Wharton v. County of Nassau et al
MEMORANDUM & ORDER granting in part and denying in part 127 Motion for Judgment as a Matter of Law; For the foregoing reasons, Defendants' motion for judgment as a matter of law, or in the alternative, for a new trial, is GRANTED IN PART and DENIED IN PART. Specifically, Defendants' motion for judgment as a matter of law is GRANTED solely with respect to defendant Ostermann, and the jury's $15,000 punitive damages award issued against her is VACATED. In addition, Defendan ts' motion for a new trial concerning compensatory damages will be granted unless Wharton agrees to a remitter reducing the compensatory damages award to $60,000. Wharton is therefore directed to inform the Court within thirty (30) days of the date of this Memorandum & Order whether he will consent to a remitter of the total damages award (including the uncontested $30,000 punitive damages award) from $420,000 to $90,000. So Ordered by Judge Joanna Seybert on 7/30/2015. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JONATHAN P. WHARTON,
-againstCOUNTY OF NASSAU; NASSAU COUNTY
SHERIFF’S DEPARTMENT; ELIZABETH
LOCONSOLO, in her official and
individual capacity; CAPTAIN PETER
DUDEK, in his official capacity;
CAPTAIN ANTHONY ZUARRO, in his
official andindividual capacity;
GERARD HUMPHREYS, in his official
and individual capacity; and MARY
ELIZABETH OSTERMANN, in her
official and individual capacity,
MEMORANDUM & ORDER
Frederick K. Brewington, Esq.
Law Offices of Frederick K. Brewington
556 Peninsula Boulevard
Hempstead, NY 11550
Barbara E. Van Riper, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, NY 11501
Deanna Darlene Panico, Esq.
Andrew Kenneth Preston, Esq.
Michael Paul Siravo, Esq.
Bee Ready Fishbein Hatter & Donovan, LLP
170 Old Country Road, Suite 200
Mineola, NY 11501
SEYBERT, District Judge:
Plaintiff Jonathan P. Wharton (“Wharton”) commenced this
action on January 15, 2010 against the County of Nassau (the
“Department”), Elizabeth Loconsolo (“Loconsolo”), Captain Peter
Humphreys (“Humphreys”), and Mary Elizabeth Ostermann (“Ostermann”
discriminated against him based upon his race and religion, and
discriminatory employment practices.
A six-day jury trial was
held beginning on September 8, 2014.
The jury found Defendants
liable for retaliation and awarded Wharton $420,000 in damages.
Pending before the Court is Defendants’ motion for judgment as a
matter of law or, in the alternative, for a new trial.
For the following reasons, Defendants’ motion is
GRANTED IN PART and DENIED IN PART.
Wharton worked as a Corrections Officer at the Suffolk
County Sheriff’s Department for twenty-four years.
He was hired in 1988 and initially assigned to the
Department’s Security Unit.
(Sept. 10, 2013 Memorandum & Order
(the “2013 Order”), Docket Entry 79, at 3.)
Later, Wharton was
reassigned to the department of Administration Public Information,
where he gave tours and managed communications with the public.
The following facts are drawn from the testimony given at
trial, as well as the Court’s prior orders.
(2013 Order at 3.)
In February 2002, he was reassigned to a
security platoon within the correctional facility.
(2013 Order at
Although Wharton was a model employee, he was never promoted
from Corrections Officer to the rank of Corporal because he did
not pass a civil service exam that would have made him eligible
for a promotion.
(Tr. 556:1-558:24, 748:21-749:11.)
Beginning in 1990, Wharton began volunteering his time
to religious endeavors in the prison.2
He received training as a
Chaplain from the Nassau County Sheriff’s Department and provided
religious advice in connection with an alcohol and drug program
In 2000, the Sheriff sent Wharton
for training and certification as a Senior Chaplain.
The Notice of Personal Action
On May 11, 2009, Wharton attended services in the inmate
chapel while he was off-duty.
(2013 Order at 4.)
Defendants, Wharton’s attendance at the service in uniform while
off-duty violated the Department’s Policies and Procedures.
Order at 4-5.)
The Department’s regulations required any off-duty
officer who wanted to access an area of the prison to make that
request “directly to the tour commander of the facility,” (Tr.
One witness described Wharton as “one of the elders of the
church” (Tr. 399:21-25.) Wharton is also an ordained minister
163:4-9), and required that an officer’s uniform only be worn for
“official business,”3 and not for “personal matters,” (Tr. 167:23168:8).
learned that Wharton attended an inmate service, he sent Wharton
an email asking Wharton to write a report explaining his actions.
Wharton’s report stated in pertinent part:
My attendance at the May 11, 2009 religious
service conducted at the facility and any
other religious services that I have attended
here while off duty at the facility, was in
the capacity of an employee of the Nassau
I was asked by the chaplain and pastor
conducting the service to say a prayer and was
honored to oblige as they were aware of my
certification and licensing as a minister and
chaplain, certified under the authority of
this very facility.
I was not aware that I was breaking any rules,
policies or procedures, but only that I was
exercising a religious freedom.
(Tr. 173:19-174:6.) Captain Zuarro interpreted Wharton’s response
to be an admission that he had remained “in the facility off duty
more than once.” (Tr. 174:12-14.)
The regulations provided that “[a] member of the division of
correction shall not visit any division area when off duty,
except as part of his official business.” (Tr. 168:24-169:1.)
On July 20, 2009, Zuarro called Wharton into his office
and issued him a Notice of Personnel Action (“NOPA”) which listed
certain violations that Wharton purportedly committed, including
the incident at the inmate chapel.
(2013 Order at 5.)
testified that he was merely asked to read and sign the NOPA and
that Zuarro did not provide him with any further explanation. (Tr.
Zuarro admitted that, before issuing the NOPA, he
never asked anyone whether Wharton had any responsibilities in the
jail other than his security duties.
refused to sign the document because he did not agree with its
contents. (Tr. 715:18-21.)
disciplinary in nature.
Zuarro testified that the NOPA was not
disciplinary because it was merely a “counseling” notice that did
not result in a loss of job benefits. (Tr. 179:17-180:7.) Although
the NOPA was in Wharton’s personnel file, Zuarro testified that he
could ask for it to be removed after eighteen months.
Zuarro nevertheless admitted that the issuance of the NOPA
was the “first step in the disciplinary process,” and he was unsure
(Tr. 113:16-21, 121:25-122:10.)
told the jury that before receiving the NOPA, he had never been
Requests for Religious Accommodations
Beginning in April 2010, Wharton submitted a number of
written requests to take time off for religious reasons. He styled
the applications: (1) requests for “emergency reassignments,”
(2) requests for “self-swap[s],” and (3) requests for religious
(2013 Order at 6-7.)
Corrections officers typically chose how they would use
their vacation days at the beginning of the year.
given to the officers with the most seniority.
In addition to vacation days, officers could also use personal
days or “comp time” to take days off.
According to Zuarro, if an
officer wanted to take Christmas off, for example, he would submit
a request for “vacation or [a] personal day or comp time.”4 (Tr.
In addition to vacation days, personal days, and comp
time, officers could be permanently re-assigned from one tour of
duty to another, or temporarily reassigned to a shift for an
official purpose--for example to attend required training.
Two officers could also mutually agree to swap daily
shifts with one another.
Finally, there was a
mechanism to take time off called a “self-swap,” which involved
swapping tours with oneself.
Wharton explained that a self-swap
Wharton received 22 vacation days and 5 personal days in 2010,
for a total of 27 days off. (Tr. 750:8-20.)
is “when you are swapping one day that you’re supposed to work for
a different day you’re not supposed to work.”
Wharton suggested that term “self-swap” could be used synonymously
with the term “emergency reassignment.”
(See Tr. 636:22-637:4.)
However, it was disputed at trial whether self-swaps were allowed
in 2010, when Wharton began submitting time-off requests.
There was also disagreement at trial about the way
Ostermann, the Director of Equal Employment Opportunity
for Nassau County, testified that employees were required to take
vacation or personal time if they wanted to attend a religious
However, the Department had a
written policy concerning religious accommodations: “[r]equest[s]
for employee leave and any other accommodation for religious
observance shall be granted, including days off for religious
observance, unless doing so would create an undue hardship or an
obstruction to the proper operation of governmental function.”
Zuarro testified that the policy required the
Department to have a “good reason” before it could deny Wharton’s
religious accommodation requests.5
Loconsolo, the General Counsel of the Sheriff’s Department,
similarly testified that it was the County’s policy to “permit
reasonable accommodations that allow an individual to respect
his or her religious observances,” (Tr. 815:7-10), unless to do
Wharton’s Requests for Religious Accommodation
In April 2010, Wharton submitted an inter-departmental
religious accommodation” to take off on April 3 and April 4, 2010.
(Tr. 634:3-5, 634:15-17, 635:18-636:21.)
Wharton claimed that he
tried to use vacation time to take these days off in the beginning
of the year, but the days were not available. (Tr. 639:15-640:4.)
On June 9, 2010, Wharton made another time-off request--he sent a
form to Zuarro, Dudek, and Loconsolo requesting a reassignment for
and June 2010 requests.
Dudek denied Wharton’s April
In Dudek’s memo denying the requests, he
wrote: “reassignment is generally done in order for employees to
conduct official business relating to their County employment.”
(Tr. 654:15-19, 658:3-7.)
Loconsolo testified at trial that she
viewed Wharton’s April 2010 request as an effort to take Easter
Sunday off to engage in outside employment, however, Wharton was
not being paid for his religious activities. (Tr. 818:3-6, 818:1113, 736:8-14.)
Wharton submitted two additional requests to take time
off in 2010 for which he did not receive responses.
On May 19,
2010, Wharton asked for time off to attend a meeting with the
so would “cause undue hardship to the operation of the County,”
Disaster Relief Command of Nassau County, where Wharton served as
a chaplain. (Tr. 646:24-647:8.)
Wharton described the Disaster
Relief Command as “a quasi-type organization which consisted of
. . . doctors, lawyers, clergy [and] professionals.”
He wrote in his request for reassignment, “I’m a Christian
within the Protestant faith and I’m expected to provide religious
administration and management in this command.”
Nobody responded to Wharton’s request and he did not attend the
event. (Tr. 650:21-651:5.)
Similarly, on June 30, 2010, Wharton
submitted another time-off request for religious reasons, (Tr.
670:12, 671:11-12), but he did not receive a response, (Tr. 672:23).
Wharton again requested “to be reassigned, self-swap” in
order “to participate in [ ] religious services as a clergy person”
on October 31, 2010.
He checked the box on the
because he believed self-swaps were not allowed.6
Since Captain Humphreys was initially “unsure” how to deal with
Captain Humphreys testified that he believed self-swaps did not
exist because a Corrections Officer named Ignarro told him that
“there were no more self-swaps.” (893:20-894:24.)
consultation with the General Counsel” before issuing the denial.
(Tr. 886:8-11, 897:15-20.)
Wharton requested time off on March 28, 2011--this time
addressing his request to a Nassau County affirmative action
Wharton specifically asked to take
time off on April 17, 22, and 24 for Palm Sunday, Good Friday, and
In his written request, Wharton
explained that he wanted to take the time off, “due to the fact
that I am a Christian (Protestant) certified senior chaplain and
a licensed ordained clergy person in my church.”
The affirmative action specialist denied Wharton’s request and
wrote, “I believe that this request does not fall under the EEO
According to your work schedule, you have the entire day
to attend all ceremonies during these religious holy days. Your
hours at work do not interfere with your religious observance.”
Wharton admitted that he did not fill out a time and
leave request form in connection with any of his time-off requests.
However, he claimed that he was previously granted self-swaps for
denial of his April 2010 request was the first time one of his
requests to take off for religious reasons was ever denied,
When asked how he felt after one of his time-off
requests was denied, he testified, that he “felt betrayed.”
Wharton’s Equal Employment Opportunity Complaints
Wharton filed several complaints regarding his treatment
by the Department.
(2013 Order at 9.)
He first submitted a
complaint in April 2009, three months before the issuance of the
NOPA. (Tr. 371:4-6.)
In the complaint, Wharton claimed that
“Department supervisors [ ] subjected him to an ongoing campaign
of vilification, character assassination, demeaning gossip, rumors
and unfounded charges intended to discredit his reputation in the
eyes of his peers, intimidate him in his professional and volunteer
(Brewington Decl., Ex. 1, Docket Entry 129-1, at
affirmative action officer named Joseph Volker (“Volker”).
sent the complaint to three people: Ostermann who was Volker’s
Department; and the Sheriff.
five additional complaints: three equal employment opportunity
(“EEO”) complaints, two in April 2010 and one in July 2010,
(Brewington Decl., Ex. 1 at 21-24); a complaint to the New York
State Division of Human Rights on October 8, 2009; and another EEO
complaint on September 2, 2009,
(Brewington Decl., Ex. 1 at 26,
At trial, Loconsolo and Ostermann both discussed how
Wharton’s EEO complaints were handled.
When an EEO representative
received a complaint he would forward it to Ostermann, who would
decide whether to conduct an investigation.
(Tr. 356:5-13, 424:9resulted
complaints resulted only in a limited inquiry, during which Wharton
was interviewed, but no further action was taken. (Tr. 495:19496:7.)
conversation” with Dudek before he prepared the June 10, 2010
letter to Wharton rejecting one of his time-off requests, (Tr.
811:11-14, 444:16-445:24), and also spoke to Humphreys’ before he
denied Wharton’s October 31, 2010 time-off request, (Tr. 897:1520).
Loconsolo testified that “there was a general direction from
the Sheriff to work with the affirmative action officers and the
She also admitted that she wore
more than one hat at the Department and if someone were suing the
department, it was her “job to protect the department.”
accommodation were denied because he “filed a [complaint] with the
affirmative action office.”
He explained that
reprimanded and never had problems taking days off for religious
observances. (Tr. 699:8-23.)
Wharton presented testimony at trial that the issuance
of the NOPA and the Department’s denials of time-off requests
affected him emotionally.
He testified that the Department’s
treatment made him feel “singled out” and “ostracized”--like he
was “not really part of the team.”
(Tr. 699:24-700:1, 703:3-4,
Wharton also claimed that he was concerned about his
safety at work after he received the NOPA.
Wharton’s behavior at home changed after he received the NOPA.
“felt betrayed,” she said, “[t]he trust from the department that
he thought that he had wasn’t there.”
to his wife, Wharton’s emotional problems manifested themselves
physically--he wasn’t as “interactive with the family,” was less
intimate with his wife, developed headaches, and had trouble
(Tr. 829:15-16, 829:23-830:4.)
“pastoral counseling” from his bishop, Roger Clark Seaver, and
from Reverend Algernon Hannah, an associate pastor at his church.
(Tr. 717:10-15, 390:7-11.)
Hannah testified that he knew Wharton
for twenty-five to thirty years and provided religious counseling
to him for a decade. (Tr. 395:14-21, 396:12-20.) Hannah testified
“depressed about what was happening on the job.” (Tr. 397:2-12.)
Hannah acknowledged, however, that he had no clinical training.
On cross examination, Hannah admitted that
Hannah also admitted on cross-
examination that Wharton’s son had been arrested during the time
he was feeling depressed at work and that Wharton felt embarrassed
because of the incident. (Tr. 405:22-406:6.)
Wharton also claimed that he was damaged professionally.
He testified that his “professional relationship with coworkers
[and] supervisors” became “tainted” and his “reputation with other
clergy, [and] other volunteers” was also damaged.
Wharton also asserted that the NOPA stunted his opportunity to get
a master’s certification as a chaplain, which he planned to obtain
with the support of a religious organization.
Finally, Wharton testified that he felt
the NOPA “affected [his] opportunity for mobility within the
department as far as promotions.” (Tr. 701:9-12.) However, Wharton
admitted that he was not fined, demoted, suspended, or terminated.
Moreover, he had to take and pass an exam before
he could be promoted from Corrections Officer to Corporal.
After Defendants moved for summary judgment, the Court
issued the 2013 Order dismissing all of Wharton’s claims except
for his claims of: (1) religious discrimination under Title VII,
and New York Executive Law § 296; and (2) retaliation pursuant to
42 U.S.C. § 1983, Title VII, and New York Executive Law § 296.
(2013 Order at 29-30, 41.)
The Court found that both the July
2009 NOPA and “Defendants’ denial of Plaintiff’s requests for
(2013 Order at 29.)
Following trial, the
jury found that Defendants did not discriminate against Wharton,
(Panico Decl., Docket Entry 127-1, Ex. A.)
jury awarded Wharton $375,000 in compensatory damages and $45,000
in punitive damages against each individual defendant, totaling
Defendants now move for judgment as a matter of law, or
in the alternative, for a new trial.
Judgment as a Matter of Law
The Court may only grant a motion for judgment as a
matter of law 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.”
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.”
v. N.Y. City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).
Following a full jury trial, “a court may set aside the verdict
supporting the verdict that the jury’s findings could only have
been the result of sheer surmise and conjecture, or the evidence
in favor of the movant is so overwhelming that reasonable and fair
minded persons could not arrive at a verdict against it.’”
v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting
Kinneary v. City of N.Y., 601 F.3d 151, 155 (2d Cir. 2010)).
court must consider the evidence in the light most favorable to
the non-movant and ‘give that party the benefit of all reasonable
inferences that the jury might have drawn in his favor from the
Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.
2012) (quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir.
The Court is also guided by the principle that jurors are
“not required to accept the entirety of either side’s account, but
[are] free to accept bits of testimony from several witnesses and
Haywood v. Koehler, 78 F.3d 101, 105 (2d Cir. 1996).
Under Rule 59 of the Federal Rules of Civil Procedure
“[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.”
Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998) (internal
quotation marks and citation omitted).
The standard governing a
Rule 59 motion for a new trial on the ground that the verdict was
against the weight of the evidence differs from the standard
governing a Rule 50 motion. “Unlike a motion for judgment as a
matter of law, a motion for a new trial may be granted even if
there is substantial evidence to support the jury’s verdict.”
United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998).
addition, the trial judge is “free to view the evidence himself,
Song v. Ives Lab., Inc., 957 F.2d 1041, 1047 (2d
Cir. 1992) (internal quotation marks and citation omitted).
considering a motion for a new trial under Rule 59, however, the
court should bear in mind that such a motion should be granted
only where the jury’s verdict was “egregious.”
Riese Org., 980 F.2d 153, 158 (2d Cir. 1992).
Thus, a court should
rarely disturb a jury’s evaluation of a witness’ credibility.
Adverse Employment Action
judgment as a matter of law because Wharton did not prove at trial
that he was subjected to an adverse employment action.
Br., Docket Entry 127-2, at 6.)
In the 2013 Order, the Court
identified two potential adverse employment actions that could
form the basis of a retaliation claim: (1) the NOPA Wharton
received in April 2009, and (2) the various denials of his timeoff
sufficient evidence was presented at trial to establish that both
the issuance of the NOPA and the denials of Wharton’s time-off
requests were adverse employment actions.
Entry 130-1, at 5-9.)
(Pl.’s Opp. Br., Docket
The Court agrees.
“The anti-retaliation provision [of Title VII] protects
an individual not from all retaliation, but from retaliation that
produces an injury or harm.”
Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67, 126 S. Ct. 2405, 2414, 165 L. Ed. 2d 345
(2006). To prove that a particular event was an adverse employment
action, a plaintiff must “show that a reasonable employee would
have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
(internal quotation marks and citation omitted); See also Galabya
v. N.Y. City Bd. of Educ., 202 F.3d at 636, 646 (2d Cir. 2000) (an
adverse employment action “must be more disruptive than a mere
inconvenience or an alteration of job responsibilities” (internal
quotation marks and citation omitted)).
Defendants argue, as they did in their summary judgment
motion, that the NOPA Wharton received was not an adverse action
because it was merely a “counseling notice” that did not affect
the terms or conditions of Wharton’s employment.
(Defs.’ Br. at
Wharton counters that the NOPA was an adverse employment
action because it was “the first step in the disciplinary process”
and was a “reprimand” that could have “result[ed] in future
difficulties [for Wharton] as an employee.”
(Pl.’s Br. at 7.)
A number of cases in this Circuit have addressed whether
a counseling notice can be classified as an adverse employment
action for purposes of a retaliation claim.
In Humphrey v. Cnty.
of Nassau, No. 06-CV-3682, 2009 WL 875534, at *5 (E.D.N.Y. Mar.
30, 2009), Judge Joseph F. Bianco found that that the issuance of
an NOPA could have been an adverse employment action because it
could “negatively affect personal growth” and “form the basis of
Conversely, in Tepperwien v. Entergy Nuclear
Operations, Inc., No. 07-CV-0433, 2010 WL 8938797, at *5 (S.D.N.Y.
Mar. 16, 2010), aff’d, 663 F.3d 556 (2d Cir. 2011), the court
decided that a counseling notice was not an adverse employment
action because it was expunged from the employee’s personal file,
and because witnesses “consistently testified” that the notice was
not disciplinary in nature.
The court therefore classified the
document only as a criticism that did not have any lasting impact.
Similarly, in Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d
Cir. 2007), the Second Circuit explained that an employee cannot
suffer an adverse employment action if she is merely given an oral
or written warning as part of a progressive disciplinary scheme.
conclusion that the issuance of the NOPA was an adverse employment
At trial, Zuarro admitted that issuing a NOPA was the
“first step in the disciplinary process” and testified that he was
unsure whether the Department considered the NOPA when evaluating
an employee’s performance. Zuarro also testified that a NOPA could
only be removed from an employee’s personnel file at the employee’s
request after eighteen months.
Wharton testified that, after he
received the NOPA, his “professional relationship with coworkers
[and] supervisors” became “tainted,” and he was concerned about
his safety at work.
No corrections officers besides Wharton
discussed the practical effects of receiving a counseling notice,
and the jury was left to weigh Wharton’s testimony and credibility
against the testimony offered by his supervisors, who maintained
that the NOPA was merely a “counseling notice.”
Whether an action
is materially adverse “depends upon the circumstances of the
particular case,” and “should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering all the
White, 548 U.S. at 71, 126 S. Ct. at 2417
evidence was presented to lead a reasonable jury to conclude that
the NOPA was disciplinary in nature.
Therefore, the Court will
not disturb the jury’s retaliation determination on the grounds
that it was not an adverse action.
Cash, 654 F.3d at 333 (internal
citation and quotation marks omitted)
Denials of Time-Off Requests
Defendants also argue that the denials of Wharton’s
time-off requests could not have been a basis for the jury’s
believe, or could not determine, that the denial[s were] the
product of retaliation.”
(Defs.’ Br. at 6.)
The Court already
ruled in its 2013 Order that the denial of Wharton’s time-off
requests could be classified as adverse employment actions because
they had the potential to “dissuade a reasonable employee from
making or supporting a charge of discrimination.”
(2013 Order at
On direct examination, Wharton testified that he believed
his time-off requests were denied “because [he] filed with the
affirmative action office . . . a complaint and that was a form of
He also testified that his
requests for religious accommodation had been granted in the past
and the denial of his April 2010 request was the first time one
was ever denied.
Although defense witnesses
testified that asking for a “self-swap” was not an appropriate way
to request time off, it was within the jury’s purview to weigh
that testimony against Wharton’s conflicting account.
Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.
1998) (explaining that “the court must give deference to all
credibility determinations and reasonable inferences of the jury
[ ] and it may not itself weigh the credibility of witnesses or
Bridgeport Police Dep’t, 719 F. Supp. 2d 219, 229 (D. Conn. 2010)
(holding that denial of requests for reassignment, among other
actions, could “rise to the level of adverse employment actions in
the context of a retaliation claim”).
Therefore, it was not
unreasonable for the jury to conclude that denying Wharton’s timeoff requests constituted adverse employment actions.
III. Causal Connection
Defendants contend that Wharton failed to establish a
causal connection between his protected activities—-the filing of
employment actions he suffered--receiving the NOPA and the denials
of his time-off request. (Defs.’ Br. at 8-9.)
Defendants claim that no direct evidence of causation exists
because the supervisors who issued the NOPA and denied his timeoff
(Defs.’ Br. at 8.)
“In this Circuit, a [p]laintiff
discrimination or retaliation claim by ‘showing that the protected
activity was closely followed in time by the adverse [employment]
Gorman-Bakos v. Cornell Coop. Extension of Schenectady
Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (second alteration in
original) (quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178
(2d Cir. 1996)).
The Second Circuit “has not drawn a bright line
to define the outer limits beyond which a temporal relationship is
too attenuated to establish a causal relationship between the
retaliatory action,” id.,
however, courts “typically measured
that gap as a matter of months, not years.”
Bucalo v. Shelter
Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2014);
See, e.g., Hubbard v. Total Commc’ns., Inc., 347 F. App’x. 679 (2d
Cir. 2009) (holding that the jury was entitled to find a causal
termination four months later).
Wharton engaged in his first
protected activity by filing an EEO complaint on April 8, 2009.
The NOPA was then issued three months and twelve days later.
Wharton filed another EEO complaint on August 7, 2009 and a
complaint with the NYSDHR on October 8, 2009--but Wharton’s first
time-off request wasn’t denied until about six months later on
April 1, 2010.
In addition, Wharton’s April 23, 2010 complaint
was followed by the denial of a time-off request on June 10, 2009,
less than three months later; his July 21, 2010 complaint was
followed by the denial of a time-off request on October 28, 2010,
three months and seven days later; and his November 17, 2010
complaint was followed by the denial of a time-off request on March
31, 2011, four months and fourteen days later.
timeline only constitutes circumstantial evidence of a connection
between the adverse employment actions and his complaints, it
cannot be argued that the jury’s causation finding lacked an
Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.
2009) (finding that “the passage of only six months between the
dismissal of [a] lawsuit and an allegedly retaliatory beating by
officers. . . [was] sufficient to support an inference of a causal
connection”); see Gorman–Bakos, 252 F.3d at 555 (suggesting the
lapse of five months between protected activity and retaliation
may show a causal connection).
Defendants further argue that they presented legitimate
nondiscriminatory reasons for both the issuance of the NOPA and
the denials of all of Wharton’s time-off requests.
claim that the NOPA was issued because Wharton “violated the
Department’s Rules and Regulations” and his time-off requests were
denied because Wharton “failed to comply with the Department’s
time and leave policy.”
(Defs.’ Reply Br., Docket Entry 131, at
However, additional circumstantial evidence presented at
trial undercut that conclusion.
Specifically, it came to light
that both Captains Dudek and Humphreys spoke to Loconsolo--who
knew about Wharton’s complaints--before denying two of his timeoff requests.
Moreover, there was conflicting testimony about
whether self-swaps were allowed by the Department, and under what
circumstances a request for a “religious accommodation” should
have been granted pursuant to the Department’s written policies.
This evidence casts doubt on the nondiscriminatory reasons offered
for the issuance of the NOPA and thedenials of time-off requests.
It was therefore permissible for the jury to find that Defendants’
stated non-discriminatory reasons for each adverse employment
action was pretextual.
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 147, 120 S. Ct. 2097, 2108, 147 L. Ed. 2d 105 (2000);
McGrory v. City of N.Y., No. 99-CV-4062, 2004 WL 2290898, at *8
(S.D.N.Y. Oct. 8, 2004) (holding that the jury was “entitled,
however, to make credibility determinations,” and was free to
reject Defendants nondiscriminatory reasons for their actions
based on evidence of pretext).
sufficient evidence to establish municipal liability under 42
U.S.C. § 1983.
Under Monell v. Department of Social Services, 436
U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), a plaintiff
suing a municipality under Sections 1981 or 1983 must show that
the claimed violation of his constitutional rights was the result
of a municipal policy or custom.
Carmody v. Vill. of Rockville
Centre, 661 F. Supp. 2d 299, 330 (E.D.N.Y. 2009).
“isolated acts of excessive force by non-policymaking municipal
employees are generally not sufficient to demonstrate a municipal
custom, policy, or usage that would justify municipal liability,”
a plaintiff can prevail if he shows that the alleged wrongdoing
was “widespread and persistent” and that supervisors were aware of
Jones, 691 F.3d 72 at 81.
One way of showing the existence
acquiesced in unconstitutional behavior.
See Okin v. Vill. of
Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 439-40 (2d Cir.
2009); Carbajal v. Cnty. of Nassau, 271 F. Supp. 2d 415, 422
(E.D.N.Y. 2003) (noting that a plaintiff may prove municipal
liability by showing that a policymaker directly committed or
commanded the unconstitutional behavior).
Here, Defendants do not
dispute that Captains Zuarro, Humphreys, and Dudek, along with
In addition, it is undisputed that Captains
Zuarro, Humphreys, and Dudek repeatedly denied Wharton’s time-off
Moreover, there was evidence that his requests
were denied in retaliation for complaining about discimrination.
Thus, there was sufficient evidence of a pattern of retaliatory
conduct to support the jury’s municipal liability finding.
VII. Excessive Damages
consisting of $375,000 in compensatory damages based upon his
retaliation claim and $45,000 in punitive damages.
The Court agrees.
A jury’s award of damages “may not be overturned unless
it is so excessive that it shocks the conscience of the court.”
McGrory v. City of N.Y., No. 99-CV-4062, 2004 WL 2290898, at *13
(S.D.N.Y. Oct. 8, 2004).
If the court decides that a jury’s
damages award is excessive, “it may do one of three things:
(1) order a new trial; (2) order a new trial limited to damages;
or, (3) pursuant to the practice of remittitur, condition the
denial of a motion for a new trial on the plaintiff’s acceptance
of a reduced amount of damages.”
Olsen v. Cnty. of Nassau, 615 F.
Supp. 2d 35, 39-40 (E.D.N.Y. 2009).
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.’”
Id. at 45 (quoting
Scala v. Moore McCormack Lines, 985 F.2d 680, 684 (2d Cir. 1993)).
Wharton, his wife, and his minister all testified at
length about the emotional distress Wharton suffered as a result
of Defendants retaliatory conduct.
“To obtain emotional distress
damages, a plaintiff must establish actual injury and the award
plaintiff’s subjective testimony.”
Olsen v. Cnty. of Nassau, 615
F. Supp. 2d 35 at 46 (quoting Quinby v. WestLB AG, No. 04-CV-7406,
employment discrimination context, there . . . [is] a ‘spectrum’
or ‘continuum’ of damage awards for emotional distress” ranging
from ‘garden-variety’ [to] ‘significant’ [to] ‘egregious’ . . .
Rainone v. Potter, 388 F. Supp. 2d 120, 121-24 (E.D.N.Y.
2005) (citation omitted).
As Judge Spatt explained in Rainone v.
At the low end of the continuum are what have
become known as “garden-variety” distress
claims in which district courts have awarded
damages for emotional distress ranging from
$5,000 to $35,000. “Garden-variety” remitted
awards have typically been rendered in cases
where the evidence of harm was presented
primarily through the testimony of the
plaintiff, who describes his or her distress
in vague or conclusory terms and fails to
describe the severity or consequences of the
injury. . . .
The middle of the spectrum consists of
“significant” ($50,000 up to $100,000) and
($100,000). These 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 or evidence, evidence of treatment
Finally, on the high end of the spectrum are
“egregious” emotional distress claims, where
the courts have upheld or remitted awards for
distress to a sum in excess of $100,000. These
awards have only been warranted where the
discriminatory conduct was outrageous and
shocking or where the physical health of
plaintiff was significantly affected.
Id. at 122-23.
More recently, Courts have sanctioned jury damages
ranging from $30,000 to $125,000 for “garden-variety” emotional
See Olsen v. Cnty. of Nassau, 615 F. Supp. 2d at 46,
n.4 (collecting cases); Watson v. E.S. Sutton, Inc., No. 02-CV2739, 2005 WL 2170659, at *16 (S.D.N.Y. Sept. 6, 2005) aff’d, 225
F. App’x 3 (2d Cir. 2006) (“The range of acceptable damages for
emotional distress in adverse employment action cases lacking
extraordinary circumstances seems to be from around $30,000 to
Here, Wharton was not demoted, fined, or terminated as a
result of any of Defendants’ actions.
Although he claimed that
the NOPA affected his promotion opportunities, he admitted that he
did not pass the exam necessary to be promoted from corrections
officer to corporal.
Thus, his only compensable damages were for
emotional distress. The evidence is clear, however, that Wharton’s
emotional distress did not rise above the garden-variety.
and his wife testified that Defendants actions caused him to feel
Wharton’s wife also testified that he “wasn’t as interactive with
the family,” was less intimate, developed headaches, and had
Reverend Hannah, who provided Wharton with
“depressed,” however, Hannah acknowledged that he had no clinical
manifestations of his unhappiness.
Wharton never sought medical
attention for emotional distress and did not introduce testimony
from a medical professional.
The evidence in this case therefore
does not support the $375,000 in compensatory damages awarded by
the jury, a verdict above and beyond damages awards in cases where
See, e.g., Sulkowska v. City of N.Y., 129 F. Supp. 2d
developed post-traumatic stress disorder, was in constant fear,
and developed neuroses that required her to check doors, windows,
closets, and under the bed each night, and was found to be
permanently injured); Thorsen v. Cnty. of Nassau, 722 F. Supp. 2d
277, 292 (E.D.N.Y. 2010) (In “significant” or “egregious” cases,
where there is typically evidence of “debilitating and permanent
alterations in lifestyle,” larger damage awards may be warranted.)
This case falls more in line with MacMillan v. Millennium Broadway
Hotel, 873 F. Supp. 2d 546, 554, 562 (S.D.N.Y. 2012), in which the
court reduced a compensatory damages award from $125,000 to $30,000
where the plaintiff and his daughter testified that he “was always
sad,” “wasn’t his same self,” but there was no evidence of a
physical manifestation of plaintiff’s distress.
Campbell v. Cellco P’ship., No. 10-CV-9168, 2012 WL 3240223, at *4
(S.D.N.Y. Aug. 6, 2012), the court reduced an emotional distress
award from $200,000 to $125,000 for a retaliation claim where the
difficulty sleeping, was unnerved, and suffered a loss of dignity.”
compensatory damages will be granted unless Wharton agrees to a
remitter reducing the compensatory damages award to $60,000.
Punitive Damages Awards Against Ostermann and Loconsolo
In addition to the compensatory damages award, the jury
also awarded punitive damages against each of the five individual
reasonableness of the punitive damages award.
Instead, they argue
that it was improper to grant punitive damages against defendants
Ostermann and Loconsolo because Ostermann and Loconsolo were not
personally involved in any of the adverse employment actions that
In this Circuit, the “personal involvement of
prerequisite to an award of damages under § 1983.”
Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434
U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978). Here, Loconsolo
retaliatory conduct at issue.
In addition, it came to light that
both Captains Dudek and Humphreys spoke to Loconsolo before denying
two of his time-off requests.
Thus, there was circumstantial
evidence that Loconsolo was personally involved in the denial of
Wharton’s time-off requests.
Ostermann’s involvement, however,
Although Ostermann admitted that she only conducted a limited
investigation was not at issue in this case. Therefore, the jury’s
determination that she was liable for retaliation could only have
been the result of sheer surmise and conjecture.
See Smith v.
Schweiloch, No. 12-CV-3253, 2012 WL 2277687, at *2 (S.D.N.Y.
June 18, 2012) (finding that “[c]onclusory allegations that a
allegedly unconstitutional police conduct are insufficient to
state a claim.”)
Therefore, Defendants’ motion for judgment as a
matter of law is GRANTED solely with respect to defendant Ostermann
and the $15,000 punitive damages award against her is VACATED.7
judgment as a matter of law, or in the alternative, for a new
trial, is GRANTED IN PART and DENIED IN PART.
Defendants’ motion for judgment as a matter of law is GRANTED
solely with respect to defendant Ostermann, and the jury’s $15,000
punitive damages award issued against her is VACATED. In addition,
Defendants’ motion for a new trial concerning compensatory damages
will be granted unless Wharton agrees to a remitter reducing the
compensatory damages award to $60,000.
Wharton is therefore
directed to inform the Court within thirty (30) days of the date
of this Memorandum & Order whether he will consent to a remitter
of the total damages award (including the uncontested $30,000
punitive damages award) from $420,000 to $90,000.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
30 , 2015
Central Islip, New York
Since Defendants did not argue that the punitive damages award
issued by the jury was unreasonable, the Court expresses no
opinion on the matter.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?