Jury awards $5.2M to ex-Hempstead Town worker who claimed retaliation, gender discrimination

A federal jury has awarded $5.2 million to a former Hempstead Town employee who claimed retaliation by the town after complaining she was denied promotions due to her gender.

In 2017, Debra Fee, then a town highway employee, sued the town, alleging she had faced gender discrimination when she was passed over for promotions. She was reassigned from a storeroom to manual labor on a truck when she complained, her lawsuit alleged.

The trial began earlier this month. The jury reached a verdict Thursday on its second day of deliberations.

During the trial, Fee testified that in 2019, a male co-worker had exposed himself to her and made sexual comments while they were working together in a truck, according to a court transcript. The employee, who testified in court the same day, denied the allegations.

She testified that she told the secretary to the department commissioner about the incident. Fee said that afterward, a different worker refused to work with her, and her alleged harasser made a complaint about her and she was later terminated.

The town's outside legal counsel, Donna A. Napolitano of Berkman Henoch Peterson & Peddy PC, questioned the veracity of the sexual harassment claim in her closing arguments. For example, she asked Fee why she hadn't called 911 or gotten out of the truck and hadn't reported the alleged incident through official channels.

Napolitano told the jury that Fee had not faced discrimination and that she wasn't forced to work on the truck doing manual labor.

The jury determined that the town had retaliated against Fee but did not find that she was discriminated against on the basis of gender. The jury did not find that she had proved sexual harassment by the co-worker.

'Some level of vindication'

“This is a day that has been a long time coming,” Fee said in a written statement handed out outside the courtroom following the verdict. “Finally ... I am feeling some level of vindication. They retaliated against me for trying to be treated like the men were, and this jury saw right through them."

Fee’s attorney, Frederick Brewington, said outside the courtroom that the jury's multimillion-dollar award sent “a clear message about the harm they caused.”

“There’s no question that what they did to Ms. Fee was seen by this jury as being repayment, and the town should take a close look at the actions of these men,” Brewington said.

Town spokesman Brian Devine said in a text message: “The Town disagrees with the verdict and is considering all of our legal options going forward.”

Fee began working for the town’s highway department in 2006 as a part-time seasonal employee. She started working full time in 2011 under the title "Laborer I," but said she was passed over for promotions even as male colleagues were moving up the career ladder. 

The position, as defined by Civil Service, is primarily untrained manual labor. Fee worked in the stockroom, which largely entailed ordering parts for vehicles, conducting inventory and interacting with mechanics, according to testimony. 

Seeking a title change

In 2016, she applied for a title change and initiated a procedure called a desk audit. It is undertaken by the Civil Service Commission to compare actual job responsibilities to those in Civil Service-defined titles. 

Fee testified that after she did that, highway department commissioner Thomas Toscano told her that if she didn't withdraw her application for a title change, he would put her in a job that matched her title. She didn't withdraw it. Soon after, she testified, highway maintenance crew chief Antonio Fanizzi told her to give up her stockroom key because Toscano had assigned her to work on a truck. 

Toscano testified that Fee was given a choice whether to stay in her job at the stockroom or work on the trucks. Fee testified that she wasn't offered a choice and that she couldn't afford to quit. 

She testified that manual labor on the truck included tasks such as filling potholes, moving barricades, picking up dead animals, cleaning out storm drains and raking leaves. The demanding work caused her physical distress, she testified.

"I was in a lot of pain," Fee testified. 

Some of the total damages awarded by the jury were against co-defendants Toscano, Fanizzi and Christopher Foley, a highway department supervisor. The jury also held that Toscano was liable for $330,000 in punitive damages and Fanizzi was liable for $200,000 in punitive damages.