New York Must Pay Attorneys Fees To Harassed Former Trooper

The New York Court of Appeals holds that a former state employee subject to horrific harassment will get attorneys fees in litigation that lasted over two decades

Under the Equal Access to Justice Act (CPLR article 86; hereinafter EAJA), in certain circumstances a court may award reasonable attorneys’ fees and costs to a prevailing plaintiff or petitioner in a suit against the State. In this appeal we are asked to decide whether the EAJA permits the award of attorneys’ fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. We conclude that it does.

From 1980 through 1994, plaintiff Betty Kimmel worked as a New York State Trooper. During plaintiff’s tenure, she was assigned to several different police stations, often as the first woman to serve as a State Trooper at that station. In 1995, plaintiff filed a complaint alleging that she was subjected to discrimination, sexual harassment, and retaliation based on her sex and was exposed to a hostile work environment. She sought back pay, front pay, benefits, compensatory damages, reasonable attorneys’ fees, and an injunction restraining defendants from continuing their discriminatory practices. Defendants included the State of New York and the New York State Division of State Police (collectively, the State defendants), along with individual defendants not relevant to this appeal.

According to the complaint, and supporting exhibits, coworkers posted lewd cartoons portraying plaintiff naked and engaged in various sexual acts, suggested that plaintiff perform sexual acts on them and other coworkers and engaged in other harassing and hostile conduct, including a physical assault on plaintiff, which required emergency room treatment and doctor ordered work leave.

Throughout the course of plaintiff’s 14-year tenure, she made repeated complaints. In 1982, plaintiff made a sexual harassment claim under Article 9 of the New York State Police Administrative Manual, but the harassment continued. When she was assaulted by a coworker in 1993, plaintiff requested a formal hearing, but was dissuaded from moving forward when her request to have a private attorney present was denied and her union representative suggested that she would not receive a fair hearing. Despite plaintiff’s efforts, neither her supervisors nor her Troop Commanders put a stop to her coworkers’ offensive behavior. Plaintiff repeatedly sought legal assistance, but had difficulty finding an attorney to take her case.

She found counsel and initiated litigation in 1995.

In 1995, plaintiff commenced this litigation. The State defendants denied that the agency had engaged in any wrongdoing whatsoever, and asserted as a defense that “[a]ll actions taken by the defendants were official acts taken in the exercise of their discretion.” Over the next ten years, the State defendants repeatedly engaged in what the Appellate Division characterized as “obstructionist and delaying tactics” (261 AD2d 843, 845 [4th Dept 1999]), including their failure to comply with basic discovery requests. Eventually, based on their continued defiance of court orders, the Appellate Division struck the State defendants’ answers (see 286 AD2d 881, 883 [4th Dept 2001])

When the case went to trial over a decade after the complaint was filed, plaintiff prevailed and received a jury award of over $700,000. The jury award included past earnings of $160,000; past lost retirement earnings of $60,000; future lost retirement earnings of $491,000; and past pain and suffering of $87,000. Plaintiff’s current and former counsel then sought attorneys’ fees and costs under the EAJA. 

Majority holding

In sum, the plain language, legislative history and remedial nature of the EAJA together demonstrate that this civil action is eligible for an award of attorneys’ fees. We hold that for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys’ fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The plain language of the statute, which is supported by the legislative history, compels the conclusion that “any civil action” encompasses cases brought under the Human Rights Law. It is not for this Court to engraft limitations onto the plain language of the statute.

Judge Wilson concurred.

A dissent from Judge Garcia

I agree with the plurality that the conduct of the defendants in this case was egregious. That plaintiff received truly reprehensible treatment, however, does not entitle her attorneys to recoup fees under a statute that does not, and has never been used to, provide for such an award in this type of case.

Plaintiff, one of the first women to become a state trooper in New York, experienced years of discrimination and harassment during her employment by defendants State of New York and the New York State Division of State Police. This long period of mistreatment included vandalism of plaintiff’s property, the posting of offensive cartoons depicting plaintiff performing sexual acts, and a physical attack by a co-worker that placed her in the emergency room. After attempts to seek redress of these wrongs internally, plaintiff filed suit in 1995 alleging sex discrimination, sexual harassment, retaliation, and hostile work environment and seeking $15,000,000 in damages as well as back pay, front pay, benefits, injunctive relief, and reinstatement. Before the suit was filed, plaintiff obtained two attorneys, one of whom (the intervenor) had extensive experience in discrimination law cases. Both attorneys signed a contingency fee contract with plaintiff, agreeing to share one-third of any award received…

The facts of this case are compelling, both as to the injuries suffered by the plaintiff and the conduct engaged in by the defendant.9 But in response the plurality establishes a rule that will have repercussions well beyond awarding fees to this particular plaintiff’s attorneys. The plurality does this in contradiction to the plain meaning of the statute, the unequivocal legislative history, and the interpretation given to the statute by courts and litigants for the past 28 years. Their motives in doing so are understandable, but the rule created is nevertheless unsupportable.

Accordingly, I dissent.

Judge Stein joined the dissent. (Mike Frisch)