treatment to Whiting‘s patients.
Whiting is divided into six units, and Forensic Treatment Specialists are assigned to work on specific units during one of three specific shifts. After working on Whiting‘s Unit Five for approximately two years, Fairbrother transferred to Unit One in 1998. The transfer appealed to her because it enabled her to move from the third to the second shift. Fairbrother was the only female working the second shift on Unit One. She reported to William Boisvert, the lead Forensic Treatment Specialist for the unit.1
According to Fairbrother, Unit One was permeated with hostility toward her, and much of it was of a sexual nature. This was particularly true after the fall of 1999, once the Head Nurse, to whom Boisvert reported, left the unit.2 Boisvert and the other Forensic Treatment Specialists would not answer her questions or give her messages when people called for her, and when patients would inquire concerning her whereabouts, her colleagues would not tell them where she was. Pornographic magazines were kept in the staff office and the staff bathrooms, and her male co-workers would often show her pictures from these magazines and ask her impression. At any given time, “probably two or three” sexually explicit jokes were posted on the office bulletin board. When Fairbrother brought coffee to her colleagues, she was asked “something to the effect” of “Where‘s your French maid outfit?” or “Why isn‘t it on you?“. Fairbrother‘s male colleagues talked about “sex that they had with their wives,” and asked Fairbrother about her sexual practices. Boisvert and several of her co-workers, including Forensic Treatment Specialists Chris Colavito, Jacques Ouimette, and James Young, would often call her a “bitch” and a “whore.” The discussions concerning sex lives and referring to Fairbrother as a “bitch” happened almost every day. Fairbrother was called a “whore” between ten and fifteen times.
In mid-February 2000, Fairbrother was taking a break outside in the courtyard when another employee came out with a ruler to measure the snow on the ground. Fairbrother testified that, from in the staff office, Colavito yelled at the employee with the ruler, “I hope it‘s as much or as long as your d-i-c-k,” and that Unit One Head Nurse Tammi Brown laughed at Colavito‘s comment.
Fairbrother testified about several instances in which she lodged complaints concerning her treatment. In October or November 1999, she complained to Boisvert “about materials and the talk on the unit.” According to Fairbrother, matters only worsened. In November 1999, she complained to Al Davis, her Nurse Supervisor, about the sexually hostile work environment she was facing, providing him with specific examples of what was occurring. Fairbrother approached Davis again a few weeks later because the situation was “getting increasingly worse.” Although Davis promised to set up a meeting to address her concerns, none had been arranged as of mid-February. Apparently, this delay was due in part to intervening vacation schedules of both Davis and Fairbrother.
The day after the incident involving the ruler, Fairbrother also met with a Nurse Supervisor to complain that she had found Colavito‘s statement offensive. At that meeting, Fairbrother declined to file a “write-up” that would have referred the matter to the personnel department, but she reiterated her request for staff meetings concerning the hostility she was facing. At this point, staff meetings involving Fairbrother, Boisvert, and other Unit One employees were arranged. Unfortunately, Fairbrother testified, these meetings degenerated into a “circus” at which her colleagues impugned her integrity and criticized her work performance.
An incident on February 13, 2000, in which Fairbrother is alleged to have assaulted Ian Walker, a co-worker,3 is relevant to Fairbrother‘s case because it may help to establish when she put Pamela Morrison, a Personnel Director, on notice of her claims. Morrison testified that she learned about the incident in “late February or early March,” and began an investigation. When asked about her meeting with Morrison to discuss the incident, Fairbrother stated, “I discussed everything, the whole situation to her and we went back — I went back to my unit.” Fairbrother also testified about a telephone conversation with Morrison before a May 9, 2000 “prediscipline hearing” relating to the incident.4 In that conversation, Fairbrother gave Morrison “all the background information of what‘s been happening on the unit since the fall of ‘99,” including “[h]ostilities, the magazines, the name calling, the accusations.” At the prediscipline hearing, Fairbrother discussed the hostile work environment she claimed she faced.
In June 2000, Fairbrother ceased going to work on account of back pain which she attributed to an injury sustained some years earlier. DMHAS initially contested liability for her worker‘s compensation claim, but eventually, the Department paid the claim. In September 2000, Fairbrother was given an appraisal with an overall rating of “Unsatisfactory.” Fairbrother had never received an “Unsatisfactory” rating in the past.
B. The Defendants’ Case
Unless otherwise noted, the following facts are either undisputed, or based on evidence put forth at trial by the defendants.
The defendants maintained that most, if not all, of the events that Fairbrother claimed created a hostile work environment never took place; their case was effectively built around an attack on Fairbrother‘s credibility. To support their position, the defendants called several of Fairbrother‘s co-workers and supervisors to testify at trial. William Boisvert, for example, denied ever having called Fairbrother a “bitch” or a “whore,” said that he had never heard any other staff member call her these names, and added that if he had heard such names being used, he “would have stopped it right then and there.” Boisvert also stated that, although Forensic Treatment Specialists would routinely encounter pornography because patients sometimes possessed it, the staff would not leave such material lying around for Fairbrother or others to see.
Forensic Treatment Specialist Ronald Jursch testified that, contrary to Fairbrother‘s assertion that Fairbrother would make coffee and bring it to the staff, she would make coffee for only one other staff person “and exclude everybody else.” Jursch stated that he never called Fairbrother a bitch or a whore, that he never heard anyone else call Fairbrother a “bitch” or “whore,” or suggest to her that she wear a French maid outfit. Jursch also asserted that he never saw pornography lying out in the open, and that none of the male employees would talk about their sex lives.
Forensic Treatment Specialist Ian Walker testified that he never heard Boisvert call Fairbrother “bitch” or “whore,” and never saw pornographic magazines left out in the open, nor did he hear Whiting employees discussing their sex lives. Forensic Treatment Specialist James Young testified that he never heard other employees making sexual comments around Fairbrother, never called her “bitch” or “whore,” and never talked about his sex life with his co-workers.
Unit One Head Nurse Tammi Brown denied that Colavito ever made the sexual comment about the employee with the ruler. One female Forensic Treatment Specialist denied ever having seen pornography in the bathrooms, on the walls, or lying out in the open. Another testified that in her eighteen years at Whiting, she encountered pornographic magazines only once, and that they were promptly removed.
The defense argued that Fairbrother‘s motive to lie stemmed from the incident in which Fairbrother is alleged to have assaulted Ian Walker. On February 13, 2000, Young and Walker responded to a call for help in restraining a patient — also known as a “code.” Subsequently, they sat together in the staff room and discussed the episode with Brown. Fairbrother was also in the staff room at that time. According to Walker and Brown, while they were discussing the restraint episode, Fairbrother approached Walker and grabbed his groin, saying, in Brown‘s words, “Well, if I was there, this is what I would have done.” Brown stated that Fairbrother then laughed and left the room. Fairbrother described what took place as follows: “[Walker] mentioned another female [Forensic Treatment Specialist] that responded to the code and said something to effect, well, she can‘t fight, she‘s useless. And, in turn, I said in a joking manner, Well, you don‘t have to know how to fight. All you have to do is this.” According to Fairbrother, she then moved her hands toward Walker‘s crotch area, but did not grab him. Her hand “could have brushed his pants, but that was it.”
Counsel for the defendants argued during his summation that Fairbrother‘s anger over being disciplined for the incident involving Walker led her to fabricate her sexual harassment claims.
Morrison offered examples of how DMHAS responds to sexual harassment complaints. Morrison testified that, upon receiving a complaint concerning obscenities on a kitchen bulletin board, she immediately went to the kitchen in question, and found that the only obscene material had already been removed. After Fairbrother filed her CHRO complaint in May 2000, Morrison “interviewed members of the unit regarding specific allegations which Ms. Fairbrother had made in her complaint.” When Morrison received Fairbrother‘s amended CHRO complaint in October 2000 containing more detailed allegations about pornography on the premises at Whiting, Morrison called the Whiting police and ordered an investigation of the staff areas and bathrooms that turned up no pornography.
The defendants argue that Fairbrother failed to take advantage of these resources by failing to notify them in a timely manner of the precise nature of her hostile work environment claims. Davis testified that when Fairbrother first came to him in the fall of 1999, she described only “personality conflicts,” identified no specific examples of mistreatment, and stated that “she could work the problems out on the unit.” Boisvert stated that she never complained to him about pornography, the French maid outfit, or a sexually hostile work environment. Morrison testified that, other than an April letter from Fairbrother‘s attorney, to which she responded, “Please give me more details,” the first time she heard Fairbrother‘s allegation that the workplace was permeated with sexually explicit material was when she received the amended CHRO complaint in October of 2000. Morrison also stated that, while the investigation into the incident with Walker was ongoing, Morrison “told [Fairbrother] how to submit any complaints of hostile work environment to me and the Affirmative Action Office, and she did not do so.”
C. Procedural History
At the end of the four-day trial, the jury on March 17, 2003 returned a unanimous verdict in favor of Fairbrother on both the hostile work environment and retaliation claims. The jury awarded Fairbrother $20,000 to compensate her for her “damages” generally, without designating the damages stemming from her sexually hostile work environment claim and those stemming from her retaliation claim. The defendants subsequently moved for judgment as a matter of law or a new trial. On October 29, 2003, the district court granted the defendants’ motion for judgment as a matter of law as to both claims. Fairbrother v. Connecticut, 306 F. Supp. 2d 154, 175 (D. Conn. 2003). Accordingly, the district court did not rule on the defendants’ motion for a new trial. Fairbrother filed this appeal in November 2003.
DISCUSSION
A. Legal Standards in Reviewing a Grant of Judgment as a Matter of Law
Judgment as a matter of law in jury trials is provided for in
A court of appeals reviews “a district court‘s grant of a motion for judgment as a matter of law de novo,” viewing “the evidence in a light most favorable to the non-movant, granting that party every reasonable inference that the jury might have drawn in its favor.” Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir. 1997).
Background Law
A
In addition, the plaintiff must show that a specific basis exists for imputing the objectionable conduct to the employer. “Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer‘s vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action.” Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004). According to two 1998 Supreme Court cases, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), this inquiry differs where the harassment is attributed not to non-supervisory co-workers but to a supervisor with immediate or successively higher authority over the employee. Burlington Indus., 524 U.S. at 765; Faragher, 524 U.S. at 807. In that circumstance, “a court looks first to whether the supervisor‘s behavior ‘culminate[d] in a tangible employment action’ against the employee.” Petrosino, 385 F.3d at 225 (quoting Burlington Indus., 524 U.S. at 765) (alteration in original). If it did, “the employer will, ipso facto, be vicariously liable.” Mack v. Otis Elevator Co., 326 F.3d 116, 124 (2d Cir. 2003). If no such tangible employment action is present, however, an employer will still be liable for a hostile work environment created by a supervisor unless the employer successfully establishes an affirmative defense. Petrosino, 385 F.3d at 225. That defense requires the employer to show that (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington Indus., 524 U.S. at 765.
Analysis
The district court concluded that “Fairbrother has failed to provide any substantive evidence that the terms of her employment were altered, that a term, condition, or privilege of her employment was affected, or that anyone unreasonably interfered with her work performance.” Fairbrother, 306 F. Supp. 2d at 174 (quotation marks omitted) (citing Harris, 510 U.S. at 21, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). In support of this determination, the district court noted that Fairbrother was still employed at Whiting and had lost no compensation or benefits, and further observed that “not one of the 500 employees at Whiting came forward to corroborate Fairbrother‘s claims.” Id. at 174 n. 12. In addition, the district court concluded that Fairbrother had not shown “any reason for imputing the alleged hostile work environment to DMHAS.” Id. at 174. Critical to this conclusion was the district court‘s finding that Fairbrother “never reported her allegations of sexual harassment, permeating pornography, being called a ‘whore’ or a ‘bitch,’ or a sexually hostile environment to anyone, including her supervisors, her co-workers, the Department of Human Resources, the Affirmative Action Office, or anyone in the administration of Whiting or DMHAS.” Id. at 174-75 (emphasis in original). Based on these conclusions, the district court found “that Fairbrother‘s version of the alleged facts is insufficient to permit a reasonable jury to have found that she had been subjected to a sexually hostile work environment.” Id. at 175.
The district court‘s focus on this evidence, and its ultimate conclusion that “Fairbrother‘s version of the alleged facts is insufficient to permit a reasonable jury to have found that she had been subjected to a sexually hostile work environment,” id. at 175, suggest a determination that a jury could not deem Fairbrother credible. However, a motion for judgment as a matter of law must be considered “with credibility assessments made against the moving party.” Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993) (emphasis added). Indeed, it is difficult to understand how the district court reached its conclusion without engaging in “‘weighing the credibility of the witnesses or otherwise considering the weight of the evidence,‘” a task expressly prohibited when considering judgment as a matter of law. Cruz v. Local Union No. 3, Int‘l Bhd. of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)). The district court erred to the extent it determined that Fairbrother‘s allegations were not to be believed.
The district court also erred in determining that Fairbrother “failed to provide any substantive evidence that the terms of her employment were altered.” Fairbrother, 306 F. Supp. 2d at 174. The district court based this conclusion on Fairbrother‘s inability to show that she was terminated or lost compensation as a result of sexual harassment. Id. However, it is fundamental to a hostile work environment claim that the terms of the plaintiff‘s employment are alleged to have been altered not by any change in benefits or employment status, but rather by “‘discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive.‘” Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting Harris, 510 U.S. at 21).
Here we believe a jury could reasonably find such severe or pervasive workplace hostility. Fairbrother testified to the following. For a period of several months, she was called “bitch” almost daily, and called “whore” ten to fifteen times. Her male colleagues routinely talked about their sexual activities and asked Fairbrother about hers. She was asked why she was not wearing a French maid outfit. Pornography was left in the staff bathrooms and the staff office where team meetings were held. Her male colleagues would also show her these pornographic materials and ask her impression of them. At any given time, there were at least two or three sexually offensive jokes posted on the staff office bulletin boards. A co-worker once yelled out to another a comment concerning the size of the other worker‘s private parts. When she complained about the pornography, her supervisor told her “you‘re not going to prevent me from . . . running the unit the way I want to run it.” Moreover, these events made Fairbrother and her patients “anxious,” thereby creating a potentially dangerous work environment.
DMHAS argues the opposite: that courts have upheld the dismissal of hostile work environment claims based on incidents that were equally or more offensive than those recounted by Fairbrother. DMHAS cites only one Second Circuit case in support of this assertion, Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998). However, that case involved only two actionable incidents of alleged hostile treatment: a comment about the plaintiff‘s body, and brushing the plaintiff‘s breasts with some papers. Id. at 768. The court determined that those two events were “sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded Quinn‘s work environment.” Id. Quinn is clearly inapposite, because Fairbrother has alleged significantly more sustained and enduring patterns of hostile conduct, which, if true, could be found to have permeated her work environment.
For all the aforementioned reasons, we thus conclude that Fairbrother‘s allegations sufficed to permit a reasonable juror to determine that her conditions of employment were altered.
As noted supra, a plaintiff can impute conduct that creates a hostile work environment to the employer in different ways depending on whether the conduct was carried out by the plaintiff‘s supervisor or by non-supervisory co-workers. Here, if Fairbrother‘s testimony was to be believed, the harassment was created by both her co-workers and her supervisor. Under such circumstances, courts analyze whether employer liability can be established under either test. See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 696-700 (7th Cir. 2001); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 875-77 (9th Cir. 2001).
To establish employer liability for the role her co-workers played in creating a hostile work environment, Fairbrother must show “that the employer ‘failed to provide a reasonable avenue for complaint or . . . knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.‘” Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (quoting Richardson v. N.Y. State Dep‘t of Corr. Serv., 180 F.3d 426, 441 (2d Cir. 1999)). Fairbrother testified that on multiple occasions, she complained to different officials at Whiting about her treatment. Initially, she complained to Boisvert, her supervisor, telling him “about materials and talk on the unit.” In November 1999, she complained to Davis, her Nurse Supervisor, about the sexually hostile work environment she was facing, providing him with specific examples of “what was going on.” She testified that she informed Morrison, whom she identified as a Personnel Director, of the “[h]ostilities, the magazines, the name calling, the accusations,” in a conversation before the prediscipline hearing on May 9, 2000. In addition, Fairbrother testified that, in a meeting in which Morrison wished to discuss the Ian Walker incident — the investigation of which was commenced in late February or early March — Fairbrother “discussed everything, the whole situation.” According to Fairbrother, none of these complaints spurred meaningful action by her employer, other than a series of staff meetings that were delayed by several months and that ultimately were not at all constructive or remedial. To be sure, Boisvert, Davis, and Morrison all denied that Fairbrother had put them on notice of her hostile work environment claims. However, if a juror credited Fairbrother‘s testimony over theirs, that juror could have reasonably determined that DMHAS, in the exercise of reasonable care, knew or should have known about the co-worker harassment faced by Fairbrother, yet failed to take appropriate remedial action.
There was also reason for the jury to impute liability based on the participation of Fairbrother‘s supervisor. Fairbrother claimed that Boisvert created the hostile work environment, testifying that he called her “whore” and “bitch,” would not answer her questions or give her phone messages when people called, insisted in her presence that she be removed from the unit, and instigated the hostile conduct toward her generally. An employer is presumptively liable for a hostile work environment created by a supervisor. See Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at 765; Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001) (hereinafter ”Leopold II“). However, if the employer takes no tangible employment action in connection with the harassment, the employer has available an affirmative defense.6 See Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at 765; Leopold II, 239 F.3d at 245. Again, that “defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807.
The defendants clearly failed to attain this high standard on the second component of the affirmative defense, which requires demonstrating “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at 765. Again, DMHAS‘s written policy stated that an employee was to contact an Affirmative Action Officer or a Personnel Director at the “facility” — i.e., at Whiting.
Because the defendants bore the burden of proof on this issue, at the very least, DMHAS would have had to identify all of the Affirmative Action Officers and Personnel Directors to whom Fairbrother might have complained, and show conclusively that she did not. See Leopold II, 239 F.3d at 246 (stating that to obtain summary judgment based on the Burlington Industries/Faragher affirmative defense, a defendant must “satisf[y] its initial burden of demonstrating that an employee has completely failed to avail herself of the complaint procedure“). This they did not do. The defendants introduced no affirmative evidence that Fairbrother failed to complain to an Affirmative Action Officer. Presumably, such evidence would have been available, in the form of that office‘s records, or the testimony of the Affirmative Action Officers to whom Fairbrother might have complained. Fairbrother herself acknowledged that she did not complain to the Affirmative Action Office in November 1999, testifying that at that time, she wanted to “maintain it on the unit.” She also acknowledged that she did not file any “formal complaints” prior to the incident involving Ian Walker, which took place in mid-February 2000. This, of course, leaves open the possibility that she filed a “formal complaint” after mid-February 2000 and before mid-May 2000, when she filed her complaint with the Connecticut Commission on Human Rights & Opportunities. Fairbrother‘s testimony also does not foreclose the possibility that she put a Personnel Director or an Affirmative Action Officer on notice of her claims through informal conversations, such as the ones she had with Morrison.
The defendants did offer the testimony of Morrison, a Personnel Director. When Morrison was asked whether Fairbrother‘s October complaint was the first mention of “magazines and a hostile work environment,” Morrison responded, “Yes, it is,” and she gave similar testimony in response to other questions. Morrison testified that, other than an April letter from Fairbrother‘s attorney, the first time she “heard Ms. Fairbrother‘s allegation that the workplace was permeated with sexually-explicit material” was when she received “the amended CHRO complaint in October of 2000.” Morrison also stated that, while the investigation into the incident involving Walker was ongoing, Morrison “told [Fairbrother] how to submit any complaints of hostile work environment to me and the Affirmative Action Office, and she did not do so.” The defendants did not establish how Morrison, a Personnel Director and apparently not part of the Affirmative Action Office, would have personal knowledge concerning whether or not Fairbrother filed a complaint there.
We note that the incompleteness of the defendants’ evidence that Fairbrother failed to put her employer on notice of sexual harassment is not surprising, given that this argument was not the thrust of the defendants’ case. Their primary argument, as evidenced by their choice of witnesses and their summation to the jury, was that Fairbrother was fabricating the events constituting her hostile work environment claim. Only now that the jury has clearly rejected that argument do they seriously press their claim that liability should not be imputed to DMHAS.7 However, they have simply failed to identify the evidence necessary to sustain judgment as a matter of law on this issue, one as to which they bear the burden of proof.
For these reasons, judgment as a matter of law in favor of the defendants on the issue of a sexually hostile work environment was not appropriate, and we reverse this aspect of the district court‘s ruling.
On remand, the district court may consider whether to grant the defendant‘s motion for a new trial on the hostile work environment claim under
C. Judgment as a Matter of Law on Fairbrother‘s Retaliation Claim
The district court also granted judgment as a matter of law to the defendants on Fairbrother‘s retaliation claim, concluding that the evidence did not support a finding of an adverse employment action.8 Fairbrother, 306 F. Supp. 2d at 166.
After she filed a discrimination complaint in May 2000, Fairbrother was transferred out of Unit One, and given “floating” responsibilities in all the other units. Her work as a floater did not involve any material difference from her work in Unit One. Although she was prohibited from entering Unit One — a measure that seems a reasonable response to her complaint of sexual harassment in that unit — this only required her to walk a short distance out of her way occasionally. Moreover, Fairbrother acknowledges that she did not lose wages, retirement credits, benefits, or overtime opportunities due to this transfer. Without a real change in the conditions of employment, a transfer is only “a mere inconvenience or an alteration of job responsibilities,” and hence not “materially adverse.” Galabya, 202 F.3d at 640. Fairbrother testified that she suffered emotional losses due to this shift. However, “‘[i]f a transfer is truly lateral and involves no significant changes in an employee‘s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.‘” Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532-33 n. 6 (10th Cir. 1998)) (alterations in original).
The department initially contested Fairbrother‘s application for worker‘s compensation due to a back injury. However, her claim was eventually paid. Thus, the department‘s handling of her application was not a material loss of benefits.
In September 2000, Fairbrother received an appraisal with an overall rating of “Unsatisfactory.” This evaluation was followed by a positive evaluation the next year, and Fairbrother does not assert that the “unsatisfactory” evaluation negatively altered her compensation, benefits, or job title. In Weeks v. New York State Division of Parole, 273 F.3d 76 (2d Cir. 2001), this court held that a notice informing an employee of incompetence and a “counseling memo” concerning the employee‘s conduct, without any allegation of negative ramifications for the plaintiff‘s job conditions, could not constitute an adverse employment action. Id. at 86. The court explained that “a criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action.” Id. Similarly, in Jenkins v. Board of Education, 64 Fed. Appx. 801 (2d Cir. 2003), this court rejected a claim of an adverse employment action based on an “unsatisfactory” evaluation that was either threatened or actually received, because “there is no evidence that Plaintiff-Appellant suffered a diminution in salary or benefits.” Id. at 804. See also Sanders, 361 F.3d at 756 (holding that jury could reasonably find that a negative evaluation was not an adverse employment action where plaintiff had offered no proof that the “evaluation had any effect on the terms and conditions of her employment“); Richardson, 180 F.3d at 443-44 (rejecting claim of adverse employment action based on two reviews that characterized the plaintiff‘s performance as “average” rather than “excellent“).
Thus, we conclude that the September 2000 evaluation does not support her claim of an adverse employment action.
For all of these reasons, there is no legally sufficient evidentiary basis for a reasonable jury to find for Fairbrother on the issue of an adverse employment action.9 The district court thus properly granted judgment as a matter of law to the defendants on Fairbrother‘s retaliation claim.
D. The Damages Award
The jury awarded Fairbrother $20,000 in damages in response to an interrogatory that asked, “What amount of money do you award Ms. Fairbrother to compensate her for her damages?“. In supplemental briefing to this court, the parties outlined their views concerning how to allocate this award if the district court‘s judgment were reversed on one claim but not the other. Fairbrother argues that she should be awarded the full $20,000, pointing out that the defendants consented to a general verdict form that did not ask the jury to specify what portion of the damages is attributable to each claim. She asserts that this court should not speculate as to the jury‘s thinking, and instead rely on what we know with certainty, which is that “the jury believed plaintiff-appellant suffered damages in the amount of $20,000.” DMHAS responds that we should reduce the damage award to $10,000. They point out that the jury specifically answered “Yes” to two separate questions, one asking whether Fairbrother was harmed due to a hostile work environment, and the other whether she was harmed due to retaliation.
The parties have not pointed out any trial testimony or documentary evidence regarding the amount of Fairbrother‘s damages stemming from either claim. In closing arguments to the jury, the only mention of damages came from Fairbrother‘s attorney, who initially commented that, “[t]his isn‘t a case about money.” A final comment by her attorney arguably suggests that Fairbrother asked for damages based only on the hostile work environment claim: “We‘re not asking for $1 million. $1 million is not appropriate, but some compensation for having to put up with the sexual, the inappropriate work environment, for suffering through three years where this stigma is still attached to her.”
However, given the paltry record concerning damages, and the fact that the district court has not yet ruled on this issue, we conclude that the prudent course is to follow “[t]he general rule in our circuit . . . that ‘a federal appellate court does not consider an issue not passed upon below.‘” United States v. Collado, 348 F.3d 323, 328 (2d Cir. 2003) (quoting Robinson v. Gov‘t of Malaysia, 269 F.3d 133, 147 (2d Cir. 2001)). We decline to rule on this issue, and instruct the district court to consider it on remand.
CONCLUSION
Accordingly, that portion of the district court‘s order dated October 29, 2003 granting the defendants judgment as a matter of law on Fairbrother‘s sexually hostile work environment claim is REVERSED. That portion of the order granting the defendants judgment as a matter of law on Fairbrother‘s retaliation claim is AFFIRMED. The case is remanded for further proceedings consistent with this opinion, including a determination by the district court on the issue of damages, and resolution of the defendant‘s motion for a new trial on the hostile work environment claim under