Recording Supervisor’s Racially Offensive Remarks Leads to Reduced Jury Verdict

Kollman & Saucier
Kollman & Saucier

Baiting your supervisor to make racially offensive comments while secretly recording the conversation might seem like a great way to score a big settlement out of your employer.  However, that strategy can prove to be something of a double-edged sword — at least  in the eyes of the United States District Court for the Southern District of New York.  Johnson v. STRIVE E. Harlem Emp’t Grp., No. 1:12-cv-04460 (S.D.N.Y. Jan. 2, 2014).

Rob Carmona—who is described as “a dark-skinned Puerto Rican male” —founded and serves as the president of STRIVE, a nonprofit organization that helps low-income individuals find and maintain gainful employment.  Brandi Johnson, an African-American woman, worked directly under Carmona and served as an Affiliate Services Coordinator.

Despite the noble nature of his organization, Carmona proved himself to be a nightmarish supervisor.  For example, when Johnson told Carmona about an incident in which a STRIVE employee was alleged to have sexually harassed a client, Carmona told her that the client was “ugly as shit” and “would have enjoyed it anyway.”  On another occasion, he allegedly told Carmona that “black women get in the way of themselves.”  However, what ultimately got Carmona in trouble was  a series of conversations that Johnson secretly recorded.  In one conversation, Johnson asked Carmona to explain a comment he had made about her and another co-worker the previous day that “You and your girl from TW is just alike.”  Carmona told Johnson that the women were “knuckleheads,” repeatedly called Johnson a “nigger,” and said that she and her co-worker “acted like niggers all the time.”  When Johnson responded that she was “really offended” by the comment, Carmona repeated it and expressed his opinion that “niggers let their feelings rule them.”  Less than a month after this conversation, Johnson’s attorney sent a draft complaint to STRIVE’s CEO, and within two months after that, Johnson was fired.

At Johnson’s jury trial, Carmona only dug himself deeper.  He asserted that he was using the n-word “out of love,” rather than in a derogatory sense, because (in his unfortunate words) “sometimes it’s good to know when to act like a nigger.”  Johnson prevailed on claims of gender and race discrimination and retaliation against both STRIVE and Carmona individually, and was awarded $250,000 in compensatory damages, which encompassed severe emotional distress, among other things.  (Johnson  also received a total of $30,000 in punitive damages.)

After STRIVE challenged the jury’s verdict, Judge Harold Baer, Jr. of the Southern District of New York slashed Johnson’s compensatory damage award by nearly 50%.   The court explained that “[Johnson]’s decision to record her interactions with Carmona . . . supports a reduced emotional distress award[,]” because she had taken it upon herself to initiate the graphic conversation that was played at trial.  Indeed, it was “[o]nly after [Johnson]’s prompting” that Carmona used the racial slurs.  Thus, the court concluded, “[Johnson]’s recordings, while surely helpful in proving her case, also demonstrate[d] a willingness to engage Carmona to document his animus.”  The circumstances therefore “clearly reveal[ed] Plaintiff’s efforts to invite a confrontation with Carmona” and supported only a reduced damage award.

It goes without saying that employers should, like Carmona’s organization, strive to avoid offensive comments in the workplace, particularly when it is easier now than ever for employees to record conversations.  The magnitude of the jury’s damage award further illustrates that the “n-word” is an abusive and terrible word in the workplace, regardless of the source.  What this case also suggests, however, is that plaintiffs who seek to lure supervisors into making such comments in order to bring a “smoking gun” with them into court may end up firing blanks when it comes to damages.

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