The First Department set aside a plaintiff's verdict of $2,000,000 compensatory and $500,000 punitive damages, plus attorneys' fees of $257,428.71, in Jordan v. Bates Advertising, which was decided on December 27, 2007. In addition, the court upheld a $5,000 sanction against plaintiff, and dismissed the complaint which had sounded in disability discrimination.

Plaintiff was hired as a senior vice president at the advertising agency, after having worked there for two months as a consultant. She was fired a year later. After her federal claims were dismissed, plaintiff brought a state action claiming, among other things, that she was fired because she was perceived to be disabled.

The First Department agreed with defendant that, at trial, plaintiff did not prove that defendant's proffered legitimate reasons for the firing were pretextual.
The court said that, in establishing her claim under Executive Law § 296, plaintiff had the initial burden of establishing a prima facie case of discriminatory termination. The burden then shifted to defendant to rebut the prima facie case by offering a nondiscriminatory reason for the termination, and then again shifted to plaintiff to show that defendant's reasons were pretextual. The burden of persuasion on the ultimate issue of discrimination always was plaintiff's.

At trial, plaintiff established that she was diagnosed with multiple sclerosis (MS) in 1992 and, because of it, used a cane. When she was asked about the cane after having been hired, she said she used it because of a skiing injury, a lie which she repeated when she was asked about it again. Plaintiff testifed that, since she was often asked about the cane, she felt that they believed she had a disability, and that if she revealed the truth she would be fired. However, she did not complain to anyone at the agency about the inquiries as to her use of the cane. Plaintiff further testified that, at a rehearsal for a client presentation, an executive knocked over her cane which was leaning on her chair, and laughed with another executive, while commenting sarcastically, "We've got a cripple." Plaintiff did not mention this comment to anyone at the company.

Agency executives testified that plaintiff's termination was financially motivated, and that a merger and the loss of major clients had precipitated layoffs of a large portion of the workforce, including executives more highly placed than plaintiff. There was testimony that, as a result of the merger alone, half of the staff was terminated.

The court said that defendant's overwhelming and consistent evidence of financial reasons for layoffs in the light of the merger and the loss of major client accounts was undisputed, and that, therefore, the finding that defendant failed to demonstrate a legitimate reason for terminating plaintiff was against the weight of the evidence.

The court said that the sanction of $5,000 on plaintiff was a proper exercise of the trial court's discretion. Plaintiff's conduct after the court directed a hearing to determine the amount of attorneys' fees was egregious and repeated. The record shows that plaintiff pro se relentlessly bombarded the court with letters and faxes accusing the court of ex parte communications, declaring her intention to depose the court, and claiming that her now-former trial attorney had committed serious errors costing her millions in damages. Although the court recognized that plaintiff was proceeding pro se after trial, it properly observed that she still was obliged to comply with court orders and not make baseless accusations regarding the court's integrity.