Monette v. The County of Nassau et al

Filing 95

ORDER denying 79 Motion for New Trial; denying 79 Motion for Judgment as a Matter of Law; denying 79 Motion to Amend/Correct/Supplement; terminating 82 Motion for Settlement. See attached Memorandum and Order for details. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/31/2015. (Moe, Alison)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-539 (JFB) (AKT)
_____________________

DENIS J. MONETTE,
Plaintiff,
VERSUS

THE COUNTY OF NASSAU AND LAWRENCE MULVEY,
Defendants.
___________________
MEMORANDUM AND ORDER
March 31, 2015
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Dennis Monette (“plaintiff”)
brought this employment discrimination
action against the County of Nassau (“the
County”) and Lawrence Mulvey (“Mulvey”)
(collectively “defendants”) after he was
terminated as Assistant Commissioner of the
Nassau
County
Police
Department
(“NCPD”) on November 13, 2009. His
termination occurred ten days after the
election for Nassau County Executive, when
the result was still unknown and too close to
call.
In that election, Ed Mangano
(“Mangano”) ultimately defeated Tom
Suozzi (“Suozzi”), who had held the
position since 2001. Plaintiff had been a
fervent supporter of Suozzi until the 2009
election, when he switched his support to
Mangano because plaintiff was frustrated
with his treatment by his superior, NCPD
Commissioner Mulvey. Plaintiff frequently
complained to Suozzi about his treatment,
and felt that Suozzi failed to address his
concerns.

In this lawsuit, plaintiff alleged that he
was fired for several unlawful purposes,
including in retaliation for the exercise of
his First Amendment right to support
Mangano instead of Suozzi. After a trial in
January 2014, a jury found for plaintiff on
his First Amendment claim against the
County,1 brought under 42 U.S.C. § 1983,
and awarded plaintiff $150,000 in
compensatory damages. The parties agreed
that back pay, front pay, and reinstatement
were equitable remedies for the Court’s
determination, and they have submitted
post-trial briefs on these issues, as well as on
post-trial motions by the County for

1

The only claim against Mulvey as an individual to
go to the jury was for aiding and abetting disability
discrimination under the NYHRL.
(See Trial
Transcript (“Tr.”) at 818.) With respect to the First
Amendment claim under § 1983, the jury was
instructed that both Mulvey and Suozzi were
“policymakers” whose conduct could subject the
County to liability. (See Jury Charge at 24.)

Plaintiff’s post-trial brief seeks back pay
and either reinstatement or front pay. The
Court grants the request for back pay, but
only for the period from plaintiff’s
termination on November 13, 2009, until
December 31, 2009, because plaintiff would
not foreseeably have continued his
employment after Mangano was sworn in as
County Executive on January 1, 2010.2 In
particular, even assuming arguendo that the
County has the burden of proving that the
plaintiff’s
employment
would
have
terminated on December 31, 2009 in the
absence of the retaliatory termination on
November 13, 2009, the Court concludes
that the County has clearly met that burden.
There
was
overwhelming
(and
uncontroverted) evidence in the record that
Police Commissioner Mulvey wanted to
terminate plaintiff for over two years (dating
back to 2007) for reasons unrelated to
plaintiff’s political affiliation, but that
County Executive Suozzi prevented Mulvey
from doing so. Therefore, it was abundantly
clear from the trial that, had Suozzi not
authorized the termination of plaintiff for
retaliatory reasons in November 2009 after
the election (as the jury found), Police
Commissioner Mulvey (who continued as
Police Commissioner under County
Executive Mangano) would have terminated
plaintiff for non-retaliatory reasons as soon
as Suozzi left office. In other words, given
that Mulvey wanted to terminate plaintiff for
over two years for reasons unrelated to
political association, and was only prevented
from doing so by Suozzi, allowing plaintiff
to recover back pay beyond Suozzi’s last
day on December 31, 2009 would result in
an inequitable windfall to plaintiff that has

judgment as a matter of law and a new trial
on damages, or remittitur of the $150,000
award.
The three specific issues addressed by
the County’s post-trial brief are as follows.
First, the County renews its motion under
Federal Rule of Civil Procedure 50 based on
the “policymaker” defense, which was
originally presented as a motion to amend
defendants’ answer to assert that defense.
The defense was not in the answer, not in
the summary judgment motion (and was
disavowed by the County at oral argument
on the summary judgment motion), not in
the pretrial order, and not raised until a few
days before trial. The Court concludes that
the motion to amend on the eve of trial was
properly
denied
because
of
the
overwhelming prejudice to the plaintiff of
having to respond to such a defense with
such late notice. In the alternative, based
upon the evidence defendants presented at
trial, the Court concludes that the defense
does not apply to plaintiff’s position (as reconstituted) and, thus, fails on the merits.
Next, the County moves for a new trial
under Rule 59, arguing that the jury charge’s
definition of “motivating factor” as an
element of the § 1983 claim was improper.
This motion is denied because the
instruction correctly defined “motivating
factor” in accordance with prevailing
Second Circuit precedent.
Finally, the
County seeks a new trial on damages or
remittitur of the jury’s award of $150,000 in
compensatory damages for emotional harm,
arguing that the award is unsupported by
plaintiff’s testimony alone, absent any
medical or psychological evidence. This
motion is also denied, because this award for
emotional damages, given the evidence at
trial, does not shock the Court’s conscience,
and is close in value to awards in other
similar cases.

2

Although the record does not reflect the exact date
of Mangano’s inauguration, the Court takes judicial
notice of the fact that it occurred within the Court’s
territorial jurisdiction on January 1, 2010. See Fed.
R. Evid. 201(b)(1).

2

sharing intelligence information and
coordinating their response to the threat of
terrorism. (Id. at 202.) However, when new
Commissioner James Lawrence arrived a
few months later, plaintiff was assigned
additional duties involving departmental
management, analysis, and planning. (Id. at
154.)

absolutely no basis in the evidence. For the
same reason, plaintiff’s motion is denied
with respect to reinstatement and front pay.
I. BACKGROUND
A. Factual Background
Set forth below is a summary of the
evidence that was adduced at trial.

Suozzi was re-elected in 2005, and
plaintiff supported and raised funds for him
in that election as well. (Id. at 173-77.)
After he was re-elected, Suozzi needed to
name a new Commissioner of Police,
because
Commissioner
Lawrence
announced his retirement. (Id. at 180.) One
of the candidates was defendant Mulvey,
and Suozzi told plaintiff that he was aware
of personal friction between Mulvey and
plaintiff. (Id. at 181-82.) The friction
stemmed from two incidents when both
Mulvey and plaintiff were still police
officers; one incident involved a search
warrant, and the other involved the alleged
misappropriation of property in Mulvey’s
unit. (Id. at 182-93.) As a result of his past
experiences with plaintiff, Mulvey told a
commissioner-selection committee that he
would not work with plaintiff because he
questioned plaintiff’s integrity. (Id. at 518.)

Plaintiff joined the NCPD in 1968 (Tr. at
104), and served as a uniformed police
officer until 1991, when he retired with a
disability pension after sustaining knee and
back injuries at a crime scene (id. at 11619). After he retired, plaintiff worked
periodically for his family’s restaurant, but
was not employed full time. (Id. at 124.) In
2000, plaintiff met Suozzi, who was
preparing to run for Nassau County
Executive. (Id. at 125.) Plaintiff was
introduced to Suozzi by an old friend, Louis
Yevoli, and was impressed with Suozzi’s
credentials and vision for the county. (Id. at
125-28.)
Plaintiff became a friend and
supporter of Suozzi’s, hosting fundraisers
for him and accompanying him on the
campaign trail. (Id. at 128-32.) Overall,
plaintiff estimated that he raised $210,000
for Suozzi during the 2001 election. (Id. at
136.)

Suozzi named Mulvey the NCPD
Commissioner in mid-2007. (Id. at 194.)
Before doing so, he assured Mulvey that
plaintiff would not be part of his
administration in the NCPD. (Id. at 527.)
Suozzi later proposed a compromise in
which plaintiff would be moved to the
Office of Emergency Management (OEM), a
separate entity from the police department
which was located in a separate facility. (Id.
at 536.) Mulvey insisted that plaintiff not
have authority to order around police and
should not be considered critical staff, and
Suozzi agreed. (Id. at 537.) Instead,
plaintiff would serve as a liaison between

After Suozzi was elected, he named
plaintiff the Director of Public Safety, based
on plaintiff’s 22 years of experience in the
police department and his ideas about
streamlining public safety services. (Id. at
145-48.) After five or six months in that
position, Suozzi appointed plaintiff as an
Assistant Commissioner of the NCPD. (Id.
at 153.) Initially, plaintiff’s new position
was dedicated solely to counter-terrorism,
and he represented the NCPD as a member
of STARCOM, a regional collaboration of
local and federal agencies dedicated to
3

Plaintiff was then re-located from the
second floor of police headquarters to a
cubicle in the basement of a county jail. (Id.
204; 539.) Plaintiff complained to Mulvey,
Suozzi, Yevoli, and Deputy County
Executive for Public Safety Frank Ryan
about his working conditions in the
basement, which he felt were a form of
punishment or harassment because of his
history with Mulvey, but there was no action
in response to plaintiff’s complaints. (Id. at
206-09.) Plaintiff remained in the basement
cubicle for more than two years, until his
termination in November 2009. (Id. at 209.)
During that period, plaintiff had minimal job
responsibilities. (Id. at 202.) Although he
was located in OEM, he did not attend OEM
meetings. (Id. at 201.) He continued to
attend STARCOM meetings, but had far less
of an operational role than he did under
Commissioner Lawrence, when he helped to
get STARCOM off the ground. (Id. at 20102.)
Plaintiff testified that, under
Commissioner Mulvey, “there was no
function for me to perform.” (Id.) Mulvey
testified that he assigned plaintiff one drill to
work on, but ultimately relieved him even
from that, and plaintiff did not have a
measurable impact on the operations of the
NCPD. (Id. at 550-54; 573.)

costs. Particularly after the financial crisis
in 2008, Suozzi was vigilant concerning
each department’s spending, including the
NCPD. In Mulvey’s view, “scrutiny on
expenditures was really micromanaged and
stressed,” and he was under pressure to
“trim the bureau.” (Id. at 568.) However,
99% of jobs in the NCPD fell under the civil
service regulations, making them difficult to
eliminate. (Id. at 569-70.) As a result, the
focus turned toward “ordinance positions”
that were not civil-service protected, of
which there were a limited number in the
NCPD. (Id. at 474-75; 570.) Mulvey
testified that there were five or six ordinance
positions, but only two had significant
enough salaries to be targets for budgetcutting. (Id. at 570-72.) One was the deputy
commissioner, an attorney who handled
Mulvey’s contractual relations with the
union and served as his “right hand man.”
(Id. at 571.) The other was plaintiff, and
Mulvey believed that, because of his
minimal duties, the elimination of plaintiff’s
position would have the least impact on the
NCPD’s operations. (Id. at 573.) Likewise,
Ryan—who was the Deputy County
Executive for Public Safety and responsible
for recommending jobs to eliminate across
the public safety agencies—testified that
plaintiff’s position could be “sacrificed”
without
compromising
the
police
department’s objectives. (Id. at 477.) For
that
reason,
Mulvey
recommended
plaintiff’s elimination to Ryan multiple
times, who recommended the same to
Suozzi as early as June 2009. (Id.) Ryan
also did so more than once, but Suozzi did
not act on the recommendations to fire
plaintiff throughout the summer and early
fall of 2009. (Id. at 477-78.)

During the period between plaintiff’s
2007 move to the basement cubicle and his
termination in November 2009, pressure was
mounting in the County government to cut

Suozzi was a candidate for re-election in
November 2009, when he ran against
Mangano. (Id. at 221.) Although plaintiff
had campaigned for Suozzi extensively in

the NCPD and OEM, and would continue to
administer STARCOM. (Id.) Otherwise,
Mulvey could assign plaintiff tasks at his
discretion. (Id.) Suozzi immediately called
plaintiff to inform him of the change, and
also to inform plaintiff that Suozzi was
giving him a raise of between $9,000 and
$10,000, despite what plaintiff perceived to
be a reduction in his duties. (Id. at 202-03;
538.)

4

position, Mulvey asked whether plaintiff
was “on the table.” (Id. at 653.) Suozzi
confirmed that everyone was on the table,
and Mulvey immediately recommended that
plaintiff be fired. (Id.) Suozzi accepted the
recommendation and told Mulvey to act on
it. (Id. at 653; 661.)

the prior elections, he chose to support
Mangano in 2009 because he felt that Suozzi
had done nothing in response to plaintiff’s
complaints about his move to the basement
cubicle. (Id.) Plaintiff had also been
friendly with Mangano for 25 years. (Id. at
221-22.) Plaintiff told Yevoli and some
other friends about his support for Mangano,
and he began to attend events and raise
funds. (Id. at 223-24.) Overall, plaintiff
raised approximately $9,500 for Mangano.
(Id. at 225.) At some point in the summer of
2009, plaintiff encountered Suozzi and told
him that he was supporting Mangano; in
response, Suozzi waved dismissively and
walked away. (Id. at 259-60.) Plaintiff had
known Suozzi for a number of years, and it
appeared to plaintiff that Suozzi was angry.
(Id. at 261.)

Plaintiff testified that, when he learned
of his firing, he pulled over his car and
vomited. (Id. at 265.) He felt faint and
dizzy, and was sweating profusely. (Id.) He
called several people, including his wife,
who began to cry. (Id. at 265-67.) Over the
next four days, plaintiff called Suozzi 27
times, but he never answered. (Id. at 267.)
In the following months, plaintiff felt
humiliated and sick, and he had trouble
sleeping and eating. (Id. at 277.) Plaintiff
testified that he still holds a “terrible
feeling” about the fact that, in his mind, his
record reflects that he was ultimately fired
from the police department he served for 30
years. (Id. at 278.)

The 2009 election for Nassau County
Executive was held on November 3, but the
results were not immediately known because
the election was too close to call. (Id. at
262.) Plaintiff was terminated on November
13, 2009, before the winner was determined.
(Id. at 263, 270.) First, plaintiff received a
call from Mulvey telling him that he was
fired because of “downsizing.” (Id. at 263.)
Plaintiff immediately called Ryan and
Suozzi, who claimed to be surprised. (Id. at
264.) Both men promised plaintiff that they
would call him back, but neither ever did.
(Id. at 268.)

In December 2009 or January 2010, after
Mangano was announced the winner of the
election, plaintiff met with him to discuss
the discontinuance of his health care, which
was supposed to be a lifetime benefit but
was canceled after his termination (although
it was ultimately restored). (Id. at 269-70.)
Plaintiff also asked Mangano about getting
his job back, but Mangano was noncommittal. (Id.) At a later meeting after he
took office, Mangano told plaintiff that he
could not re-hire him because of pressure
from the Nassau Interim Finance Authority
and the county legislature to cut costs. (Id.
at 275-76.) Mulvey was allowed to continue
as Police Commissioner for a period of time
after Mangano became County Executive in
January 2010. (Tr. 577.)

Mulvey testified that plaintiff was fired
on November 13 because Suozzi called
Mulvey to tell him that he was under
increased pressure with respect to the
budget, and needed to eliminate a top
position in the police department because of
the perception that it was “top heavy.” (Id.
at 650, 651-54; 661.) As noted, Mulvey had
recommended plaintiff’s termination to
Ryan and Suozzi several times before, and
when Suozzi mentioned eliminating a top
5

an alternative to their argument that they
should be allowed to assert the policymaker
defense even though it was not in the
answer, the defendants requested leave to
amend their answer to include the defense.
Plaintiff’s counsel objected on the grounds
that any amendment to the answer to include
that defense would be highly prejudicial on
the eve of trial. The Court reserved decision
on the defendants’ motion, but made clear
that both sides should present evidence
during the trial on the policymaker defense
in the event the Court ultimately determined
that there was no prejudice to plaintiff in
allowing defendant to amend the answer and
assert the defense.

B. Procedural History
Plaintiff filed the complaint in this case
on February 3, 2011, asserting a variety of
claims of employment discrimination under
42 U.S.C. § 1983, the Americans with
Disabilities Act (“ADA”), the Age
Discrimination
in
Employment
Act
(“ADEA”), and the New York Human
Rights Law (NYHRL). On January 10,
2013, the Court denied defendants’ motion
for summary judgment, and the parties
submitted a proposed pretrial order on
March 11, 2013. On July 11, 2013, the
Court held a telephone conference with the
parties and scheduled trial to begin on
January 21, 2014.

A jury trial was held from January 23,
2014 until January 31, 2014.
At the
conclusion of the plaintiff’s case, defendants
renewed their request and filed a formal
motion to amend the answer to include the
policymaker defense. (ECF No. 60.) The
Court then determined, in its discretion, that
such an amendment should not be permitted
because it would be overwhelmingly
prejudicial to plaintiff to allow defendants to
amend the answer just days before the trial,
given plaintiff’s inadequate time to
investigate the defense, obtain discovery
regarding the defense, and fully respond to
the defense at trial. The Court also ruled, in
the alternative, that defendants were given a
full opportunity to present evidence on this
defense at trial, and the proof at trial did not
demonstrate that the policymaker defense
should apply to plaintiff’s position under the
particular facts of this case. Thus, the Court
also determined, based upon the defendants’
evidence, that the defense failed on the
merits. (Tr. 753-64.)

On January 6, 2014, counsel for
defendants requested an adjournment of the
trial, explaining that the County had just
hired them as outside counsel because of
changes within the Office of the County
Attorney, which had previously handled this
case. Plaintiff opposed any adjournment,
and the Court denied the request on January
7, 2014, because the case had been pending
for nearly three years, the trial had been
scheduled for nearly six months before the
County chose to hire outside counsel, and
there were no openings in the Court’s
calendar for at least the next six months.
On January 17, 2014, defendants filed a
letter motion in limine in which they
expressed their intention to assert the
“policymaker” defense to plaintiff’s First
Amendment claim, which was premised on
the allegation that plaintiff was fired in
retaliation for supporting Mangano instead
of Suozzi in the 2009 election. Defendants
had not included that defense in the answer
or in the pretrial order, and counsel from the
Office of the County Attorney affirmatively
abandoned it during the oral argument on
the summary judgment motion in 2012. As

On January 31, 2014, the jury found in
plaintiff’s favor against the County on the §
1983 First Amendment claim. The jury
awarded plaintiff $150,000 in compensatory
6

“[T]he focus should be not on the
policymaking aspect of a plaintiff’s
employment, but rather on whether ‘party
affiliation is an appropriate requirement’ for
effective job performance.” Gordon v. Cnty.
of Rockland, 110 F.3d 886, 887 (2d Cir.
1997) (quoting Branti v. Finkel, 445 U.S.
507, 518 (1980)).

damages for emotional distress, after the
parties agreed that back pay, reinstatement,
and front pay were equitable remedies for
the Court’s decision. (Tr. at 806.) The
Court instructed the parties to submit briefs
concerning plaintiff’s entitlement to those
remedies, and also set a briefing schedule
for defendants’ motion for a new trial under
Federal Rule of Civil Procedure 59, and its
renewed motion under Rule 50 for judgment
as a matter of law based on the policymaker
defense.

“A party must affirmatively state any . . .
affirmative defense” in responding to a
pleading. Fed. R. Civ. P. 8(c). If a party
fails to assert an affirmative defense in its
answer, a district court may still entertain it
at a later stage of case “in the absence of
undue prejudice to the plaintiff, bad faith or
dilatory motive on the part of the defendant,
futility, or undue delay of the proceedings.”
Saks v. Franklin Covey Co., 316 F.3d 337,
350 (2d Cir. 2003). “Mere delay, however,
absent a showing of bad faith or undue
prejudice, does not provide a basis for the
district court to deny the right to amend.”
State Teachers Ret. Bd. v. Fluor Corp., 654
F.2d 843, 856 (2d Cir. 1981).

Both parties filed their post-trial motions
on March 4, 2014; their responses on April
2, 2014; and their replies on April 16, 2014.
The Court held oral argument on May 2,
2014. Supplemental letters were filed after
the oral argument.
II. DISCUSSION
The discussion turns first to the County’s
renewed Rule 50 motion based on the
policymaker defense, and its Rule 59 motion
concerning the jury charge. Next, the Court
considers plaintiff’s motion for back pay,
reinstatement, and front pay, and finally, the
County’s motion for a new trial on damages
or remittitur of the $150,000 compensatory
damages award.

The Second Circuit has provided
guidance to the district courts on how to
measure prejudice in a particular case:
In gauging prejudice, we consider,
among other factors, whether an
amendment would require the
opponent to expend significant
additional resources to conduct
discovery and prepare for trial or
significantly delay the resolution of
the dispute. Undue prejudice arises
when an amendment [comes] on the
eve of trial and would result in new
problems of proof.

A. Policymaker Defense
The County’s Rule 50 motion with
respect to the policymaker defense was
originally a motion to amend the answer to
add an affirmative defense.
The
policymaker defense is an affirmative
defense, see Krause v. Buffalo & Erie Cnty.
Workforce Dev. Consortium, Inc., 426 F.
Supp. 2d 68, 103 (W.D.N.Y. 2005), and
although it is referred to as the “policymaker
defense” in this and other opinions, it
involves a far broader inquiry than whether
the individual asserting it “makes policy.”

Ruotolo v. City of New York, 514 F.3d 184,
192 (2d Cir. 2008) (quotations and citations
omitted). The Second Circuit also has
emphasized that “[w]hen the moving party
7

record), the Court concluded that
amendment of the answer to allow such a
defense on the eve of trial would have been
overwhelmingly prejudicial to plaintiff and,
thus, the motion was properly denied.4

has had an opportunity to assert the
amendment earlier, but has waited until after
judgment before requesting leave, a court
may
exercise
its
discretion
more
exactingly.” State Trading Corp. of India,
Ltd. v. Assuranceforeningen Skuld, 921 F.2d
409, 418 (2d Cir. 1990).

Permitting the late assertion of the
policymaker defense here would cause
substantial prejudice to plaintiff, because the
County raised it for the first time in a letter
dated January 17, 2014, just four days
before trial began on January 21, 2014.
Although the County argues that it raised the
issue in a 2012 letter requesting leave to
move for summary judgment, the summary
judgment brief did not argue the
policymaker defense, and at the subsequent
oral argument, then-counsel for the County
affirmatively abandoned it when she told the
Court that “political party isn’t an issue.”
After counsel’s statement, the record is
devoid of any reference to the policymaker
defense until the County asserted it in the
motion in limine just four days before trial.
Notably, the defense was not included
among the six affirmative defenses listed in
the pretrial order on March 11, 2013, nor
was any notice of the defense provided to
the Court or plaintiff’s counsel in the many
months between the filing of the pretrial
order in March 2013 and the eve of the trial
in January 2014.

As set forth in a detailed ruling on the
record, the Court determined the County had
numerous opportunities to assert the
policymaker defense over the course of the
litigation and failed to do so, without any
explanation. Moreover, the Court held that
the County’s late assertion of the defense on
the eve of trial would prejudice the plaintiff.
In the alternative, the Court held, on the
merits, that the County had not carried its
burden to show that plaintiff was a
policymaker within the meaning of that
defense.3 This Memorandum and Order
supplements the Court’s oral ruling on these
issues.
i. Denial of Motion to Amend
Plaintiff argued that the policymaker
defense was waived because the County did
not assert it in the answer, at summary
judgment, or in the pretrial order, and also
represented during oral argument on the
summary judgment motion that no such
defense was being asserted. Moreover,
plaintiff argued that he would be greatly
prejudiced by an amendment to the answer
on the eve of trial to include that defense.
As set forth below (and in detail on the

At trial, because the Court reserved on
the motion to amend, the Court allowed each
side to introduce evidence on the
policymaker defense, after which the
overwhelming prejudice to plaintiff was

3

As noted supra, the Court reserved on the motion to
amend the answer and allowed the County (and
plaintiff) to present its policymaker evidence at the
trial (so the Court could determine the level of
prejudice to plaintiff in terms of his ability to
respond). Thus, the County presented all its evidence
on this issue and the Court concludes that, even on
the County’s evidence, the policymaker defense fails
as a matter of law.

4

Moreover, the Court concludes, in the alternative,
that the defense was waived based upon, inter alia,
the failure to assert the defense in the answer and the
statement at oral argument by the County disavowing
that defense. As this Court noted in its oral ruling,
“[i]f that is not abandoning a defense, I don’t know
what is.” (Tr. 756.)

8

limitations defense. Although the court
decided the issue based upon waiver, the
analysis of the prejudice to plaintiff of the
assertion of the late defense is similar to the
prejudice that this Court views exists in the
instant case. The Seventh Circuit explained:

abundantly clear to the Court. (See Tr. 755
(denying motion to amend because “I
concluded, having presided over this trial,
that there is overwhelming prejudice [to
plaintiff]. The way this developed, in my
view, was fundamentally unfair to the
plaintiff.”); see also Tr. 757 (“In terms of
what prejudice there was, again, I watched
this trial, and I was shocked at how this was
being attempted to prove, with documents
that were not part of either the discovery
process or certainly not part of the pretrial
order, and witnesses, like Mr. Ryan and Mr.
Yevoli, who there was no notice. Mr. Ryan
is not even in the pretrial order.”)). In
particular, the Court noted that plaintiff was
effectively “bushwhacked” by documents
and witnesses related to the policymaker
defense which were not part of discovery.
(Id. at 759.)

By omitting mention of the statute of
limitations until they filed their reply
memorandum,
the
defendants
deprived [plaintiff] of any reasonable
opportunity to address that defense.
At that juncture, the parties had
largely completed an exhaustive
discovery process, and the scheduled
trial date was only a month away….
When the district court subsequently
relied on the statute of limitations in
granting
defendants
summary
judgment on the free speech claim, it
did not consider the evident
prejudice to [plaintiff] in doing so.
We cannot overlook the failure to
comply with Rule 8(c) in this
context.
Intentionally or not,
[plaintiff] was bushwhacked. We
recognize that the limitations defense
may have been meritorious; and
[plaintiff’s] counsel should have had
some inkling that the defense might
be raised given the date that her own
allegations placed on the events
central to her free speech claim. But
it was not [plaintiff’s] obligation to
raise the defense, and if Rule 8(c) is
not to become a nullity, we must not
countenance attempts to invoke such
defenses at the eleventh hour,
without excuse and without adequate
notice to the plaintiff.

The policymaker defense is not simple to
litigate—it is analyzed under a list of eight
non-exhaustive factors which vary in
application in each case. See Gordon, 110
F.3d at 889. Here, most of those factors
were disputed and would have required
additional discovery and witnesses for either
side to litigate them thoroughly. Attempting
to do so on just four days’ notice would
have caused obvious prejudice to plaintiff.
Plaintiff’s counsel explained to the Court in
detail what discovery he would have needed
to properly defend against this defense (Tr.
736-41), and the Court concluded that the
absence of such discovery was highly
prejudicial to plaintiff.
Other courts, in similar circumstances,
have also not allowed such an amendment to
proceed. For example, in Venters v. City of
Delphi, 123 F.3d 956 (7th Cir. 1997), the
Seventh Circuit held that the defendant
should not be permitted to belatedly raise
(for the first time in a reply memorandum on
a summary judgment motion) a statute of

Id. at 968-69 (citations omitted); see also
Parker v. Madison Cnty. Reg’l Office of Ed.,
No. 10-132-DRH, 2012 WL 1964966, at *6
(S.D. Ill. May 31, 2012) (denying leave to
amend answer to add certain affirmative
9

Tr. at 764.) Nonetheless, in an abundance of
caution, the Court has considered the
evidence concerning plaintiff’s employment
in a light most favorable to the defense.
(Id.)

defenses that had not been raised to that
point “because allowing them to be raised at
this stage of the litigation would be highly
prejudicial to plaintiff.”).
Therefore, for the reasons set forth on
the record and here, the Court denied the
motion to amend the answer, and denies the
renewed Rule 50 motion, with respect to the
policymaker defense.

“For a court to find that ‘political
affiliation is an appropriate requirement’ of
a specific job, there must be a ‘rational
connection between shared ideology and job
performance.’” Cicchetti v. Davis, 607 F.
Supp. 2d 575, 578 (S.D.N.Y. 2009) (quoting
Savage v. Gorski, 850 F.2d 64, 68 (2d Cir.
1988)). Courts in this circuit considering
whether there is such a rational connection
have applied the factors described in Vezzetti
v. Pellegrini, which include whether the
employee:

ii. Applicability of the Policymaker
Defense to Plaintiff’s Position
In the alternative, even assuming
arguendo that the Court reached the merits
of the policymaker defense, based upon the
evidence defendants presented to the Court
on that issue, the Court concludes that the
defense fails as a matter of law because the
County did not show that plaintiff—in his
reconstituted position after Mulvey became
police commissioner—was a policymaker
for whom “party affiliation is an appropriate
requirement for the effective performance of
the public office involved.” Branti, 445 U.S.
at 518.

(1) is exempt from civil service
protection,
(2) has technical competence or
expertise,
(3) controls others,
(4) is authorized to speak in the
name of policymakers,
(5) is perceived as a policymaker by
the public,
(6) influences government programs,
(7) has contact with elected officials,
and
(8) is responsive to partisan politics
and political leaders.

The Second Circuit has stated that,
“[u]ltimately, whether an employee’s
position falls within the Elrod-Branti
policymaker exception is a question of law
for the court.” Almonte v. Cnty. of Long
Beach, 478 F.3d 100, 110 (2d Cir. 2007).
However, the question does require “some
preliminary factual inquiry,” id., especially
where, as here, a general job description
does not conclusively determine whether the
plaintiff is a policymaker. See Morin v.
Tomey, 626 F.3d 40, 45 n.5 (2d Cir. 2010).
For this reason, the Court allowed the parties
to introduce evidence at trial concerning the
job of Assistant Commissioner, and
ultimately concluded that there was little or
no factual dispute concerning its lack of a
formal description or inherent powers. (See

See 22 F.3d 483, 486 (2d Cir. 1994).
The Vezzetti factors “should be applied
to the formal description of the job at issue,
that is, to the inherent powers of the
position, rather than the duties actually
performed by plaintiff.” Cicchetii, 607 F.
Supp. 2d at 578.
That distinction is
particularly important in this case because
plaintiff’s job as Assistant Commissioner
changed over time, and it lacked a formal
description or inherent powers. The most
10

Even applying the Vezzetti factors to
plaintiff’s job as he performed it, the Court
does not conclude that party loyalty was an
appropriate job requirement.
At most,
plaintiff had technical competence and
limited
authority
with
respect
to
STARCOM, which was further reduced
under Mulvey. (Id. at 202-03; 622-23
(describing plaintiff’s authority with respect
to STARCOM as indirect, with the ability to
organize meetings but not compel
attendance).)
Although plaintiff had
personal contact with Suozzi, an elected
official, there is no evidence that plaintiff
was a close advisor while he was Assistant
Commissioner, or that his job functions
were responsive to Suozzi’s political
leanings or partisan agenda. None of the
witnesses testified that there was a
perception of plaintiff as a policymaker, and
he did not control any other employees. (Id.
at 537 (“[Mulvey did] not want him to be
involved in the capacity where he would be
ordering people around, that he be attending
[Mulvey’s] critical staff meeting and that
kind of thing.”); 620-21 (describing
plaintiff’s lack of “line authority”).)

that was proven about the position is that it
lacks civil service protection. (Tr. at 57072.) Although this is a significant factor, the
Court disagrees with the County’s argument
that it is the determinative factor. See
Gordon, 110 F.3d at 890 n.5 (“This circuit
does not, however, presume employees are
exempt from First Amendment protection
just because they are exempt from civil
service protection.”). In this particular
factual context, see Ciccetti, 607 F. Supp. 2d
at 579 (describing the inquiry as “fact
intensive”), the lack of civil service
protection does not persuade the Court that
party loyalty was an appropriate requirement
for being Assistant Commissioner because
the County has not shown what the
requirements of that job actually were. The
minimal
evidence
concerning
other
Assistant Commissioners did not establish a
common set of duties and powers, and in
plaintiff’s case, he was stripped of authority,
moved from inside of police headquarters to
the basement cubicle, and left only with
management of the STARCOM task force, a
new duty with an unclear amount of
responsibility. (See Tr. at 202 (“Q: What
were your responsibilities as they related to
STARCOM?
A: Under Commissioner
Lawrence, to coordinate, facilitate with
them. . . . Q: What about under
Commissioner Mulvey? A: There was no
function for me to perform.”); 685
(“[Mulvey] did not put him in as a decisionmaker at all. [Mulvey] limited his role”).)
In other words, the evidence at trial showed
that plaintiff’s job was reconstituted and
stripped of its authority over time, such that
it did not resemble the job of any other
Assistant Commissioner, and it is therefore
impossible to apply the Vezzetti factors to a
formal description of plaintiff’s job. (See id.
at 762 (“There was no articulated
description of what [plaintiff’s] job would
be, other than that he continued to be
involved in STARCOM.”).)

Therefore, with respect to the “principle
of primary importance: whether the
employee in question is empowered to act
and speak on behalf of a policymaker,”
Gordon, 110 F.3d at 890, the County has not
carried its burden. Cf. Butler v. N.Y. State
Dept. of Law, 211 F.3d 739, 744 (2d Cir.
2000) (finding that deputy Attorney General
was a policymaker where she supervised 80
other attorneys and routinely acted and
spoke on behalf of the elected Attorney
General); Burkhardt v. Lindsay, 811 F.
Supp. 2d 632, 646 (E.D.N.Y. 2011)
(concluding that legislative aide was a
policymaker because “the record . . .
supports a finding that legislative aides may
be empowered to act and speak on behalf of
a policymaker or elected official.”); Alberti
11

v. Cnty. of Nassau, 393 F. Supp. 2d 151,
168-72 (E.D.N.Y. 2005) (concluding that
officials were policymakers when they
represented county before legislature, had
meaningful input on budget, were required
to “make sure that whatever the
commissioner wanted was done,” had
authority to approve budget requests, and
channeled communications among senior
officials). Accordingly, in the alternative,
the Court concludes (for the reasons set
forth in the record and in this Memorandum
and Order) that the policymaker defense
fails on the merits under the particular facts
of this case, and the renewed Rule 50
motion is denied on that ground.5

B. Jury Charge
The County also seeks a new trial under
Federal Rule of Civil Procedure 59, arguing
that the Court erred in its instruction with
respect to the “motivating factor” element of
the First Amendment retaliation claim.
In order to prove a First Amendment
retaliation claim, a plaintiff must
demonstrate “(1) [he] engaged in
constitutionally protected speech because
[he] spoke as [a] citizen on a matter of
public concern; (2) [he] suffered an adverse
employment action; and (3) the speech was
a ‘motivating factor’ in the adverse
employment decision.” Skehan v. Vill. of
Mamaroneck, 465 F.3d 96, 106 (2d Cir.
2006) (citation omitted), overruled on other
grounds by Appel v. Spiridon, 531 F.3d 138
(2d Cir. 2008). The focus of the Rule 59
motion is the jury instruction with respect to
the third element.

5
To the extent the County suggests that this ruling
has some precedential value for assistant police
commissioners or similar officials across county
governments, the Court completely disagrees.
Instead, the Court emphasizes that its decision is
based upon the unique facts of this case where
plaintiff’s Assistant Police Commissioner position
was clearly reconstituted and the new position, which
had no responsibilities on paper, and virtually none in
practice, simply could not support the conclusion that
there was a rational connection between shared
ideology and job performance. In other words,
ideology was completely irrelevant to the ill-defined
job duties of the reconstituted position. (See Court’s
Oral Ruling at Tr. 762-63 (“So if you go through all
of the factors at that point in the job, no contact with
Mr. Suozzi . . . other than obviously complaining,
and his personal relationship with Mr. Suozzi, -- but
in terms of the function of his job and giving advice
to Mr. Suozzi with respect to police matters or
emergency matters, there is nothing in the record,
zero, zero testimony in the record from any witness,
defense witness. And Mr. Monette testified that there
was no such contact at that point in terms of the
function of his job. So he’s not involved in advising
the county executive at that point, He has no function
other than running STARCOM. He’s not influencing
government programs. He’s not supervising anybody.
He’s not controlling others. He’s providing no special
expertise on any policy issues. Every other factor in
the analysis would indicate that shared ideology or
political affiliation was completely irrelevant for the
position as it was reconstituted.”).) Therefore, the
Court’s ruling—that the County had not met its

In the context of a First Amendment
retaliation claim, as the Supreme Court has
explained, “the burden [is] properly placed
upon [the plaintiff] to show that his conduct
was constitutionally protected, and that this
conduct was a ‘substantial factor’—or, to
put it in other words, that it was a
‘motivating factor’ in the [employer’s]
decision [regarding plaintiff’s employment].
[The plaintiff] having carried that burden,
however, the District Court should have
gone on to determine whether the
[employer] had shown by a preponderance
of the evidence that it would have reached
the same decision as to [the plaintiff’s]
employment even in the absence of the
protected conduct.” Mt. Healthy City Sch.
Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287
(1977).

burden under the Vezzetti factors, is limited to the
unique, completely reconfigured position in this case.

12

The County did not contest at trial, and
does not contest now, the utilization of the
Mt. Healthy burden-shifting framework in
the jury instructions for the First
Amendment retaliation claim.6 Instead, the
County challenges the particular “motivating
factor” instruction that the Court gave to the
jury. Specifically, the County argues that
the Court committed prejudicial error when
it instructed the jury that it must find that
“plaintiff’s political association was a
motivating factor in the decision by
[defendants],” and then defined “motivating
factor” as follows:

(Tr. at 950.) The phrase “played a role” is
the focus of defendants’ motion, in that they
argue that “played a role” minimizes
plaintiff’s burden in the absence of a
qualifying word such as “important,”
“substantial,” or “determinative.”
This
argument is based largely on the Supreme
Court’s decision in Hazen Paper Co. v.
Biggins, 507 U.S. 604 (1993), which did not
address jury instructions, but which the
Second Circuit cited in the jury-instruction
case relied on by this Court at trial, Owen v.
Thermatool Corp., 155 F.3d 137, 139 n.1
(2d Cir. 1998). (See Tr. at 802-05.)

The plaintiff’s political association
was a motivating factor in the
defendant’s decision to take
adverse action if it played a role in
the decision. However, plaintiff’s
political association need not be the
only factor. Mr. Mulvey or Mr.
Suozzi may have taken action for
many reasons. But if one of those
reasons was plaintiff’s political
association, and if that reason
played a role in the decision by
Suozzi or Mulvey to take action
against the plaintiff, then plaintiff
has satisfied the third element.

The passage from Hazen Paper cited in
Owen is a summary of the law of disparate
treatment, not a holding about the contents
of jury instructions: “[w]hatever the
employer’s decisionmaking process, a
disparate treatment claim cannot succeed
unless the employee’s protected trait
actually played a role in that process and
had a determinative influence on the
outcome.” Id. at 610 (emphasis added). In
Owen, the Second Circuit cited this passage
while “emphasiz[ing] that the particular
words used in a jury instruction may
(depending on the circumstances) be less
important than the meaning or substance of
the charge as a whole.” 155 F.3d at 139 n.1.
The Owen Court then instructed that:

6

Courts, including the Second Circuit, have
continued to utilize this burden-shifting framework in
First Amendment retaliation cases even subsequent to
the Supreme Court’s decision in Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), with
respect to the ADEA. See, e.g., Anemone v. Metro.
Trans. Auth., 629 F.3d 97, 114 (2d Cir. 2011); see
also Greene v. Doruff, 660 F.3d 975 (7th Cir. 2011)
(holding that Gross does not affect First Amendment
cases and the Mt. Healthy standard continues to apply
to such suits) (collecting cases). As noted herein,
although the ADEA standard has now changed as a
result of Gross, the Court has cited several pre-Gross
cases because they provide useful guidance as to the
“motivating factor” standard, which remains
applicable in the context of First Amendment
retaliation cases, as to the plaintiff’s initial burden.

What is important is that the charge
conveys the idea that (1) the
impermissible factor (in ADEA
cases, age) must have played a role
in the employer’s decision, see
Hazen Paper Co. v. Biggins, 507
U.S. 604, 610, 113 S.Ct. 1701, 123
L.Ed.2d
338
(1993);
Price
Waterhouse, 490 U.S. at 250
(plurality opinion), and (2) the
factor need not have been the sole
consideration
motivating
the
employer’s decision.
13

However, what the County fails to note
is that the modification in the language was
only made after the Court conducted
additional research (when plaintiff’s counsel
raised an objection) and determined that the
Second Circuit in Owens had not only
determined
that
“substantial”
and
“motivating”
are
“reasonably
interchangeable or at least have considerable
overlap,”8 but also suggested that the term
“motivating” was “perhaps more precise”
than “substantial.” 155 F.3d at 139. In
particular, in Owens, the plaintiff challenged
the use of term “substantial” in the
instruction because it could suggest that the
prohibited reason had to be the only reason
or primary reason. Although finding that the
instruction adequately informed the jury, the
Second Circuit clearly expressed a
preference for the term “motivating” over
“substantial”:

Id. (emphasis added). Here, the Court
followed the Second Circuit by using the
exact same phrase as Owen, i.e., “played a
role,” without the additional language from
Hazen Paper concerning “a determinative
influence,” which the Second Circuit also
omitted from its statement in Owen of
“[w]hat is important” in a jury charge.7
The County points to other cases where
courts have used words like “substantial” to
define the degree to which unlawful
discrimination must have “played a role,”
but the word “motivating” itself defines the
degree, without the need for further
explanation. In its proposed charge, the
County sought to have the Court instruct
that motivating factor means that political
affiliation “played a substantial or important
part in the decision.” (Docket No. 53, at
19.). In its post-trial motion, the County
notes that this Court’s initial draft charge
contained this language, which mirrors the
language in Judge Sand’s Modern Federal
Jury Instructions. The County then suggests
that “[t]he Court inexplicably altered Judge
Sand’s instructions and imposed a lessened
burden of proof upon Plaintiff in its final
version of the charge.” (Def.’s Post-Trial
Memorandum, at 10-11.)

In the circumstances presented, the
district court’s use of the phrase
“substantial factor” rather than
“motivating
factor”
was
not
misleading and adequately informed
the jury of the law. The words
“substantial” and “motivating” are
reasonably interchangeable or at
least have considerable overlap.
While the phrase “motivating
factor” is perhaps a more precise
and more typical statement of the

7

Although not in the context of jury instructions, the
Second Circuit has repeated the “played a role”
language in analyzing discrimination claims. See,
e.g., Lamprox v. Banco Do Brasil, 538 F. Appx. 113
(2d Cir. 2013) (“[W]e find no evidence in the record
that would allow a reasonable juror to conclude that
either Lampros’s national origin as a non-Italian or
his previously bringing Pais’s complaint of national
origin discrimination to Monteiro’s attention played a
role in BdB’s decision to terminate his
employment.”); Jamlik v. Yale Univ., 362 F. Appx.
148, 150 (2d Cir. 2009) (“Yale’s explanations for the
pay disparity are not inconsistent, and Jamilik does
not present any other evidence to suggest that gender
discrimination played a role in the adverse
employment decision in question, as required to
establish a prima facie case under Title VII.”).

8

In describing the law (rather than jury instructions)
in First Amendment retaliation cases, the Second
Circuit also appears to use these terms
interchangeably, sometimes referring to a
“substantial or motivating factor,” Royal Crown Day
Care LLC v. Dep’t of Health and Mental Hygiene of
City of New York, 746 F.3d 538, 544 (2d Cir. 2014)
(quotations and citations omitted), or sometimes
simply referring only to a “motivating factor”
(without the term “substantial”), Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 382 (2d Cir. 2003) (quotations
and citations omitted).

14

noted that it has “consistently held that a
plaintiff in an employment discrimination
case need not prove that discrimination was
the sole motivating factor, the primary
motivating factor, or the real motivating
factor in the adverse employment action; she
need only prove that discrimination was a
motivating factor.” Olson v. New York, 315
F. App’x 361, 363 (2d Cir. 2009). The
Olson court then quoted the statement from
Owen regarding what is important to include
in a jury instruction, which again uses the
phrase “played a role” and has no reference
to the phrase “determinative influence.” Id.
In fact, the Olson court was concerned that,
when a court simply used “because of”
language rather than the term “motivating
factor” language to describe plaintiff’s
burden, “use of the phrase ‘because of’
without explanation could have been
confusing to the jury, as it could have
suggested to the jury that it could find for
plaintiff only if he proved that
discrimination was the sole or primary
reason he was fired.” Id. Thus, like Owen,
the Olson court makes clear that district
courts should avoid adding adjectives or
phrases which might suggest that
“motivating factor” means it was the sole or
primary reason for the adverse action. In
this Court’s view, a lay person could easily
misunderstand the term “determinative
influence” to mean plaintiff has the initial
burden of proving retaliation was a “but for”
cause.10 However, as both sides agree, in

standard for liability in ADEA cases,
the trial court’s use of “substantial
factor” adequately stated the law in
this case.
Id. at 139 (emphasis added) (citations
omitted).
In short, this Court’s decision with
respect to the language in the instruction
was to utilize verbatim what the Second
Circuit stated in Owen was important to
convey about the term “motivating factor” –
namely, that the impermissible factor “must
have played a role in the employer’s
decision” – without adding other less precise
adjectives, such as “substantial” or
“important,” which could only potentially
mislead the jury into believing that the
impermissible factor had to be the sole or
primary reason for the action. Similarly, the
County’s fallback position during the trial –
that is, that “motivating factor” should be
defined as “a motivating role” (Tr. at 805) –
was rejected by the Court because “played a
role in the decision” better defined the term
“motivating factor” (as was more consistent
with Owen) than simply defining a
“motivating factor” as a “motivating role,”
the circularity of which is obvious.
Although the County never requested in
its proposed jury instruction that this Court
use the phrase “determinative influence,” the
County now suggests in its post-trial brief
that the Court should have utilized that
phrase.9 However, the Second Circuit has

10

In fact, in Ostrowski v. Atlantic Mut. Ins. Co., 968
F.2d 171, 176 (2d Cir. 1992), the district court
equated “determinative” and “but for” by stating:
“[i]n order for the age discrimination issue to be a
determinative factor, it has to be a factor but for
which the plaintiff would have been fired. In order
for it to be a determinative factor, you must find
really that if it had not been for this, he would not
have been fired.” The Second Circuit held that the
Court’s instruction impermissibly transformed a
“mixed motive” case into a “pretext” case. Id. at 185

9

During the charge conference, the County argued
that the Court should add the word “substantial” (so
that it would read “substantial and motivating
factor”), or use the word “motivating” a second time
(so that a “motivating factor” would be defined as a
“motivating role”). (Tr. 802-05.) The term
“determinative influence” was not part of the
County’s written proposed charge, and was never
suggested in the charge conference.

15

2d 655 (S.D.N.Y. 1998), which was a preGross ADEA case that involved a “mixed
motive” instruction. In rejecting the City’s
argument that the Court should have used
the term “determinative factor” rather than
“motivating factor,” the court explained:

First Amendment retaliation cases, plaintiff
has the burden of proving only that
retaliation was motivating factor, and then
the burden shifts to the defendant to show
that the adverse action would have occurred
anyway – and, thus, was not the “but for”
cause. See, e.g. Greene, 660 F.3d at 978-79
(“A ‘motivating factor,’ as the term is used
in the cases, is a sufficient condition, but
never a necessary one; if it were necessary,
and thus a ‘but for’ cause (as in ‘but for X,
Y would not have occurred’: X is a
necessary condition of Y), the inquiry into
causation would be at an end. . . . If the
plaintiff satisfies his burden of proving a
‘motivating factor’ in the sense just defined
(which we think is what the cases mean by
the term), the defendant is entitled to rebut
with evidence that the plaintiff’s exercise of
his constitutional rights though a sufficient
condition was not a necessary condition of
his being rehired; the harm (the refusal to
rehire) would have occurred anyway.”). In
other words, the “determinative influence”
language in Hazen could have confused the
jury with respect to the plaintiff’s initial
burden under the Mt. Healthy standard for
First Amendment retaliation claims, or led
them to believe that the factor had to be the
sole or primary factor.

This instruction was well within the
parameters established by the Second
Circuit. For example, in Renz v. Grey
Advertising, Inc., 135 F.3d 217, 222
(2d Cir. 1997), the court wrote that
an ADEA plaintiff is entitled to
prevail if she demonstrates that her
age played a “motivating role in, or
contributed to, the employer’s
decision.” The court also noted that
in a mixed motive case, such as this
one, an “adverse employment action
creates liability when discrimination
substantially motivates the action,
even though some legitimate factor
might also contribute to the
employer’s decision.” Id. at 222 n.3.
The Second Circuit held specifically
that “an ADEA plaintiff need not
prove that age was the only or even
the principal reason for the
complained-of employment action.”
Id. at 222. Given this holding,
defendant’s reliance on a “but for”
analysis and its contention that
plaintiffs had to prove that age was
“determinative” must be rejected.

This issue was discussed by Judge Stein
in Courtney v. City of New York, 20 F. Supp.

Id. at 659-60 (footnote
(citations omitted).

(“These formulations, together with the emphasis on
the term ‘determinative’ factor, and the trial court’s
view expressed in the robing room that there can be
no such thing as ‘a little bit of retaliation or a
substantial amount of retaliation,’ indicate that the
court treated the present matter as simply a pretext
case. As Price Waterhouse pointed out, a pretext
case is one in which there was either unlawful
motivation or lawful motivation, but not both; a
mixed-motives case is one in which there were both
lawful and unlawful motivations. We reject the
district court’s view that a claim of retaliation
necessarily presents only a pretext case and cannot be
a mixed-motives case.”) (citations omitted).

omitted)

Similarly, in Zaken v. Boerer, 964 F.2d
1319, 1324-25 (2d Cir. 1992), which
involved
a
claim
of
pregnancy
discrimination, the Second Circuit held that
the district court erred in defining
motivating role as “what prompts a person
to act.” The Court explained that “[t]he trial
court’s definition of motivating role as ‘what
16

Mulvey, intentionally discriminated against
him by retaliating against him on the basis
of his political association in violation of his
constitutional rights under the First
Amendment” (Tr. 948) (emphasis added);
(2) the jury was instructed that “the First
Amendment prohibits an official from
discriminating or retaliating against public
employees simply because the public
employee exercises his First Amendment
right to form political associations with
which the official may disagree” (Tr. 94849) (emphasis added); (3) the jury was
instructed that plaintiff must prove that
“plaintiff’s political association was a
motivating factor in the decision by Mr.
Mulvey or Mr. Suozzi to take adverse action
against the plaintiff” (Tr. 949) (emphasis
added); (4) the jury was further instructed
that “plaintiff’s political association was a
motivating factor in the defendant’s decision
to take adverse action if it played a role in
the decision” (Tr. 950) (emphasis added);
(5) the jury was also instructed that “if one
of those reasons was plaintiff’s political
association, and if that reason played a role
in the decision by Suozzi or Mulvey to take
action against the plaintiff, then plaintiff has
satisfied the third element” (Tr. 950)
(emphasis added). Finally, the verdict sheet
once again highlighted the need for the
impermissible factor to have motivated the
decision by asking the question in this
manner: “Did plaintiff prove, by a
preponderance of the evidence, his claim
that the County of Nassau terminated him
based on his political association, in
violation of plaintiff’s rights under the First
Amendment?”
(ECF No. 76, at 2)
(emphasis added).
The jury answered,
“Yes.” Then the jury, with respect to the
affirmative defense under Mt. Healthy, was
asked: “Did the County of Nassau prove, by
a preponderance of the evidence, that it
would have terminated plaintiff on the same
day even if his political association had

prompts a person to act’ was wrong insofar
as it failed to explain to the jury that plaintiff
need not show pregnancy was the primary
reason for defendant’s decision to discharge
plaintiff and deny her a bonus, but only that
it was a factor relied upon by defendant.”
Id. at 1325. The Court then suggested what
the instruction should have been:
In short, the jury should have been
instructed that if it found plaintiff
had
demonstrated
by
a
preponderance of the evidence that
her pregnancy played a part in
defendant’s decision, then it should
find for plaintiff unless defendant
demonstrated by a preponderance of
the evidence that the same decision
would have been made even if
pregnancy had not been one of the
factors contributing to it.
Id. (emphasis added).
Although the County attempts to parse
the Court’s “motivating factor” instruction
to suggest that it eliminated the legal
requirement the impermissible factor had to
motivate the decision, the Court’s
instruction did no such thing. Moreover, the
jury charge must be reviewed in its entirety,
not in isolation.
United States v.
Shamsideen, 511 F.3d 340, 345 (2d Cir.
2008). Here, regardless of what particular
words or adjectives that the County would
have preferred in the instruction (and which
would have only confused the jury and
potentially misled the jury into a heightened
burden), there can be no doubt from the
charge as a whole that the jury understood
that plaintiff had to prove that his political
association
was
a
motivating,
or
contributing, factor in his termination. For
example, (1) the jury was instructed that
plaintiff’s claim was that “the County of
Nassau, through Mr. Suozzi and Mr.
17

never changed?” (Id.) As to the question, the
jury answered, “No.”

Assistant Commissioner, had he not been
fired on November 13, 2009.

In short, the Court’ language as a whole,
with the references to “motivating factor,”
as well as the verdict sheet itself, properly
defined the degree of influence required for
a finding of liability, in the same language
used by the Second Circuit in Owen and

In the absence of directly controlling
authority, the Court turns first to the
common law of torts, which is the baseline
for determining damage awards in § 1983
cases. See Memphis Community Sch. Dist.
v. Stachura, 477 U.S. 299, 306 (1986).
However, “the common law is not an
infallible guide for the development of §
1983.” Townes v. City of New York, 176
F.3d 138, 148 (2d Cir. 1999) (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144,
232 (1970) (Brennan, J., concurring in part
and dissenting in part)). In Townes, the
Second Circuit noted that common-law tort
rules may conflict with the principles
inherent in § 1983. Id. That is because the
primary purpose of § 1983 “is to deter state
actors from using the badge of their
authority to deprive individuals of their
federally guaranteed rights and to provide
relief to victims if such deterrence fails.”
Wyatt v. Cole, 504 U.S. 158, 161 (1992)
(citing Carey v. Piphus, 435 U.S. 247, 25457 (1978)). “In cases where common law
and § 1983 principles conflict, ‘the task will
be the more difficult one of adapting
common-law rules of damages to provide
fair compensation for injuries caused by the
deprivation of a constitutional right.’”
Townes, 176 F.3d at 148 (quoting Carey,
435 U.S. at 258).

other cases.

Accordingly, because there was no error
in the instruction, the County’s Rule 59
motion is denied.
C. Back Pay
At trial, both sides agreed that the award
of back pay is an equitable remedy for the
Court’s consideration, and the Court
requested briefing on the question whether
to award back pay, and how much. (Tr. at
806, 973-78.) Plaintiff argues that he is
entitled to an award of back pay from the
date of his unlawful termination on
November 13, 2009, until the date of
judgment in 2014, while defendants argue
that any back pay award should run only
until the change of administration on
January 1, 2010, because plaintiff would not
have been retained in the Mangano
administration.
There is a lack of directly analogous
authority with respect to the circumstances
of this case. In particular, neither party nor
the Court has identified a case addressing
who carries the burden, and to what extent,
of proving entitlement to back pay in an
employment discrimination action brought
under § 1983, as opposed to the other
federal employment discrimination statutes,
under which the burdens are more clearly
defined. Here, each party argues that the
other was required to prove how long
plaintiff would have remained as an

The Court’s duty to reconcile the
common law with the remedial purpose of
§ 1983 is of particular importance with
respect to back pay, an equitable remedy11
11

Although it has not been frequently discussed in
opinions by the courts of this circuit, the Court shares
the view of other courts that a back pay award under
§ 1983 is equitable. See Morgenstern v. Cnty. of
Nassau, No. CV 04-58 (ARL), 2009 WL 5103158, at
*4-6 (E.D.N.Y. Dec. 15, 2009) (noting the equitable
nature of back pay under § 1983); Wylucki v.

18

about which the Court has “traditional
discretion to locate ‘a just result’ in light of
the circumstances peculiar to the case.”
Albermarle Paper Co. v. Moody, 422 U.S.
405, 424 (1975) (citation omitted). The
award of back pay should be as complete as
possible, Cohen v. West Haven Bd. of Police
Comm’rs, 638 F.2d 496, 504 (2d Cir. 1980),
but “‘it remains a cardinal, albeit frequently
unarticulated assumption, that a back pay
remedy must be sufficiently tailored to
expunge only the actual, and not merely
speculative, consequences of the unfair labor
practices.’” E.E.O.C. v. Joint Apprenticeship
Comm. of Joint Indus. Bd. of Elec. Indus.,
186 F.3d 110, 124 (2d Cir. 1998) (quoting
Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 900
(1984)). “The purpose of a back pay award
is . . . not to punish an employer or provide a
windfall to the employee.” Meling v. St.
Francis Coll., 3 F. Supp. 2d 267, 275
(E.D.N.Y. 1998) (internal citations omitted).

plaintiff seeks here: back pay from the date
of injury to the date of judgment. Under
Title VII, that has been called the “ordinary
rule,” Joint Apprenticeship Comm., 186 F.3d
at 124, and such awards are also common in
ADEA cases. See Kirsch v. Fleet Street,
Ltd., 148 F.3d 149, 167 (2d Cir. 1998) (“A
plaintiff who has proven a discharge in
violation of the ADEA is, as a general
matter, entitled to backpay from the date of
discharge until the date of judgment.”).
However, even in these analogous statutory
contexts, “[b]ecause the termination date for
backpay awards . . . is peculiarly dependent
upon each case’s unique facts . . . courts do
not apply the backpay limitation rotely.”
Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d
274, 302 (S.D.N.Y. 2008) (quoting Thorne
v. City of El Segundo, 802 F.2d 1131, 1136
n.4 (9th Cir. 1986)). On the contrary, the
Supreme Court has emphasized that courts
sitting in equity should avoid “mechanical
rules” and maintain “awareness of the fact
that specific circumstances, often hard to
predict in advance, could warrant special
treatment in an appropriate case.” Holland
v. Florida, 560 U.S. 631, 650 (2010).

In many cases, courts attempting to
locate a just result have awarded what

Barberio, No. 99-CV-1036SR, 2001 WL 34013676,
at *6 (W.D.N.Y. 2001) (discussing courts’
“discretionary authority to fashion equitable remedies
for a violation of 42 U.S.C. § 1983”); Flores v. Local
25, Int’l Bd. of Elec. Workers, AFL-CIO, 407 F.
Supp. 218, 220-21 (E.D.N.Y. 1976) (considering
back pay to be an equitable remedy under 42 U.S.C.
§ 1981); see also Russell v. Northrop Grumman
Corp., 921 F. Supp. 143, 151-53 (E.D.N.Y. 1996)
(discussing considerations involved in determining
whether claims for lost wages are legal or equitable
in nature). Moreover, the Court does not detect any
tension between the equitable nature of a back pay
award under § 1983 and statements in Carey and
other cases concerning the compensatory nature of
damages under that statute. “[T]he fact that cases in
many contexts attach the ‘equitable’ label to back pay
in no way contradicts the basic conclusion that back
pay is still essentially a compensatory device. In fact,
many of the same courts that classify back pay as
equitable in one part of an opinion affirm its
compensatory nature in the next.” Hubbard v.
Adm’r, E.P.A., 982 F.2d 531, 537 (D.C. Cir. 1992).

The specific circumstances of this case
are different than those found in the Title
VII and ADEA cases in which back pay
awards ran to the date of judgment. Those
cases tend to involve plaintiffs in predictably
long-term jobs, where it is clear that an
award of back pay should roughly equal the
salary that the plaintiff would have earned
absent the unlawful firing. See, e.g., Joint
Apprenticeship Comm., 186 F.3d at 114
(union applicants); Cohen, 638 F.3d at 498
(police recruits). Here, in contrast, plaintiff
was already retired when he took the job as
Assistant Commissioner, which he received
after heavy campaigning for Suozzi. (Tr. at
125-36.) There is no evidence which makes
the Assistant Commissioner position
analogous to a long-term corporate or union
19

As noted above, neither the party nor the
Court has identified a directly analogous
case discussing the burden of proof. In
another First Amendment employment
discrimination case, the Second Circuit
seemed to suggest that the defendant bore
the burden of limiting back pay damages
based upon evidence that it would have fired
the plaintiff for a lawful reason at some time
after the unlawful firing. Sagendorf-Teal v.
Cnty. of Rensselaer, 100 F.3d 270, 274 (2d
Cir. 1996) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989) and
McKennon v. Nashville Banner Publ’g Co.,
513 U.S. 352 (1995)). However, SagendorfTeal primarily addressed liability, not
damages, and its comment about back pay
was dicta.

job—in contrast, many previous Assistant
Commissioners had been volunteers given
the position in an honorary status. (See id.
at 530.) Although plaintiff was salaried, his
future in the position was highly precarious
at the time he was fired. To begin with,
Mulvey wanted to terminate plaintiff as soon
as he became Commissioner in 2007
because he believed that plaintiff lacked
integrity (id. at 518), and plaintiff was
protected from termination only by Suozzi,
who limited plaintiff’s duties and isolated
him from the police department in order to
appease Mulvey (id. at 535-38). Moreover,
the pressure to terminate plaintiff’s position
mounted throughout 2009 for purely nondiscriminatory reasons: he was an ordinance
employee with minimal duties in a
department perceived to be “top heavy,” and
his name repeatedly appeared on a list of
positions that could be terminated without
compromising the police mission. (Id. at
474-77; 650-54.)
Ryan and Mulvey
specifically recommended plaintiff for
termination several times, and although
Suozzi chose not to act on the
recommendation before November 2009,
there is overwhelming evidence that
plaintiff’s employment would not have
continued in Suozzi’s absence.

In an opinion just three years later that
did address back pay, the Second Circuit
held that a plaintiff should have been
permitted to argue to the jury that she would
have survived a reduction in force which
occurred after her unlawful firing. See
Banks v. Travelers Cos., 180 F.3d 358, 36163 (2d Cir. 1999). In Banks, the trial judge
ruled as a matter of law that the plaintiff was
ineligible for damages after the reduction in
force, and thus the Second Circuit’s opinion
concerned the propriety of that ruling, not
the question of which party bore the burden
of proving the length of time for which the
plaintiff should be awarded back pay.
However, the Court’s comment immediately
after discussing what “Banks was entitled to
argue”—that “[a] jury would be permitted
but not necessarily required to accept that
inference”—suggests that, in the Second
Circuit’s view, the plaintiff bore the burden.
Id.

When such a question arises with respect
to a back pay award, courts have varied in
their approach to the assignment of the
burden of proof, and the parties dispute it
here. Plaintiff argues that the “ordinary
rule” of back pay through the date of
judgment applicable in other employment
discrimination
contexts
applies
presumptively here, and that defendants bear
the burden to prove that it should not.
Defendants argue that plaintiff bore the
burden to prove his damages to a degree of
reasonable certainty. See Wallace v. Suffolk
Cnty. Police Dep’t, 809 F. Supp. 2d 73, 81
(E.D.N.Y. 2011).

In the absence of clear guidance from
the Second Circuit, this Court concludes
that, in the specific circumstances of this
case and in the exercise of its equitable
20

overcome this evidence with proof that he
would have been retained, despite the odds
against it. In other words, assigning the
ultimate burden to plaintiff strikes an
appropriate balance between the commonlaw rule that a plaintiff must prove damages
and the remedial purpose of § 1983 because
the unlawful retaliation in this case occurred
at a moment when plaintiff was far more
likely than almost every other member of
the NCPD to be fired for other, lawful
reasons. Simply presuming that plaintiff
would continue his employment through the
date of judgment, absent any showing by
plaintiff, would result in a damages award
that is “merely speculative or contingent,”
Wallace, 809 F. Supp. 2d at 88, and would
resemble adherence to a mechanical rule
rather than “special treatment in an
appropriate case.” Holland, 560 U.S. at 650.

discretion to make plaintiff whole without
providing a windfall, plaintiff was required
to prove his entitlement to back pay beyond
the change in administration from Suozzi to
Mangano. As noted above, the Court’s
starting point in assessing damages under §
1983 actions is the common law of torts.
See Stachura, 477 U.S. at 306. “Plaintiffs
must prove every element of a Section 1983
claim by a preponderance of the evidence,
‘including those elements relating to
damages.’” Wallace, 809 F. Supp. 2d at 80.
Proof of damages may not be “contingent,
uncertain, or speculative,” and when
assessing such proof, the common-law
concept of foreseeability remains a primary
consideration. Id. at 80-81. Even if a
defendant’s action was the but-for cause of a
particular injury, the defendant will not be
held liable if his conduct was not the
proximate cause; in other words, § 1983
defendants remain responsible only for
damages that are reasonable foreseeable. Id.

Having heard the case at trial and
thorough reviewed the record of trial, the
Court concludes that plaintiff has not carried
his burden to show that he would have been
retained past December 31, 2009, much less
to the date of judgment. In fact, no witness
testified about the likelihood of his retention
in the Mangano administration. Although
plaintiff points to evidence that his position
was included in the NCPD budget for 2010,
that budget was created when Suozzi
remained county executive. Thus, the
evidence that plaintiff’s position survived
under Suozzi is not persuasive concerning
its future under Mangano, particularly
because Mangano chose to retain Mulvey,
who had wanted to terminate plaintiff for
several years (for reasons unrelated to First
Amendment activities), and was only
prevented from doing so by Suozzi.12

A crucial distinction between this case
and the after-acquired evidence cases under
Title VII and the ADEA, and similar cases
involving plaintiffs entering or leaving longterm careers, is that it was never foreseeable
that this plaintiff would continue as a
salaried employee of the NCPD for much
longer than he did.
The uncertainty
surrounding plaintiff’s future developed
long before he was ever terminated and has
been apparent in this case since its early
stages. Thus, unlike other plaintiffs who
might not be expected to disprove their
employers’ post-hoc attempts to reduce a
back pay award, this plaintiff’s entire
claim—the precursor to his request for back
pay—arose in a context where he was being
recommended for termination because of his
minimal duties and the budgetary need to
cut jobs. Under these circumstances, in
order to recover back pay through the date
of judgment, plaintiff was required to

12

The County has also relied on the fact that
Mangano chose not to re-hire plaintiff when plaintiff
asked him to do so, arguing that Mangano’s decision
was an act of “independent judgment” that breaks the

21

In sum, the Court agrees with the
County’s argument in a broader sense: that
plaintiff is not entitled to back pay beyond
the date of the change in administration,
simply because it was not foreseeable that
plaintiff would have kept his position. The
Court views the change of administration as
a superseding cause, which is part of the
common-law doctrine of proximate cause,
see In re State Street Bank & Trust Co.
Fixed Income Funds Inv. Litig., 772 F. Supp.
2d 519, 541 (S.D.N.Y. 2011), an element on
which plaintiff bears the burden of proof,
including in § 1983 cases.13 Higazy v.

Templeton, 505 F.3d 161, 180 (2d Cir. 2007)
(Jacobs, C.J. concurring); Townes, 176 F.3d
at 146-47.
Here, the change in
administration occurred for reasons having
nothing to do with plaintiff’s termination.
Plaintiff himself testified that, when
Mangano was elected, he was under
pressure from both the county legislature
and the Nassau Interim Finance Authority to
cut costs, and that he had to proceed
cautiously as a new county executive. (Tr.
at 275.) Moreover, Mulvey who stayed on
as Police Commissioner for a period of time
when Mangano became County Executive,
had expressed his desire to terminate
plaintiff going back to 2007 for reasons
unrelated to First Amendment activity, and
was prevented from doing so by Suozzi.
Although plaintiff supported Mangano, there
is no evidence that Mangano would have
protected plaintiff in the same way Suozzi
had. It is, therefore, unforeseeable that a
non-civil service Assistant Commissioner
position, which had historically not even
been a salaried position, would have
remained where its occupant had been
stripped of most responsibilities, placed on a
list of people whose jobs could be
eliminated without impacting the police
mission, and actually recommended for
termination multiple times by the Deputy
County Executive for Public Safety and the
NCPD Commissioner, the latter of whom
continued to serve in the Mangano
administration.

causal chain between plaintiff’s unlawful termination
and any ongoing entitlement to back pay. See
Wallace, 809 F. Supp. 2d at 80. However, “[s]uch an
intervening act must be a new and independent force,
which was not set in motion by the defendant’s own
wrongful acts.” Zahrey v. City of New York, No. 984546 (DCP)(JCF), 2009 WL 1024261, at *4
(S.D.N.Y. Apr. 15, 2009) (internal quotation marks
and citations omitted).
Plaintiff argues that
Mangano’s decision cannot be characterized as truly
“new and independent,” since it was influenced, if
not “set in motion,” by the fact that plaintiff had
already been fired. Plaintiff contends that, in a
constrained budget environment, it was simply easier
for Mangano not to re-hire plaintiff than it would
have been to choose him for firing in the first place.
However, even assuming arguendo that Mangano’s
decision to not re-hire does not amount to a
superseding cause, there is overwhelming evidence
(as noted above) that plaintiff would have been
terminated by Mulvey as soon as Suozzi left office
because Mulvey had been seeking to terminate
plaintiff since 2007 (for reasons unrelated to the First
Amendment) and Suozzi was the only person
preventing that termination. There is no evidence,
and no rational basis to conclude, that Mangano
would have prevented Mulvey from terminating
plaintiff (especially given the constrained budget
environment).
13
Plaintiff argues that the County bore the burden to
prove a superseding cause, but the case he cites from
this district discussed a burden of production, not the
ultimate burden of proof on the question of proximate
cause. See Ramey v. Dist. 141, Int’l Ass’n of Mach.
& Aerospace Workers, 473 F. Supp. 2d 365, 370
(E.D.N.Y. 2007). Plaintiff also relies on BCS Servs.,
Inc. v. Heartwood 88, LLC, 637 F.3d 750, 757 (7th

Cir. 2011), but in that case it is unclear whether the
Seventh Circuit meant to impose an ultimate burden
of persuasion or simply a burden of production on the
defendant. In any event, even if the County bore a
burden here, it carried its burden by presenting the
evidence discussed herein concerning plaintiff’s
history with Mulvey and Suozzi and the tenuousness
of plaintiff’s position in 2009, and plaintiff has not
overcome that evidence with proof that he would
have kept his job.

22

Limiting plaintiff’s back pay award to
the end of the Suozzi administration is
consistent with the compensatory, nonpunitive purpose of damage awards under
§ 1983. Carey, 435 U.S. at 255 (“[T]he
basic purpose of a § 1983 damages award
should be to compensate persons for
injuries.”). As the Court has discussed,
compensating plaintiff requires a close
examination of his particular circumstances
in order to locate a just result, and his
circumstances are quite different from cases
where employment would ordinarily
continue uninterrupted. Plaintiff had already
retired once and been out of police work for
ten years. Then, even after he returned to the
NCPD, his position changed quite
dramatically: in 2007, he was given both a
$9,000 raise and less work to do. That level
of compensation for plaintiff’s minimal
duties would not have continued but for
Suozzi’s unwillingness to fire plaintiff, both
when Mulvey asked him to in 2007, and
when Ryan recommended it multiple times
throughout 2009. Thus, the Court concludes
that awarding any compensation for back
pay beyond Suozzi’s term in office would be
a windfall for plaintiff that would not serve
the compensatory purpose of damages under
§ 1983, and would instead simply punish the
County by forcing it to pay four years’
worth of additional salary to an employee
who was deemed expendable even within
the administration that hired him, and which
has since left office.14

Accordingly, the award of back pay is
limited to the end of the Suozzi
administration on December 31, 2009, and
plaintiff’s motion for reinstatement or front
pay is denied.
D. Compensatory Damages
Defendants also argue that the jury’s
award of $150,000 in compensatory
damages was excessive, and requires either
a new trial on damages or remittitur of the
award.
“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. Cnty. 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)). “A jury’s award of
damages may not be overturned unless it is
so excessive that it shocks the conscience of
the court.” Id. (internal quotation marks and
citations omitted).
The $150,000 award here does not shock
the Court’s conscience. Even defendants
concede that the general range of awards in

above, it is unclear what the position required.
Although the position’s occupant (plaintiff) happened
to receive protection from Suozzi, the evidence does
not support a conclusion that such protection was in
any way related to the functions or performance of
plaintiff’s job, which did not meet the Vezzetti
factors. In fact, Suozzi reconstituted plaintiff’s job in
order appease Mulvey, leaving plaintiff powerless,
isolated, and distinct from policymakers in other
cases. (Tr. at 621 (Mulvey referring to plaintiff’s job
as one “created by the county executive.”).) The
County was unable to show that this reconstituted
position met the Elrod-Branti test, but that failure of
proof does not affect the Court’s conclusion that
plaintiff would not foreseeably have remained in the
position once Suozzi left office.

14

Finally, although the Court has emphasized
Suozzi’s protection of plaintiff in the discussion of
the back pay award, there is a clear distinction
between this form of political protection and the
requirements of the Elrod-Branti test, which
determines whether “party affiliation is an
appropriate requirement for the effective performance
of the public office involved.” 445 U.S. at 518.
There is no evidence that the “public office
involved,” the Assistant Commissioner of NCPD,
required a particular party affiliation. As is discussed

23

excessive, particularly in light of plaintiff’s
testimony concerning the emotional and
physical toll of his firing. (See, e.g., Tr. at
278 (“Other than what I just described . . .
ongoing anxiety . . . . I haven’t had a decent
night’s sleep since that happened. I wake up
during the night. And I still am asked by
folks all this time later why I was
terminated.”); 279 (describing “intense
headaches that I never suffered my entire
life” and “an upset stomach a couple of
times a week”).) In the Court’s view, the
jury’s award was not conscience-shocking
or excessive, but rather was reasonably
based upon plaintiff’s testimony regarding
his emotional distress.

similar cases extends at least to $125,000,
see Def. Mem. at 13 (citing Olsen, 615 F.
Supp. 2d at 46), and the Second Circuit
affirmed the award of up to $125,000 in
“mental anguish damages” where there was
no evidence of “physical sequelae or
professional treatment.” Meacham v. Knolls
Atomic Power Lab., 381 F.3d 56, 77 (2d Cir.
2004) (applying less deferential New York
standard of review); see also Lore v. City of
Syracuse, 670 F.2d 127, 179 (2d Cir. 2012).
Thus, the award in this case is quite close to
what is often approved, and $125,000 is not
a hard cap in cases of this type. In fact,
courts in this district recently approved
awards of $175,000 and $200,000 for
emotional distress where, as here, there was
no medical evidence and the damages were
supported solely by the plaintiff’s testimony.
See, e.g., Tretola v. Cnty. of Nassau, 14 F.
Supp. 3d 58, 80-84
(E.D.N.Y. 2014)
(remitting emotional distress award to
$175,000 where plaintiff testified that he
was humiliated and ostracized by friends in
law enforcement, and had trouble sleeping
and stomach pains); Wallace v. Suffolk
Cnty. Police Dep’t, No. 04-CV-2599
(RRM)(WDW), 2010 WL 3835882, at *8-9
(E.D.N.Y. Sept. 24, 2010) (declining to
remit $200,000 award where plaintiff
testified that he suffered from sleepless
nights, became tense, agitated, worried, and
more quick-tempered, and the condition
continued through the time of trial); see also
Jowers v. DME Interactive Holdings, Inc.,
No. 00 Civ. 4753 LTS KNF, 2006 WL
1408671, at *3 (S.D.N.Y. 2006) (“When
determining damages for mental anguish, a
plaintiff’s recovery is not preconditioned on
whether
she
underwent
treatment,
psychiatric or otherwise.”).

Therefore, defendants’ motion for
remittitur or a new trial on damages is
denied.
III. CONCLUSION
Under the particular circumstances of
this case and in the exercise of its equitable
discretion, the Court awards plaintiff back
pay from November 13, 2009, to December
31, 2009, the time period when it was
foreseeable that he would remain employed
as Assistant Commissioner.
Plaintiff’s
motion for reinstatement and front pay are
denied.
The County’s renewed Rule 50 motion is
denied because leave to amend the answer to
include the policymaker defense was
properly denied in the Court’s discretion
and, in any event, the County did not
demonstrate that the defense applies to
plaintiff’s position. The County’s separate
motions concerning the jury instructions and
compensatory damages are also denied,
because the jury charge defined “motivating
factor” in the same way as the Second
Circuit has done, and because the $150,000
compensatory damage award does not shock

Having borne in mind, as it must, this
case’s “unique set of facts and
circumstances,” Scala, 985 F.2d at 684, the
Court concludes that $150,000 is not
24

the Court’s conscience in this case and was
not excessive.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 31, 2015
Central Islip, NY
***
Plaintiff is represented by Rick Ostrove and
Matthew Brian Weinick of Leeds Brown
Law, P.C., One Old Country Road, Suite
347, Carle Place, NY, 11514. Defendants
are represented by Mark S. Mancher, Marc
S. Wenger, and Daniel Sergio GomezSanchez of Jackson Lewis LLP, 58 S
Service Road, Suite 410, Melville, NY
11747.

25