Rosioreanu v. NYC Department of Environmental Protection et al
Filing
153
MEMORANDUM AND ORDER: Plaintiff requests 151 leave to file a surreply and attaches her surreply to her letter request. Defendant moves to 152 strike plaintiff's surreply. As the Court did not authorize plaintiff to file a surreply and defendant did not raise any new arguments in its reply, plaintiff's request to file a 151 surreply is denied and defendant's motion to 151 strike plaintiff's surreply is granted. The Court shall not consider the arguments ra ised in plaintiff' s surreply. Defendant's 144 motion for judgment as a matter of law, or alternatively, for a new trial or for remittitur is denied. SO ORDERED by Magistrate Judge Lois Bloom, on 7/9/2012. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)
FILED
.. ~OFFICE
u.s. ~COtJ~1' e.D.N.Y.
* JUL 09 2012 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------)(
BROOKLYN. OFFICE
CLEOPATRA ROSIOREANU,
Plaintiff,
MEMORANDUM AND ORDER
07 CV 2925 (LB)
-againstTHE CITY OF NEW YORK,
Defendant.
-----------------------------------------------------)(
BLOOM, United States Magistrate Judge:
Plaintiff, Cleopatra Rosioreanu, brings this pro se action against defendant City of New
York pursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq. ("Title VII").
The Court held a jury trial from March 12, 2012 to March 14, 2012, and the jury returned a verdict
for plaintiff on her retaliation claim under Title VII. 1 Defendant now moves for judgment as a
matter oflaw pursuant to Rule 50(b) ofthe Federal Rules of Civil Procedure, or in the alternative,
for a new trial or for remittitur pursuant to Rule 59 of the Federal Rules of Civil Procedure. For
the following reasons, defendant's motion is denied.
BACKGROUND
Plaintiff is a civil structural engineer licensed by the State of New York. (Tr. 30. 2 )
Plaintiff was hired to work in the Bureau of Water and Sewer Operations of the New York City
Department of Environmental Protection in December 1996 as a design engineer. (Id.) On July
1, 2001, plaintiff requested a transfer to the Engineering Audit Office of the Department of
Environmental Protection. (Tr. 31.) Following an interview with James Mahaney, the Deputy
Director of Construction Payments in the Engineering Audit Office, plaintiff s request for a
1 The parties consented to a Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). (Docket entry 102.)
2 "Tr." refers to the transcript of the jury trial held from March 12,2012 until March 14,2012.
1
transfer was approved. (Tr. 31; Ex. 5.1.) Plaintiff was sixty years old at the time she transferred
to the Engineering Audit Office.
(Tr. 32.)
As a Civil Engineer/Audit Engineer in the
Engineering Audit Office, plaintiff performed audits of construction payments and job order
contract payments. (Tr. 31, 146; Ex. 5.1.) Roy Durig was the Director of the Engineering Audit
Office and James Mahaney was plaintiffs direct supervisor. (Ex. 5.1.) Plaintiff was the only
female engineer with the Engineering Audit Office in 2001 and testified that "men dominated [the]
world in the engineering field." (Tr. 107, 118, 143; Ex. 5.1.)
After four months on the job, plaintiff began working on a project related to the watershed
division's billing system.
(Tr. 32.) On November 7, 2001, plaintiff went to a meeting in
Kingston, New York to present her proposal to change the billing system to the director in charge.
(Tr. 32-33, 258.)
Plaintiff was scheduled to attend the meeting with Mahaney.
(Tr. 32.)
However, as plaintiff could not drive and Mahaney could not attend the meeting, Muzaffar Jamal,
a co-worker within the Engineering Audit Office, was sent with plaintiff to the Kingston meeting.
(Tr. 33; Ex. 5.1.) Plaintiff and Jamal arrived at the meeting more than one hour late because
Jamal worked on his private engineering business while plaintiff waited in the car on the way to
the meeting.
(Tr. 33.)
During the meeting, Jamal "improperly and rudely interfered with
[plaintiffs] presentation in a very unprofessional and arrogant fashion."
(Tr. 33.) Plaintiff
testified that she "firmly believe [s] that he behaved in this particular manner also because I am a
woman" and that "if I was a man he will never have doing his personal business with me in the
car." (Tr. 106,313.)
Upon their return, plaintiff immediately complained to Mahaney and Durig about Jamal
making her late to the meeting and Jamal's "disrespect" during the meeting. (Tr. 33.) Durig
confirmed that plaintiff complained that "there was some sort of argument up in Kingston where
2
Jamal interrupted the conversation - - Cleopatra's conversation and she got annoyed at him, there
was some verbal altercation." (Tr. 148.) When Jamal presented a different version of events to
the supervisors, plaintiff asked Durig to investigate the incident, including "the way [Jamal]
actually treated [her]." (Tr. 33, 35.) Durig testified that he spoke to plaintiff and Jamal and they
both said they did not want to take the matter any further. (Tr. 148.) Plaintiff testified that Durig
and Mahaney "took the man word against my word." (Tr. 35.) Plaintiff further testified that
"since that day, Mahaney turned against me and he has started to mock me, to undermine to broken
English, to belittle and pester me ... to subject me to increasing scrutiny, marginalization and
criticism." (Tr. 35.) Plaintiff testified that the Kingston meeting started "a long ordeal of
harassment, intimidation and malicious retaliation that eventually forced [her] to withdraw from
EAO in May 2003." (Tr. 33.) Plaintiff specifically stated that the Kingston meeting "start[ed]
the problem ... [and] exposed me to abusive behavior of Mr. M. Jamal and get continuous
persecution from Mr. Mahaney." (Tr. 105.) Durig confirmed that plaintiff and Mahaney had a
very good relationship when she first started in the Engineering Audit Office, but their relationship
"went downhill" after the Kingston meeting. (Tr. 146-147, 172.)
Plaintifftestified that Mahaney and Durig's "unfounded evaluation[s]" of her performance
at the Engineering Audit Office were part of the harassment she suffered following the Kingston
meeting. (Tr. 104.) For the period July 1,2001 to December 31,2001, Mahaney gave plaintiff
an overall rating of conditional on her performance evaluation. 3 (Ex. A.) Mahaney stated that
plaintiff "exhibits rigidity and poor interaction with others" and that her "performance - after 6
months of service - is not up to expectation." (Id.) Plaintiff appealed the evaluation on February
4, 2002. (Tr. 39.) For the period January 1, 2002 to March 15, 2002, Mahaney also gave
3 The ratings available on Department of Environmental Protection performance evaluations include unratable,
unsatisfactory, conditional, good, very good, and outstanding. (Ex. A.)
3
plaintiff an overall rating of conditional on her performance evaluation. (Ex. 9.) Mahaney stated
that plaintiff "exhibits a pattern of poor performance and behavior" and "resists direction." (Id.)
On March 15, 2002, a board convened to address plaintiffs appeal of her first performance
evaluation. (Ex. 20; Ex. B.) The board voided the two evaluations performed by Mahaney from
July 1, 2001 to March 15, 2002 and transferred plaintiff from the supervision of Mahaney to
Deputy Director Louis Gorozdi effective March 18, 2002. (Ex. 20; Ex. B.) Gorozdi testified
that plaintiff was transferred to his supervision because of a conflict between plaintiff and
Mahaney. (Tr.449.) Plaintiff testified that she "was complaining under the appeal ... because I
couldn't find another way to complain directly about what I perceived as management abuse.
Nobody stopped Director Mahaney to harass me, to come into my work." (Tr. 58-59.)
On March 25,2002, plaintiff complained to the Deputy Director of Human Resources and
requested an investigation of what happened at the November 7,2001 meeting in Kingston. (Tr.
43-45.) On June 10,2002, plaintiff met with Human Resources Director Zoe Ann Campbell and
complained about her performance evaluations, Mahaney's conduct, and what had happened with
Jamal at the Kingston meeting. (Ex. 17; Ex. 18; Tr. 369, 393, 396.) On October 3, 2002,
plaintiff met with Deputy Commissioner Louis Tazzi and complained about her performance
evaluations, Mahaney, and Jamal. (Ex. 14; Tr. 287.) Unsatisfied with Tazzi's response to her
complaints, plaintiff complained to the Chief of Staff, Shauna Grob, on November 25, 2002
regarding Mahaney's harassment. (Tr. 59, 288-289.) Plaintiff testified that "after a year and a
halfwith somebody harassing me, like Mahaney did for one year and a half, I complained to all the
chain of command, ten to fifteen memos." (Tr. 111.)
For the period March 18, 2002 to May 31, 2002, Gorozdi gave plaintiff overall ratings of
good on her interim performance evaluations. (Ex. 10; Ex. 11.) Gorozdi testified that plaintiff
4
did her "work as good or better than the other people that were doing the same type of work." (Tr.
449.) Gorozdi further testified that Mahaney continued to go over plaintiff's work while she was
under his supervision and that he complained to Durig about it. (Tr. 453-54.) While under
Gorozdi's supervision, plaintiff testified that Mahaney "removed me from the training," "was
following me all the time, criticizing me, having objections all the time," and "never stopped
interfering in my work." (Tr. 104.) Gorozdi confirmed that although plaintiff was placed under
his management and supervision, he "could not effectively accomplish the task that the Board
charged [him] with [Mahaney] being involved in [his] supervision area." (Tr. 455.) Gorozdi
testified that during a meeting he attended with Mahaney and Durig on July 29, 2002, Mahaney
objected to a memorandum prepared by plaintiff, but without "express[ing] his opinion why he felt
the way he did." (Tr. 456.) When another deputy director, Harold Buchberg, agreed with the
position in plaintiff's memorandum, Mahaney "got up and kicked" Buchberg. (Tr. 457; Ex. 5.1.)
Following the meeting, Gorozdi asked Durig to remove plaintiff from his supervision. (Tr. 457.)
Plaintiff was then transferred to the direct supervision of Durig. (Tr. 56, 157.) Under Durig's
supervision, plaintiff started working more onjob order contract payments and made complaints to
Durig as well as Durig's supervisor, First Deputy Commissioner David Tweedy, about what she
perceived as the approval of "illegal payments" by the Engineering Audit Office. (Tr. 56-57,
113-115, 165-166; Ex. E, F, 51.)
In March 2003, plaintiff requested a transfer out of the Engineering Audit Office. (Tr.
295.) Durig transferred plaintiff from the Engineering Audit Office to the Bureau of Water and
Sewer Operations, effective May 12,2003. (Ex.49.) In May 2003, a taskforce met for the first
time to address job order contract payments; plaintiff was not placed on the taskforce. (Tr.207,
332.) As plaintiff did not receive her evaluation from Durig for the time she was under his
5
supervision, plaintiff requested in January 2004 that an evaluation be performed. (Tr. 71-72.)
Plaintiff testified that she had to complain up the chain of command in order for Durig to finally
perform her evaluation. (Tr. 91.) On May 18, 2004, Durig gave plaintiff an overall rating of
conditional on her performance evaluation for the period January 1,2003 to May 9, 2003. (Ex.
H.) Durig stated that plaintiff "has difficulty working with others," was "lacking" in her "ability
to work with minimal supervision," and "has poor interpersonal relationship skills, which
interfered with her auditing functions."
(Id.)
Plaintiff again appealed the performance
evaluation, and on July 22, 2004, the appeal committee changed plaintiffs overall rating from
conditional to good. (Ex. 64; Ex. 1.)
PROCEDURAL HISTORY
Plaintiff commenced this pro se action against the New York City Department of
Environmental Protection, James Mahaney, and Roy Durig pursuant to Title VII and the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") on July 17, 2007.
(Docket entry 1.) After the parties had completed discovery and the Court had set the briefing
schedule for defendants' motion for summary judgment, counsel appeared on plaintiffs behalf.
(Docket entries 18,23 and 24.) The Court re-opened discovery and plaintiffs counsel amended
the complaint. (Docket entries 28 and 30.) Plaintiff filed a second amended complaint on
November 7, 2008, and defendants answered the second amended complaint. (Docket entries 33
and 36.) Following the completion of discovery on April 13, 2009, defendants moved for
summary judgment and plaintiffs counsel opposed the motion. (Docket entries 41,48, and 53.)
After defendants' motion for summary judgment was fully-briefed, plaintiffs counsel moved to
withdraw from the case and the Court granted counsel's request. (Docket entries 58 and 59.)
By Memorandum and Order dated September 20, 2010, the Court granted in part and
6
denied in part defendants' motion for summary judgment.
(Docket entry 68.)
The Court
dismissed plaintiff's Title VII claims based on discrete events during her employment with the
Engineering Audit Office and the Bureau of Water and Sewer Operations, plaintiff's age and
national origin discrimination claims, plaintiff's claims against defendants Mahaney and Durig,
and plaintiff's claims under New York State and New York City law. (Id.) The Court denied
summary judgment on plaintiff's hostile work environment and retaliation claims under Title VII
arising from her employment with the Engineering Audit Office.
(Id.)
The Court also
substituted the City of New York for the Department of Environmental Protection as the proper
defendant to this action. (Id.) By Memorandum and Order dated January 27, 2011, the Court
denied defendants' and plaintiff's motions for reconsideration. (Docket entry 89.)
The parties filed their proposed joint pretrial order on May 4, 2011 and consented to a
magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c). (Docket entries 101 and 102.)
After the Court was unable to find pro bono counsel to volunteer to represent plaintiff at trial, the
Court held five conferences over the course of approximately three months to prepare the case for
trial. (Docket entries 108, 110, 118, 124, and 129.) On February 29,2012, the Court granted in
part and denied in part defendant's motion in limine. (Docket entry 120.) At the final pretrial
conference on March 6, 2012, the Court addressed the parties' proposed jury instructions and
provided the parties with its jury instructions and verdict sheet for their review pursuant to Rule
51(b) ofthe Federal Rules of Civil Procedure. (Docket entry 129.) The Court held a conference
to finalize the jury instructions after the second day of trial and neither plaintiff nor defendant had
any objections. (Tr. 355-356.)
The Court held a jury trial from March 12,2012 to March 14,2012. (Docket entries 131,
133, and 134.) In addition to testifying herself, plaintiff called three witnesses to testify at trial:
7
Andrew Moss, Zoe Ann Campbell, and Louis Gorozdi.
Defendant did not cross-examine
plaintiffs witnesses and defendant called Roy Durig as its only witness.
At the close of
plaintiffs case, defendant moved for judgment as a matter oflaw and specified the grounds ofthe
motion as required by Rule 50(a)(2) of the Federal Rules of Civil Procedure. 4 (Tr. 468-472.)
The Court denied defendant's motion and sent plaintiffs claims to the jury. (Tr.472-473.)
The jury returned a verdict for defendant on plaintiffs gender-based hostile work
environment claim, but returned a verdict for plaintiff on her retaliation claim and awarded her
$100,000 in compensatory damages.
(Docket entry 137.)
The Clerk of Court entered a
judgment in favor of plaintiff on March 16, 2012. (Docket entry 138.) On April 12, 2012,
defendant moved for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of
Civil Procedure, or in the alternative, for a new trial pursuant to Rule 59 of the Federal Rules of
Civil Procedure. 5 (Docket entry 144.) Plaintiff opposes defendant's motion and defendant has
replied. (Docket entry 149, Pl.'s Aff. in Opp.; docket entry 150, Reply Mem.) Plaintiff requests
leave to file a surreply and attaches her surreply to her letter request.
Defendant moves to strike plaintiffs surreply.
(Docket entry 152.)
(Docket entry 151.)
As the Court did not
authorize plaintiff to file a surreply and defendant did not raise any new arguments in its reply,
plaintiffs request to file a surreply is denied and defendant's motion to strike plaintiffs surreply is
granted. The Court shall not consider the arguments raised in plaintiffs surreply.
4 Defendant renewed its Rule 50 motion before the case was submitted to the jury and the Court denied the motion.
(Ir.475.) The renewed motion was made immediately after the fIrst motion because defendant's only witness, Roy
Durig, was called out of tum to accommodate his medical treatment. (Tr. 140.)
5 The judgment was entered against defendant on March 16, 2012 and the instant motion was fIled on April 12, 2012.
Thus, defendant's motion is timely under Rules 50(b) and 59(b) of the Federal Rules of Civil Procedure.
8
DISCUSSION
I.
Motion for Judgment as a Matter of Law
The standard for a motion for judgment as a matter of law under Rule 50 of the Federal
Rules of Civil Procedure "generally imposes a heavy burden on a movant, who will be awarded
judgment as a matter oflaw only when 'a party has been fully heard on an issue during a jury trial
and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue.'"
Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011)
(quoting Fed. R. Civ. P. 50(a)(1)). "A movant's burden in securing Rule 50 relief is particularly
heavy after the jury has deliberated in the case and actually returned its verdict." Cross v. N.Y.
City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005). "Where, as here, a jury has deliberated in a
case and actually returned its verdict, a district court may set aside the verdict pursuant to Rule 50
only where there is 'such a complete absence of evidence supporting the verdict that the jury's
findings could only have been the result of sheer surmise and conjecture, or there is such an
overwhelming amount of evidence in favor of the movant that reasonable and fair minded men
could not arrive at a verdict against him.'"
AMW Materials Testing, Inc. v. Town of Babylon,
584 F.3d 436,456 (2d Cir. 2009) (quoting Cross, 417 F.3d at 248). "In short, a Rule 50 motion
may be granted only if the court, viewing the evidence in the light most favorable to the
non-movant, concludes that 'a reasonable juror would have been compelled to accept the view of
the moving party.'"
Cash, 654 F.3d at 333 (quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d
Cir. 2007)). "In reviewing a Rule 50 motion, a court may consider all the record evidence, but in
doing so it 'must draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.'"
Cross, 417 F .3d at 248 (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). Although there is an abundance
9
of caselaw on the standards for Rule 50 motions, it is clear that each case must be determined on its
own facts.
Defendant argues that plaintiff failed to establish a prima facie case of retaliation under
Title VII because she failed to proffer sufficient evidence that she engaged in any protected
activity. To establish a prima facie case of retaliation under Title VII, a plaintiff "must show (1)
that she participated in a protected activity, (2) that she suffered an adverse employment action,
and (3) that there was a causal connection between her engaging in the protected activity and the
adverse employment action." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010) (citation omitted).
"The law protects employees in the filing of formal charges of
discrimination as well as in the making of informal protests of discrimination, 'including making
complaints to management, writing critical letters to customers, protesting against discrimination
by industry or society in general, and expressing support of co-workers who have filed formal
charges.''' Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000) (quoting Sumner v. U.S. Postal
Serv., 899 F.2d 203, 209 (2d Cir. 1990)); see Sclafani v. PC Richard & Son, 668 F. Supp. 2d 423,
437 (E.D.N.Y. 2009) ("[I]nformal complaints to supervisors constitute protected activity under
Title VII."). "[I]n order to recover for retaliation for having filed such a complaint, the plaintiff
need not prove that her underlying complaint of discrimination had merit." Lore v. City of
Syracuse, 670 F.3d 127, 157 (2d Cir. 2012) (citations omitted). "An employee 'need not establish
that the conduct she opposed was in fact a violation of Title VII, but rather, only that she had a
good faith, reasonable belief that the underlying employment practice was unlawful. '"
Gorzynski, 596 F.3d at 111 n.8 (quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d
Cir. 1996)). "The reasonableness of the plaintiffs belief is to be assessed in light ofthe totality of
10
the circumstances." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.
1998) (citation omitted).
The trial record reflects that plaintiff complained immediately, and continued complaining
for a year and a half, about her treatment by a co-worker at a meeting in Kingston, New York on
November 7, 2001. From November 2001 until she transferred out of the Engineering Audit
Office in May 2003, plaintiff complained to all levels of the Department of Environmental
Protection, including Engineering Audit Office Director Roy Durig, the Human Resources Deputy
Director, Human Resources Director Zoe Ann Campbell, Deputy Commissioner Louis Tazzi,
Chief of Staff Shauna Grob, and First Deputy Commissioner David Tweedy about, inter alia,
Jamal's conduct towards her during the Kingston meeting, harassment by her supervisor James
Mahaney, negative performance evaluations, and improper auditing of job order contract
payments. (Tr. 39, 43-45,58-59,91, 113-115,287-289,369,393,396; Ex. E, F, 1,14, 17, 18,51.)
Plaintiff claims that her complaint in November 2001 to Mahaney and Durig regarding
Jamal's conduct during the Kingston meeting constituted protected activity under Title VII and
caused Mahaney to harass her for the next year and a half.
(Pl.'s Aff. in Opp., pp. 8-10.)
Regarding Jamal's conduct during the Kingston meeting, plaintiff testified that Jamal "improperly
and rudely interfered with [her] presentation in a very unprofessional and arrogant fashion." (Tr.
33.) Plaintiff also testified that they arrived more than one hour late to the meeting because Jamal
worked on his private engineering business on the way to the meeting while she was made to wait
in the car. (Tr. 33.) Plaintiff testified that "I firmly believe that he behaved in this particular
manner also because I am a woman" and that "if I was a man he will never have doing his personal
business with me in the car." (Tr. 106, 313.) Plaintiffs testimony left much unsaid about what
specifically happened at the Kingston meeting and about her interactions with Jamal before the
11
6
Kingston meeting. However, upon returning from Kingston, plaintiff immediately complained to
her supervisors, Mahaney and Durig, about Jamal making her late to the meeting and Jamal's
"disrespect" during the meeting. (Tr.33.) When Jamal presented a different version of events to
the supervisors, plaintiff asked Durig to investigate the incident, including "the way [Jamal]
actually treated [her]." (Tr. 33, 35.) Plaintiff testified that Durig and Mahaney "took the man
word against my word." (Tr.35.)
Jamal's conduct on November 7, 2001 was not sufficiently severe or pervasive to
constitute a hostile work environment under Title VII. See McGullam v. Cedar Graphics, Inc.,
609 F.3d 70, 79 (2d Cir. 2010) ("[A] plaintiff seeking to establish a Title VII hostile work
environment claim must show that 'the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment."') (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17,21 (1993)); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010) ("Isolated
incidents generally will not suffice to establish a hostile work environment unless they are
extraordinarily severe.") (citations omitted). However, plaintiff did not have to prove that her
complaint regarding Jamal's conduct had merit under Title VII to prevail on her retaliation claim.
Lore, 670 F.3d at 157. As the only female engineer in the Engineering Audit Office at the time,
plaintiff believed that Jamal's rude and disrespectful behavior at the Kingston meeting was
motivated by her gender and she complained to her supervisors about the incident. When her
complaint went unaddressed by her immediate supervisors, plaintiff continued complaining about
Jamal's conduct to higher levels within the Department of Environmental Protection over the next
year and a half. Drawing all inferences from the evidence in her favor and considering the totality
6 Plaintifftestified that after the Kingston meeting, she no longer spoke with Jamal "because it was my protest and
until the situation is clarified I don't have to expose myself to the same situation." (Tr. 94.)
12
of the circumstances, ajury could and did find that plaintiff had a good faith, reasonable belief that
she was opposing unlawful gender discrimination when she complained about Jamal to Mahaney
and Durig in November 2001.
7
See Khan v. HIP Centralized Lab. Servs., Inc., No. CV-03-2411
(DGT), 2008 U.S. Dist. LEXIS 76721, at *5-6 (E.D.N.Y. Sept. 17, 2008) (denying defendant's
motion for judgment as a matter of law on plaintiff s retaliation claim because "the jury could find
that Khan reasonably believed that his complaints about Ghirardi's comments were a protected
activity, in light of the evidence that these comments persisted even after Khan told Ghirardi that
her reference to Khan and his co-workers as 'ladies' made him feel as if he was being
discriminated against in his workplace on the basis of his gender"); Pappas v. Watson Wyatt &
Co., No. 3:04-CV-304 (EBB), 2008 U.S. Dist. LEXIS 21996, at *14-17 (D. Conn. Mar. 20, 2008)
(denying defendant's motion for judgment as a matter of law on plaintiffs retaliation claim
because "the jury could reasonably have concluded that Pappas reasonably and in good faith
believed that she was engaged in protected activity" when she complained about the excessive
attention paid to her by her supervisor "even though she did not explicitly describe it in ... terms
[of sexual harassment] at the time"); Marchisotto v. City of New York, No. 05 Civ. 2699 (RLE),
2007 U.S. Dist. LEXIS 27046, at *16 (S.D.N.Y. Apr. 11,2007) (denying defendant's motion for
judgment as a matter of law on plaintiff s retaliation claim because plaintiff "testified about
7 A complaint regarding a single harassing comment may not be considered protected activity. See Reed, 95 F.3d at
1179 n.12 (noting that "we do not suggest, much less decide, that one comment, standing alone, could support a
reasonable belief that an employee was suffering unlawful, discriminatory employment conditions"); Khan, 2008 U.S.
Dist. LEXIS 76721, at *5-6 (noting that complaints may not be protected where "the objectionable comment is an
isolated or passing incident"); Spadola v. N.Y. City Transit Auth., 242 F. Supp. 2d 284,293 (S.D.N.Y. 2003) (granting
summary judgment on plaintiff s retaliation claim because "no rational jury could find that, under the totality of the
circumstances evidenced here, [a co-worker's] isolated allegedly harassing remark made during [a verbal altercation
with plaintiff at work] constituted a sufficient ground to support a good faith, objectively reasonable belief that the
offending conduct constituted a violation of Title VII, and that Spadola had thus engaged in a protected activity when
he protested the comment as an unlawful employment practice"). However, this case can be distinguished from cases
involving a single comment or isolated remark. Although Jamal's behavior underlying plaintiffs complaint all
happened on one day, plaintiffs complaint about Jamal's disrespectful behavior included making her wait in the car
while he conducted his private business, making her an hour late to what she perceived as an important meeting for her
career, and interrupting her presentation during the meeting.
13
several instances that he believed to be sexual harassment, and that it was this belief that caused
him to make his complaints"); McGrory v. City of New York, No. 99 Civ. 4062 (FM), 2004 u.s.
Dist. LEXIS 20425, at *30 (S.D.N.Y. Oct. 8,2004) (denying defendant's motion forjudgment as a
matter of law on plaintiffs retaliation claim because "[w]hile the jury correctly concluded that
there was insufficient evidence of a racially hostile work environment, the City has not shown that
there was a reason for a layman such as McGrory to have known that such isolated acts were
insufficient to establish his entitlement to relief'); Carter v. Rosenberg & Estis, P.C., No. 95 Civ.
10439 (DLC), 1998 U.S. Dist LEXIS 4010, at *34 (S.D.N.Y. Mar. 30, 1998) (denying defendant's
motion for judgment as a matter of law on plaintiffs retaliation claim because plaintiff "adduce[d]
sufficient evidence at trial - - albeit by a slim margin - - to support a finding that she believed
reasonably and in good faith that she was opposing [unlawful sexual] harassment" when she
complained about a co-worker's request for a kiss and subsequent hostile conduct towards her).
The Carter case is particularly instructive.
In Carter, plaintiff complained that a
co-worker, Talisman, had "allegedly pointed to his cheek and indicated to Carter that he wanted a
kiss. She refused, and after that refusal, according the Carter, Talisman became hostile towards
her, sulked, refused to accept work from her or perform work for her, and generally made her job
difficult." Carter, 1998 U.S. Dist LEXIS 4010, at *3. Although a request for a kiss is on its face
gender-based in nature, Carter admitted that she did not consider it sexual and that she did not use
the word "sexual harassment" when she reported the incident nearly a month after it happened.
Instead, she used the words "hostility" and "harassing" to describe the conduct. "[W]hen pressed
to explain her new view of Talisman's behavior -- a view that was itself perhaps a construct of
litigation -- Carter once again responded by referring to the generally antagonistic actions on his
part that appear to have been the actual bases for her complaint." Id. at *27. "[N]otwithstanding
14
the considerable evidence indicating that Carter lacked a good faith, reasonable belief that she was
opposing unlawful sexual harassment," Judge Cote found that "regardless whether she understood
[Talisman's request for a kiss] to be sexual or merely obnoxious, he presumably would not have
made it if Carter were a man," and that plaintiff "presented at least some evidence" of harassment
by Talisman "during the month after she spurned that gender-based advance." Id. at *30-31.
Accordingly, Judge Cote held that "[i]n these circumstances, the Court cannot conclude that no
reasonable jury could find that Carter had a good faith, reasonable belief that she was opposing
unlawful harassment based on her gender when she complained about Talisman to the firm." Id.
at *34. Similarly, in this case, plaintiff did not explicitly refer to gender when she complained
about Jamal's behavior to Durig and Mahaney in November 2001. Rather, like Carter, plaintiff
complained of a co-worker's generally antagonistic actions using words such as "abusive" and
"disrespectful." (Tr. 33, 105.) Although there was no quintessentially gender-based conduct in
this case like a request for a kiss by a co-worker, the verdict here reflects that the jury believed
plaintiff that Jamal would not have made her wait in the car while he conducted his private
business, made her late to the meeting, and interrupted her presentation if she were not a woman.
Although I acknowledged that the issue was a close call when I denied defendant's motion
for judgment as a matter of law before the case was submitted to the jury, (Tr. 472), after a
thorough review of the record, I cannot conclude as a matter of law that the jury erred in finding
that plaintiff engaged in protected activity when she complained to Durig and Mahaney about
Jamal's conduct. Under the totality of the circumstances presented, plaintiffs immediate and
continuous complaints regarding Jamal's rude and disrespectful behavior at the meeting and her
requests that the behavior be investigated supports the jury's conclusion that her complaints were
based on gender, even though plaintiff never explicitly said that she was complaining of sex
15
discrimination.
8
As stated by the Court in Carter, "[gJiven the ample evidence that would have
supported a verdict for the defendants ... the jury's choice between the arguments for the
defendants and for [plaintiff] ultimately rested on an evaluation of her credibility." Carter, 1998
u.s.
Dist LEXIS 4010, at *34. The jury here found plaintiff to be credible and believed her
testimony regarding these events.
The jury also had a legally sufficient evidentiary basis to find that plaintiff suffered a
materially adverse action and that there was a causal connection between her engaging in the
protected activity and the adverse action. An employer's actions are "materially adverse" if they
are "harmful to the point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination." Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 57
(2006). Retaliatory harassment, if sufficiently severe, may constitute an adverse employment
action.
Richardson v. N.Y. State Dep't of COIT. Serv., 180 F.3d 426, 446 (2d Cir. 1999).
"[PJroof of causation can be shown either: (l) indirectly, by showing that the protected activity
was followed closely by discriminatory treatment, or through other circumstantial evidence such
as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly,
through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v.
N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (citation omitted). "[AJ plaintiff can
indirectly establish a causal connection to support a discrimination or retaliation claim by showing
that the protected activity was closely followed in time by the adverse employment action."
Gorzvnski, 596 F.3d at 110 (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady
Cnty., 252 F.3d 545,554 (2d Cir. 2001)).
8 Although defendant relies on plaintiffs admission on cross-examination that she never complained to anyone that
she was being subjected to gender discrimination, counsel's questions asked whether plaintiff ever complained of
gender discrimination by Mahaney or Durig. (Tr. 291, 302.) However, plaintiffs retaliation claim is based on her
complaints regarding Jamal's behavior, not her subsequent complaints regarding Mahaney and Durig's conduct.
16
The testimony at trial was undisputed that Mahaney started to harass plaintiff immediately
after she initially complained in November 2001 about Jamal's conduct during the Kingston
meeting. Plaintiff testified that since the moment she complained about Jamal's conduct to Durig
and Mahaney, "Mahaney turned against me and he has started to mock me, to undermine to broken
English, to belittle and pester me ... to subject me to increasing scrutiny, marginalization and
criticism." (Tr.35.) Plaintiff further testified that the Kingston meeting started "a long ordeal of
harassment, intimidation and malicious retaliation that eventually forced [her] to withdraw from
EAO in May 2003." (Tr. 33.) Plaintiff specifically stated that the Kingston meeting "start[ed]
the problem ... [and] exposed me to abusive behavior of Mr. M. Jamal and get continuous
persecution from Mr. Mahaney." (Tr. 105.) Durig's testimony confirmed that plaintiff and
Mahaney had a very good relationship when she first started in the Engineering Audit Office, but
their relationship "went downhill" after the Kingston meeting. (Tr. 146-147, 172.) Due to the
conflict between plaintiff and Mahaney, plaintiff was transferred to the supervision of Gorozdi.
However, even after plaintiff was transferred to the supervision of Gorozdi, Gorozdi testified that
Mahaney would not stop interfering with plaintiff's work.
While under the supervision of
Gorozdi, plaintiff testified that Mahaney "removed me from the training," "was following me all
the time, criticizing me, having objections all the time," and "never stopped interfering in my
work."
(Tr. 104.)
Eventually, Gorozdi requested that plaintiff be transferred out of his
supervision because he "could not effectively accomplish the task that the Board charged [him]
with [Mahaney] being involved in [his] supervision area." (Tr.455.) Finally, the record reflects
that Mahaney gave plaintiff negative evaluations on January 10,2002 and March 21,2002, and
Durig gave plaintiff a negative and untimely evaluation on May 18,2004. Mahaney's evaluations
were voided on appeal and Durig's evaluation was partially reversed on appeal. Presented with
17
this evidence and the proper instruction, the jury found that the harassment suffered by plaintiff
within the Engineering Audit Office was materially adverse and that the harassment was causally
related to plaintiff's complaints regarding Jamal's conduct.
In light of defendant's "particularly heavy" burden on the instant motion, the Court cannot
conclude that the jury's verdict was based on "a complete absence of evidence," or that there was
"an overwhelming amount of evidence" in favor of defendant that compels the Court to set aside
the jury's verdict in this case. AMW Materials Testing, Inc., 584 F.3d at 456. Accordingly,
defendant's motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of
Civil Procedure is denied.
II.
Motion for a New Trial
Following ajury trial, "[a] court may grant a new trial 'for any reason for which a new trial
has heretofore been granted in an action at law in federal court,' including if the verdict is against
the weight of the evidence." Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417 (2d Cir.
2012) (quoting Fed. R. Civ. P. 59(a)(l)(A)). "A district court may grant a new trial pursuant to
Rule 59 even when there is evidence to support the jury's verdict, so long as the court 'determines
that, in its independent judgment, the jury has reached a seriously erroneous result or its verdict is
a miscarriage of justice. '"
AMW Materials Testing, Inc., 584 F.3d at 456 (quoting Nimely v. City
of New York, 414 F.3d 381, 392 (2d Cir. 2005)). "On new trial motions, the trial judge may
weigh the evidence and the credibility of witnesses and need not view the evidence in the light
most favorable to the verdict winner." Raedle, 670 F .3d at 418 (citing United States v. Landau,
155 F.3d 93, 104 (2d Cir. 1998)). However, "trial judges must exercise their ability to weigh
credibility with caution and great restraint, as ajudge should rarely disturb ajury's evaluation of a
witness's credibility, and may not freely substitute his or her assessment of the credibility of
18
witnesses for that of the jury simply because the judge disagrees with the jury." Id. (internal
quotation marks and citations omitted). A "high degree of deference" should be "accorded to the
jury's evaluation of witness credibility, and ... jury verdicts should be disturbed with great
infrequency." Id.
A.
Excessive Compensatory Damages
Defendant first argues that the jury's award of compensatory damages was excessive and
therefore the Court should either order a new trial on damages or reduce the amount of plaintiff's
damages award through remittitur.
It is well established that the trial judge enjoys "discretion to grant a new trial if the
verdict appears to [the judge] to be against the weight of the evidence," and that
"[t]his discretion includes overturning verdicts for excessiveness and ordering a
new trial without qualification, or conditioned on the verdict winner's refusal to
agree to a reduction (remittitur)." Gasperini v. Ctr. for Humanities, Inc., 518 U.S.
415,433 (1996). A conditional order of remittitur, requiring a plaintiff to choose
either a new trial or a reduced verdict, may be granted where, inter alia, "the award
is intrinsically excessive in the sense of being greater than the amount a reasonable
jury could have awarded, although the surplus cannot be ascribed to a particular,
quantifiable error." Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49
(2d Cir 1984) (citation omitted). "Where there is no particular discernable error,
we have generally held that a jury's damage award may not be set aside as
excessive unless 'the award is so high as to shock the judicial conscience and
constitute a denial of justice.'" Id. (quoting O'Neill v. Krzeminski, 839 F.2d 9, 13
(2d Cir. 1988)).
Lore, 670 F .3d at 176-77.
"In determining whether a jury's award is excessive, courts take into account awards
rendered in similar cases, 'bearing in mind that any given judgment depends on a unique set of
facts and circumstances.'" Olsen v. County of Nassau, 615 F. Supp. 2d 35, 45 (E.D.N.Y. 2009)
(quoting Scala v. Moore McCormack Lines, 985 F.2d 680, 684 (2d Cir. 1993)). "Emotional
distress awards within the Second Circuit can generally be grouped into three categories of claims:
garden variety, significant, and egregious." Olsen, 615 F. Supp. 2d at 46 (internal quotation
19
marks and citations omitted); see Rainone v. Potter, 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005)
("In the employment discrimination context, there appears to be a spectrum or continuum of
damage awards for emotional distress.") (internal quotation marks and citation omitted).
In garden variety emotional distress claims, the evidence of mental suffering is
generally limited to the testimony ofthe plaintiff, who describes his or her injury in
vague or conclusory terms, without relating either the severity or consequences of
the injury. Such claims typically lack extraordinary circumstances and are not
supported by any medical corroboration. Garden variety emotional distress claims
generally merit $30,000 to $125,000 awards.
Significant emotional distress claims differ from the garden-variety claims in that
they are based on more substantial harm or more offensive conduct, are sometimes
supported by medical testimony and evidence, evidence of treatment by a
healthcare professional and/or medication, and testimony from other corroborating
witnesses. Finally, egregious emotional distress claims generally involve either
outrageous or shocking discriminatory conduct or a significant impact on the
physical health of the plaintiff. In significant or egregious cases, where there is
typically evidence of debilitating and permanent alterations in lifestyle, larger
damage awards may be warranted.
Olsen, 615 F. Supp. 2d at 46-47 (internal quotation marks and citations omitted).
The jury awarded plaintiff $100,000 in compensatory damages for emotional pain,
suffering, inconvenience, mental anguish, and loss of enjoyment of life. Although defendant
argues that "the actual emotional damages suffered by plaintiff during her time within the EAO
division are confined to a two day period," the Court disagrees. Plaintiff testified that she
suffered for "[0]ne year and a half, I don't know how many people could resist what I resist until I
collapsed." (Tr. 128.) Plaintiff testified that she ultimately suffered a nervous breakdown in
March 2003 and that she suffers from chronic depression as a result of the harassment within the
Engineering Audit Office. (Tr. 64, 66, 112, 125-128.) Plaintiff was the only witness to testify at
trial about her emotional distress and she did not introduce any evidence regarding medical,
psychiatric, or psychological treatment for her depression.
20
In describing her first nervous
breakdown in March 2003, right before she decided to transfer out of the Engineering Audit
Office, plaintiff testified:
Mahaney was all over me all the time. I couldn't stand it anymore. Later on, to
go to sleep for two days with the clothes on you and to go away out was to solve the
problem. I was to sleep forever. In fact, the first breakdown never breakdown.
Nobody accepts depression before it's documented. So I was thinking everybody
would be sick in such a situation as I am for one year and a half.
... I really was out of my mind. So in that day I went home and with the clothes on
me I start to sleep. I didn't want to awake. I was really like I jump into death. I
didn't know at the time that that was depression. I haven't heard about it. But I
awake Monday with the conviction if I am not doing something I am very sick. I
have to solve the problem at any price .
. . . The stress in what I was, it was hard to explain. When you reach the point to go
home, to sleep in your clothes for two days because I couldn't find any solution, it
was really - - I didn't know what I have, but in my mind was that in a sick place,
sooner or later, you'll be sick. I didn't know how sick I was at that time. So I put
the transfer. It was the only solution what I saw, to run away.
(Tr. 66,112, 125-126.) Plaintiff stated that "[t]his was the roots of my today chronic depression."
(Tr. 127.) Plaintiff further testified that she later suffered a "second breakdown," where she "was
more than six months almost not leaving the house" and "sleeping 20 hours a day," which was also
rooted "back [in] that period of time" at the Engineering Audit Office. (Tr. 128.)
As plaintiff did not provide any medical evidence in support of her claim of emotional
distress and testified in a general fashion about her chronic depression and nervous breakdowns,
plaintiffs claim squarely falls within the category of garden variety emotional distress damages.
Although at the high end, the jury's award of emotional distress damages was within the range of
garden variety damages awarded in this jurisdiction. 9 See DeCurtis v. Upward Bound Int'!, Inc.,
No. 09 Civ. 5378 (RJS), 2011 U.S. Dist. LEXIS 114001, at *12 (S.D.N.Y. Sept. 27,2011) ("A
9 Relying on Moore v. Houlihan's Restaurant. Inc., No. 07-CV-03l29 (ENV) (RER), 2011 U.S. Dist. LEXIS 64452,
at *22 (B.D.N.Y. May 10,2011), which in tum relies on Rainone v. Potter, 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005),
defendant contends that the permissible range for garden variety damages is $5,000 to $35,000. (Def. 's Mem. of
Law, p. 19.) However, the Court declines to upset the jury's award to follow these cases.
21
review of the relevant case law in this jurisdiction reveals that plaintiffs with garden-variety claims
generally receive between $30,000 and $125,000.") (citation omitted); Olsen, 615 F. Supp. 2d at
46 ("Garden variety emotional distress claims generally merit $30,000 to $125,000 awards.").
Based upon the evidence presented by plaintiff at trial, the jury's award of $100,000 in
compensatory damages to plaintiff does not shock the judicial conscience. See DeCurtis, 2011
U.S. Dist. LEXIS 114001, at *12-14 (awarding plaintiff $100,000 in garden variety emotional
distress damages under Title VII where plaintiff "presented no medical evidence of her distress"
but stated that she felt "constantly stressed," "like she was going to have a nervous breakdown,"
"humiliated," and "shocked and scared"). Accordingly, defendant's motion for a new trial or for
remittitur based on an excessive award of damages is denied.
B.
Plaintiff's Misconduct at Trial
Second, defendant argues that the Court should order a new trial based on plaintiff s
misconduct during the trial. "[A] party is entitled to a new trial when opposing counsel's conduct
causes prejudice to that party ... thereby unfairly influencing its verdict." Tesser v. Bd. ofEduc.,
370 F.3d 314,321 (2d Cir. 2004) (quoting Greenway v. Buffalo Hilton Hotel, 143 F.3d 47,51 (2d
Cir. 1998)). "In reviewing counsel's misconduct for prejudicial effect, the Court must consider
the totality of the circumstances including the nature of the comments, their frequency, their
possible relevance to the real issue before the jury, the manner in which the parties and the court
treated the comments."
Hopson v. Riverbay Corp., 190 F.R.D. 114, 122 (S.D.N.Y. 1999)
(internal quotation marks and citations omitted). The district court "possess[es] broad discretion
to determine when the conduct of counsel is so improper as to warrant a new trial." Hopson, 190
F.R.D. at 122 (citing Pappas v. Middle Earth Condominium Assoc., 963 F.2d 534, 540 (2d Cir.
22
1992)). The Court assumes that misconduct by a pro se litigant at trial could be grounds for a new
trial based upon the standard set forth above.
Defendant argues that plaintiffs "misconduct was improper, prejudicial and likely
deprived the defendant of a fair trial." (Def.'s Mem. of Law, p. 25.) Specifically, defendant
contends that plaintiff "consistently commented to the jury about the Court's ruling and excluded
evidentiary matter," apologized for not calling Mahaney as a witness, repeatedly testified during
her examinations of other witnesses, and referred to punitive damages (which were not available in
this case) during her summation. (Id. at pp. 22-24.)
It is an understatement to say that conducting a jury trial with a pro se litigant is difficult.
Here, the difficulty of the trial was exacerbated by plaintiffs English language ability. Plaintiff
was permitted to present her testimony in a narrative format and she questioned four witnesses.
Plaintiff clearly struggled to formulate questions and to understand the rules of evidence. The
Court highly commends defendant's attorneys who treated plaintiff with dignity and respect
throughout the proceedings despite these challenges. Such professionalism by Mr. Eichenholtz
and Ms. Kessler, no matter what the outcome of the case, reflects well on them as attorneys and on
our system of justice. The trial transcript reflects that plaintiff made improper statements in front
of the jury throughout the proceedings. However, the Court finds that plaintiff s behavior was not
intentional or egregious. Rather, plaintiff did the best she could to present her case to the jury and
follow the Court's rulings. Likewise, the Court and defendant's counsel did the best we could to
conduct a fair trial. The verdict rendered by the jury was not the result of plaintiffs improper
conduct. The jury obviously found plaintiff to be a credible witness. Moreover, certain strategic
decisions by defendant's counsel may have had an impact on the jury, such as not calling Jamal or
Mahaney as witnesses and not cross-examining Moss, Campbell, or Gorozdi.
23
The trial record reflects that plaintiff repeatedly attempted to testify during her
examination of witnesses and referenced the Court's rulings in limine.
Although plaintiffs
conduct was improper, the Court finds that it was not sufficiently egregious and that the
instructions given to the jury were sufficient to cure any prejudice to defendant. In response to
plaintiffs comments during the trial about exhibits that she was "allowed to use," the Court
instructed the jury as follows:
I just would like to make clear for the jury ... before the trial there are meetings
with the parties to determine what evidence will be admitted and what evidence
both sides can agree to, to eliminate some of the delay. So when Ms. Rosioreanu
is saying what she is permitted to, what she is not permitted to, she is referring to
those pretrial motions that were made. She is not supposed to refer to those, but
we are just explaining to the jury what those references are to.
(Tr.88.) Moreover, the Court did its best to stop plaintiff from testifying during her examinations
of witnesses and to encourage plaintiff to ask questions. The Court also instructed the jury that
only plaintiffs "testimony under oath was evidence," that "arguments ... by the plaintiff are not
evidence," and that "[t]estimony that has been stricken or excluded is not evidence and may ... not
[be] considered by you in rendering your verdict." (Tr. 505.)
The trial record also reflects that plaintiff stated in her direct testimony that "I'm very sorry
I couldn't put Mahaney on the stand to show you - -." (Tr. 112.) The Court promptly upheld
defendant's objection and instructed the jury as follows: "She could have. She didn't choose to.
Again, it needs to be clear for the record people make their choices about who to depose and who
are witnesses." (Tr. 112.)
Defendant argues that "the most egregious example of the plaintiff disregarding this
Court's instructions and attempting to engender sympathy with the jury was her conduct toward
the conclusion of her summation," where she referenced an award of punitive damages. (Def.' s
Mem. of Law, p. 24.) The trial record reflects that plaintiff stated towards the end of her
24
summation that "when I started my case several years go in 2007 without any knowledge about the
law I was so frustrated what I wanted. I wanted to be in front of a jury to ask them to send a strong
warning to DEP in order to stop this kind of discrimination from now to does call what I read in the
books punitive damages." (Tr. 498.) The Court promptly upheld defendant's objection and
instructed plaintiff, in front of the jury, that "there is no punitive damages you've been told" and
"[y]ou cannot mention it." (Tr. 499.) Moreover, the Court properly instructed the jury that
"[p]laintiffs damages may include compensatory damages or nominal damages" and that
compensatory damages in this case include "only damages for emotional pain, suffering,
inconvenience, mental anguish, and loss of enjoyment oflife." (Tr. 524.)
In light of the curative instructions, the Court finds that plaintiff s improper comments
during the trial, which although frequent were not severe in nature, were not sufficiently
prejudicial to warrant a new trial. Accordingly, defendant's motion for a new trial based on
plaintiff s misconduct at trial is denied.
CONCLUSION
For the reasons set forth above, defendant's motion for judgment as a matter of law, or
alternatively, for a new trial or for remittitur is denied.
SO ORDERED.
/Signed by Judge Lois Bloom/
'-o7"c'.
-
y.
·LOlSBLOOM
United States Magistrate Judge
Dated: July 9,2012
Brooklyn, New York
25
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