Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
An Illinois firefighter who claims she suffered years of sexual harassment has been awarded $11 million in damages by a Cook County jury. Dena Lewis-Bystrzycki sued the City of Country Club Hills in 2012, alleging a hostile work environment that became worse after she first complained.
Lewis-Bystrzycki claims ranking officers made crude remarks to her, firefighters routinely watched pornography in the fire stations, and that she was discriminated against when she sought a promotion. The city nearly lost the case on October 2, 2018 when the trial justice, Judge Brigid Mary McGrath, entered a default judgment due to the city’s repeated failure to produce requested digital and electronic information from the fire department’s computer system.
At the city’s request, Judge McGrath reconsidered her sanction, opting instead to provide a spoliation instruction that according to the Chicago Tribune “instructed the jury it could draw adverse inferences from the city’s destruction of digital evidence and its failure to adequately search documents on its computers.”
A forensic expert who examined the fire department computers concluded that over a dozen firefighters had “pornography terms in the websites they visited or viewed pornography images within their user profile and web history.” The expert’s report also identified “thousands of web searches for pornography” that could not be attributed to an accidental click. Quoting from the expert’s report:
- [M]ultiple fire fighters were viewing pornographic material on the fire stations on multiple occasion more than frequently.
- For those whom have a large number of records categorized as Pictures, Carved Video, Pornography URL’s including swinger and hookup sites where two people are looking for sex, it would be hard to attribute those sites to an accidental user action.
- Especially, for those whom have searched Google using pornography terms it would be impossible to attribute that to accidentally visited.
The jury apparently took the judge’s instruction to heart, awarding Lewis-Bystrzycki $8 million for emotional harm, $2 million in compensatory damages, $1,085,000 for lost future earnings, $78,000 on lost income, and $50,000 for counseling expenses.
Such an award is not unprecedented where an employer has failed to preserve relevant evidence in a sexual harassment case. The largest damage award in a single-plaintiff sexual harassment suit in American legal history involved an employer who opted to roll the dice with a jury after having failed to preserve emails that were relevant to the case. The judge in that case gave the jury a negative inference instruction and the jury awarded the plaintiff $29.2 million. The case was Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004).
