Wierzbicki v. County of Rensselaer, New York et al

Filing 105

MEMORANDUM-DECISION AND ORDER: It is Ordered that 1. Defendants' # 96 Rule 58 Motion for a judgment according to the jury's specific answers, notwithstanding the general verdict, is DENIED; 2. Defendants' renewed Rule 50(b) motion fo r judgment as a matter of law is DENIED; 3. Defendants' motion to alter or amend the Judgment under Rule 59(e) is DENIED; 4. Defendants' motion for a new trial on the Title VII claim is DENIED; 5. Plaintiff may move for fees on or before Tuesday, March 24, 2020; and 6. Defendant may oppose plaintiff's motion for fees on or before Tuesday, April 7, 2020. Signed by Judge David N. Hurd on 3/9/2020. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------NELLIE A. PEREZ, as Administrator of the
Estate of Gerard Wierzbicki,
Plaintiff
-v-

1:14-CV-950

COUNTY OF RENSSELAER, NEW YORK,
Defendants.
----------------------------------APPEARANCES:

OF COUNSEL:

BOSMAN LAW FIRM, LLC
Attorneys for Plaintiff
3000 McConnellsville Road
Blossvale, New York 13308

AJ BOSMAN, ESQ.

NAPIERSKI, VANDENBURGH LAW FIRM
Attorneys for Defendant
296 Washington Avenue Extension
Albany, New York 12203

SHAWN F. BROUSSEAU, ESQ.
DIANE LUFKIN SCHILLING, ESQ.
THOMAS J. O'CONNOR, ESQ.

DAVID N. HURD
United States District Judge

MEMORANDUM-DECISION AND ORDER
Following a jury trial that began on January 14, 2020 and ended on January 17, 2020,
plaintiff Nellie A. Perez ("Perez" or "plaintiff") attained a verdict against defendant the County
of Rensselaer ("Rensselaer" or "the county") for a claim of gender discrimination under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII"). Dkt. 90, p. 3. The jury
assessed $130,000 in damages for that claim, despite its finding that the county had proven
that it would have made the same decision regardless of gender for at least one of the
several instances of discrimination that plaintiff alleged. Id. at 3, 5. The jury further found for
the county on plaintiff's alternative claim under 42 U.S.C. § 1983 ("§ 1983"). Id. at 4.

On January 31, 2020, Rensselaer moved to set aside the verdict. Dkt. 96. The crux of
the county's argument was that the jury's general verdict of damages was inconsistent with its
specific answer that the county had proven by a preponderance of the evidence that even if
gender "was a motivating factor in any of its decisions" that it "nevertheless would have made
the same decision even absent gender discrimination[.]" Dkt. 90, p. 3. After all, if a plaintiff
proves that discrimination was a motivating factor in a defendant's decision, but the
defendant proves that it would have made the same decision regardless of the impermissible
motivating factor, the plaintiff can receive declaratory relief, but not damages. Natofsky v.
City of New York, 921 F.3d 337, 347 (2d Cir. 2019), petition for cert. docketed, No. 19-732.
This principle is referred to as the "mixed-motive" defense. Id.
On February 19, 2020, a Memorandum-Decision and Order was inadvertently filed
before Rensselaer could exercise its right to reply to Perez's opposition to its motion.
Dkt. 100. The county duly objected, the February 19, 2020 filing was vacated, and the county
was granted leave to file a reply brief. Dkt. 101; 102. On March 4, 2020, the county
submitted their reply. Dkt. 103.
Broadly speaking, Rensselaer's reply does not meaningfully change the analysis in the
vacated Memorandum-Decision and Order, and that Order is therefore incorporated into this
decision in its entirety. Dkt. 100. One point that the county raises, however, merits further
discussion.
Essentially, Rensselaer argues that the mixed-motive defense and the burden of proof
in a § 1983 claim amount to the same determination: that the defendant would have made
the same decision regardless of whether there was an impermissible discriminating factor
that played a motivating role in its decision. Compare Natofsky, 921 F.3d at 347 (noting that
mixed-motive defense precludes damages in Title VII claim where defendant proves it would
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have made same decision regardless of impermissible discriminatory motive), with
Naumovski v. Norris, 934 F.3d 200, 214 (2d Cir. 2019) (noting that plaintiff must prove that
gender discrimination was a but-for cause of discriminatory employment action in § 1983
claim). Thus, the county argues that a finding of the mixed-motive defense and a verdict for
defendant on the § 1983 claim are "merely opposite sides of the same coin."
Of course, if an employer would have made the same employment decision even in
the absence of a discriminatory motive, by logical necessity that discriminatory motive could
not have been a but-for cause of the employment decision. The inverse is also true: if the
discriminatory motive was not a but-for cause of the employment action, then the employer
would obviously have made the same decision regardless of a discriminatory motive.
But in acknowledging that logical symmetry, Rensselaer glosses over an essential
component of the verdict: the burden of proof. The jury's finding for defendant on the § 1983
claim means that Perez failed to carry her burden that gender discrimination was a but-for
cause of any of the county's decisions not to promote her late husband, Gerard Wierzbicki
("Wierzbicki"), on the basis of gender. Naumovski, 934 F.3d at 214. The jury's finding for the
county on the mixed-motive defense on "any" of its several decisions not to promote
Wierzbicki means that there was at least one occasion on which the county carried its burden
of proving the mixed-motive defense. See Natofsky, 921 F.3d at 347. But neither finding
necessitates the logical leap that the defendant carried its burden on every, rather than any,
possible discriminatory act.
It is perfectly plausible that the jury decided that neither side carried its burden of
answering whether gender discrimination was a but-for cause for several of Rensselaer's
many decisions not to promote Wierzbicki, despite its finding that the county carried its
burden at least once. The jury, being properly instructed, could certainly have determined
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that damages were appropriate where the county did not carry its burden under the
mixed-motive defense, even if Perez failed to carry the same burden on her own § 1983
claim. In other words, although the mixed-motive defense and causation in a § 1983 claim
involve the same fundamental question of but-for causality, the jury could readily have found
for defendant on the latter but not the former because of the shifting burdens of proof.
In fact, that is precisely how the burden of proof is intended to work. Each party must
carry its burden to prevail, and the jury could plausibly have concluded that neither party did
so on the issue of but-for causation. There is thus a plausible reading of the verdict sheet
that is both logically and legally consistent with each specific question, and the award of
damages as a whole. See, e.g., Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 598
(2d Cir. 2001) (noting that vacation of judgment is only necessary where the jury's findings
cannot be harmonized).
By virtue of a plausibly harmonized interpretation of the verdict sheet the jury
committed no error, and certainly not a fundamental one. The arguments in Rensselaer's
motion are therefore both meritless and waived. Thus, the motion must be denied for the
reasons stated above and in the since-vacated Memorandum-Decision and Order dated
February 19, 2020. Dkt. 100.
Therefore, it is
ORDERED that
1. Defendants' Rule 58 motion for a judgment according to the jury's specific answers,
notwithstanding the general verdict, is DENIED;
2. Defendants' renewed Rule 50(b) motion for judgment as a matter of law is
DENIED;
3. Defendants' motion to alter or amend the Judgment under Rule 59(e) is DENIED;
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4. Defendants' motion for a new trial on the Title VII claim is DENIED;
5. Plaintiff may move for fees on or before Tuesday, March 24, 2020; and
6. Defendant may oppose plaintiff's motion for fees on or before Tuesday, April 7,
2020.
IT IS SO ORDERED.

Dated: March 9, 2020
Utica, New York.

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