Meadors et al v. Ulster County et al
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendant's # 138 motion for judgement as a matter of law with respect to Plaintiff's Title VII claim is DENIED. The Court further ORDERS that Defendant's # 138 motion for judgment as a matter of law with respect to Plaintiff's § 1983 claim is GRANTED. The Court further ORDERS that Defendant's# 138 motion for a new trial with respect to Plaintiff's § 1983 claim is DENIED as moot. The Court f urther ORDERS that Defendant's # 138 motion for a new trial with respect to Plaintiff's Title VII claim is GRANTED unless Plaintiff agrees to a remittitur to $75,000. Within ten days of the date of this Memorandum-Decision and Order, Plaintiff shall notify the Court and opposing counsel in writing whether she will elect to accept a remittitur that reduces the jury's award to $75,000. If Plaintiff accepts the remittitur, the Court will enter judgment accordingly. If Pla intiff rejects the remittitur, the Court will set a date for a new trial regarding Plaintiff's Title VII claim. The Court further ORDERS that Plaintiffs' # 106 and # 125 motions for attorney's fees and costs are DENIED without prejudice to renew, if appropriate, after the Court enters a final judgment in this case. Signed by Senior Judge Frederick J. Scullin, Jr. on 8/24/2017. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANN MARIE LEGG, NANCY REYES, and
ULSTER COUNTY; PAUL J. VANBLARCUM,
in his official capacity as Sheriff of the County of
Ulster and individually; RICHARD BOCKELMANN,
in his official capacity as Sheriff of the County of Ulster
and individually; BRADFORD EBEL, in his official
capacity as Superintendent of the Ulster County Jail and
individually; and RAY ACEVEDO, in his official capacity
as Deputy Superintendent of Ulster County Jail and
KLAPROTH LAW PLLC
406 5th Street, NW
Washington, D.C. 20001
Attorneys for Plaintiffs
BRENDAN J. KLAPROTH, ESQ.
RANNI LAW FIRM
148 North Main Street
Florida, New York 10921
Attorneys for Plaintiffs
JOSEPH J. RANNI, ESQ.
BERGSTEIN & ULRICH, LLP
5 Paradies Lane
New Paltz, New York 12561
Attorneys for Plaintiffs
STEPHEN BERGSTEIN, ESQ.
ROEMER WALLENS GOLD &
13 Columbia Circle
Albany, New York 12203
Attorneys for Defendants
EARL T. REDDING, ESQ.
MATTHEW J. KELLY, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
Pending before the Court is Defendant Ulster County's motion for judgment as a matter
of law or, in the alternative, for a new trial with regard to Plaintiff Watson's hostile work
environment claims. See Dkt. No. 138. 1
Plaintiff Watson and three other female corrections officers at the Ulster County Jail filed
this lawsuit on May 11, 2009, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"),
New York State Human Rights Law ("NYSHRL"), and 42 U.S.C. § 1983.
On January 7, 2011, Defendants filed a motion for summary judgment, arguing that
Plaintiffs' claims failed for various reasons. See Dkt. No. 29. In a Memorandum-Decision and
Defendant has effectively filed two briefs regarding this motion. See Dkt. Nos. 121, 138.
However, the Court has only considered Defendant's most recent brief, see Dkt. No. 138, filed in
accordance with the Court's May 31, 2015 Text Order.
Order dated November 21, 2013, the Court dismissed several of Plaintiffs' claims. However, the
Court determined that a trial was necessary to adjudicate, among others, Plaintiff Watson's Title
VII hostile work environment claim against Defendant County and her § 1983 hostile work
environment claim against Defendant County. See generally Dkt. No. 55.
After Plaintiffs presented their case-in-chief, Defendants moved for a directed verdict on
several of Plaintiffs' claims, including Plaintiff Watson's hostile work environment claims.
Defendants' counsel generally argued that "the proof ha[d] been insufficient to set forth the prima
facie case[.]" See Dkt. No. 137-8 at 602:16-17. The Court reserved its decision on the hostile
work environment claims. The jury then returned a verdict on August 19, 2014, finding no cause
of action for all of Plaintiffs' remaining claims with the exception of Plaintiff Watson's Title VII
and § 1983 hostile work environment claims. See Dkt. No. 98. The jury awarded Plaintiff
Watson $200,000 in compensatory damages for her Title VII claim and $200,000 in
compensatory damages for her § 1983 claim. See id.
After the Court excused the jury, the Court discussed post-trial motions with counsel.
The Court averred that it would give the parties two weeks after the date that the trial record was
prepared to file their post-trial motions. See Dkt. No. 166 at 71. The Court entered judgment on
August 20, 2014. See Dkt. No. 102.
Defendant 2 originally filed its motion for judgment as a matter of law or, in the
alternative, for a new trial regarding Plaintiff's hostile work environment claims on November 5,
2014. See Dkt. No. 121. However, pursuant to Rule 50(b) and Rule 59(b), these motions had to
be filed no later than 28 days after the entry of judgment. See Fed. R. Civ. P. 50(b), 59(b). The
The term "Defendant" when used alone refers exclusively to Ulster County, and the term
"Plaintiff" when used alone refers exclusively to Ms. Watson.
Court noted that, "[g]enerally, a court may extend the time to act for good cause; however, Rule
6(b)(2) of the Federal Rules of Civil Procedure explicitly provides that '[a] court must not
extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).'" See
Dkt. No. 122 at 2 (quoting Fed. R. Civ. P. 6(b)(2) (emphasis added)). Thus, on November 6,
2014, before Plaintiff responded to Defendant's motion, the Court denied Defendant's motion as
untimely because it was filed beyond the 28-day window.
On the same day, November 6, 2014, Defendant filed a letter motion asking the Court to
reconsider its decision to deny its Rule 50/59 motion as untimely. See Dkt. No. 123. For
support, Defendant argued that the Court had previously granted its request to delay filing posttrial motions until two-weeks after the parties had received the trial record. See id. Further,
Defendant's attorney stated that he had received the trial transcript on October 22, 2014, and filed
the motion less than two-weeks after that. See id.
The Court denied Defendant's motion for reconsideration. See Dkt. No. 124. In doing
so, the Court reasoned that "Rule 6(b)(2) renders the deadlines for filing motions pursuant to
Rule 50(b) and Rule 59(b) jurisdictional. Therefore, the Court lacked the authority to extend
those deadlines." See id. at 2 (citations omitted). Thus, "[t]he fact that the Court instructed
Defendants that they had two weeks from the time they received the trial transcript to file their
post trial motions did not change the fact that, under Rules 50(b) and 59(b), Defendants were
required to file any such motions 'no later than 28 days after the entry of judgment . . . .'" See
id. (quoting Fed. R. Civ. P. 50(b)).
Defendant appealed this Court's ruling to the Second Circuit. See Dkt. No. 127. In
reversing this Court's decision, the Second Circuit first explained that "[a] time limitation is
jurisdictional only if it is prescribed by statute." Legg v. Ulster Cty., 820 F.3d 67, 78 (2d Cir.
2016). However, "procedural rules which have no statutory analogue, although 'mandatory' in
the sense that a party may insist upon their enforcement, do not affect the power of the courts
and are subject to waiver or equitable exception." Id. at 78-79 (citation omitted). The Second
Circuit concluded that Rule 6(b)(2) was not jurisdictional. See id. at 79 (citations omitted).
Accordingly, the Second Circuit held that, "even though the district court was without authority
to grant an extension under Rule 6(b)(2), it retained the power to consider whether the plaintiffs
had waived compliance with the rule or whether an equitable exception applied." Id. (citation
omitted). Thus, the Second Circuit remanded the case to this Court with instructions to consider
"whether the plaintiffs waived objection to the court's improper grant of an extension of time or
whether an equitable exception to the prohibition of such extensions applied on the facts of this
After reviewing the Second Circuit's decision, this Court held a conference with counsel
and directed the parties to submit briefs regarding the waiver/equitable exception issue and the
merits of the underlying motion. The parties did so, see Dkt. Nos. 136, 138; and each filed a
reply brief, see Dkt. Nos. 170, 172.
With respect to waiver, the important consideration is axiomatically whether the
opposing party timely objected to the motion. See Art Attacks Ink, LLC v. MGA Entm't Inc., 581
F.3d 1138, 1143 (9th Cir. 2009) (stating that the plaintiff "never objected to the timeliness of [the
defendant's] Rule 50(b) motion for summary judgment before the district court[; a]ccordingly,
[the plaintiff] has forfeited its untimeliness objection"); see also Dill v. Gen. Am. Life Ins. Co.,
525 F.3d 612, 618 (8th Cir. 2008) (stating that the timeliness requirements in Rule 50(b) and 6(b)
"may be forfeited if they are not timely raised" (citations omitted)). Therefore, the Court must
consider "whether [Plaintiff] timely raised the untimeliness of [Defendant]'s Rule 50(b) [and
Rule 59] motion[s]. If [s]he did, [s]he is 'assure[d] relief.''' Dill, 525 F.3d at 618-19 (quoting
Eberhart, 546 U.S. at 19, 126 S. Ct. 403). On the other hand, if Plaintiff "'wait[ed] too long to
raise the point,' . . . as [Defendant] asserts, the defense was forfeited. . . ." Id. (quoting Kontrick,
540 U.S. at 456, 124 S. Ct. 906); see also Wilburn v. Robinson, 480 F.3d 1140, 1147 (D.C. Cir.
2007) (stating that "[a] party indisputably forfeits a timeliness objection based on a claimprocessing rule if he raises the issue after the court has issued a merits decision"). Indisputably,
Plaintiff is objecting to Defendant's untimely motion for the first time in this filing. Thus, the
Court must determine whether Plaintiff, having waited until now to object, has waived her
The common principle in the above-cited cases is that whether a party has waived its
objection to the timeliness of an opposing party's motion turns on whether that party has objected
before the court rules on the underlying motion. See Dill, 525 F.3d at 618; see also Nat'l
Ecological Found. v. Alexander, 496 F.3d 466, 476 (6th Cir. 2007) (finding that the party
forfeited its timeliness argument because it raised that argument for the first time on appeal).
Similarly, in Advanced Bodycare, the court held that the defendant had waived its right to object
to an untimely Rule 50/59 motion because the defendant had failed to do so until after the district
court issued a decision disposing of the motion. See Advanced Bodycare Sols., LLC v. Thione
Int'l, Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010). In this case, the Court dismissed
Defendant's Rule 50 and Rule 59 motion before Plaintiff objected; thus, it would follow that
Plaintiff waived her right to object to Defendant's untimely motion. 3 See, e.g, Knox v.
Countrywide Bank, 673 F. App'x 31, 33 (2d Cir. 2016) (summary order) (finding that the
defendant had waived its untimeliness argument because it did not make any such argument).
Admittedly, this case is in a unique procedural posture. It is unlike Dill because Plaintiff
never had an opportunity to object in her opposition papers to Defendant's original motion. It is
also unlike Advanced Bodycare because the Court did not rule on the merits of the motion but
rather dismissed it on timeliness grounds before Plaintiff could respond. However, based on the
circumstances of this case, the Court finds that Plaintiff constructively waived her right to object
as soon as the Court issued an Order dismissing the motion (regardless of whether she had a
chance to do so). See e.g., Advanced Bodycare, 615 F.3d at 1359. Accordingly, the Court will
consider Defendant's motion. 4
Defendant's Rule 50 and Rule 59 motions
1. Standard of review
In considering a motion for judgment as a matter of law, a court "'must draw all
reasonable inferences in favor of the non moving party, and it may not make credibility
Plaintiff argues, generally, that, because the Court never ruled on the merits of Defendant's
motion but instead disposed of it on procedural grounds, she never waived her timeliness
objection. However, a clearer cut-off point is simply whether the court has rendered a decision
on the underlying motion, regardless of the reason for its disposition.
Arguably, finding that Plaintiff waived her objection to the untimely filing is a harsh result in
this case because she was never afforded an opportunity to object. However, the Court will not
speculate on whether Plaintiff would have so objected had she been given a chance to do so.
Moreover, finding in Plaintiff's favor would produce an equally harsh result because Defendant
detrimentally relied on the Court's representation that it had two weeks after it received the trial
transcript to file its post-trial motions. Thus, on balance, the appropriate outcome in this case is
for the Court to consider the motion's merits.
determinations or weigh the evidence.'. . ." Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir.
2007) (quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed.
2d 105 (2000) (emphasis [added])). "'Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'"
Id. (quotation omitted). Moreover, a court "must disregard all evidence favorable to the moving
party that the jury is not required to believe." Id. (quotation omitted). In sum, a court may grant
a motion for judgment as a matter of law "'only if it can conclude that, with credibility
assessments made against the moving party and all inferences drawn against the moving party, a
reasonable juror would have been compelled to accept the view of the moving party.'" Id. at 37071 (quoting Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993) (emphasis added)). Accordingly, a
court must not set aside a judgment unless
"(1) there is such a complete absence of evidence supporting the verdict that the
jury's findings could only have been the result of sheer surmise and conjecture, or
(2) there is such an overwhelming amount of evidence in favor of the movant that
reasonable and fair minded [persons] could not arrive at a verdict against [it]."
Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir. 2004) (quotation omitted).
Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure provides that "[t]he court may,
on motion, grant a new trial on all or some of the issues – and to any party – as follows: (A) after
a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in
federal court[.]" Fed. R. Civ. P. 59(a)(1)(A). As a general matter, "[a] motion for a new trial
should be granted when, in the opinion of the district court, 'the jury has reached a seriously
erroneous result or . . . the verdict is a miscarriage of justice.'" Song v. Ives Labs., Inc., 957 F.2d
1041, 1047 (2d Cir. 1992) (quotation and other citations omitted). A court may grant a new trial,
"therefore, when the jury's verdict is against the weight of the evidence." DLC Mgmt. Corp. v.
Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (citations omitted).
The standards governing a Rule 59 motion for a new trial on the ground that the verdict
was against the weight of the evidence differs in two important ways from the standards
governing a Rule 50 motion for judgment as a matter of law. "Unlike judgment as a matter of
law, a new trial may be granted even if there is substantial evidence supporting the jury's
verdict." Id. Additionally, a court "is free to weigh the evidence . . ., and need not view it in the
light most favorable to the verdict winner." See id. (citation omitted). Nonetheless, a court
should only grant a Rule 59 motion when the jury's verdict is "'egregious."' Id. (citation
omitted). "Accordingly, a court should rarely disturb a jury's evaluation of a witness's
credibility." Id. (citations omitted).
2. Hostile work environment -- Title VII and § 1983 5
a. Plaintiff's hostile work environment
"'[T]o establish a hostile work environment claim under Title VII [or § 1983], a plaintiff
must produce enough evidence to show that "the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment."'" Rivera v. Rochester
Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (quotation and footnote omitted).
In that regard, a plaintiff must show "both 'objective and subjective elements: the misconduct
shown must be "severe or pervasive enough to create an objectively hostile or abusive work
Although the standards for whether a hostile work environment exists are the same for claims
pursuant to Title VII and § 1983, see Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006), the
rules regarding whether such an environment may be imputed to the employer differ markedly
under Title VII and § 1983. Thus, the following discussion will first consider whether a hostile
work environment exists and then whether it may be imputed to Defendant under both Title VII
and § 1983.
environment," and the victim must also subjectively perceive that environment to be abusive.'"
Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (quotation omitted). Furthermore, when
evaluating a hostile work environment claim, courts "'examin[e] the totality of the circumstances,
including: the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with the victim's [job] performance.'" Rivera, 743 F.3d at 20 (quoting Hayut v. State Univ. of
N.Y., 352 F.3d 733, 745 (2d Cir. 2003)). "'As a general rule, incidents must be more than
"episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."'"
Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (quoting Alfano, 294 F.3d at 374 (quoting
Perry, 115 F.3d at 149)).
In Terry, the Second Circuit advised that,
[w]hile the standard for establishing a hostile work environment is high, we have
repeatedly cautioned against setting the bar too high, noting that "while a mild,
isolated incident does not make a work environment hostile, the test is whether
'the harassment is of such quality or quantity that a reasonable employee would
find the conditions of her employment altered for the worse.'" . . . The
environment need not be "unendurable" or "intolerable." Nor must the victim's
"psychological well-being" be damaged. . . . "'In short, the fact that the law
requires harassment to be severe or pervasive before it can be actionable does not
mean that employers are free from liability in all but the most egregious cases.'" . .
Id. (internal quotations omitted).
Furthermore, Terry explicitly instructed that a plaintiff need not show that each incident on its
own was severe, because "'a work environment may be actionable if the conduct there is either
so severe or so pervasive as to alter the working conditions of a reasonable employee.'" Id. at
149 (quoting Richardson, 180 F.3d at 440). To that extent, the complained of conduct need not
"be both severe and pervasive to be actionable under a hostile work environment theory[.]" Id.
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With these standard in mind, the Court's first task is to lay-out the factual basis for
Plaintiff's claims as described in her trial testimony.
Magazines and screensavers. Plaintiff stated that, "[f]rom the day that I started working
in the jail, pornography, magazines -- Playboy, Hustler, Maxim -- they were all over the jail."
See Dkt. No. 137-8 at 547:22-24. Furthermore, Plaintiff testified that "[t]here were magazines in
the drawers that were being looked at, there were screen savers on these supervisors' computers
in their offices[.]" See id. at 546:7-9. Specifically, Plaintiff testified that "Corporal Statenburg
[who was] in charge of the in-take department had a screen saver of a woman with just a black
sash going across her chest and her vagina area. Corporal Wranovics also had a screen saver of a
half-naked woman on his computer in his own office." See id. at 549:9-13. Moreover, Divorl
"would take [pornographic] magazines out and as he looked through them, he would comment
on the women in those magazines. Talking about their breasts, what he would like to do with
them." See id. at 552:25-553:1-3. Plaintiff testified that Divorl did this "on more than one
occasion." See id. at 553:4. Finally, Plaintiff testified that, although supervisors in the jail at one
time removed the magazines, they would return. See id. at 562.
Sexual comments. Plaintiff testified that, "[o]n one occasion, Officer Hedrick would
make reference to the size of my chest[.]" See id. at 546:16-19. Moreover, she stated that other
officers "would make references to my butt, they would make references to my chest and what
they would like to do sexually." See id. at 549:4-6.
Divorl. Plaintiff testified that, in 2005, 6 when she started to work in-take she expressed
to Corporal Ferro and others that she "couldn't work with [Divorl], he made me feel very
Defendant makes a cursory argument that the Court cannot consider Divorl's 2005 conduct
because it occurred beyond Title VII's 300-day statute of limitations. To the contrary, Plaintiff
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uncomfortable the way he would look at me, the way he would watch me, and I asked and I
expressed many times please don't do that. I cannot work with him." See id. at 550:1-5.
Furthermore, she testified that, during training in 2005, Divorl "would come up behind me, put
his hand around my -- around my chair and have his head right next to mine, breathing down my
neck continuously and he would come up behind me all the time." See id. at 550:7-11. Plaintiff
asserted that she "asked him to stop, it didn't stop. I said something to Corporal Ferro and he
said he talked to [Divorl] and he said that he was training and he needed to watch you[.]" See id.
at 550:11-14. Moreover, in February 2007, Plaintiff again reiterated to co-workers that she did
not want to work alone with Divorl. See id. at 557. In addition, Plaintiff described the following
interaction that took place in October 2007:
Divorl brought in a chair, a massaging chair. He asked me if I wanted to sit in
that chair and I said no. So he sat in the chair. As he sat in the chair, he kept
moaning and he kept saying, "Oh, I can feel my balls vibrating." At that point I
got up and I left the in-take area because I couldn't be with him.
See id. at 550:18-23.
Plaintiff testified that she reported this interaction to Corporal Toolan who told Sergeant Polacco
who then brought it to Lieutenant Becker. See id. at 551. Plaintiff then had a meeting with
Lieutenant Becker, Sergeant Polacco, and Divorl. See id. She described the meeting as follows:
contends "[c]laims for a hostile work environment . . . may properly include acts outside the 300day period '[p]rovided that an act contributing to the claim occurs within the filing period[.]'"
Trinidad v. N.Y. City Dep't of Correction, 423 F. Supp. 2d 151, 165 (S.D.N.Y. 2006) (quotation
and other citations omitted). As the Court previously discussed, "[a] plaintiff, . . . may base her
hostile work environment claim on events outside the limitations period as long as (1) the acts
occurring before the 300-day period expired are 'part of the same actionable hostile work
environment practice,' and (2) at least one act contributing to the claim occurs within the
limitations period." See Dkt. No. 55 at 6-7 (quoting [Natl. R.R. Passenger Corp. v. Morgan, 536
U.S. 101,] 120 [(2002)]). The Court finds that the 2005 incidents are part of the same actionable
hostile work environment as the events that took place during the limitations period; and,
therefore, it will consider the 2005 events when deciding whether a hostile work environment
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Lieutenant Becker asked me what happened, I told him the story, at which point
he handed me a letter and he asked me -- he said, "What do you want me to do
with him? Do you want him fired?" I said, "I -- I can't do that. I don't want him
fired, I don't want any repercussions for his wife and his child. No, I don't want
him fired but I can't do that. I don't have the power to do that." He had a letter
already drafted on his desk and said, "So this matter is resolved? You don't want
him fired?" I really didn't think I had a choice. They're all sitting there. He had
me in a room by myself. I had nobody else with me. I didn't know what I was
going into. I had no idea. The letter was already done. So I signed the letter.
See id. at 551:12-25.
On cross-examination, Plaintiff later explained that she felt "intimidated" at this meeting. See id.
at 558:14, 19; 567:11, 23. Plaintiff testified that she left the meeting crying. See id. at 568.
After this meeting, "on rare occasions" Plaintiff would have to work with Divorl until he was
eventually taken off in-take because of an argument with another officer. See id. at 552.
According to Plaintiff, no one ever followed up with her after her meeting with Lieutenant
Becker. See id.
Plaintiff's mental state. Plaintiff testified that she found "the comments, the magazines,
the physical conduct" offensive. See id. at 554:1-4. Moreover, Plaintiff testified that, after she
began to work with Divorl "five nights a week, [she] began to withdraw from [her] life, [her]
children. [She] began having marital issues because [she] couldn't talk to [her] husband. [She]
became very depressed, very anxious, and [she] had a hard time going to -- day-to-day life and
[she] hated coming to work." See id. at 554:10-15.
In addition to Plaintiff's testimony, former-Plaintiffs Reyes and Legg corroborated
Plaintiff's account regarding the pornography and sexually explicit screen savers. See id. at 10001; 505-10.
Viewing the totality of the evidence, the jury could have fairly concluded that Plaintiff
was consistently exposed to offensive pornographic materials and screensavers as well as
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inappropriate comments describing these images. The pervasiveness of the illicit material in the
jail, although insufficient in and of itself to establish a hostile work environment, counsels in
favor of finding that a hostile work environment existed. Furthermore, Plaintiff was subjected to
several sexually offensive encounters with Divorl. First, Plaintiff testified that Divorl would
comment about her physical features in a suggestive way. Second, Plaintiff had to hear Divorl
describe the pornographic images that he was viewing in front of her. Finally, Divorl
commented that he "could feel his balls vibrating" while seated on a massage chair. These
comments and actions have obvious sexual overtones and are both objectively and subjectively
offensive. Furthermore, Plaintiff complained that Divorl came up behind her and breathed down
her neck and would always stare at her and make her feel very uncomfortable. Although these
incidents are not obviously sexually based, the Court may still consider them when deciding
whether Plaintiff suffered a hostile work environment.
Defendant argues, in essence, that, because former-Plaintiffs Reyes and Legg failed to
obtain a favorable jury verdict, the jury must have concluded that the pornographic magazines
and screensavers did not contribute to a hostile work environment. However, Plaintiff presented
additional and different evidence from which the jury could have concluded that Plaintiff, but not
former-Plaintiffs Legg and Reyes, suffered from a hostile work environment. In that regard,
Plaintiff was the only person who had to suffer Divorl's conduct, and she also had to deal with an
intimidating meeting after she complained about Divorl's massage chair comments. 7 The sum
Defendant argues that courts have rejected the argument that "'a failure adequately to remediate
sexual harassment itself constitutes an act that may contribute to a hostile work environment.'"
See Dkt. No. 138 at 24 (quoting Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712,
724 (2d Cir. 2010)). However, the jury could have considered the meeting, not as a failure to
mitigate the sexual harassment, but rather as an attempt to strong-arm Plaintiff into rejecting the
option to move forward with formal charges and forcing her to confront her harasser in an unsafe
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and substance of Plaintiff's evidence was simply more substantial than that of former-Plaintiffs
Legg and Reyes.
Moreover, "[t]he Court's task on a Rule 50 motion is not to examine different aspects of
the jury's verdict to determine whether they can be logically reconciled with one another." In re
Vivendi Universal, S.A. Sec. Litig., 765 F. Supp. 2d 512, 546 (S.D.N.Y. 2011), aff'd sub nom. In
re Vivendi, S.A. Sec. Litig., 838 F.3d 223 (2d Cir. 2016). Instead, the court "is to look at the trial
evidence and assess whether that evidence was sufficient to support the verdict." Id. (citing Fed.
R. Civ. P. 50(a) ("If 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, the court may . . . grant a motion for judgment as a matter of law. . . .")) (other
citation omitted). Thus, to the extent that Defendant asserts that the verdict was inconsistent, this
argument cannot form the basis for the granting of judgment as a matter of law. Based on these
well-established standards governing such motions, the Court denies Defendant's motion for
judgment as a matter of law because Plaintiff presented sufficient evidence to support the jury's
Unlike Defendant's motion for judgement as a matter of law, a court may grant "'a new
trial . . . even if there is substantial evidence supporting the jury's verdict.'" DLC Mgmt. Corp.,
163 F.3d at 134. Additionally, a court "is free to weigh the evidence . . ., and need not view it in
the light most favorable to the verdict winner." Id. (citation omitted). Nonetheless, a court
should only grant a Rule 59 "motion when the jury's verdict is 'egregious."' Id. (quotation
Plaintiff clearly presented sufficient evidence from which a reasonable juror could have
concluded that Plaintiff suffered a hostile work environment. In other words, it cannot be said
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that the jury's verdict was "egregious." Therefore, for many of the same reasons as stated above,
the Court finds that there is no persuasive reason to grant a new trial with respect to whether
Plaintiff suffered a hostile work environment.
Establishing that a hostile work environment exists, however, is only the first step in
determining whether the defendant is liable. The plaintiff must also show that there is reason to
impute the existence of the hostile work environment to the defendant. See Vance v. Ball State
Univ., 133 S. Ct. 2434, 2439 (2013); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978).
b. Imputing the conduct to the employer – Title VII
"Where the harassment is attributed to a supervisor with immediate or successively
higher authority over the employee, a court looks first to whether the supervisor's behavior
'culminate[d] in a tangible employment action' against the employee[.]" Petrosino v. Bell Atl.,
385 F.3d 210, 225 (2d Cir. 2004) (quotation omitted). If so, "'the employer will, ipso facto, be
vicariously liable[.]'" Id. (quotation omitted). However, "'when the harassment is attributable to
a coworker, rather than a supervisor, . . . the employer will be held liable only for its own
negligence.'" Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (quoting Distasio v. Perkin
Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998)). "The Court analyzes whether an employer's
remedial actions were sufficient based on the totality of the circumstances." Smith v. Town of
Hempstead Dep't of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 454 (E.D.N.Y. 2011).
(citation omitted). In this case, the harassing conduct was attributable to Plaintiff's co-workers,
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not her supervisors. 8 Thus, the Court must consider only whether Defendant's remedial actions
As the Court instructed the jury, "plaintiff must prove by a preponderance of the evidence
that the Defendant County failed to provide a reasonable avenue for her complaint or knew, or in
the exercise of reasonable cause [sic] should have known, about the hostile work environment
and yet failed to take appropriate legal action." See Dkt. No. 137-8 at 716:19-25. Before
considering whether Defendant's response was appropriate, it is important to review Defendant's
sexual harassment policy. 9
The policy describes sexual harassment, in pertinent part, as "unwelcome sexual
advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when
. . . such conduct has the purpose or effect of unreasonably interfering with an individual's work
performance or creating an intimidating, hostile, or offensive working environment." See Dkt.
No. 137-1 at 2. Upon receiving a complaint, the internal affairs officer is supposed to
"substantiate the complaint" and "determine if [the] victim is willing to settle the matter
informally." See id. at 3. Regardless of whether the victim determines to handle the complaint
formally or informally, a subsequent review is required. See id. Furthermore, Ulster County's
specific policy provides that "[a]ll complaints will be treated seriously and will be investigated
promptly." See id. at 4. Moreover, the policy provides that "[a]n attempt to resolve the issue
between the involved parties may be made in appropriate cases." See id. In 2006, Ulster
County's policy was updated to explain that "[a]ll information provided by complain[ants] of
Although Plaintiff alleges that several Corporals had explicit screensavers on their computer
screens, there is no evidence that these individuals were "empowered by the employer to take
tangible employment actions against the victim," Vance, 133 S. Ct. at 2439; thus, they do not
qualify as supervisors for the purpose of Plaintiff's Title VII claims.
There are two relevant policies: the Sherriff's policy and Ulster County's policy. See Dkt. No.
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harassment, and the investigations that follow, will be handled with the utmost discretion
possible under the circumstances." See id. at 7. The investigation is intended to include
"questions to the complainant, the alleged harasser, and any witnesses, recognizing that complete
confidentially may not be possible." See id. After a decision has been made, it must be
communicated promptly to the impacted parties. See id.
Moving to the factual basis of Plaintiff's claim, there are three groups of facts that the
Court should consider separately when determining whether the conduct should be imputed to
Defendant. First, there were the 2005 allegations regarding Divorl's conduct during training.
Second, there were the general complaints regarding the pornographic magazines and
screensavers. Finally, there were Divorl's 2007 comments involving the massage chair.
As described above, Plaintiff complained that, in 2005, Divorl would come up from
behind her, breath down her neck, and stare at her. Divorl's actions made Plaintiff feel
uncomfortable, and she complained to Corporal Ferro. Corporal Ferro, in turn, told Plaintiff that
Divorl was training and that he needed to watch her. Defendant did not rebut Plaintiff's account
of her 2005 complaints but rather argued that Divorl's actions in 2005 were not sexual in nature
and therefore would not have triggered compliance with the sexual harassment policy. Since
Corporal Ferro refused to take any action with regard to Divorl's 2005 actions, the Court finds
that sufficient evidence supported the jury's finding that Divorl's 2005 conduct may be imputed
to Defendant for purposes of Plaintiff's Title VII claim because Defendant was negligent in
responding to Plaintiff's complaints.
With regard to the pornographic magazines and screensavers, Plaintiff testified that as
she would complain about the explicit material it would be removed for a short period of time
but ultimately come back. Defendant presented no evidence that it sufficiently responded to the
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complaints of pornographic materials permeating the jail. Moreover, Plaintiff testified that it
was the corporals and shift supervisors who used the explicit screensavers. In light of these facts
as established at trial, the Court finds that the evidence supported the jury's finding that
Defendant failed to respond adequately to complaints that other employees and supervisors
viewed pornographic magazines and used explicit screen savers.
Finally, with regard to the massage chair comments, Plaintiff testified that, after she
complained to Corporal Toolan, he told Sergeant Polacco, who then relayed that information to
Lieutenant Becker. Lieutenant Becker held a meeting within a week of Plaintiff's complaint to
consider her issues with Divorl. Plaintiff's testimony paints a picture of a meeting where she was
intimidated into agreeing that she did not want to pursue a formal complaint and was not given
any option between having Divorl fired and proceeding informally. Furthermore, including
Divorl, the alleged harasser, in the meeting to address a sexual harassment complaint appears to
have directly contradicted Defendant's own policy of handling claims with "the utmost
discretion." See Dkt. No. 137-1 at 7. A fair review of Defendant's sexual harassment policy
shows that, even crediting Lieutenant Becker's testimony, he mishandled the complaint by
inviting Divorl to the meeting to discuss Plaintiff's sexual harassment complaint. Based on
Plaintiff's version of this meeting, the Court finds that the jury had a sufficient basis to determine
that Defendant failed to respond adequately to Plaintiff's complaint. Accordingly, the Court
denies Defendant's motion for judgment as a matter of law or, alternatively, for new trial on
Plaintiff's Title VII hostile work environment claim.
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c. Imputing the conduct to the employer – § 1983
Monell does not provide a separate cause of action against a municipal entity; rather, "it
extends liability to a municipal organization where that organization's [policy, practice, or
custom] led to an independent constitutional violation." Segal v. City of New York, 459 F.3d
207, 219 (2d Cir. 2006) (citations omitted). However, "[b]efore a municipality can be held liable
under § 1983, it must be shown to have been 'the moving force of the constitutional violation.'"
Carmichael v. City of New York, 34 F. Supp. 3d 252, 262-63 (E.D.N.Y. 2014) (quoting Monell v.
Dep't of Social Servs. of the City of New York, 436 U.S. 658, 690-91, 694, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978)) (other citation omitted). In that regard, "to prevail on a claim against a
municipality under section 1983 based on acts of a public official, a plaintiff is required to prove:
(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3)
causation; (4) damages; and (5) that an official policy of the municipality caused the
constitutional injury." Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citation
"'The fifth element reflects the notion that "a municipality may not be held liable under
§ 1983 solely because it employs a tortfeasor."'" Benacquista v. Spratt, 217 F. Supp. 3d 588, 599
(N.D.N.Y. 2016) (quotation omitted). Importantly, this element "can only be satisfied where a
plaintiff proves that a 'municipal policy of some nature caused a constitutional tort.'" Roe, 542
F.3d at 36 (quotation omitted). "'In other words, a municipality may not be found liable simply
because one of its employees committed a tort.'" Id. (quotation omitted).
The Second Circuit has stated that, although "'isolated acts . . . by non-policymaking
municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or
usage that would justify liability,' they can be the basis of liability if 'they were done pursuant to
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municipal policy, or were sufficiently widespread and persistent to support a finding that they
constituted a custom, policy, or usage' of which supervisors must have been aware.'" Matusick v.
Erie Cty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (quoting Jones v. Town of E. Haven, 691
F.3d 72, 81 (2d Cir.2012)). Moreover, "[a] custom or policy of harassment and other
discriminatory acts giving rise to hostile work environment claims can form the basis of section
1983 claims." Id. (citations omitted). Therefore, the question is "whether there is evidence that
'a policymaking official ordered or ratified the employee's actions -- either expressly or tacitly.'"
Id. (quotation omitted).
In this case, the Court instructed the jury that
[a] policy, custom or practice means a persistent, widespread or repetitious course
of conduct by public officials or employees that, although not authorized by or
which may be contrary to, written law or expressed municipal policy, that is so
consistent, pervasive and continuous that the Defendant County's policymakers
must have known about it, so that, by their acquiescence, such policy, practice or
custom has acquired a force of law without formal adoption of announcement.
See Dkt. No. 137-8 at 736:24-737:8.
In sum, to establish an official policy or custom sufficient enough to manifest Monell
liability, a plaintiff must show one of three things: "(1) the existence of an official policy, . . .; (2)
that an official with final policy-making authority took action or made a specific decision that
caused the deprivation, . . .; or (3) the deprivation was caused by an unlawful practice amongst
subordinate officials that was so widespread as to imply constructive acquiescence by policymaking officials, . . ." Rogers v. City of New Britain, 189 F. Supp. 3d 345, 358 (D. Conn. 2016)
(internal citations omitted).
Here, Plaintiff does not assert that there was an official policy that caused her
discrimination, nor does she assert that an official with final policy-making authority took any
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action that discriminated against her. Rather, Plaintiff relies exclusively on the argument that the
unlawful practice among subordinates was so widespread as to imply constructive acquiescence.
As with Plaintiff's Title VII claim, her § 1983 claim rests on three unique factual occurrences.
As recounted above, those include the general complaints regarding the pornographic magazines
and screensavers, the 2005 allegations regarding Divorl's conduct during training, and Divorl's
2007 comments involving the massage chair.
In the first instance, Plaintiff's testimony regarding the pervasiveness of the pornographic
material and use of explicit screen savers is sufficient enough that the jury could have concluded
that officials at the jail acquiesced to its existence. On the other hand, the evidence presented at
trial was insufficient to prove that Defendant had a policy that authorized Divorl's harassing
behavior. 10 Indeed, the testimony regarding Divorl's harassment focused on two relatively
isolated incidents occurring two years apart. Accordingly, viewing the working environment is
viewed in its entirety, the Court finds that, as a matter of law, Plaintiff's § 1983 hostile work
environment claim fails because she did not present sufficient evidence that the hostile work
environment was a result of a municipal policy or custom. Accordingly, the Court grants
Defendant's motion for judgment as a matter of law with regard to this claim.
Although not stating as much, Defendant is in substance asking the Court for a remittitur.
"'A remittitur, in effect, is a statement by the court that it is shocked by the jury's award of
Plaintiff argues that a municipal policy is evident because officials at the jail failed to respond
properly to her EEOC complaint. However, Plaintiff presented no evidence at all regarding any
alleged harassment occurring after she filed her complaint. Thus, this cannot be a basis to
conclude that there was a municipal policy.
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damages[.]'" Dotson v. City of Syracuse, No. 5:04-CV-1388, 2011 WL 817499, *13 (N.D.N.Y.
Mar. 2, 2011) (quoting Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990)). Upon granting a
motion for remittitur, "a plaintiff [must] choose between reduction of an excessive verdict and a
new trial." Earl v. Bouchard Transp. Co., Inc., 917 F.2d 1320, 1328 (2d Cir. 1990). In
considering a motion for remittitur, "a district court should remit the jury's award only to the
maximum amount that would be upheld by the district court as not excessive." Id. at 1330.
In this case, the jury awarded Plaintiff $200,000 in compensatory damages with respect
to her Title VII claim. During her testimony, Plaintiff offered the following description of her
emotional distress: "After Officer Divorl and I began working together five nights a week, I
began to withdraw from my life, my children. I began having marital issues because I couldn't
talk to my husband. I became very depressed, very anxious, and I had a hard time going to dayto-day life and I hated coming to work." See Dkt. No. 137-8 at 554:10-15. Moreover, Plaintiff
stated that she was prescribed anti-anxiety medication. According to Plaintiff, "[t]he medication
t[ook] [her] case out of the 'garden variety' category of emotional distress claims." See Dkt. No.
136 at 34.
As Plaintiff herself asserts, "'"[s]ignificant" emotional distress claims differ from the
garden-variety claims in that they are based on more substantial harm or more offensive conduct,
are sometimes supported by medical testimony and evidence, evidence of treatment by a
healthcare professional and/or medication, and testimony from other, corroborating witnesses."'"
MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d 546, 560 (S.D.N.Y. 2012) (quotation
omitted). Plaintiff, however, produced only vague testimony regarding her alleged emotional
distress. Importantly, there was no testimony from a medical professional or any other person to
corroborate Plaintiff's allegations. Nor did she establish that the medication she took was
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directly related to the hostile work environment she suffered. Thus, none of the quintessential
calling cards of a significant emotional distress claim are present in Plaintiff's case.
Furthermore, MacMillan presents a factual analogue to this case. In that case, the
plaintiff's only testimony regarding his emotional distress was that working with his boss was
"horrible," and his daughter provided some "marginally more descriptive testimony" that the
plaintiff "was always sad," "wasn't happy anymore" and "wasn't his same self." Id. at 561. The
MacMillan court concluded that "[s]uch evidence, at best, demonstrates 'garden variety'
emotional distress." Id. After a lengthy discussion of other garden variety emotional distress
cases, the court concluded that a new trial concerning damages would be ordered unless the
plaintiff agreed to remit his compensatory damage award from $125,000 to $30,000. See id. at
In garden variety cases, "the evidence usually is limited to the testimony of the plaintiff,
who describes the emotional distress in vague or conclusory terms, presents minimal or no
evidence of medical treatment, and offers little detail of the duration, severity, or consequences
of the condition." Reiter v. Metro. Transp. Auth. of N.Y., No. 01 CIV. 2762, 2003 WL
22271223, *9 (S.D.N.Y. Sept. 30, 2003) (citations omitted). Based on the sparse evidence
Plaintiff presented regarding her emotional distress, the Court concludes that Plaintiff's
emotional distress is properly classified as "garden variety."
The cases Plaintiff cites in support of her damages award are inapposite. First, she relies
on Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002), where the Second Circuit upheld a jury's
award of $400,000. See id. at 111. The court described the evidence presented as follows:
[p]laintiff submitted evidence of ongoing harassment by each defendant over a
five-year period. Phillips and her boyfriend testified in detail about her emotional
distress, physical illness, and the effects of defendants' conduct on her lifestyle
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and relationships. Phillips' co-workers testified about the deterioration they
observed in Phillips. Other less direct indicia of plaintiff's damages came from
the defendants themselves, who unapologetically described their treatment of
Id. at 111-12.
Plainly, the evidence in Phillips was quantitatively and qualitatively greater than what Plaintiff
presented in this case. Plaintiff recognizes as much but argues that, because the award was
issued more than a decade ago, the Court could consider inflation to conclude that her award is
reasonable in light of Phillips. See Dkt. No. 136 at 35 (citing DiSorbo v. Hoy, 343 F.3d 172, 185
(2d Cir. 2003)). Phillips, however, was not a garden variety case; therefore, Plaintiff's reliance
on Phillips is unavailing.
Even so, "a court is not required to remit a large non-economic damage award, even
where evidence of emotional damage consists solely of plaintiff's testimony." Mendez v.
Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp. 2d 575, 601 (S.D.N.Y. 2010) (citation
omitted). "However, when a court is convinced that the jury's award is entirely out of proportion
to the Plaintiff's injury, and was motivated by sympathy rather than by evidence of harm,
remittitur is the appropriate remedy." Id. (concluding that the jury felt sorry for the plaintiff and
thereby remitted the award of compensatory damages from $1,000,000 to $10,000).
In this case, Plaintiff only testified that she suffered emotional distress on account of
Divorl's conduct. She did not attribute any emotional distress to the pornographic magazines or
screensavers; nor did she testify that she suffered any emotional injury with respect to Divorl's
conduct in 2005. In sum, because the jury's award of $200,000 was clearly excessive, the Court
grants Defendant's motion for a new trial with respect to Plaintiff's Title VII claim unless
Plaintiff agrees to a remittitur reducing the award to $75,000.
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Having reviewed the entire file in this matter, the parties' submissions, and the applicable
law, and for the above stated reasons, the Court hereby
ORDERS that Defendant's motion for judgement as a matter of law with respect to
Plaintiff's Title VII claim, see Dkt. No. 138, is DENIED; and the Court further
ORDERS that Defendant's motion for judgment as a matter of law with respect to
Plaintiff's § 1983 claim, see Dkt. No. 138, is GRANTED; and the Court further
ORDERS that Defendant's motion for a new trial with respect to Plaintiff's § 1983 claim,
see Dkt. No. 138, is DENIED as moot; and the Court further
ORDERS that Defendant's motion for a new trial with respect to Plaintiff's Title VII
claim, see Dkt. No. 138, is GRANTED unless Plaintiff agrees to a remittitur to $75,000. Within
ten days of the date of this Memorandum-Decision and Order, Plaintiff shall notify the Court
and opposing counsel in writing whether she will elect to accept a remittitur that reduces the
jury's award to $75,000. If Plaintiff accepts the remittitur, the Court will enter judgment
accordingly. If Plaintiff rejects the remittitur, the Court will set a date for a new trial regarding
Plaintiff's Title VII claim; and the Court further
ORDERS that Plaintiffs' motions for attorney's fees and costs, see Dkt. Nos. 106, 125,
are DENIED without prejudice to renew, if appropriate, after the Court enters a final
judgment in this case.
IT IS SO ORDERED.
Dated: August 24, 2017
Syracuse, New York
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