Azkour v. Little Rest Twelve, Inc. et al

Filing 317

OPINION AND ORDER re: 298 FIRST MOTION for Judgment as a Matter of Law filed by Little Rest Twelve, Inc. Accordingly, for the reasons stated above, IT IS HEREBY ORDERED THAT Plaintiff's motion for judgment as a matter of law or, in the alternative, for a new trial, is DENIED, and Defendant's motion for judgment as a matter of law is DENIED as to back pay and GRANTED as to punitive damages. IT IS FURTHER ORDERED THAT Plaintiff has judgment against Defendant in the amount of $20,128.32, constituting post-termination back pay of $10,064.16, and liquidated damages under the FLSA in the same amount. (Signed by Judge Richard J. Sullivan on 2/11/2015) Copies Sent By Chambers. (mro)

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HICHAM AZKOUR,
Plaintiff,

No. 10-cv-4132 (RJS)
OPINION AND ORDER

-v-

LITTLE REST TWELVE,
Defendant.

RICHARD J. SULLIVAN, District Judge:
From July 21, 2014 to July 22, 2014, the Court presided over a jury trial with respect to
the damages sustained by Plaintiff Hicham Azkour in this Fair Labor Standards Act ("FLSA")
and New York Labor Law (''NYLL") case. At the conclusion of the trial, the jury returned a
verdict finding that Defendant Little Rest Twelve was liable for twelve weeks of Plaintiff's
unemployment; the jury also awarded Plaintiff $50,000 in punitive damages. Now before the
Court are (1) Plaintiff's renewed motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(b), or, in the alternative, for a new trial pursuant to Rule 59 (Doc.
Nos. 288, 297), and (2) Defendant's renewed motion for judgment as a matter of law under Rule
50(b) (Doc. No. 298-99). For the reasons set forth below, Plaintiff's motion is denied, and
Defendant's motion is granted in part and denied in part.
I. BACKGROUND

A. Facts
The Court assumes the parties' familiarity with the case. On May 19, 2010, Plaintiff
brought this action, alleging violations of the FLSA and NYLL, including, inter alia, claims for
unpaid overtime, failure to pay minimum wage, unjust enrichment, and retaliatory termination.

(Doc. No. 1.) On March 27, 2012, following Plaintiff's motion for summary judgment as to
liability, the Court fully adopted the Report and Recommendation (Doc. No. 91) of the
Honorable Kevin Nathaniel Fox, Magistrate Judge, recommending that the Court enter partial
summary judgment in favor of Plaintiff against Defendant on Plaintiff's FLSA and NYLL wage
and hour claims, NYLL spread-of-hours claim, FLSA and NYLL retaliation claims, and FLSA
and NYLL liquidated damages claims. (Doc. No. 98.) On March 26, 2014, the Court granted
Plaintiff partial summary judgment for damages, in the amounts of $9,795.94 on his wage and
hour claims and $6,776.84 on his retained tips claim, for a total award of $16,572.78. (Doc. No.
187.)

Additionally, after rejecting Defendant's assertions that punitive damages were not

available for an FLSA retaliation claim, the Court denied the parties' cross-motions for summary
judgment on the issues of back pay and punitive damages, finding that both were questions for
the jury to resolve at trial .1 (Id.} On July 21- 22, trial commenced on the issues of back pay and
punitive damages. After deliberating, the jury found for Plaintiff on both issues, finding that
twelve weeks of Plaintiff's unemployment were proximately caused by Defendant' s unlawful
termination of Plaintiff, and that Defendant was liable for $50,000 in punitive damages. (See
Doc. No. 279.}
On August 13, 2014, Plaintiff filed a motion for judgment as a matter oflaw pursuant to
Rule 50(b), or, in the alternative, for a new trial pursuant to Rule 59. (Doc. Nos. 287-89.) On

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The Court's March 26, 2014 Order granted Defendant's motion for summary judgment with
respect to back pay after September 7, 2011, finding that by that date, "Plaintiff's illness had
become serious enough that he moved into a homeless shelter for mentally ill adults." (Doc. No.
187 at 7.) However, based on Plaintiff's declaration that shelter assignments "are mostly random
and based on the availability of [beds]" (Doc. No. 200 ~ 22), on May 9, 2014, the Court granted
Plaintiff's motion for reconsideration on summary judgment for back pay post-dating September
7, 2011. (Doc. No. 210.) The Court thus determined that a jury would be "permitted to decide
whether Plaintiff was sufficiently mentally ill or not for the entire period from Plaintiffs firing to
the present."
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August 19, 2014, Plaintiff filed an "addendum" to the motions. (Doc. No. 297.) On September
5, 2014, Defendant filed a motion for judgment as a matter of law.

(Doc. Nos. 298-99.)

Plaintiff filed a response to Defendant's motion on September 18, 2014 (Doc. No. 302), and
Defendant responded to Plaintiff's motions on October 3, 2014 (Doc. No. 304).
B. Legal Standard
1. Rule 50(b)

"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 . . . resolve the issue against the party." Fed R. Civ. P. 50. In determining
whether there was a legally sufficient evidentiary basis for the jury's conclusion, the Court must
"defer[] to the jury's assessment of the evidence and all reasonable inferences the jurors could
draw from that evidence," and "may not itself weigh the credibility of witnesses or consider the
weight of the evidence." Melojfv. NY. Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001) (internal
quotation marks omitted). "A movant's burden in securing Rule 50 relief is particularly heavy
after the jury has deliberated in the case and actually returned its verdict." Cross v. NY. City

Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005). "Under such circumstances, the district court
may set aside the verdict only where there is such a complete absence of evidence supporting the
verdict that the jury's findings could only have been the result of sheer surmise and conjecture,
or there is such an overwhelming amount of evidence in favor of the movant that reasonable and
fair minded [persons] could not arrive at a verdict against him." Id. (citations, alterations, and
internal quotation marks omitted).
2. Rule 59
Federal Rule of Civil Procedure 59 provides that a Court may order a new trial "for any
reason for which a new trial has heretofore been granted in an action at law in federal court."
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Fed. R. Civ. P. 59(a)(l)(A). Granting a new trial is appropriate where ''the jury has reached a
seriously erroneous result or its verdict is a miscarriage of justice." Nimely v. City of NY., 414
F.3d 381, 392 (2d Cir. 2005) (internal quotation marks and citations omitted). "Unlike judgment
as a matter of law, a new trial may be granted even if there is substantial evidence supporting the
jury's verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it
in the light most favorable to the verdict winner." DLC Mgmt. Corp. v. Town ofHyde Park, 163
F.3d 124, 134 (2d Cir. 1998).
II. DISCUSSION

A. Plaintiff's Motions

In support of his motion for judgment as a matter oflaw or, in the alternative, for a new
trial, Plaintiff argues that (1) there was no evidence supporting the limitation of Defendant's
liability to 12 weeks of back pay; (2) the Court's instructions to the jury were legally deficient;
(3) the Court erroneously excluded certain evidence Plaintiff attempted to present and
erroneously admitted certain evidence presented by Defendant; (4) the Court should have
severed Plaintiff's claims and appointed a medical expert; (5) testimony of some of Defendant's
witnesses was unreliable and biased; (6) there was insufficient evidence that the restaurant closed
when Defendant asserted it closed; and (7) the amount of punitive damages awarded was
unreasonable and insufficient. These objections will be considered in turn.
1. Sufficiency of Evidence
Plaintiff first objects that the jury's verdict was ''the result of sheer surmise and
conjecture," and that the jury could not reasonably have concluded that only 12 weeks of
Plaintiff's unemployment was caused by Defendant. (Doc. No. 288 ("Plaintiffs Brief' or "PL
Br.") at 3.) He asserts that the jury's verdict was premised on a determination that Plaintiff was
suffering from mental illness, even though Defendant "did not present a scintilla of evidence"

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regarding Plaintiff's disability. (See id.; see also Doc. No. 297 ("Plaintiff's Supplementary
Brief' or "Pl. Supp. Br.") at 8-21.)
The Court declines to overturn the jury's determination that Defendant is liable for only
12 weeks of Plaintiff's unemployment. Contrary to Plaintiff's assertions, Plaintiff's inability to
work due to mental illness was not the only defense asserted by Defendant at trial; Defendant
also argued that Plaintiff did not reasonably attempt to mitigate his damages despite the
availability of similar work elsewhere. Having carefully reviewed the trial record, the Court
concludes that there was sufficient evidence to support each argument. Specifically, with respect
to Defendant's defense regarding Plaintiff's failure to mitigate, Defendant presented evidence
showing that Plaintiff was well-qualified to obtain employment as a busboy, and that there were
many jobs available for someone with those skills during the relevant time period. (See, e.g.,
Trial Transcript dated July 22, 2014 (Doc. No. 295 ("July 22 Tr.")) at 192:11-21; Trial
Transcript dated July 21, 2014 (Doc. No. 293 ("July 21 Tr.")) at 88:15-90:13.) From this, the
jury could reasonably have inferred that if Plaintiff had attempted to mitigate his damages, he
would have found a job within 12 weeks of unemployment. Additionally, with respect to
Defendant's assertion that Plaintiff's mental illness prevented him from working, Defendant
introduced statements previously made by Plaintiff in this very litigation and elsewhere in which
Plaintiff admitted to being mentally ill and disabled.

(See July 22 Tr. at 195:23-210:11.)

Indeed, in one of the court filings Defendant introduced, Plaintiff stated, "According to my
psychiatrist and psychotherapist, this serious mental impairment will last long before I will be
able to recover completely, which constitutes another impediment in finding and maintaining any
suitable employment. It is unclear when I will be able to find and maintain suitable employment
in the future." (July 22 Tr. at 199:14-19.) Accordingly, the Court finds that there was enough

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evidence in the record for the jury to conclude that Defendant was not responsible for more than
12 weeks of Plaintiff's unemployment.
2. Erroneous Jury Instructions
Plaintiff also argues that he is entitled to judgment as a matter of law or a new trial on the
basis of the instructions the Court read to the jury regarding mental illness. For the reasons that
follow, the Court concludes that the challenged jury instructions were not erroneous and that
Plaintiff is not entitled to a new trial on this basis.
a. ADA or SSA Standard
Plaintiff first argues that the Court mis-instructed the jury with respect to whether he was
disabled by failing to require the jury to rely on the definition of disability set forth in either the
Americans with Disabilities Act or the Social Security Act. (Pl. Br. at 9.) However, the issue
before the jury was not whether the Social Security Administration would find Plaintiff to be
disabled or whether he would have a claim under the Americans with Disabilities Act. Rather,
because back pay is meant to compensate Plaintiff "only for losses suffered as a result of'
Defendant's conduct, the relevant inquiry was whether "Plaintiff would have been unable, due to
an intervening disability, to continue employment." Thornley v. Penton Pub., Inc., 104 F.3d 26,
31 (2d Cir. 1997) (emphasis added). The relevant issue is one of causation, and whether Plaintiff
suffered a mental disability severe enough that it prevented him from finding or maintaining
work was a question of fact for the jury, .irrespective of whether he would be found disabled
under the SSA or ADA.
b. Disability Based on Stay in Homeless Shelter
Plaintiff next argues that the Court improperly failed to instruct the jury that
"Defendant's allegation or misperception that Plaintiff has been mentally ill is based upon the
latter's stay in a mental health shelter." (Pl. Br. at 9.) Of course, this proposed instruction is an
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assertion of fact, not a statement of law. As such, the Court properly declined to give such an
instruction to the jury, and there is no support for this objection.
c. Evidentiary Basis for Mental Illness Determination
Plaintiff next argues that the Court should have instructed the jury that (1) "staying in a
mental health shelter is not necessarily evidence of being mentally ill or suffering from an
addiction to narcotics or alcohol," and (2) "evidence of mental disability or failure to mitigate
damages should be supported by relevant, competent, and admissible evidence." (Pl. Br. at 9.)
As to the first objection, the Court finds that the instructions it actually gave regarding mental
illness were not erroneous, as the Court clarified that the "issue is whether [Plaintiff] suffered
from a mental illness sufficiently severe or debilitating that it prevented him from finding or
maintaining work," and not simply "whether Plaintiff is or has been mentally ill." (July 22 Tr. at
244:5-9.) As to the second objection, the Court properly instructed the jury that it "must weigh
all the evidence in light of the particular circumstances of the case, using sound discretion in
deciding whether the Defendant has satisfied its burden of proving that the Plaintiff suffered
from a sufficiently serious mental illness."

(July 22 Tr. at 245:10- 14.)

Since the Court

repeatedly instructed the jurors that they must base their verdict solely on the evidence admitted
at trial (see, e. g., July 22 Tr. at 230:25-231 :4; id. at 231:21-23), there was no need to give a
superfluous instruction such as the one proposed by Plaintiff.

Accordingly, Plaintiff is not

entitled to a new trial on the basis of the Court's instructions to the jury.
3. Evidentiary Errors
Plaintiff also objects to a number of the Court's evidentiary decisions. Specifically, he
objects to (a) the Court's exclusion of unemployment benefits records; (b) the Court's exclusion
of a Department of Labor ("DOL'') report, court documents, and certain adjudicative findings by

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state agencies; and (c) the Court's admission of Plaintiffs medical records and submissions to
the Court.
a. Plaintiff's Unemployment Records
Plaintiff first objects to the Court's exclusion of Plaintiff's documents indicating receipt
of unemployment benefits, which he sought to enter into evidence in support of his claim that he
was "ready, willing, and able to work." (Pl. Br. at 8-9.) At the final pre-trial conference, the
Court excluded this exhibit, noting that "whether the [New York State] Department of Labor
thought that Mr. Azkour was looking for work is [not] relevant to this issue," which is properly
reserved for the jury. (See Transcript of Proceedings dated July 17, 2014 (Doc. No. 307 ("Pretrial Conference Transcript")) at 23:11-18.) The Court sees no reason to modify that conclusion
today.

The determination of whether mental disability prevented Plaintiff from finding or

maintaining a job was a question of fact for the jury, and the mere fact that the New York State
Department of Labor issued Plaintiff unemployment checks following his tennination is not
relevant to that inquiry.

In any event, Plaintiff informed the Court at the final pre-trial

conference that he was not calling any witnesses or testifying during his case-in-chief (see Pretrial Conference Transcript at 42:13-15); since the statements of receipt of unemployment
benefits were not certified copies of public records, and thus were not self-authenticating,
Plaintiff had no means of admitting the exhibit into evidence.

Accordingly, the Court's

evidentiary ruling with respect to Plaintiff's unemployment records was neither erroneous nor
reason to grant Plaintiff judgment as a matter of law or a new trial.
b. DOL Documents
Plaintiff next objects to the Court's exclusion of a collection of documents Plaintiff
received from the United States Department of Labor. The Court excluded these documents
because they are not self-authenticating under Federal Rule of Evidence 902, and Plaintiff had no
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witness to authenticate them. The Court affirms this decision, and finds that the exclusion does
not warrant judgment as a matter oflaw in Plaintiff's favor or a new trial.
c. Defendant's Evidence
Plaintiff also objects to the Court's decision to admit into evidence certain of Plaintiff's
medical records offered by Defendant in support of its defense that Plaintiff's mental disability
caused his failure to obtain or maintain employment. (Pl. Br. at 20--30.) It should be noted that
the medical records at issue were previously submitted by Plaintiff himself in support of his
motion for the Court to appoint a guardian ad !item for him in the related action. Azkour v.
Haouzi, et al., No. 11-cv-5780 (RJS) (KNF) (S.D.N.Y.) (the "Civil Rights Action") (Doc. Nos.

24-25, 68). In that motion, Plaintiff stated that "[t]he records accompanying the ... motion,
which are issued by mental health professionals licensed by the State of New York, indicate that
Plaintiff is incompetent." (Civil Rights Action, Doc. No. 24, at 4.) He again appended medical
record exhibits to his renewed motion for a guardian ad litem, citing the records for the
proposition that he "suffers severely from Post Traumatic [sic] Stress Disorder and Major
Depression Disorder and will not be able to prosecute any further in the present action, like a
competent prose plaintiff." (Civil Rights Action, Doc. No. 68, at 3.)
As he did at trial, Plaintiff objects to these exhibits on the basis that they are hearsay. (Pl.
Br. at 21-25.) However, as the Court previously found, they are not hearsay, since they are
statements of an opposing party pursuant to Rule 801(d)(2). (See, e.g., July 22 Tr. at 168:11-15
("THE COURT: He's introducing them as your statements. You made statements in certain
documents to the Court, and you attached documents that you adopted as in essence your
statements. You adopted the facts contained in those attachments."); id. at 205:9-12 ("THE
COURT: Again, this is a document that was filed by the Plaintiff. And so, it may be considered
by you [the jury] as a statement of the Plaintiff and you can give it such weight as you deem it is
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worthy of.").) For the same reasons articulated previously, the Court concludes that the exhibits
were properly admitted under Rule 80l(d)(2) as admissions of Plaintiff. See Chevron Corp. v.
Danziger, 974 F. Supp. 2d 362, 488 n.794 (S.D.N.Y. 2014) ("This statement was admissible
against defendants as an adoptive admission by virtue of their submission of his declaration in
support of their motion for leave to call him as a witness."); see also Attorney Gen. of U.S. v.

Irish N Aid Comm., 530 F. Supp. 241, 252 (S.D.N.Y. 1981), ajf'd, 668 F.2d 159 (2d Cir. 1982)
(finding that "statements in letters written to [Defendant], that were specifically adopted or
incorporated by reference in [Defendant's] reply," were admissions (emphasis added)). 2
4. Severing Trial and Appointing Expert
Plaintiff also moves a new trial based on the Court's denials of his requests for a separate
trial on the issue of Plaintiff's alleged mental disability and for the appointment of an expert on
mental disability. Plaintiff notes that pursuant to Federal Rule of Civil Procedure 42(b), the
Court has the authority to order separate trials on different issues or claims "[f]or convenience, to
avoid prejudice, or to expedite and economize." Fed. R. Civ. P. 42(b). However, he has
identified no basis for arguing that he was prejudiced by the Court's decision to try the case as
one proceeding, and the Court finds that splitting the issues into two proceedings would not have
expedited or economized this litigation. Accordingly, Plaintiff is not entitled to a new trial based
on the Court's denial of his motion for a separate trial on the issue of his alleged mental illness.

2

Plaintiff also challenges the Court's rejection of his own attempts to offer into evidence other
documents related to his mental health at trial. (Pl. Br. at 22 & n.10.) He argues that ifthe Court
was going to admit Defendant's exhibits into evidence, then these other records - which are not
contemporaneous with or related to the motion or renewed motion for the appointment of a
guardian ad litem - should have been admitted as well because "[n]otwithstanding the fact that
they are equally inadmissible, the (other medical records] would have been more favorable to
Plaintiff." (Id. at 22.) This once again ignores the text and purpose of Rule 801(d)(2), and the
fact that in order for a statement to be admissible as the statement of a party opponent, it must be
a statement of the opponent. Fed. R. Evid. 801(d)(2). Plaintiff cannot admit his own statements,
or the statements of third party medical providers, into evidence pursuant to this Rule.
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Similarly unavailing, for the reasons previously set forth at the final pre-trial conference,
is Plaintiff's objection to the Court's denial of his motion for the appointment of an expert under
Rule 706. (See Pre-trial Conference Transcript at 9:3-103.) "The determination to appoint an
expert [witness] rests solely in the Court's discretion and is to be informed by such factors as the
complexity of the matters to be detennined and the Court's need for a neutral, expert view."
Eldridge v. Williams, 10-cv-0423 (LTS) (RLE), 2012 WL 1986589, at *1 (S.D.N.Y. June 1,

2012). "Where no complex, highly technical litigation exists, appointing an expert witness,
pursuant to Rule 706, should generally be denied." Gioconda Law Grp. PLLC v. Kenzie, No. 12cv-4919 (JPO) (KNF), 2013 WL 2389791, at *2 (S.D.N.Y. May 31, 2013). Accordingly, the
Court declines to grant Plaintiff a new trial based on the Court's denial of Plaintiff's motion for
the appointment of an expert. Plaintiff was certainly free to notice and seek expert discovery and
testimony; he himself was also free to testify on this and other issues. That he chose not to do so
was his prerogative, but it can hardly be considered error for the Court not to intervene and
appoint a neutral expert in this adversarial proceeding.
5. Reliability and Bias of Defendant's Witnesses
Plaintiff further objects that testimony from all of Defendant's witnesses - Jessica
Comperiati, Panayiotis Boyiakis, and Franck Maucort - was improperly received because the
witnesses lacked personal knowledge regarding the subject matter of their testimony and were
unreliable. Plaintiff did not object to this testimony at trial, and so has waived any objections. In
any event, in his post-trial briefing he mischaracterizes the record and the evidence adduced at
trial. 3 The witnesses were not asked hypothetical questions, as Plaintiff asserts, and indeed

3

For example, Plaintiff asserts that Ms. Comperiati testified that "no employer would require an
applicant to present a professional reference letter from his/her former employer if he/she applies
for a busboy position," and argues that such testimony was "highly incredible, unverifiable,
unbelievable, and untrue, especially in New York City." (Pl. Br. at 40 (emphasis added).)
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testified solely based on their personal knowledge. Plaintiff's arguments go to the credibility of
the witnesses and the weight Plaintiff thinks their testimony should have been given by the jury;
the Court will not disturb the jury's reasonable findings in this respect. See Toporojf Eng 'rs,

P.C. v. Fireman's Fund Ins. Co., 371 F.3d 105, 108 (2d Cir. 2004). Plaintiff's objections
regarding the testimony of Defendant's witnesses must therefore fail.
6. Evidence of Restaurant Closing
Plaintiff's supplemental post-trial submission focuses in large part on the supposed lack
of evidence supporting the closure of the restaurant in March 2013. (Pl. Supp. Br. at 3--6.)
However, Plaintiff simply asserts that Defendant failed to carry its burden regarding its defense
of the restaurant closing, and does not object to any of the Court's evidentiary rulings on the
subject beyond a vague reference to a lack of personal knowledge on the part of the testifying
witnesses. After reviewing the evidence, the Court concludes that there was sufficient evidence
for the jury to conclude that the restaurant closed on March 15, 2013.

Specifically, Frank

Maucort testified that he used to work at the restaurant in question, but left when it closed, in
March 2013. (July 21 Tr. at 115:18-116:1.)
In any event, even if Maucort did lack personal knowledge as to whether the restaurant
closed, any error on the subject would be harmless, since the jury found that Defendant was the
proximate cause of 12 weeks of Plaintiff's employment - i.e., from the date of his termination
until 12 weeks later, or May 2010. Because the closure of the restaurant occurred nearly three

However, the Court finds that at no time did Ms. Comperiati opine as to industry norms or the
practices of other restaurants regarding inquiry into employment history for hiring purposes. In
fact, when Ms. Comperiati was asked on direct examination how long it would typically take
"for someone [with Plaintiff's characteristics] to obtain a minimum-wage tipped position in New
York" - the only question remotely related to Plaintiff's argument - the Court sua sponte found
that the question "seem[ed] to call for expert testimony," directed the witness not to answer, and
guided the questioning back to subject matter about which the witness had personal knowledge.
(July 21 Tr. at 83:4--16.)
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years later, on March 15, 2013, it clearly could not have been relevant to the jury's determination
of back pay. The Court thus declines to grant Plaintiff judgment as a matter oflaw or a new trial
based on the asserted insufficiency of the evidence regarding the restaurant closing.
7. Sufficiency of Punitive Damages
Plaintiff also objects to the sufficiency of the punitive damages awarded by the jury,
arguing that the award was "highly speculative, unfair, unreasonable, unpredictable, and
disproportionately insignificant." (Pl. Br. at 13.) Because the Court finds that there was not
sufficient evidence for the jury to award punitive damages in the first place, see infra Part Il.B.2,
the Court denies Plaintiffs motion for judgment as a matter of law for additional punitive
damages or a new trial.
B. Defendant's Motion
Defendant moves for judgment as a matter of law pursuant to Rule 50(b) on Plaintiffs
claims for back pay and punitive damages. (See generally Doc. No. 299 ("Defendant's Brief' or
"Def. Br.").)

Specifically, Defendant argues that ''there was a complete lack of evidence

supporting the jury's verdict that defendant was responsible for twelve (12) weeks of [P]laintiffs
post-discharge employment," and that "[P]laintiff failed to establish by a preponderance of the
evidence that he is entitled to any award of punitive damages from defendant." (Id. at 4
(emphasis in original).) For the reasons set forth below, Defendant's motion is granted in part
and denied in part.
1. BackPay
With respect to the jury's award of 12 weeks of back pay to Plaintiff, Defendant argues
that the verdict cannot stand because a "plaintiff has some initial burden to show that he made a
reasonable attempt to look for employment," and Plaintiff here did not put on a case and thus did
not carry that initial burden. (Def. Br. at 5.) However, this argument misstates the law of this
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Circuit regarding the burden of demonstrating mitigation, or the lack of mitigation. Specifically,
the Second Circuit has repeatedly held that it is the defendant who bears the burden with respect
to a lack of mitigation or inability to work. See, e.g., Broadnax v. City ofNew Haven, 415 F.3d
265, 268 (2d Cir. 2005); (see also Doc. No. 229 (Defendant's proposed jury instructions,
acknowledging Defendant's burden of establishing failure to mitigate or inability to work due to
mental illness)). Thus, Plaintiff does not have the initial burden that Defendant asserts he has.
Indeed, the Second Circuit case cited by Defendant for the proposition that Plaintiff has this
"initial burden" suggests no such thing. (Def. Br. at 5); see Dailey v. Societe Generale, 108 F.3d
451, 456 (2d Cir. 1997) ("While it is the plaintiff's duty to mitigate, it is the defendant who has
the evidentiary burden of demonstrating at trial that a plaintiff has failed to satisfy this duty.");

see also Broadnax, 415 F.3d at 268 ("[I]t is the employer, not the employee, who bears the
burden on the issue of effort to seek employment."). Plaintiff accordingly had no burden to carry
regarding mitigation. Thus, absent evidence from Defendant that Plaintiff failed to mitigate or
suffered from a disability rendering him unable to work, Plaintiff would have been entitled to
back pay from February 2010 to the present.
Here, the Court finds that the jury could have reasonably concluded that Defendant was
responsible for 12 weeks of Plaintiff's unemployment. Although Defendant's witnesses testified
that there were ample employment opportunities available to a person seeking a busboy position
during the period from 2010 until the present (see, e.g. , July 21 Tr. at 88:15-90:13), thejury also
heard testimony from Plaintiff's deposition, in which Plaintiff repeatedly asserted that he had
actively searched for a job (see July 21 Tr. at 142:9-149:20). Additionally, the trial record made
clear that Plaintiff earned $838.68 per week prior to his termination (July 21 Tr. at 62:12- 13),
and the jury reasonably could have concluded that finding a comparable position with

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comparable wages would take as long as 12 weeks. See, e.g., Clarke v. Frank, 960 F.2d 1146,
1152 (2d Cir. 1992) (''The claimant need not accept employment that is not comparable to his
previous position."); Wills-Bingos v. Raymond Corp., 104 F. App'x 773, 776 (2d Cir. 2004)
(employment opportunities at "significantly lower wages" not substantially equivalent for
purposes of mitigation); see also Broadnax, 415 F .3d at 270 ("Judgment as a matter of law on an
issue as to which the movant bears the burden of proof is rare." (internal quotation marks
omitted)). Accordingly, the Court will "defer[] to the jury's assessment of the evidence and all
reasonable inferences the jurors could draw from that evidence," Me/off, 240 F.3d at 145
(internal quotation marks omitted), and sees no reason or basis to second-guess the jury with
regard to this determination.
2. Punitive Damages
Defendant also seeks judgment as a matter of law on Plaintiff's claim for punitive
damages. (Def. Br. at 7.) Unlike the issue of back pay, Plaintiff had the burden of proof at trial
for punitive damages, and although Plaintiff did not put on a case or present any evidence, the
jury awarded him $50,000 in punitive damages for the retaliatory termination he suffered at
Defendant's hands. As set forth below, the Court concludes that Plaintiff did not carry his
burden, and that judgment as a matter of law must be granted in Defendant's favor with respect
to punitive damages.
In order for a plaintiff to qualify for punitive damages under the FLSA, he must prove
that the defendant has discriminated or retaliated "and has done so 'with malice or with reckless
indifference to the federally protected rights of an aggrieved individual.'" Caravantes v. 53rd St.
Partners, LLC, No. 09-cv-7821 (RPP), 2012 WL 3631276, at *25 (S.D.N.Y. Aug. 23, 2012)

(quoting Kolstad v. Am. Dental Ass 'n, 527 U.S. 526, 530 (1999)). While this is the standard for
Title VII claims pursuant to 42 U.S.C. § 198la(b)(l), § 198la essentially incorporates the
15

Supreme Court's standard for punitive damages under § 1983. See Kolstad v. Am. Dental Ass 'n,
527 U.S. 526, 535 (1999) (citing Smith v. Wade, 461 U.S. 30 (1983)). Thus, the Court agrees
with what appears to be the only other federal court opinion to consider the standard for punitive
damages under the FLSA and concludes that the§ 1981a(b)(l) standard also applies here. See

Randolph v. ADT Sec. Servs., Inc., 09-cv-1790 (DKC), 2012 WL 2234362, at *4 & n.6 (D. Md.
June 14, 2012) (applying§ 1981a(b)(l) standard to FLSA punitive damages); see also Torres v.

Gristede 's Operating Corp., 628 F. Supp. 2d 447, 471 n.19 (S.D.N.Y. 2008) ("Both Title VII
and the FLSA are remedial statutes whose effectiveness depends on the employee's ability to
bring claims thereunder with impunity. Thus, the same basic analysis applies to retaliation claims
under either statute.").
Under this standard, while punitive damages depend on Defendant's knowledge (or
reckless indifference), the required knowledge with regard to the retaliatory termination is not
simply a knowledge of a retaliation.

Rather, the requirement of knowledge or reckless

indifference "pertain[s] to the employer's knowledge that it may be acting in violation of federal
law." Farias v. Instroctional Systems Inc., 259 F.3d 91, 102 (2d Cir. 2001). Thus, in order to
qualify for punitive damages, Plaintiff here must "present evidence that the employer . . .
retaliated . .. against him with conscious knowledge it was violating the law, or that it engaged
in egregious or outrageous conduct from which an inference of malice or reckless indifference
could be drawn." Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 573 (2d Cir.
2011) (emphasis added) (internal quotation marks omitted); cf Kolstad, 527 U.S. at 536-37
("There will be circumstances where intentional discrimination does not give rise to punitive
damages liability under this standard. In some instances, the employer may simply be unaware
of the relevant federal prohibition.

There will be cases, moreover, in which the employer

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discriminates with the distinct belief that its discrimination is lawful."). "[I]n the absence of
evidence showing that the employer acted with malice or reckless indifference to its employee's
federally protected rights, a punitive damages award cannot be sustained." Tepperwien v.
Entergy Nuclear Operations, Inc., 07-cv-433 (CS), 2010 WL 8938797, at *11 (S.D.N.Y. Mar.

16, 2010), aff'd, 663 F.3d 556 (2d Cir. 201 1).
Here, the Court finds that no evidence was adduced at trial from which the jury could
reasonably have inferred that Defendant retaliated against Plaintiff "with malice or with reckless
indifference to [his] federally protected rights." Kolstad, 527 U.S. at 548. Indeed, no evidence
related to the circumstances of the retaliation was introduced at trial at all.

Based on the

summary judgment order in Plaintiffs favor (Doc. No. 98) and the parties' stipulation (July 22
Tr. at 236:9-19), the Court informed the jury in its charge that "Plaintiff complained to
Defendant and the Department of Labor that he was not being paid properly, and in retaliation
for those complaints, Defendant fired him." (July 22 Tr. at 236: 15-18.) However, the jury was
not presented with any evidence from which an inference of malice or reckless indifference
could be drawn. Plaintiff did not put on a case, so the only evidence that reached the jury was
that introduced by Defendant. Having carefully reviewed the trial record, the Court finds that
none of this evidence had any relationship to Plaintiffs termination or the complaint he filed
with the DOL, or to Defendant's understanding of Plaintiffs rights. 4 Accordingly, Defendant

4

The Court advised Plaintiff at least twice before trial that by not testifying, calling any
witnesses, or otherwise presenting any evidence, he would likely not be able to carry his burden
with respect to punitive damages. (See Pre-trial Conference Transcript at 42:13-17 ("THE
COURT: Well, I mean, look, are you, yourself, intending to testify? MR. AZKOUR: I'm not
going to testify. THE COURT: No. So I'm not sure how you're going to be able to meet your
burden with respect to punitive damages."); id. at 43:18-21 ("THE COURT: [I]f you're not
going to be calling any witnesses, then it seems to me I'd be giving probably a directed verdict
on punitives because that's your burden.").)
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shall be granted judgment as a matter of law with respect to Plaintiff's claim for punitive
damages.
C. Damages Calculation
At trial, the jury found Defendant liable for 12 weeks of Plaintiff's unemployment.
Based on a weekly wage of $838.68, Plaintiff is entitled to $10,064.16 in compensatory
damages. Additionally, Plaintiff is entitled to liquidated damages under the FLSA. (See Doc.
No. 187); see also 29 U.S.C. § 216(b).5 Pursuant to 29 U.S.C. § 216(b), Plaintiff's FLSA
liquidated damages shall be in an amount equal to the compensatory damages awarded, and thus
he will receive an additional $10,064.16. Finally, although the Second Circuit has left up to the
sound discretion of district courts whether or not to deduct unemployment benefits from an
award for back pay, see Dailey, 108 F.3d at 460, the Court sees no reason to depart from the
majority rule in this case and concludes that unemployment benefits should not be deducted. 6
Plaintiff's total damages are thus $20,128.32.

5

Plaintiff is not entitled to liquidated damages under the anti-retaliation provision of the New
York Labor Law. The current version ofN.Y.L.L. § 215, which dictates penalties for retaliation,
includes a provision for liquidated damages of up to $10,000. However, prior to the enactment
of the New York Wage Theft Prevention Act ("WTPA")- which had an effective date of April
9, 2011 - liquidated damages were not available under § 215. Because the WTPA was not
meant to be applied retroactively, see, e.g., Eschmann v. White Plains Crane Serv., Inc., No. 11cv-5881 (KAM) (VVP), 2014 WL 1224247, at *12 (E.D.N.Y. Mar. 24, 2014); Maldonado v. La
Nueva Rampa, Inc., No. 10-cv-8195 (LLS) (JLC), 2012 WL 1669341 , at *9 (S.D.N.Y. May 14,
2012); Chenensky v. New York Life Ins. Co., No. 07-cv-11504 (WHP), 2012 WL 234374, at *3
(S.D.N.Y. Jan. 10, 2012), the Court applies the version of the statute in effect at the time of the
conduct underlying this action, and finds liquidated damages unavailable.
6

See Shannon v. Fireman's Fund Ins. Co., 136 F. Supp. 2d 225, 232 (S.D.N.Y. 2001)
("[B]ecause unemployment benefits are paid by a state agency rather than by [employer]
directly, either [employee] or [employer] will receive this 'windfall' no matter how the benefits
are treated. In short, fairness dictates that the 'windfall' be awarded to the victim of the
discrimination rather than the perpetrator.").

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Ill. CONCLUSION

Accordingly, for the reasons stated above, IT IS HEREBY ORDERED THAT Plaintiff's
motion for judgment as a matter of law or, in the alternative, for a new trial, is DENIED, and
Defendant's motion for judgment as a matter of law is DENIED as to back pay and GRANTED
as to punitive damages. IT IS FURTHER ORDERED THAT Plaintiff has judgment against
Defendant in the amount of $20,128.32, constituting post-termination back pay of $10,064.16,
and liquidated damages under the FLSA in the same amount.
SO ORDERED.
Dated:

~LJ~

February 11, 2015
New York, New York

RIC~LIVAN

UNITED STATES DISTRICT JUDGE

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~

A coPY of this Order has been sent to:

[e-mail]

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