Fisher v. Mermaid Manor Home for Adults, LLC
DECISION AND ORDER: Following a five-day trial, a jury rendered a unanimous verdict for Lisa Fisher ("Plaintiff"), finding liability against Mermaid Manor Home for Adults, LLC ("Defendant") for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII") and the New York City Human Rights Law, New York City Administrative Code § 8-107 et. seq. ("NYCHRL"). The jury granted Plaintiff $25,000.00 in act ual damages and $250,000.00 in punitive damages. Defendant now brings a renewed motion for judgment as a matter of law or, in the alternative, motion for new trial. The Court denies Defendant's renewed motion for judgment as a matter of law , and grants in part and denies in part Defendant's motion for new trial. The Court denies Defendant's renewed motion for judgment as a matter of law, and grants in part and denies in part Defendant's motion for new trial. The Court finds remittitur appropriate and reduces punitive damages to $50,000.00. The Court DENIES the remainder of Defendant's motions. Re 100 & 110 . Ordered by Judge William F. Kuntz, II on 12/16/2016. (Rodriguez, Lori)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION & ORDER
MERMAID MANOR HOME FOR
WILLIAM F. KUNTZ, II, United States District Judge:
Following a five-day trial, a jury rendered a unanimous verdict for Lisa Fisher ("Plaintiff"), finding
liability against Mermaid Manor Home for Adults, LLC ("Defendant") for violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII") and the New York
City Human Rights Law, New York City Administrative Code§ 8-107 et. seq. ("NYCHRL"). The
jury granted Plaintiff $25,000.00 in actual damages and $250,000.00 in punitive damages.
Defendant now brings a renewed motion for judgment as a matter of law or, in the alternative,
motion for new trial. The Court denies Defendant's renewed motion for judgment as a matter of
law, and grants in part and denies in part Defendant's motion for new trial.
This employment-discrimination case under Title VII and NYCHRL began with an
Instagram photo comparing Plaintiff, an African American Home Health Aid, to a fictional
chimpanzee from the movie Planet of the Apes. A jury verdict found Defendant liable for hostile
work environment under Title VII, retaliatory hostile work environment under Title VII, and
retaliatory hostile work environment under NYCHRL. Jury Verdict, ECF No. 94. The jury
awarded Plaintiff $25,000.00 in actual damages and $250,000.00 in punitive damages. Id. at 6.
Defendant brings a renewed motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(b) or, in the alternative, a motion for new trial pursuant to Federal
Rule of Civil Procedure 59. Mot., ECF No. 100. The Court assumes the parties' familiarity with
the underlying facts of this case and the Court's previous opinions.
Defendant's renewed motion for judgment as a matter oflaw is DENIED. Defendant's
motion for new trial is GRANTED in part and DENIED in part.
A. Renewed Motion for Judgment as a Matter of Law
When evaluating a motion for judgment as a matter of law, a court is required to draw all
reasonable inferences in favor of the non-moving party. Zellner v. Summerlin, 494 F.3d 344, 370
(2d Cir. 2007). The court "may not make credibility determinations or weigh the evidence,"
because those are 'jury functions, not those of a judge." Id. Accordingly, a court may grant a
motion for judgment as a matter of law "only if it can conclude that, with credibility assessments
made against the moving party and all inferences drawn against the moving party, a reasonable
juror would have been compelled to accept the view of the moving party." Id at 370-71; accord
MacDermid Printing Solutions LLC v. Cortron Corporation, 2016 WL 4204795, at *3 (2d Cir.
Aug. 10, 2016) (citing Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)). This "high bar"
may be met when 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
persons could not arrive at a verdict against it." Advance Pharm., Inc. v. United States, 391 F.3d
377, 390 (2d Cir. 2004); Lavin-McEleney v. Marist College, 239 F.3d 476, 479-80 (2d Cir.
B. Motion for a New Trial
A court may grant a new trial in a jury case for any of the reasons "for which a new trial
has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a). The
decision whether to grant a new trial under Rule 59 is "committed to the sound discretion of the
trial judge." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992). Thus, "[a] new trial
may be granted ... when the jury's verdict is against the weight of the evidence." DLC Mgmt.
Corp. v. Town ofHyde Park, 163 F.3d 124, 133 (2d Cir. 1998).
In contrast to a motion for judgment as a matter of law, a court may grant a motion for a
new trial "even if there is substantial evidence supporting the jury's verdict." Id at 134.
Additionally, "a trial judge is free to weigh the evidence himself, and need not view it in the light
most favorable to the verdict winner." Id. (citing Song v. Ives Labs., Inc., 957 F.2d 1041, 1047
(2d Cir. 1992)). A court considering a Rule 59 motion for a new trial, however, "must bear in
mind ... that the court should only grant such a motion when the jury's verdict is 'egregious."'
Id. For this reason, "[a] motion for a new trial ordinarily should not be granted unless the trial
court is convinced that the jury has reached a seriously erroneous result or that the verdict is a
miscarriage of justice." Munafo v. Metro. Transp. Auth., 381F.3d99, 105 (2d Cir. 2004)
(quoting Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998)); see also Patrolmen's
Benevolent Ass'n ofN. Y.C. v. City ofNew York, 310 F.3d 43, 54 (2d Cir. 2002). Furthermore,
"[w ]here the resolution of the issues depended on assessment of the credibility of the witnesses,
it is proper for the court to refrain from setting aside the verdict and granting a new trial."
Metromedia Co., 983 F.2d at 363; see also DLC Mgmt. Corp., 163 F.3d at 134 ("[A] court
should rarely disturb a jury's evaluation of a witness's credibility.").
Defendant seeks judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of
Civil Procedure on three grounds: (1) failure to exhaust Plaintiffs national origin claims, (2)
failure to prove a hostile work environment, and (3) failure to prove a retaliatory hostile work
environment. The Court DENIES Defendant's Rule 50(b) motion in its entirety. Defendant also
seeks a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on four grounds: (1)
excessive punitive damages, (2) prejudicial error in the Court's jury instructions, (3) an
irreconcilably inconsistent verdict, and (4) prejudicial error in the Court's denial of Defendant's
proposed deposition designations. The Court GRANTS IN PART AND DENIES IN PART
Defendant's Rule 59 motion.
A. Renewed Motion for Judgement as a Matter of Law
As a ')urisdictional prerequisite" to a Title VII claim in federal court, "an individual must
first present 'the claims forming the basis of such a suit ... in a complaint to the EEOC or the
equivalent state agency." Williams v. NY.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (per
curiam) (citing 42 U.S.C. § 2000e-5). Defendant asserts once more that Plaintiff failed to exhaust
her national origin claim with the EEOC, reiterates the distinction between race and national
origin, and relitigates the scope of the EEOC charge as limited to race and not extending to
national origin. Mot. at 2--6. The Court twice rejected Defendant's failure-to-exhaust argument. 1
See, e.g., Summ. J. at 4-5, ECF No. 75 (finding Plaintiffs national origin claim "reasonably
Littlejohn v. City ofNew York, 795 F.3d 297, 321-24 (2d Cir. 2015), addresses the very
different relationship between race/color and sex.
related" to her race claim and refusing to disentangle the two). The Court again holds Plaintiff
exhausted her administrative remedies with respect to her national origin claim.
2. Hostile Work Environment
Title VII is violated "[w]hen 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." Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (internal quotation marks and citations omitted). Defendant brings a renewed
motion for judgment as a matter of law in regards to Plaintiffs hostile work environment claim.
Mot. at 6-12.
a. Discrimination on the Basis of National Origin
Defendant claims Plaintiff failed to "introduce any evidence which would meet her burden
to establish discrimination on the basis ofher national origin." Id. at 6. Defendant describes the
harassment towards Plaintiff to be either racial in nature or simply a neutral attack on Plaintiff as a
person, i.e., neither because of race nor because of national origin. Id at 6-8. For example,
Defendant attempts to conceal the damage caused by the Instagram photo, which compared
Plaintiff to a fictional chimpanzee from The Planet ofthe Apes, by declaring the photo "racebased, [having] nothing to do with Plaintiffs national origin." Id. at 6-7.
As with Defendant's exhaustion argument, supra at 4-5, Defendant attempts to draw a
distinction where none exists. The question of whether the harassment Plaintiff suffered was
because of her national origin or simply because her co-workers disliked her was a factual question
resolved by a jury, and not a question to be relitigated in post-trial motions. See Feingold v. New
York, 366 F.3d 138, 151 (2d Cir. 2004) (finding that whether harassment was caused by religionbased animus or some other motivation not prohibited by law to be a question for the jury, not for a
court at summary judgment). Viewed in the light most favorable to Plaintiff, the jury found, and
this Court finds, that Ms. Yvonne Kelly, a black Jamaican co-worker, and Ms. Lisi Laurent, a
black Haitian co-worker, posted the Instagram photo because of Plaintiffs national origin.
The Court does not make this finding based merely on the fact that Plaintiff and her two coworkers are of different national origins. The focus of Title VII is individualize to the person and
does not require harm to a group of individuals based on some characteristic, such as national
origin. See Brown v. Henderson, 257 F.3d 246, 253-54 (2d Cir. 2001) ("In other words, what
matters in the end is not how the employer treated other employees, if any, of a different sex, but
how the employer would have treated the plaintiffhad she been of a different sex." (citing Carson
v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir. 1996)). In this case, the harassment of
Plaintiff was because of her national origin. The fact that identical harassment suffered by
employees in another hypothetical case may be "neutral" is irrelevant. See id at 253 (describing
"Title VII's touchstone" as analyzing the use of a protected characteristic, such as sex, race, and
national origin, as ~elating to the individual and not as a "part of a broader discriminatory pattern").
b. Imputing Liability
Plaintiff was subjected to a hostile work environment by her co-worker. As a result,
Plaintiff must "demonstrate a specific basis for imputing the conduct creating the hostile work
environment to the employer." Feingold, 366 F.3d at 149-50, 152. "When harassment is
perpetrated by the plaintiffs coworkers, an employer will be liable if the plaintiff demonstrates that
'the employer either provided no reasonable avenue for complaint or knew of the harassment but
did nothing about it."' Id. at 152 (citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.
1997) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994))). "[W]hen the
harassment is attributable to a coworker, rather than a supervisor, ... the employer will be held
liable only for its own negligence." Distasio v. Perkins Elmer Corp., 157 F.3d 55, 63 (2d Cir.
Defendant argues Plaintiff cannot impute liability. Mot. at 10-12. Defendant claims it
provided Plaintiff with a reasonable avenue for complaint and, thus, cannot be subject to liability.
Mot. at 10. Defendant cites to Chenette v. Kenneth Cole Prods., Inc., 345 F. App'x 615, 619 (2d
Cir. 2009), in support of its conclusion that Plaintiff had no basis for imputing liability to
Defendant. Mot. at 12.
In Chenette, a Korean woman filed an employment discrimination suit against her
employer for a "Kissing Incident" perpetrated by a female co-worker. Id at 617-18. The Court of
Appeals for the Second Circuit affirmed Judge Cote's holding that the employer "exercised
reasonable care in attempting to eliminate the conditions of which [the plaintiffj complains" and
upheld Judge Cote's dismissal of the hostile work environment claim. Id at 620. Specifically, the
employer in Chennette "conducted an investigation, and a meeting of the Department was held to
discuss proper deportment in the workplace; ... [the complained of co-worker] was disciplined for
the Kissing Incident ... ; and ... [the defendant] conducted a formal interview of [the plaintiff] in
response of her threat of a lawsuit." Id
Similarly, here, Defendant immediately investigated the Instagram photo, conducted an inservice training regarding its anti-harassment policy, spoke with Ms. Kelly, and issued an oral
reprimand to Ms. Laurent. Mot. at 11; see also id. at 11-12 (listing examples of remedial actions
taken by Defendant). Here, unlike in Chennette, Defendant did not exercise reasonable care in
attempt to eliminate the conditions of which Plaintiff complained. Defendant focuses too heavily
on the Instagram photo and relies too much on the fact that "another similar photograph of Plaintiff
was never thereafter posted on Instagram." Mot. at 11. As became clear during trial, the
Instagram photo was merely a symptom of the hostile work environment created by Defendant,
and treatment of the symptom failed to cure the disease: "hostility" between African American and
Caribbean workers. Tr. Trans. 116:10-13, 116:22-25. In other words, Defendant overlooks the
appropriateness of its remedial action. See Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009)
("Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be
held liable if plaintiff can show that they 'knew, or in the exercise of reasonable care should have
known, about the harassment yet failed to take appropriate remedial action."' (quoting Howley v.
Town ofStratford, 217 F.3d 141, 154 (2d Cir. 2000) (internal quotation marks omitted)));
Petrosino v. Bell At/., 385 F.3d 210, 225 (2d Cir. 2004) ("[A]n employer's vicarious liability
depends on the plaintiff showing that the employer knew (or reasonably should have known) about
the harassment but failed to take appropriate remedial action."). Even with actual knowledge of a
hostile work environment, Defendant did nothing to lessen the hostility between the "coconuts"
and the African Americans. See Tr. Trans. 228:6-12 ("[W]hen I[, Ms. Kelly] started working [at
Mermaid Manor] I heard they had two sides. You have the coconut. I said what is [a] coconut,
they said those are the people that are the immigrants [from the Caribbean and West Indies."); id
at 119:23-120:3 (reporting when Plaintiff learned of the term "coconuts"). This is supported by
the numerous complaints made and recorded by Plaintiff regarding her continued harassment. See
Opp. at 11-13, ECF No. 108 (collecting the iPhone recordings).
For these reasons, the Court finds sufficient evidence to support the jury's finding of a
hostile work environment.
3. Retaliatory Hostile Work Environment
"The test for 'hostile work environment' has both an objective and a subjective component:
'A work environment will be considered hostile if a reasonable person would have found it to be so
and ifthe plaintiff subjectively so perceived it."' Mormol v. Costco Wholesale Corp., 364 F.3d 54,
58 (2d Cir. 2004) (quoting Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)).
Defendant does not dispute Plaintiffs subjective beliefthat a hostile work environment
existed, but claims Plaintiff suffered no objectively adverse action. Mot. at 13. Defendant argues
the retaliatory co-worker harassment faced by Plaintiff was not sufficiently "severe" and
"unchecked," and merely constituted "petty slights and minor annoyances." Id
In determining whether a reasonable person would perceive a work environment as hostile
depends upon the totality of the circumstances, with "considerations includ[ing]: (1) the frequency
of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes
with the employee's work performance." Brennan, 192 F.3d at 319 (citing Harris, 510 U.S. at 23).
"Context matters." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006).
"[T]he significance of any given act of retaliation will often depend upon the particular
circumstances." Id. Following the Instagram incident, Defendant's acquiescence with Ms. Kelly,
the co-worker who seemed to ridicule Plaintiff continuously and unrelentingly, served to condone
Ms. Kelly's harassment. Among other acts of harassment, Ms. Kelly ripped up Plaintiffs patient
book, Tr. Trans. 131 :4-6; destroyed the beds of Plaintiffs patients, id at 130: 13-22; laughed at
Plaintiff in front of other co-workers, id at 131: 10-13; swung her arms in attempt to bump
Plaintiff in the hallway, id at 133:1-6; and, on one occasion, after seeing Plaintiff in a room, asked
in an unpleasant manner, "Do you smell that?," id. at 133:11-19. This conduct, while arguably
minor annoyances when viewed by themselves in isolation, are sufficient to create a retaliatory
hostile work environment when viewed in the totality of the circumstances and in the light most
favorable to Plaintiff. Plaintiff regularly, and unsuccessfully, reported Ms. Kelly's conduct to
Defendant, but to no avail. Defendant, despite having actual knowledge of these numerous
incidents, took no meaningful action to protect Plaintiff and to rectify the hostile work environment
that resulted from Ms. Kelly's unceasing harassment. 2 See, e.g., Tr. Trans. 120:15-16 ("[Plaintiff]
complained to [Ms. Lorraine Branch, a manager,] about not being treated the same and she told me
that it's not true."); Opp. at 11-13 (collecting complaints by Plaintiff, including an incident where
Plaintiff and Ms. Kelly shared a room).
Accordingly, the Court finds sufficient evidence to support Plaintiffs claim of retaliatory
hostile work environment.
B. Defendant's Motion for New Trial
1. Punitive Damages
"[T]he purpose of punitive damage awards is to punish the defendant and to deter him and
others from similar conduct in the future." Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992).
"The showing required for an award of punitive damages is not the same as that required for
liability. Rather, punitive damages may be awarded for claims of employment discrimination only
where the employer 'engaged in a discriminatory practice or discriminatory practices with malice
or reckless indifference to the federally protected rights of an aggrieved individual."' Wiercinski v.
Mangia 57, Inc., 787 F.3d 106, 115 (2d Cir. 2015) (quoting 42 U.S.C. § 1981a(b)(l)). "[A]n
Similarly, the Court finds no merit to Defendant's argument that the jury granted Plaintiff
recovery under two legal theories for the same injury. See Mot. at 14-15. Defendant's failure to
reasonably respond to the harassment by Ms. Kelly, however, is distinct from Defendant's
treatment of the Instagram incident. Defendants remaining arguments are also without merit.
See Mot. at 15-16 (claiming a lack of temporal specificity precludes Plaintiff from recovery).
award of punitive damages is reversed only when it is 'so high as to shock the judicial conscience
and constitute a denial of justice."' Hughes v. Patro/men's Benev. Ass'n ofCity ofN. Y., Inc., 850
F.2d 876, 883 (2d Cir. 1988) (quoting Zarcone v. Perry, 572 F.2d 52, 56-57 (2d Cir. 1978)).
"The Supreme Court has identified three 'guideposts' for determining whether punitive
damages are excessive: (1) the degree of reprehensibility; (2) the ratio of the harm or potential
harm suffered due to the defendant's conduct and the punitive damages awarded; and (3) the
differenc,e between the remedy and any civil penalties authorized or imposed in comparable cases.
Mugavero v. Arms Acres, Inc., 680 F. Supp. 2d 544, 588 (S.D.N.Y. 2010) (Gardephe, J.); see also
BMW ofNorth America, Inc. v. Gore, 517 U.S. 559, 574-75 (1996); State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 419 (2003); Philip Morris USA v. Williams, 549 U.S. 346, 353
The first guidepost provided by the Supreme Court is the degree of reprehensibility.
Defendant argues it did not act reprehensibly. Defendant claims its good faith efforts at
compliance preclude an award of punitive damages. Mot. at 17-20. Defendant points to various
facts in its favor. Id at 19. In particular, this case presents the first discrimination complaint
against Defendant, Tr. Trans. at 453; Defendant had in place an antidiscrimination policy, id at
456-57; Defendant held an in-service training to review the antidiscrimination policy after the
Instagram incident, id. at 458, 463-65; Defendant investigated the Instagram incident through
meetings, id at 466-68; and Defendant orally reprimanded the co-worker who admitted to posting
the Instagram photo, id. at 471.
Plaintiff responds by pointing to acts by Defendant that support an award of punitive
damages. Opp. at 21-23. Because Plaintiff repeatedly complained about verbal and physical
harassment, Defendant knew the harassment would continue if it failed to act. Accordingly,
Defendant's failure to meaningfully respond to Plaintiffs complaints demonstrates reckless
indifference to Plaintiffs federally protected rights.
The Court instructed the jury that punitive damages could not be awarded if "Defendant
itself made a good-faith effort to comply with the law prohibiting discrimination." Jury Charge at
36, ECF No. 92. The jury, in deciding to award punitive damages, found that Defendant failed to
make a good-faith effort at compliance, and the Court finds sufficient evidence to support the
jury's finding of punitive damages. Defendant's argument focuses almost exclusively on its
response to the Instagram incident, but ignores the continued harassment after the incident.
Plaintiffs complaints following the Instagram incident were largely ignored. See, e.g., Pl. Tr. Ex.
9, section 8: 10-10:35 ("I'm not getting any help here! Nobody is helping me!"); id Ex. 12,
section 7:00-8:30 ("I'm yelling because ain't nobody helping me in here! You're not helping me!
Every time I come in here you're not helping me!"). Instead of addressing Plaintiffs repeated
complaints and pleas for help, Defendant patronized Plaintiff. See, e.g., id Ex. 8, section 12:4015:32 ("How do you [Plaintiff] define 'harassing'?"); id ("I don't understand racism or
prejudice"); id Ex. 13, section 11 :19-12:16 ("That, you'll have to take up with your lawyer.").
Defendant consistently viewed the harassment suffered by Plaintiff to be minor nuisances and
permitted Ms. Kelly to continue her harassment, destroying Plaintiffs dignity and eroding
Plaintiffs ability to continue working.
The Court does not alter the jury's "discretionary moral judgment" to grant punitive
damages. Smith v. Wade, 461 U.S. 30, 52 (1983); see also id at 54 ("Punitive damages are
awarded in the jury's discretion to punish [the defendant] for his outrageous conduct and to deter
him and others like him from similar conduct in the future." (internal quotation marks and citations
omitted)). The jury found compensatory damages insufficient to punish Defendant for its conduct,
or lack thereof conduct, and awarded punitive damages to deter Defendant and others like
Defendant from similar future conduct, or lack thereof conduct. Jury Instructions at 37, ECF No.
92 (providing instruction to the jury that punitive damages may be awarded if "appropriate to
punish the Defendant or to deter the Defendant and others from like conduct in the future"); see
also Smith, 461 U.S. at 54-55 ("[S]ociety has an interest in deterring and punishing all intentional
or reckless invasions of the rights of others, even though it sometimes chooses not to impose any
liability for lesser degrees of fault.").
b. Compensatory Damages to Punitive Damages
The second Gore guidepost is the ratio of the harm or potential harm suffered due to the
defendant's conduct and the punitive damages awarded, in other words, the ratio of compensatory
to punitive damages. The jury awarded Plaintiff $25,000.00 in compensatory damages and
$250,000.00 in punitive damages. Jury Verdict at 6.
Defendant argues the ten-to-one ratio of punitive damages to compensatory damages is
excessive and cites to a number of cases by courts in the Second Circuit to support a lesser ratio.
Mot. at 20-21. Plaintiff responds by arguing the absence of any bright-line rule prohibiting a
double-digit ratio of punitive damages to compensatory damages. Opp. at 24-25.
c. Civil Penalties
The final guidepost of Gore instructs the Court to consider any civil penalties authorized or
imposed in comparable cases. Defendant provides three baselines. First, the maximum civil fines
permitted under the NYCHRL is $250,000.00 for discriminatory practices that are "willful, wanton
or malicious." Mot. at 21 (citing Thomas v. iStar Fin., Inc., 652 F.3d 141, 149 (2d Cir. 2010)).
Second, the maximum civil fine permitted under the NYCHRL is $125,000.00 for discriminatory
practices without evidence of"willful, wanton, or malicious behavior." Id. (citing N.Y.C. Admin.
Code§ 8-126(a)). Third, the maximum recovery permitted under Title VII for compensatory and
punitive damages in cases against Defendants with fewer than 101 employees (Defendant has
approximately sixty-five employees) is $50,000.00. Id (citing 42 U.S.C. § 198la(b)(3)(A)
(limiting recovery for cases seeking "future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment oflife, and other nonpecuniary losses")).
The Court instructed the jury that punitive damages could be awarded if "Defendant acted
with malice or with reckless and/or callous indifference." Jury Charge af 26. Accordingly, only
two baselines figures are relevant in this case-$250,000.00 under the NYCHRL and $50,000.00
under Title VII.
Upon review of the cases in the Second Circuit, the jury's award of a ten-to-one punitive
damages ratio shocks the judicial conscious. While Defendant acted reprehensibly, the disparity
between the compensatory damages and punitive damages awarded to Plaintiff is inappropriate.
Here, Plaintiff sought "solely compensatory damages for alleged emotion distress," Ct. Ex. 3A,
and the jury award of $25,000.00 for emotional distress is sizeable when compared to the
$50,000.00 cap provided for compensatory and punitive damages allowed under Title VII. As
stated by the Court of Appeals for the Second Circuit, "Where the compensatory award is
particularly high, ... a four-to-one ratio of punishment to compensation, in our view, serves
neither predictability nor proportionality." Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 165 (2d
Cir. 2014). This is even more so here, where the sizeable compensatory damages is amplified by a
ten-to-one ratio of punishment to compensation.
The Court finds a two-to-one ratio of punitive damages to compensatory damages
appropriate in this case. 3 See State Farm Mut. Auto. Ins. Co., 538 U.S. at 425 ("Our jurisprudence
and the principles it has now established demonstrate, however, that, in practice, few awards
exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree,
will satisfy due process."); Turley, 774 F.3d at 166 (concluding, in a Title VII, New York Human
Rights Law, and intentional infliction of emotional distress case, that "a roughly 2: 1 ratio of
punitive damages to what, by its nature, is necessarily a largely arbitrary compensatory award,
constitutes the maximum allowable in these circumstances"); Thomas, 652 F.3d at 149-50 ("On
balance, the moderate level.ofreprehensibility of [the defendant's] conduct, the large
compensatory damages award, and the relevant case law lead us to agree with the district court that
the jury's original punitive damages award of $1.6 million was excessive," and affirming the
district court's remittitur to $190,000.00). Accordingly, remittitur is appropriate, and the Court
reduces the punitive damages award of $250,000.00 to $50,000.00.
2. Jury Charge
Defendant points to numerous portions of the jury charge, claiming these portions to be in
error and requiring a new trial.
First, Defendant claims the Court improperly instructed the jury on the burden of proof.
Mot. at 23-24. Specifically, Defendant cites to the instructions addressing Defendant's affirmative
defense, which provided:
The Defendant contends that, even if the plaintiff was, in fact, subjected to
discrimination, the Defendant took prompt remedial action. This is an affirmative
defense as to which the Defendant bears the burden of proof. Specifically, your
verdict must be for the Defendant on the Plaintiffs claim of discrimination if the
Plaintiffs reliance on Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996), is inapposite. In Lee, the
jury awarded "$1 nominal damages." Id. at 807. Here, the jury did not grant nominal damages.
Jury Verdict at 6.
Defendant proves by a preponderance of the evidence that, A, the Defendant
exercised reasonable care to prevent and promptly correct any discriminatory
behavior directed against the Plaintiff; and B, the Plaintiff unreasonably failed to take
advantage of corrective opportunities provided by the Defendant.
Tr. Trans. at 719.
Defendant is mistaken. The instruction properly places the burden of proof on Defendant
for an affirmative defense. Indeed, the instruction is borrowed, nearly verbatim, from the Modern
Federal Jury Instructions. 5-88 Modern Federal Jury Instructions-Civil P 88.03; see also
Pennsylvania State Police v. Suders, 542 U.S. 129, 146 (2004); Faragher v. City ofBoca Raton,
524 U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
Second, Defendant argues the Court improperly denied its request for additional language
instructing the jury on mitigating considerations for punitive damages under NYCHRL. Mot. at
24-26. Defendant's specious argument derives from language carefully annotated from the New
York City Administrative Code. Id. at 25. Defendant states, "Specifically, the NYCHRL provides
the following factors 'shall be considered ... in mitigation of ... punitive damages," and goes on
to list the mitigating factors. Id (quoting N.Y.C. Admin. Code§ 8-107(13)(d), (e) (emphasis
added)). The code, however, reads in full, "Where liability of an employer has been established
pursuant to this section and is based solely on the conduct of an employee, agent, or independent
contractor, the employer shall be permitted to plead and prove that prior to the discriminatory
conduct for which it was found liable[.]" N.Y.C. Admin. Code§ 8-107(13)(d). Indeed, none of
the cases cited by Defendant in support of its argument require this Court to provide the instruction
requested by Defendant. See Chisholm v. Mem'l Sloan-Kettering Cancer Ctr., 824 F. Supp. 2d
573, 579 (S.D.N.Y. 2011) (Marrero, J.) (mentioning an instruction regarding mitigating factors was
given but not required); Zakrzewska v. New Sch., 14 N.Y.3d 469, 480 (2010) (providing a "side-
by-side comparison" of"a major overhaul of the NYCHRL," but not requiring such mitigating
factors to be given to a jury). The Court is not aware of any such requirement.
The Court did not prevent Defendant from presenting evidence of mitigating factors, and
Defendant did present such evidence. Accordingly, the Court properly exercised its discretion in
precluding Defendant's requested instruction.
Third, Defendant takes issue with the Court's instruction regarding an element of Plaintiffs
Title VII hostile work environment claim. Mot. at 27. The specific language at issue reads, in
relevant part, "Plaintiff must prove by a preponderance of the credible evidence ... that the
abusive conduct was motivated, at least in part, by the Plaintiffs national origin." Tr. Trans. at
714 (emphasis added). Defendant argues the "at least in part" language improperly "lowered"
Plaintiffs burden of proof. Mot. at 27. The Court finds otherwise.
Defendant's argument proceeds as follows. Title VII provides, in relevant part, that "[i]t
shall be an unlawful employment practice for an employer ... to discriminate against any
individual ... because ofsuch individual's ... national origin." Id (quoting 42 U.S.C. § 2000e2(a)(l) (emphasis added)). Title VII employs a "motivating factor" test. Id (quoting 42 U.S.C. §
2000e-2(m)). The "at least in part" language, according to Defendant, does not properly instruct
the jury as to the "appropriate degree" of influence required under Title VII. Id at 27-28. In short,
Defendant argues the Court should have given more in regards to the causation element of Title
VII. See id. at 28-29 (citing cases providing the jury with further information regarding the
motivating factor test).
The Court's jury instruction, however, was proper and not in error. See Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) ("As we have long recognized, the 'ultimate
issue' in an employment discrimination case is whether the plaintiff has met her burden of proving
that the adverse employment decision was motivated at least in part by an 'impermissible reason,'
i.e., a discriminatory reason." (quoting Stratton v. Dep'tfor the Aging/or City ofN.Y., 132 FJd
869, 878 (2d Cir. 1997) (internal quotation marks omitted)); see also 5-88 Modem Federal Jury
Instructions-Civil P 88.03 (providing, as a model federal jury instruction, "the abusive conduct was
motivated, at least in part, by the plaintiffs (race, gender, religion, national origin, etc.)").
Fourth, Defendant challenges the Court's decision not to provide an instruction to the jury
limiting the use of events prior to April 2013. Mot. at 29-30. Defendant argues this failure
effectively lowered Plaintiffs burden of proof. Id at 30. The Court finds no basis for finding
error in its decision not to provide Defendant's requested language to the jury. The cases cited by
Defendant do not require the contrary. See Mathirampuzha v. Potter, 548 FJd 70, 76 (2d Cir.
2008) (dealing with "a single act of discrimination" with no implication of retaliatory motive);
Chin v. Port Auth. ofN. Y. & New Jersey, 685 FJd 135, 159 (2d Cir. 2012) (addressing a
"hypothetical promotion date outside the statute of limitations"); Agristor Leasing v. Saylor, 803
F.2d 1401, 1405-06 (6th Cir. 1986) (finding a new trial appropriate because the district court erred
in not submitting issues dealing with the three-year statute of limitations to the jury in
Fifth, Defendant claims the Court erred in not providing instruction to the jury that
Plaintiffs subjective belief of being discriminated against because of her national origin does not
satisfy her burden of proof. Mot. at 30-31. As described above, Plaintiff provided sufficient
evidence to support both a subjective belief and objective belief of a hostile work environment.
See supra at 9-10; see also Wright v. Illinois Dep't o/Children & Family Servs., 798 FJd 513, 527
(7th Cir. 2015) (affirming the district court's grant ofa new trial because the jury instruction
focused on the "reasonabl[e] belie[fs]" of plaintiff, and did not instruct the jury on the "reasonable
employee" standard). Defendant has provided no case requiring its suggested jury instruction.
The Court's refusal to provide Defendant with an instruction regarding Plaintiff's subjective belief
was not error.
Because the Court finds no error in any of the instructions provided to the jury, the Court
DENIES Defendant's motion for a new trial based upon alleged error in the jury instruction. See
Mot. at 31 (alleging the cumulative effect of all errors in the jury instruction require a new trial).
3. Inconsistent Verdict
Defendant claims the jury returned two inconsistent verdicts, each of which require a new
trial. Mot. at 31-33. The Court finds the jury's responses are not irreconcilably inconsistent.
First, the jury found Plaintiff liable for retaliatory hostile work environment under
NYCHRL, but found no liability for hostile work environment under NYCHRL. Id at 32
Because a hostile work environment is a prerequisite to retaliatory hostile work environment,
Defendant claims an inconsistent verdict. Mot. at 31-3 3.
The Second Circuit case of Cash v. County of Erie is instructive. 654 F.3d 324 (2d Cir.
2011 ). In Cash, the jury found a former county sheriff, Gallivan, "not negligent" but also found
Gallivan "deliberately indifferent." Id at 343. Importantly, the jury was instruction that "[m]ere
negligence is not enough" to support a finding of deliberate indifference. Id In other words,
Gallivan must necessarily be negligent in order to be deliberately indifferent. Nevertheless, the
Court of Appeals for the Second Circuit identified "no irreconcilable inconsistency raising Seventh
Amendment concerns." Id "A failure to understand that the higher standard necessarily subsumes
the lower may have inured to [the county sherifrs] benefit on the negligence claim, but it did not
produce irreconcilably inconsistent verdicts." Id. at 343-44.
A similar situation occurred here. The jury could have rationally concluded that Defendant
could not have created both a hostile work environment and a retaliatory hostile work environment
through the same action. Thus, the jury's failure to understand that a retaliatory hostile work
environment necessarily subsumes a hostile work environment may have inured to Defendant's
benefit on the hostile work environment claim, but it did not produce irreconcilably inconsistent
verdicts. See id
Second, the jury found Defendant liable for Plaintiffs hostile work environment under
Title VII, but found no liability for Plaintiffs hostile work environment under NYCHRL. Jury
Verdict at 1-3. Because NYCHRL is interpreted more liberally than Title VII, Defendant claims
an inconsistent verdict. Mot. at 32. As explained above, however, the jury may well have
concluded that their finding of a retaliatory hostile work environment precluded them from finding
a hostile work environment under NYCHRL.
Accordingly, the Court finds the jury produced no irreconcilably inconsistent verdicts.
4. Deposition Designation
Finally, Defendant asserts the Court improperly "refused to permit Defendant to introduce
into evidence Plaintiffs deposition designations as part of the Defendant's case-in-chief." Mot. at
33. The Court denied Defendant's motion for reconsideration on this issue during trial, ECF No.
88, and again denies Defendant's arguments on this motion for new trial.
In any event, any error would be harmless, because Defendant has no right to provide the
jury in its case-in-chief with an opportunity to "assess Plaintiffs credibility by observing Plaintiffs
demeanor and tone at her deposition, i.e., outside of the view of the jury." Mot. at 35. Defendant
was free to call Plaintiff to the stand in Defendant's case-in-chie£ Defendant could then have
presented the deposition designations as impeachment evidence. This is particularly relevant here,
where the sole purpose of the proposed deposition designations was to impeach Plaintiffs
Defendant's reliance on Olden v. Kentucky, 488 U.S. 227, 232 (1988), is inapposite in this
civil action. Olden dealt with the Sixth Amendment right to confrontation and a criminal
defendant's right to effective cross-examination of a live witness. Id at 231-32. No such
concerns apply here.
The Court properly exercised its discretion under Federal Rule of Evidence 403 to exclude
the proposed deposition designations.
The Court denies Defendant's renewed motion for judgment as a matter of law, and
grants in part and denies in part Defendant's motion for new trial. The Court finds remittitur
appropriate and reduces punitive damages to $50,000.00. The Court DENIES the remainder of
Dated: December 16, 2016
Brooklyn, New York
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