Small v. The State of New York et al

Filing 219

DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 204 206 post-trial motions; ADVISING that a new trial on damages against Defendant Carl Cuer will be scheduled by separate order if Plaintiff does not accept this Court& #039;s remittitur of compensatory damages against Defendant Cuer from $3.85 million to $2.88 million; DIRECTING Plaintiff to file an affidavit within 10 days of the entry date of this Decision and Order advising whether she will accept the remittitur; GRANTING in part and DENYING in part Plaintiff's 202 Motion for Attorneys Fees, Interest, and Costs; DIRECTING Defendants to pay Plaintiff $862,395.30 in attorneys' fees, $364,622.14 in pre-judgment interest, and & #036;100,448.72 in costs; DIRECTING the Clerk of Court to file an amended judgment against Defendants New York State Department of Corrections and Community Supervision, Sandra Dolce, and James Conway as specified; ADVISING that the amended judgment may be amended further to include Defendant Cuer once Plaintiff notifies this Court of her remittitur decision. Signed by William M. Skretny, United States District Judge on 4/14/2019. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAMELA S. SMALL,
Plaintiff,
DECISION AND ORDER
12-CV-1236S

v.

NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
CARL CUER, JAMES CONWAY, and SANDRA DOLCE,
Defendants.

I. INTRODUCTION
After a 12-day trial, a federal jury determined that Defendants subjected Plaintiff
Pamela S. Small to discrimination and a hostile work environment and unlawfully
retaliated against her while she was employed as a civilian teacher at the Attica
Correctional Facility (“Attica”).

The jury awarded Small $4.8 million in general

compensatory damages; $740,000 in back pay; $3.6 million in front pay; and $50,000 in
punitive damages; for a total award of $9.19 million.1
Presently before this Court are several post-trial motions. First, Defendants New
York State Department of Corrections and Community Supervision (“DOCCS”), James
Conway, and Sandra Dolce move for judgment as a matter of law under Rule 50 (b) of
the Federal Rules of Civil Procedure, or for a new trial under Rule 59 (a), and for alteration
or amendment of the verdict under Rule 59 (e) or for relief from judgment under Rule 60.

1

Of this amount, $2,170,000 was technically an advisory verdict that this Court adopted post-trial. (See
Docket No. 199.)

1

(Docket No. 206.) Second, Defendant Carl Cuer moves for a new trial or remittitur under
Rule 59 (a) and for alteration or amendment of the verdict under Rule 59 (e). (Docket No.
204.) Finally, Small moves for attorneys’ fees, interest, and costs. (Docket No. 202.)
For the reasons stated below, each of the motions is granted in part and denied in
part.
II. BACKGROUND
Despite challenging the sufficiency of the evidence in seeking to overturn the jury’s
verdict, Defendants have inexplicably neither obtained nor submitted the trial transcript in
support of their post-trial motions. Cf. Norton v. Sam’s Club, 145 F.3d 114, 118 (2d Cir.
1998) (“A party seeking to overturn a verdict based on the sufficiency of the evidence
bears a very heavy burden.”).

The absence of trial transcripts precludes a factual

recitation drawn directly from the trial evidence. Consequently, to provide background
and context for the post-trial motions, this Court draws from those undisputed facts set
forth in its summary judgment decision that were proven at trial. See Small v. New York,
12-CV-1236S, 2017 WL 1176032 (W.D.N.Y. Mar. 30, 2017). The trial evidence, of
course, was much more complete, but the recitation herein suffices to resolve the pending
motions.
Small worked as a teacher at Attica from 2005 to 2012. She was a civilian
employee and reported directly to her academic supervisors, who in turn reported to
Defendant Dolce, who was the Deputy Superintendent of Program Services and oversaw
the academic, recreational, and vocational programs at Attica.

2

Dolce reported to

Defendant Conway, who was the Superintendent of Attica and responsible for oversight
of the entire prison.
Defendant Cuer is a corrections officer at Attica. Between 2005 and 2010, Cuer
and Small both worked in Attica’s academic building, a three-story structure with two
corrections officers posted on the first floor, and one officer posted on each of the second
and third floors. Cuer served as the first-floor officer in the academic building, a position
known as the “Hall Captain.” The Hall Captain is responsible for ensuring the safety of
the civilian academic employees (like Small) working in the academic building.
While Defendant Cuer was serving as Hall Captain, he and Small became friends.
They discussed their shared Christian faith; Cuer worked on Small’s car and assisted her
with yardwork at her home. But beginning in December 2009, Cuer began making
alarming comments to Small. Cuer told Small that he had been speaking with God, that
God had informed him that his wife would soon die, and that God had chosen Small to be
his new wife. Cuer also began sending Small frequent emails, text messages, and letters,
insisting that God wanted them to be together. Small felt threatened and upset by Cuer’s
communications, particularly because Cuer was adamant that Small was breaching her
Christian faith by refusing to be with him.
Defendant Cuer delivered some of his messages to Small at Attica, including by
writing “I love you” on the desk calendar in Small’s classroom and leaving her a note
offering to apply lotion to her “hard to reach spots,” which Small took to be a sexual
advance. Cuer told a co-worker about his plans to marry Small, as well as his belief that
God would kill his wife. Other officers overheard Cuer discussing plans to buy a gun,
3

specifically one that could be easily concealed.
Small never reciprocated Defendant Cuer’s romantic advances. She initially tried
to discourage Cuer while remaining friendly with him, but Cuer’s behavior became
increasingly intense and threatening. In March 2010, Small wrote Cuer a letter directing
him to cease all contact and communication with her. She also verbally complained to
Defendant Conway that Cuer was harassing her and wrote to Cuer’s supervisor, Sergeant
Erhardt. Small also reported Cuer’s advances to her direct supervisor, who reported the
issue to Defendant Dolce.
Despite these reports, the contact did not stop. Instead, Defendant Cuer continued
to engage with Small in ways that she found harassing and threatening. For example, in
June 2010, Small found a note on her car in the Attica parking lot that included a drawing
of eyes, which Small interpreted as a message that Cuer was watching her, as well as a
drawing that meant “I love you.”
Two months later, Defendant Cuer sent Small a number of text messages in the
early morning hours that Small believed he sent while sitting outside her house. Cuer
accused Small of having a man inside her home and demanded that she come out to
speak with him.
Several months after that, in October 2010, Defendant Cuer told Small in an email
that God told him that Small was pregnant but did not know who the father was, and that
God referred to Small by the name of a woman in the Bible who was struck down after
failing to obey God.
The next month, Small sought and obtained an order of protection against
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Defendant Cuer. While the order of protection was in place, Attica officials allowed Cuer
to come and go from the prison with no restrictions but told Small to restrict her movement,
use side doors, and have supervision when moving about the facility. Cuer was later
arrested for violating the order of protection.
Throughout this period, Small and her direct supervisors made several verbal
reports to Defendants Conway and Dolce. Between March and August 2010, Small and
others lodged verbal complaints, but neither Conway nor Dolce took any meaningful
action to investigate or remedy the situation or forward Small’s complaints for a formal
inquiry. This lack of response was exactly what Small was afraid of, since she knew that
Defendant Cuer had personal relationships with many Attica employees, including
Conway. Conway and Dolce failed to act on Small’s complaints until they forwarded them
to DOCCS’s Office of Diversity Management in August 2010, after which no further action
was taken. Small was never contacted about her complaints, and Cuer was never
disciplined in any way.
Small’s complaints about Defendant Cuer resulted in the very retaliation that she
feared. In June 2010, Defendant Dolce changed Small’s classroom assignment from a
classroom on the third floor of the academic building, which was off-limits to all personnel
at night and on weekends, to the second floor, which was not so restricted and therefore
subject to significant property damage. She also instructed Small to limit her movement
around the facility and to seek escorts. In addition, Cuer and other corrections officers
failed to deliver important documents to Small’s staff mailbox and shunned her, and Cuer
falsely accused Small in an official complaint of having an inappropriate relationship with
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an inmate, which DOCCS investigators later found to be without merit. All of this occurred
after Small complained about Cuer.
The intolerable conditions at Attica deteriorated Small’s health to the point where
she could no longer work due to physical and psychological impairments. After Small
exhausted her sick leave, DOCCS terminated her employment. Her last day was January
29, 2011.
III. DISCUSSION
Four claims went to trial.

First, Small alleged that DOCCS subjected her to

discrimination and a hostile work environment in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq. Second, Small alleged that DOCCS retaliated
against her in violation of Title VII. Third, Small alleged that Defendants Cuer, Dolce, and
Conway deprived her of her federally protected right to be free from a hostile work
environment under 42 U.S.C. § 1983. Fourth, Small alleged that Cuer aided and abetted
unlawful discrimination and hostile work environment in violation of New York Rights Law
§ 296 (6).
The jury returned a verdict in Small’s favor on each claim. For the first and second
claims, the jury awarded $2.4 million in compensatory damages, and this Court accepted
the jury’s advisory verdict in awarding $370,000 in back pay and $1.8 million in front pay,
for a total award against DOCCS of $4.57 million. (Docket Nos. 197, 199, 200.) For the
third claim, the jury awarded $1 million in compensatory damages and $50,000 in punitive
damages against Defendant Cuer; $480,000 in compensatory damages against
Defendant Dolce; and $240,000 in compensatory damages against Defendant Conway.
6

(Docket Nos. 197, 200.) For the fourth claim, the jury awarded $680,000 in compensatory
damages, $370,000 in back pay, and $1.8 million in front pay. (Docket Nos. 197, 200.)
Defendants DOCCS, Conway, and Dolce now move for judgment as a matter of
law under Rule 50 (b) of the Federal Rules of Civil Procedure or, for a new trial under
Rule 59 (a), and for alteration or amendment of the verdict under Rule 59 (e) or for relief
from judgment under Rule 60. (Docket No. 206.) Defendant Cuer moves for a new trial
or remittitur under Rule 59 (a) and for alteration or amendment of the verdict under Rule
59 (e). (Docket No. 204.) Small moves for attorneys’ fees, interest, and costs. (Docket
No. 202.) These motions are resolved below.
A. Defendants DOCCS, Dolce, and Conway’s Post-Trial Motion
Defendants DOCCS, Dolce, and Conway move for various forms of relief. First,
DOCCS argues that it is entitled to judgment as a matter of law under Rule 50, or a new
trial under Rule 59, on the basis that the evidence presented at trial was insufficient to
support its liability under Title VII. DOCCS also argues that the judgment must be altered
or amended under Rule 59 (e) or Rule 60 (b)(6) because compensatory damages for Title
VII violations are statutorily capped at $300,000.2

Second, Defendants Dolce and

Conway argue that they are entitled to judgment as a matter of law under Rule 50 or relief
from judgment under Rule 60 because the evidence presented at trial was insufficient to
support supervisory liability under 42 U.S.C. § 1983, or alternatively, because they are

2

DOCCS does not otherwise challenge or seek remittitur of the damages award, including the award of
$370,000 in back pay and $1.8 million in front pay. (See Docket Nos. 199, 200.)

7

entitled to qualified immunity as a matter of law. 3 But for agreeing that the statutory cap
on Title VII damages applies, Small opposes the motion.
1. DOCCS has not demonstrated that it is entitled to judgment as a matter
of law or a new trial on the basis that the trial evidence was insufficient
to support its liability under Title VII.
DOCCS moves for judgment as a matter of law or for a new trial on the grounds
that the trial evidence was insufficient to support its liability under Title VII.
A party that moves for judgment as a matter of law at trial may renew that motion
and again seek judgment as a matter of law after the jury has returned its verdict. See
Fed. R. Civ. P. 50 (b)(3). In the first instance, the movant’s burden is a heavy one:
judgment as a matter of law can be awarded only when “a party has been fully heard on
an issue during a jury trial and the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50
(a)(1).
That burden becomes even heavier—“particularly heavy”—when, as here, “the
jury has deliberated in the case and actually returned its verdict” in favor of the nonmoving party. Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005). “In such
circumstances, a court may set aside the verdict only ‘if there exists 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 the evidence in favor of the movant is so
overwhelming that reasonable and fair minded persons could not arrive at a verdict

Like DOCCS, Defendant Dolce and Conway do not seek remittitur of the jury’s damages award against
them.
3

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against it.’” Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Kinneary
v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010)); see also Cruz v. Local Union No.
Three of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (noting that
judgment as a matter of law must be denied unless “there can be but one conclusion as
to the verdict that reasonable [jurors] could have reached.’”). “In short, a Rule 50 (b)
motion may be granted only if the court, viewing the evidence in the light most favorable
to the non-movant, concludes that a reasonable juror would have been compelled to
accept the view of the moving party.’”

Cash, 654 F.3d at 333 (quoting Zellner v.

Summerlin, 494 F.3d 344, 371 (2d Cir. 2007) (emphasis in Zellner)).
In considering a Rule 50 (b) motion, “[t]he court must consider the evidence in the
light most favorable to the non-movant and ‘give that party the benefit of all reasonable
inferences that the jury might have drawn in his favor from the evidence’ bearing in mind
that a jury is free to believe or disbelieve any part of a witness’ testimony.” Jones v. Town
of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (quoting Zellner, 494 F.3d at 371). In doing
so, the court may “disregard all evidence favorable to the moving party that the jury is not
required to believe.” Zellner, 494 F.3d at 371 (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 135, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). It may not,
however, “assess the weight of conflicting evidence, pass on the credibility of the
witnesses, or substitute its judgment for that of the jury.” Tolbert v. Queens Coll., 242
F.3d 58, 70 (2d Cir. 2001) (citations omitted).
The standard under Rule 59, which permits a court to “grant a new trial on all or
some of the issues,” see Fed. R. Civ. P. 59 (a)(1), is less stringent. See Manley v.
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AmBase Corp., 337 F.3d 237, 244 (2d Cir. 2003). “In contrast to a judgment as a matter
of law, a new trial may be granted under Rule 59 even if there is substantial evidence to
support the jury's verdict.” Mono v. Peter Pan Bus Lines, Inc., 13 F. Supp. 2d 471, 475
(S.D.N.Y. 1998) (citing Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). And
the court need not weigh the evidence in a light most favorable to the non-moving party.
Song, 957 F.2d at 1047. Nevertheless, “[a] motion for a new trial ordinarily should not be
granted unless the trial court is convinced that the jury has reached a seriously erroneous
result or that the verdict is a miscarriage of justice.” Townsend v. Benjamin Enters., Inc.,
679 F.3d 41, 51 (2d Cir. 2012) (internal citations and quotation marks omitted) (quoting
Medforms, Inc. v. Healthcare Mgmt. Sols., Inc., 290 F.3d 98, 106 (2d Cir. 2002)).
DOCCS argues that it is entitled to judgment as a matter of law or a new trial
because Small failed to establish that the treatment she experienced at Attica rose to the
level required for liability under Title VII.
A plaintiff claiming that she was the victim of a hostile work environment must
generally produce evidence from which a reasonable trier of fact could conclude “(1) that
the workplace was permeated with discriminatory intimidation that was sufficiently severe
or pervasive to alter the conditions of [her] work environment, and (2) that a specific basis
exists for imputing the conduct that created the hostile environment to the employer.”
Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (quoting Richardson v. New
York State Dep’t of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999)). “The sufficiency of a
hostile work environment claim is subject to both subjective and objective measurement:
the plaintiff must demonstrate that she personally considered the environment hostile,
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and that the environment rose to some objective level of hostility.” Leibovitz v. New York
City Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001).
With no citation to trial evidence, and construing the evidence in the exact opposite
manner required under Rule 50 (i.e., in its own favor), DOCCS maintains that Small’s
experience was merely the result of “a breakdown in a personal relationship [with
Defendant Cuer] that was occurring outside of the workplace and was spiraling beyond
[Small’s] control,” and that “the occasional looks and creepy comments” from Cuer at
Attica were not sufficiently pervasive or severe enough to establish an actionable hostile
work environment. (Memorandum of Law, Docket No. 206-1, pp. 8-9.) This is a gross
minimization of the evidence presented at trial.
For the better part of 12 days, the jury heard unrebutted evidence—Defendant
Cuer did not testify—that Cuer relentlessly pursued Small, mercilessly preying on her
religious beliefs in an effort to coerce and convince Small that God intended her to be his
new wife. Cuer told Small that his wife would soon die and suggested that Small too
could die if she did not replace her. Cuer was as persistent as he was peculiar: he left
Small notes and letters at work; he stalked her classroom; he turned their colleagues
against her; he went to her home; he filed false accusations against her; he accused her
of being with other men. All of this conduct was unwelcomed. And Cuer was relentless:
his campaign continued long after Small made clear that she wished for it to stop, long
after it took its physical and psychological toll,4 and well after Small reported his conduct

Small’s physical ailments included loss of hair, loss of appetite, weight gain, lethargy, nausea, and
incessant coughing. Her psychological conditions included post-traumatic stress disorder, major
depressive disorder, sleep phobia, agoraphobia, and anxiety.
4

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to Defendants Dolce and Conway, who failed to act. Not even the Order of Protection
that Small obtained could stop it.
Without question, the evidence presented at trial was sufficient for the jury to
determine that Small established the existence of a hostile work environment that
persisted without remedy. This is true whether considering all of the evidence in the light
most favorable to Small and crediting all reasonable inferences the jury could have drawn
in her favor (for judgment as a matter of law), or not (for a new trial). See Jones, 691
F.3d at 80. And as to its specific request for judgment as a matter of law, DOCCS has
made no effort to show, let alone established, that there is a complete lack of evidence
supporting the jury’s verdict or that the evidence in its favor was so overwhelming that no
reasonable juror could find in Small’s favor. See Cash, 654 F.3d at 333. DOCCS has
therefore failed to carry its burden of demonstrating that it is entitled to judgment as a
matter of law or a new trial. This aspect of DOCCS’s motion is therefore denied.
2. The judgment must be amended to reflect the statutory cap on Title VII
compensatory damages.
DOCCS maintains that the judgment must be amended to reduce the jury’s $2.4
million compensatory damages award against DOCCS to $300,000, which is the statutory
cap. Small agrees. Indeed, Title VII compensatory damages are capped at $300,000
against employers, like DOCCS, that have more than 500 employees. See 42 U.S.C. §
1981a (b)(3)(D); Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 166 n. 25 (2d Cir. 2014)
(“Title VII caps total recovery, including punitive damages, at $300,000.”) (citing 42 U.S.C.
§ 1981a (b)(3)). The judgment will therefore be amended to reduce the jury’s $2.4 million

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compensatory damages award against DOCCS to $300,000. This aspect of DOCCS’s
motion is granted.
3. Defendants Dolce and Conway have not demonstrated that the trial
evidence was insufficient to support their liability under 42 U.S.C. § 1983.
Defendants Dolce and Conway argue that they are entitled to judgment as a matter
of law or relief from the final judgment because the trial evidence was insufficient for a
reasonable jury to find that they were involved in the deprivation of Small’s right to be free
from a hostile work environment, as required for liability under 42 U.S.C. § 1983.
Civil liability is imposed under 42 U.S.C. ' 1983 only upon persons who, acting
under color of state law, deprive an individual of rights, privileges, or immunities secured
by the Constitution and laws. See 42 U.S.C. ' 1983. To succeed on a § 1983 claim, a
plaintiff must establish that the challenged conduct “(1) was attributable to a person acting
under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States.” Whalen v. County of Fulton,
126 F.3d 400, 405 (2d Cir. 1997); see also Hubbard v. J.C. Penney Dep’t Store, 05-CV6042, 2005 WL 1490304, at *1 (W.D.N.Y. June 14, 2005).
Personal involvement in the deprivation of a federal constitutional right is the sine
qua non of liability under § 1983. See Haygood v. City of New York, 64 F. Supp. 2d 275,
280 (S.D.N.Y. 1999).

It is well settled in this circuit that personal involvement by

defendants in cases alleging constitutional deprivations is a prerequisite to an award of
damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977);
Richardson v. Coughlin, 101 F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz,
No. 99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000).
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The Second Circuit construes personal involvement in this context to mean “direct
participation, or failure to remedy the alleged wrong after learning of it, or creation of a
policy or custom under which unconstitutional practices occurred, or gross negligence in
managing subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Personal involvement need not be
active participation. It can be found “when an official has actual or constructive notice of
unconstitutional practices and demonstrates gross negligence or deliberate indifference
by failing to act.” See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989). Thus,
personal involvement can be established by showing that
(1) the defendant participated directly in the alleged
constitutional violation; (2) the defendant, after being informed
of the violation through a report or appeal, failed to remedy
the wrong; (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom; (4) the defendant was
grossly negligent in supervising subordinates who committed
the wrongful acts; or (5) the defendant exhibited deliberate
indifference to others’ rights by failing to act on information
indicating that constitutional acts were occurring.
Liner v. Goord, 582 F. Supp. 2d 431, 433 (W.D.N.Y. 2008) (citing Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995)); Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d
Cir. 2003).
Defendants Dolce and Conway first argue that their failure to act on Small’s
complaints did not proximately cause her any harm because when they finally did forward
her complaints to the Office of Diversity Management, that office took no action. This
argument, which narrowly focuses on only the failure to forward Small’s complaints,
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entirely ignores the unrebutted evidence that despite having direct and specific
knowledge about the discriminatory conditions of Small’s employment, neither Dolce nor
Conway intervened or took any action to stop it. They did not investigate her complaints.
They did not keep Defendant Cuer away from her. They did not counsel Cuer. They did
nothing whatsoever to meaningfully address the situation, other than to cause Small to
change classrooms and limit her movements, a misguided reaction that only compounded
the already hostile work environment. Thus, Dolce and Conway’s failure to timely report
Small’s claims to the Office of Diversity Management is just one of many failures on their
part, each of which permitted the intolerable work conditions to persist unaddressed.
Sufficient evidence—indeed, mostly unrebutted evidence—thus supports the jury’s
verdict against Dolce and Conway.
Defendants Dolce and Conway next argue that there was insufficient evidence to
establish supervisory liability against them because they did not act with intent to
discriminate. In discrimination cases, however, inaction may be actionable. The failure
to promptly and properly handle workplace complaints, as set forth above, constitutes
personal involvement in the deprivation sufficient to support liability.

See Duch v.

Jakubek, 588 F.3d 757, 766 (2d Cir. 2009).
The unrebutted evidence at trial established that both Defendants Dolce and
Conway had direct knowledge of the hostile work environment that Small faced yet
elected to ignore it and failed to forward Small’s complaints to the Office of Diversity
Management for formal investigation. There was further evidence that Dolce directly
contributed to the discrimination by reassigning Small to a less desirable classroom and
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restricting her movement around the facility while taking no action against Defendant
Cuer. Thus, the evidence was sufficient for the jury to find supervisory liability as to both
Dolce and Conway based on at least (1) direct participation in the hostile work
environment, (2) failure to remedy the hostile work environment after being informed that
it existed, (3) gross negligence in the supervision of Cuer, and (4) deliberate indifference
to Small’s plight. See Liner, 582 F. Supp. 2d at 433. The trial evidence was therefore
more than sufficient to support the jury’s verdicts against Dolce and Conway, and they
have made little effort to show otherwise. See, e.g., Saxon v. Attica Med. Dep’t, 468 F.
Supp. 2d 480, 483 (W.D.N.Y. 2007) (“personal involvement can be established upon a
showing that a supervisory official became aware of a violation and failed to remedy it”);
Wise v. N.Y. City Police Dep’t, 928 F. Supp. 355, 368-69 (S.D.N.Y. 1996) (finding that a
supervisory officer could be personally involved in an alleged deprivation of rights when
the plaintiff had proffered evidence that the officer knew of the harassment but failed to
remedy it).
It must further be noted that these two arguments ring particularly hollow when
applying the Rule 50 standard: consideration of all evidence in the light most favorable to
Small and crediting all reasonable inferences in her favor. See Jones, 691 F.3d at 80.
Moreover, Defendants Dolce and Conway have failed to show a complete lack of
evidence supporting the jury’s verdict or such overwhelming evidence in their favor such
that they are entitled to judgment as a matter of law. See Cash, 654 F.3d at 333. Their

16

request for judgment as a matter of law or relief from the final judgment5 on these grounds
is therefore denied.
4. Defendants Dolce and Conway have not demonstrated that they are
entitled to qualified immunity as a matter of law.
Defendants Dolce and Conway alternatively argue that they are entitled to
judgment as a matter of law on the basis of qualified immunity. At trial, the jury rejected
their qualified immunity defenses. (Docket No. 197.)
Qualified immunity protects officials from § 1983 liability if (1) their actions did not
violate clearly established law, or (2) it was objectively reasonable for them to believe that
their actions did not violate the law. See Warren v. Keane, 196 F.3d 330, 332 (2d Cir.
1999). Here, Defendants Dolce and Conway again minimize their conduct by arguing
that it was not clearly established that failing to report Small’s complaint to the Office of
Diversity Management would violate her constitutional rights, since Defendant Cuer’s
actions occurred outside of the workplace. This argument is wholly unpersuasive.
First, Defendants Dolce and Conway once again take the narrowest view of the
evidence and construe it entirely in their favor, blatantly ignoring the majority of the trial
evidence and the proper standard for judgment as a matter of law.

5

Rule 60 (b) enumerates certain circumstances under which a district court may relieve a party from a final
judgment. Generally, a Rule 60 (b) motion is granted only in Aextraordinary circumstances@ when it is
necessary to Aoverride the finality of judgments in the interest of justice.@ Andrulonis v. United States, 26
F.3d 1224, 1235 (2d Cir. 1994); see also Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (noting that
A[s]ince 60 (b) allows extraordinary judicial relief, it is invoked only upon a showing of exceptional
circumstances@). Defendants Conway and Dolce have made no such showing here.

17

Second, the factual premise of their argument—that Defendant Cuer’s offending
conduct occurred outside of the workplace—is simply not true. As indicated above, Small
presented abundant evidence that Cuer harassed her at Attica.
Third, Defendants Dolce and Conway’s contention that their failure to forward
Small’s complaint was simply a “mistake in judgment” flies directly in the face of the jury’s
findings and ignores the weight of the trial evidence, which established that their conduct
went beyond simply failing to timely report Small’s complaint and included deliberately
failing to remedy the discrimination and hostile work environment despite having direct
knowledge of its existence.
Accordingly, for these reasons, Defendants Dolce and Conway’s claim that they
are entitled to judgment as a matter of law based on qualified immunity is unfounded, and
therefore, denied. The jury’s verdict against them will stand.
B. Defendant Cuer’s Post-Trial Motion
Defendant Cuer moves for a new trial or remittitur of the verdict under Rule 59 (a),
and for alteration or amendment of the judgment under Rule 59 (e).
1. Defendant Cuer has not demonstrated that he is entitled to a new trial.
Defendant Cuer argues that he is entitled to a new trial because the jury’s verdict
is against the weight of the evidence and its compensatory damages award is unclear,
ambiguous, and duplicative.
“A motion for a new trial ordinarily should not be granted unless the trial court is
convinced that the jury has reached a seriously erroneous result or that the verdict is a
miscarriage of justice.” Townsend, 679 F.3d at 51 (internal citations and quotation marks
18

omitted) (quoting Medforms, 290 F.3d at 106).

When damages are challenged as

duplicative, “[t]here is a presumption that a jury’s award is valid.” Bender v. City of N.Y.,
78 F.3d 787, 793 (2d Cir. 1996).
Defendant Cuer first asserts that a new trial is required because the verdict is
against the weight of the evidence.

He does not, however, offer any argument or

evidence in support of this bald assertion. He therefore fails to carry his burden. See
Norton, 145 F.3d at 118 (noting that the party seeking to overturn a verdict carries the
burden of proof).
Defendant Cuer next argues that a new trial is necessary because the jury’s
compensatory damages award is unclear, confusing, ambiguous, and duplicative. He
correctly notes that the jury awarded $2.4 million in compensatory damages against
DOCCS, and then awarded an equal amount in compensatory damages against the
individual defendants apportioned among them—Cuer ($1.68 million); Dolce ($480,000);
Conway ($240,000). Cuer takes issue with this award as confusing because, in his view,
“the question remains what amount of compensatory damages the Jury intended to
award, either $2,400,000.00 or that amount multiplied by two.” (Memorandum of Law,
Docket No. 205, p. 5.)
Contrary to Defendant Cuer’s argument, nothing in the jury’s verdict suggests that
it intended a single, collective award of $2.4 million against all defendants.

Cuer

maintains that the jury may have intended a total award of $2.4 million, which it then
apportioned as $1.68 million against Cuer, $480,000 against Dolce, and $240,000 against
Conway. (Affidavit of James Wujcik, Docket No. 204-1, ¶¶ 10-17.) But this cannot be,
19

because the verdict sheet on its face reflects that the jury entered individual damage
awards against each separate defendant, as this Court instructed it to do. Moreover,
under Cuer’s formulation, the jury would have made no award against DOCCS, which it
clearly found liable.
Rather, the completed verdict form quite plainly reflects what the jury intended: a
compensatory damages award of $4.8 million (not including front and back pay). It
awarded $2.4 million in compensatory damages against DOCCS, and another $2.4
million in compensatory damages collectively against Defendants Cuer, Dolce, and
Conway, for a collective compensatory damages award of $4.8 million. In apportioning
the total $4.8 million award, the jury may well have found that DOCCS was 50%
responsible; that Cuer was 35% responsible; that Dolce was 10% responsible; and that
Conway was 5% responsible. Setting aside the amount of the award, Cuer offers no
reason why the jury could not reasonably proceed in this manner.
In any event, Defendant Cuer waived each of the arguments he now raises
because he failed to object at trial.6 See Lore v. City of Syracuse, 670 F.3d 127, 160 (2d
Cir. 2012) (“A party that fails to object at trial to the substance or ambiguity of special
verdict questions to be put to the jury waives its right to a new trial on that ground and
has no right to object to such matters on appeal . . . unless the error is fundamental.”);
Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006) (“a party waives its

To the extent that Defendant Cuer’s argument is directed to deficiencies in the jury verdict form itself, this
argument too is waived because Cuer also failed to object to the verdict form at trial. See Jarvis v. Ford
Motor Co., 283 F.3d 33, 57 (2d Cir. 2002) (noting that the “failure to object to a jury instruction or the form
of an interrogatory prior to the jury retiring results in a waiver of that objection”).
6

20

objection to any inconsistency in a jury verdict if it fails to object to the verdict prior to the
excusing of the jury”); U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1367
(2d Cir. 1988) (finding waiver when “the jury returns an ambiguous verdict and counsel
fails to seize the opportunity to raise an appropriate objection”). Cuer also waived any
arguments that the compensatory damage awards are duplicative. See E.J. Brooks Co.
v. Cambridge Sec. Seals, 12-CV-2937(LAP), 2015 WL 9704079, at *12 (S.D.N.Y. Dec.
23, 2015) (“courts have found that where a party does not timely raise the issue of
duplicative claims and where the jury’s intention is clear, the jury’s award should be
upheld and any objection is waived”); see also Walker v. City of New York, 11-CV314(CBA)(JMA), 2014 WL 12652345, at *13 (E.D.N.Y. Sept. 3, 2014) (“Failure to object
to a jury verdict form or the jury’s verdict waives a party’s argument that damages are
duplicative.”) (citing Bseirani v. Mashie, 107 F.3d 2, 1997 WL 3632, at *1 (2d Cir. 1997)
(“By not objecting to the instructions . . . or requesting that the jury be questioned before
being discharged, [defendant] has waived the argument that the damages are
duplicative.)
Accordingly, Defendant Cuer’s request for a new trial on these grounds is denied.
2. The damages award against Defendant Cuer is subject to remittitur.
Defendant Cuer seeks remittitur of the jury’s damages award against him on the
grounds that it is excessive when weighed against the trial evidence. The jury returned
a verdict in Small’s favor on both causes of action that she brought against Cuer. For
Cuer’s deprivation of Small’s federally protected right to be free from a hostile work
environment, the jury awarded Small $1 million in compensatory damages and $50,000
21

in punitive damages. For Cuer’s aiding and abetting the unlawful discrimination and
hostile work environment that DOCCS engaged in, the jury awarded Small $680,000 in
compensatory damages, $370,000 in back pay, and $1.8 million in front pay. The jury’s
total award against Cuer was thus $3.9 million.
“A jury has broad discretion in measuring damages,” Dotson v. City of Syracuse,
No. 5:04-CV-1388 NAM/GJD, 2011 WL 817499, at * 13 (N.D.N.Y. Mar. 2, 2011), but
“there must be an upper limit, and whether that has been surpassed is . . . a question of
law,” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435, 116 S. Ct. 2211, 2223, 135
L. Ed. 2d 659 (1996) (quoting Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d
Cir. 1961)). If a district court finds that the limit has been eclipsed, and that the damages
are excessive, it may order a new trial, a new trial limited to damages, or remittitur.
Thorsen v. County of Nassau, 722 F. Supp. 2d 277, 292 (S.D.N.Y. 2010) (citing Cross,
417 F.3d at 258).
Remittitur, “a limited exception to the sanctity of jury fact-finding”, see Akermanis
v. Sea-Land Serv., Inc., 688 F.2d 898, 902 (2d Cir.1982), “is the process by which a court
compels a plaintiff to choose between reduction of an excessive verdict and a new trial,”
Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990). It is appropriate where
“a properly instructed jury, hearing properly admitted evidence, nevertheless makes an
excessive award.” Werbungs Und Commerz Union Austalt v. Collectors' Guild, Ltd., 930
F.2d 1021, 1027 (2d Cir. 1991). A court’s decision to compel such a choice depends on
whether the jury's award is “so high as to shock the judicial conscience and constitute a

22

denial of justice.” Payne v. Jones, 711 F.3d 85, 96 (2d Cir. 2012) (quoting Zarcone v.
Perry, 572 F.2d 52, 56 (2d Cir. 1978)).
a. The compensatory damages award against Cuer is subject to
remittitur.
Focusing on the jury’s entire $7.02 million verdict returned against all defendants,
Defendant Cuer argues that the award “is excessive when compared to controlling
precedent and when weighed against the evidence.” (Memorandum of Law, Docket No.
205, p. 7.) Cuer, however, neither cites controlling precedent nor identifies the trial
evidence upon which he relies.
The only specific argument that Cuer makes in favor of remittitur is that the jury’s
overall damages award of $7.02 million is excessive and “shocks the conscience”
because it is more than triple the $2.3 million valuation of Small’s claims by her economic
expert. This argument limps for two reasons.
First, the other defendants in this action do not seek remittitur of the damages
against them, and Defendant Cuer cannot do so on their behalf. Cuer’s arguments must
therefore be examined in relation to the $3.85 million in compensatory damages awarded
against him alone (not counting the $50,000 punitive damages award), not the overall jury
award of $7.02 million.
Second, Defendant Cuer’s argument focuses solely on limited evidence
concerning the economic value of Small’s claims while entirely ignoring the extensive
evidence of psychological and physical harm that he caused, as presented at trial through
treating psychologist Dr. Fiona Gallacher and expert psychologist Dr. Norman Lesswing.
Their largely unrebutted testimony, which the jury could reasonably have accepted,
23

supports a significant award for emotional damages in this case.

See Patrolmen’s

Benevolent Ass’n. of City of New York v. City of New York, 310 F.3d 43, 55 (2d Cir. 2002)
(reasoning that compensatory damages for emotional distress are permitted under § 1983
when substantiated by evidence in addition to a plaintiff’s subjective testimony, such as
by witnesses to the plaintiff’s distress or by the objective circumstances of the violation
itself).
Because Defendant Cuer concedes that Small presented evidence at trial from
which the jury could reasonably find that her economic damages alone were $2.3 million,
the question becomes whether the balance of the jury’s award—$1.55 million—which
may fairly be attributed to emotional and physical damage, is “so high as to shock the
judicial conscience and constitute a denial of justice.” Payne, 711 F.3d at 96.
One of the most concrete methods used to resolve such questions is to “consider[
] . . . the amounts awarded in other, comparable cases.” DiSorbo v. Hoy, 343 F.3d 172,
183 (2d Cir. 2003). Defendant Cuer, however, makes no effort whatsoever to employ this
method: he does not cite a single case, comparable or otherwise, in support of his
contention that the jury’s verdict shocks the conscience. Nonetheless, examination of
caselaw compels the finding that remittitur is required.
Emotional distress awards within the Second Circuit can “generally be grouped
into three categories of claims: ‘garden-variety,’ ‘significant’ and ‘egregious.’” See, e.g.,
Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009); Mugavero v. Arms
Acres, Inc., 680 F. Supp. 2d 544, 578 (S.D.N.Y. 2010).

24

In “garden variety” emotional distress cases, “the evidence of mental suffering is
generally limited to the testimony of the plaintiff, who describes his or her injury in vague
or conclusory terms, without relating either the severity or consequences of the injury.”
Khan v. Hip Centralized Lab. Servs., Inc., No. CV-03-2411, 2008 WL 4283348, at *11
(E.D.N.Y. Sept. 17, 2008). “Garden variety” emotional distress claims “generally merit
$30,000 to $125,000 awards.” Mugavero, 680 F. Supp. 2d at 578.
“Significant” emotional distress claims “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.” Khan, 2008 WL 4283348, at *11. “Significant” claims
merit awards at least as high as $175,000. See, e.g., Mugavero, 680 F. Supp. 2d at 578
(upholding total emotional distress award of $175,000 where the plaintiff offered evidence
of “more than a ‘garden variety’ claim”).
Finally, “egregious” emotional distress claims “generally involve either ‘outrageous
or shocking’ discriminatory conduct or a significant impact on the physical health of the
plaintiff.” Khan, 2008 WL 4283348, at *12. Substantially higher awards are appropriate
for these types of claims. See, e.g., Ramirez v. N.Y. City Off-Track Betting Corp., 112
F.3d 38, 41 n.1 (2d Cir. 1997) (upholding $500,000).
From the unrebutted testimony at trial, the jury could reasonably have determined
that Cuer’s conduct was outrageous and shocking, such that it had a significant impact
on Small’s psychological and physical health. Small presented evidence that Cuer’s
campaign of harassment left her with debilitating psychological conditions—including
25

post-traumatic stress disorder, major depressive disorder, sleep phobia, agoraphobia,
and anxiety—as well as physical ailments, including loss of hair, grinding teeth, incessant
coughing leading to a prolapsed bladder, twitching, loss of appetite, weight gain, lethargy,
nausea, and diarrhea. The jury may therefore have reasonably found this to be an
egregious case warranting substantial damages.
Unlike Defendant Cuer, Small presents cases that she deems supportive of the
jury’s award, but upon close examination, none of them are comparable to the
circumstances here. In Turley, the Second Circuit upheld a compensatory damages
award of $1.32 million in an employment action, but that case, which this Court presided
over, involved a 3-year pattern of extreme racial harassment that was “unique, combining
years of grotesque psychological abuse leading to a marked decline in [the plaintiff’s]
mental health and well-being.” 774 F.3d at 146, 162-164. The facts here do not approach
those in Turley.

In Manganiello v. City of New York, the Second Circuit upheld a

compensatory damages award of $1,426,261 in a § 1983 malicious prosecution case, but
only $116,600 of that award was for non-pecuniary damages. 612 F.3d 149, 168 (2d Cir.
2010). In Osorio v. Source Enters., Inc., a Title VII gender-discrimination/hostile work
environment case in which the jury awarded $4 million in compensatory damages for
emotional distress and harm to reputation, the district court refused to grant remittitur, but
it cannot be determined how much of the $4 million award was attributable to harm to
reputation and how much to emotional damages. No. 05 Civ. 10029(JSR), 2007 WL
683985, at *5 (S.D.N.Y. Mar. 2, 2007). Small’s cases are therefore not instructive.

26

In this Court’s view, what amounts to a $1.55 million psychological/physical
damages award against Defendant Cuer does in fact shock the conscience and constitute
a denial of justice. Remittitur is therefore required. But without question, Small suffered
persistent, pervasive, troubling discrimination that no one would remedy, despite her
cries. It is an egregious case, but one that lasted months, not years. It is akin to Chopra
v. Gen. Elec. Co., a Title VII case involving retaliatory treatment over the course of nine
months in which the district court upheld the jury’s $500,000 award for emotional distress.
527 F. Supp. 2d 230, 247 (D.Conn. 2007). It is also akin to Ramirez, a Title VII case
involving discrimination and retaliation that occurred over a period of eight months in
which the Second Circuit upheld the district court’s remittitur of the jury’s non-pecuniary,
pain-and-suffering award to $500,000. 112 F.3d at 41, n. 1. Consequently, this Court
finds that an emotional damages award of $500,000 is warranted.
Accordingly, the remittitur offered is a total compensatory damages award against
Defendant Cuer of $2.88 million, which represents $2.3 million in unchallenged pecuniary
damages7 and $500,000 in psychological/physical damages. If Small does not accept
this remittitur, this Court will vacate the damages award against Cuer and conduct a new
trial on damages.
b. The punitive damages award against Defendant Cuer is affirmed.
In addition to challenging the compensatory damages award, Defendant Cuer also
seeks remittitur of the jury’s $50,000 punitive damages award on the grounds that it is
excessive and against the weight of the evidence. This Court disagrees.

7

This includes the jury’s award of $370,000 in back pay and $1.8 million in front pay.

27

“Awards of punitive damages are by nature speculative, arbitrary approximations.”
Payne, 711 F.3d at 93. Nonetheless, courts have an obligation to ensure that such
awards are “fair, reasonable, predictable, and proportionate.” Id. Judicial review of
punitive damages awards, in fact, “has been a safeguard against excessive verdicts for
as long as punitive damages have been awarded.” Id. at 96 (citing Honda Motor Co. v.
Oberg, 512 U.S. 415, 421, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994)).
Punitive damages must be “reasonable in their amount and rational in light of their
purpose to punish what has occurred and to deter its repetition.” Pac. Mut. Life Ins. Co.
v. Haslip, 499 U.S. 1, 21, 111 S. Ct. 1032, 1045, 113 L. Ed. 2d 1 (1991). An award of
punitive damage is reversed only if it is “so high as to shock the judicial conscience and
constitute denial of justice.” Hughes v. Patrolmen’s Benevolent Ass’n, 850 F.2d 876, 883
(2d Cir. 1988).
A court’s authority to limit an award derives in part from the Due Process Clause
of the Fourteenth Amendment. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532
U.S. 424, 433, 121 S. Ct. 1678, 1683, 149 L. Ed. 2d 674 (2001). When a federal court
reviews a state-court award, punitive damages violate the Due Process Clause if they are
“grossly excessive.” Id.; BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562, 116 S. Ct.
1589, 134 L. Ed. 2d 809 (1996). But a federal trial court reviewing its own jury’s verdict
for excessiveness has an independent “supervisory authority.” Payne, 711 F.3d at 97.
Therefore, “a degree of excessiveness less extreme than ‘grossly excessive’ will justify”
remittitur in cases such as this. Id.

28

The three guideposts articulated by the Supreme Court in Gore inform this inquiry.
517 U.S. at 574–75.

Those guideposts are: (1) degree of reprehensibility of the

defendant's conduct; (2) relationship of the punitive damages to the compensatory
damages; and (3) disparity between the punitive damages award and penalties imposed
in comparable cases. Id.; Payne, 711 F.3d at 101. Defendant Cuer’s limited argument
relates only to reprehensibility.
The degree of reprehensibility of the defendant's misconduct is “[p]erhaps the most
important indicum of the reasonableness of a punitive damages award.” Gore, 517 U.S.
at 575. “This guidepost is particularly important and useful because punitive damages
are intended to punish, and the severity of punishment, as in the case of criminal
punishments, should vary with the degree of reprehensibility of the conduct being
punished.” Payne, 711 F.3d at 101.
The Supreme Court has outlined five factors relevant to determining the
reprehensibility of a defendant’s conduct.

See State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 419, 123 S. Ct. 1513, 1521, 155 L. Ed. 2d 585 (2003). Courts
should consider whether
the harm caused was physical as opposed to economic; the
tortious conduct evinced an indifference to or a reckless
disregard of the health or safety of others; the target of the
conduct had financial vulnerability; the conduct involved
repeated actions or was an isolated incident; and the harm
was the result of intentional malice, trickery, or deceit, or mere
accident.
Id.

29

Defendant Cuer’s only argument in support of his request for remittitur of punitive
damages is that “the evidence at trial shows intermittent contact and communication
between [himself] and [Small] after March 2010.” (Memorandum of Law, Docket No. 205,
p. 6.) Cuer argues that punitive damages are unwarranted because he transferred out of
the Academic Building and away from Small to minimize his contact with Small after their
friendship ended. In so arguing, Cuer once again ignores the unrebutted evidence of his
harassing behavior, including leaving notes on Small’s car, accusing Small of being with
other men, filing false charges against her at work, and acting in a manner to cause the
need for Small to obtain a protective order against him, all during the period when he
claims to have minimized his contact with her.
As set out above, the trial evidence was sufficient for the jury to find Defendant
Cuer’s conduct sufficiently reprehensible to warrant punitive damages. In addressing the
reprehensibility factors (which Cuer fails to do), Cuer caused both psychological and
physical harm; he totally disregarded Small’s mental health; he preyed on Small’s
vulnerabilities (though not financial); he persisted in repeated acts of harassment both
before and after Small asked him to stop; and he intentionally targeted Small and warped
her religious beliefs to coerce or deceive her into believing that God wanted her to
succumb to his otherwise unwanted advances. Cuer’s conduct was thus sufficiently
reprehensible to support the jury’s award of punitive damages.
The next factor is proportionality.

“Courts must ensure that the measure of

punishment is both reasonable and proportionate to the amount of harm to the plaintiff
and to the general damages recovered.” State Farm, 538 U.S. at 426. This factor—the
30

ratio between the punitive and compensatory damages—is the “most commonly cited
indicum of an unreasonable or excessive punitive damages award.” Gore, 517 U.S. at
580. A bright-line test, however, is inappropriate, see id. at 582–83, as “it is difficult or
impossible to make useful generalizations,” Payne, 711 F.3d at 102. But “in practice, few
awards exceeding a single-digit ratio between punitive and compensatory damages will
satisfy due process.” State Farm, 538 U.S. at 425.
Here, unlike in most cases, the jury’s punitive damages award against Defendant
Cuer is a fraction of the compensatory damage award, not a multiple of it. The jury
awarded $50,000 in punitive damages against a remitted compensatory damages award
against Cuer of $2.88 million. The punitive damages award is therefore reasonable and
proportionate, and Cuer makes no specific arguments otherwise.
The third, and arguably least important, guidepost assesses the “disparity between
the punitive damages award and the ‘civil penalties authorized or imposed in comparable
cases.’” State Farm, 538 U.S. at 428 (quoting Gore, 517 U.S. at 575). Defendant Cuer
has not come forward with any comparable cases demonstrating any impermissible
disparity in the jury’s punitive damages award.
Considering the totality of the circumstances, including the degree of
reprehensibility, the compensatory award, Defendant Cuer’s failure to assert meaningful
arguments, and the ultimate purpose of punitive damages—to punish and deter future
misconduct—this Court finds that the jury’s $50,000 punitive damages award is both
reasonable and well supported by the trial evidence. It is therefore affirmed.8

8

For all of the reasons stated herein, Defendant Cuer’s request to alter or amend the judgment under Rule

31

C. Small’s Motion for Attorneys’ Fees, Costs, and Interest
Small seeks attorneys’ fees in the amount of $1,054,600, costs in the amount of
$100,448.72, and pre- and post-judgment interest at the New York rate of 9%.
Defendants oppose only Small’s request for attorneys’ fees.9
1. Small is entitled to attorneys’ fees in the amount of $862,395.30.
To ensure that federal rights are adequately enforced, a prevailing party in a civil
rights action may recover, subject to the court’s discretion, “a reasonable attorney's fee.”
See 42 U.S.C. § 1988 (b) (permitting recovery of attorneys’ fees in actions brought under
42 U.S.C. § 1983); 42 U.S.C. § 2000e-5 (k) (permitting recovery of attorneys’ fees in Title
VII actions); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550, 130 S. Ct. 1662, 176 L.
Ed. 2d 494 (2010).

The same is true for a prevailing party in an employment

discrimination suit brought under the New York Human Rights Law. See N.Y. Exec. L. §
297 (10) (providing that “with respect to a claim of employment . . . discrimination where
sex is a basis of such discrimination . . . the court may in its discretion award reasonable
attorney’s fees attributable to such claim to any prevailing party”). A prevailing party may
also seek attorneys’ fees for post-trial work, including applications for attorneys’ fees and
costs. See Hines v. City of Albany, 862 F.3d 215, 223 (2d Cir. 2017).
Determining attorneys’ fees involves a two-step process. First, the court must
determine whether the party seeking fees is a prevailing party. See Pino v. Locascio, 101

59 (e), which is not brought on an independent basis, is also denied.
Defendant Cuer did not file separate opposition to Small’s motion. He joined the opposition filed by
Defendants DOCCS, Dolce, and Conway. (Docket No. 212.)
9

32

F.3d 235, 237 (2d Cir. 1996). If so, the court must then assess whether the requested
fee is reasonable. See id. “A ‘reasonable’ fee is a fee that is sufficient to induce a capable
attorney to undertake the representation of a meritorious civil rights case.” Perdue, 559
U.S. at 552. The fee-seeking party bears the burden of “establishing entitlement to an
award and documenting the appropriate hours expended and hourly rates.” See Savoie
v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999).
In this circuit, if a court finds a fee award to be appropriate, it must set a
“reasonable hourly rate,” which is “the rate a paying client would be willing to pay.” Arbor
Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d
Cir. 2008). To determine this rate courts must assess a variety of case-specific variables.
See Adorno v. Port Auth. of N.Y. & N.J, 685 F. Supp. 2d 507, 510-11 (S.D.N.Y. 2010).
Those variables include the twelve Johnson factors: (1) the time and labor required; (2)
the novelty and difficulty of the questions; (3) the level of skill required to perform the legal
service properly; (4) the preclusion of employment by the attorney due to acceptance of
the case;

(5) the attorney's customary hourly rate; (6) whether the fee is fixed or

contingent; (7) the time limitations imposed by the client or the circumstances; (8) the
amount involved in the case and the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of
the professional relationship with the client; and (12) awards in similar cases. See Arbor
Hill, 522 F.3d at 190 (citing Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 71719 (5th Cir. 1974)). The court must also consider that a paying client would wish to spend
the minimum necessary to litigate the case effectively. See id.
33

Once the reasonable hourly rate is identified, the court uses it to calculate the
presumptively reasonable fee by multiplying the rate by the number of hours reasonably
expended. See id.
There is no dispute that Small is a prevailing party. A party is a prevailing party if
the party “succeeds on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.” Farrar v. Hobby, 506 U.S. 103, 109, 113 S.
Ct. 566, 121 L. Ed. 2d 494 (1992). Here, Small succeeded on each of her four causes of
action and obtained a significant damages award. Small is therefore entitled to recover
her attorneys’ fees. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L.
Ed. 2d 40 (1983) (“a prevailing plaintiff should ordinarily recover an attorney’s fee unless
special circumstances would render such an award unjust”).
Small seeks $1,054,600 in attorneys’ fees. She supports her request with a 162page billing statement covering the time period August 10, 2011, through September 28,
2018. (Billing Statement, Docket No. 201-2.) The billing statement contains entries from
multiple legal professionals and reflects instances of “block billing.” Defendants maintain
that Small’s fee request is unreasonable both because the requested hourly rates exceed
those permitted in this district and because the billing statement shows overstaffing,
inflated billing, and vague entries. Defendants request that Small’s request be trimmed
by one-third to account for these overages.
a. Reasonableness of the hourly rates claimed.
The first issue is the reasonableness of the hourly rates claimed, which have
periodically increased over the 7-year course of this litigation. For example, lead counsel
34

Jennifer Shoemaker, a litigation partner with 18 years’ experience in labor and
employment litigation, billed $493,755.50 for 1,670.6 hours at hourly rates that varied from
$225 to $320. (Shoemaker Affirmation; Docket No. 201, ¶¶ 47, 48; Billing Statement, p.
5.) Second-chair Alina Nadir, a litigation associate with 8 years’ experience in labor and
employment litigation, billed $329,341 for 1,317.6 hours at hourly rates that varied from
$235 to $260. (Id. ¶ 50; Billing Statement, p. 5.) Principal paralegal Janice Hance, a
litigation paralegal with 28 years’ experience, billed $194,831.50 for 1,180.1 hours at
hourly rates that varied from $135 to $175. (Shoemaker Affirmation; Docket No. 201, ¶
49; Billing Statement, p. 5.). For ease of analysis, this Court will divide the total amount
billed by the total number of hours claimed to reach an average single rate-per-hour. This
results in Shoemaker billing about $295/hour; Nadir billing about $250/hour; and Hance
billing about $165/hour.
The billing statement also contains entries by eight other lawyers and five other
paralegals. Using the same method described above, the other eight lawyers billed at
the following average rates: Ramsey ($305/hour); Fitch ($295/hour); Cordello
($265/hour); Gregorio ($240/hour); Farrar ($258/hour); Keneally ($365/hour); Nunes
($345/hour); and Hull ($330/hour). (Billing Statement, pp. 5-6.) The five other paralegals
billed at rates as follows: Cross ($160/hour); Coleman ($125/hour); Smith-Schuler ($180);
Soeffing ($172/hour); Bansbach ($175/hour). (Id.)
Assessing these average rates-per-hour, this Court finds that Shoemaker’s rate of
$295/hour and Nadir’s rate of $250/hour are reasonable and within the range of rates
approved in this district in civil rights actions for attorneys of comparable experience and
35

expertise. See, e.g., Murray v. Coleman, 232 F. Supp. 3d 311, 317 (W.D.N.Y. 2017)
(finding in-court rate of $300/hour and out-of-court rate of $275/hour reasonable in civil
rights action); Davis v. Shah, 12-CV-6134-CJS, 2017 WL 2684100, at *2-4 (W.D.N.Y.
June 22, 2017) (approving $260/hour for attorney with 7 years’ experience); Costa v.
Sears Home Improvement Prods., Inc., 212 F. Supp. 3d 412, 420-21 (W.D.N.Y. 2016)
(noting that hourly rates generally approved in the WDNY for Title VII cases “are in the
range of $225-$250 for partner time or senior associate time, $150-$175 for junior
associate time, and $75 for paralegal time” but approving hourly rates of $300/hour for
attorney with 21 years’ experience and $250/hour for attorney with 9 years’ experience)
(collecting cases); Anello v. Anderson, 191 F. Supp. 3d 262, 282-83 (W.D.N.Y. 2106)
(approving unopposed rate of $250 per hour for partner in civil rights case). Considering
all of the relevant variables, this Court finds these are rates a client would willingly pay.
These rates are therefore approved as the reasonable hourly rates in this case.
For the eight other attorneys, Small provides little information about their
experience and expertise, other than identifying whether they are a partner or associate.
(See Shoemaker Affirmation, Docket No. 201, ¶ 55.) Consequently, partners will be
approved at $295/hour and associates will be approved at $250/hour, unless the rate they
actually billed falls below these approved rates. See Cold Spring Const. Co. v. Spikes,
No. 11-CV-700S, 2013 WL 5295654, at *3 (W.D.N.Y. Sept. 18, 2013) (assigning rates
where no information was provided as to the experience and skill of the professionals
who worked on the matter).

36

In assessing Small’s paralegal rate of $165/hour, this Court finds that it is
excessive. In this district, a paralegal rate of $75/hour predominates, see Costa, 212 F.
Supp. 3d at 421; Anello, 191 F. Supp. 3d at 283; Glenn v. Fuji Grill Niagara Falls, LLC,
14-CV-380S, 2016 WL 1557751, at *7 (W.D.N.Y. Apr. 18, 2016), with a recent case
approving $115/hour for a paralegal with 7 years’ experience, see Shah, 2017 WL
2684100, at *2.
To strike a balance between Hance’s 28 years’ experience and the unknown
experience of the other paralegals who billed considerable time, this Court will apply a
$100/hour rate to all paralegal time, a rate that this Court finds a reasonable paying client
would willingly pay.
Applying these reasonable hourly rates—$295/hour for partners; $250/hour for
associates; $100/hour for paralegals—Small’s fee request becomes $966,242.50 for
4,388.8 hours as follows:
Name

Position

Hourly Rate

Hours Billed

Total

Shoemaker

Partner

$295

1,670.6

$492,827

Ramsey

Partner

$295

4.6

$1,357

Fitch

Partner

$295

.1

$29.50

Keneally

Partner

$295

2.7

$796.50

Nunes

Partner

$295

.9

$265.50

Hull

Partner

$295

1

$295

Nadir

Associate

$250

1,317.6

$329,400

37

Cordello

Associate

$250

.3

$75

Gregorio

Associate

$240

6.3

$1,512

Farrar

Associate

$250

8.1

$2,025

Hance

Paralegal

$100

1,180.1

$118,010

Cross

Paralegal

$100

130.4

$13,040

Coleman

Paralegal

$100

49.4

$4,940

Smith-Schuler

Paralegal

$100

.6

$60

Soeffing

Paralegal

$100

15.2

$1,520

Bansbach

Paralegal

$100

.9

$90
Total

Total

4,388.8

$966,242.50

b. Reasonableness of the time expended.
The second issue is the reasonableness of the time expended. The party seeking
attorney’s fees must support the number of hours expended with “contemporaneous time
records . . . [that] specify, for each attorney, the date, the hours expended, and the nature
of the work done.” N.Y.S. Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136,
1147-48 (2d Cir. 1983).

This Court must exclude any hours that were “excessive,

redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Indeed, all time must
be reasonably expended. Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 111
(2d Cir. 2012). In making this determination, the court must ask whether the attorney
exercised “billing judgment.” See Anderson v. Rochester–Genesee Reg'l Transp. Auth.,
38

388 F. Supp. 2d 159, 163 (W.D.N.Y. 2005). If the Court’s review is stymied by vague or
excessive entries or block-billing practices, an across-the-board fee reduction may be
warranted. See Zuffa, LLC v. S. Beach Saloon, Inc., CV 15-6355 (ADS)(AKT), 2019 WL
1322620, at *8 (E.D.N.Y. Mar. 6, 2019) (citing Anderson v. Cty. of Suffolk, No. CV 091913, 2016 WL 1444594, at *6 (E.D.N.Y. April 11, 2016) and collecting cases).
But “the district court is not obligated to undertake a line-by-line review of [an]
extensive fee application.” Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144, 150
(2d Cir. 2014). Rather, the court may “use a percentage deduction as a practical means
of trimming fat.” McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension
Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006). In that regard, “[a] court has discretion to impose
an across-the-board reduction if an attorney has billed excessive, redundant, or
unnecessary hours.” Kreisler v. Second Ave. Diner Corp., No. 10 Civ. 7592 (RJS), 2013
WL 3965247, at *3 (S.D.N.Y. July 31, 2013) (citation omitted). Across-the-board cuts
may also be imposed for vague billing entries. See id.
Defendants first contend that the time Small’s counsel expended is unreasonable
because they overstaffed the case, using 10 attorneys and six paralegals. This raises
the question whether Small’s attorneys exercised sound billing judgment. As explained
in Anderson:
In assessing whether an attorney’s time was reasonably
expended, the Court must ask whether the attorney exercised
billing judgment. As the Supreme Court has explained,
“[c]ounsel for the prevailing party should make a good-faith
effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in
private practice ethically is obligated to exclude such hours
from his fee submission. In the private sector, billing judgment
39

is an important component in fee setting. It is no less
important here. Hours that are not properly billed to one’s
client also are not properly billed to one’s adversary pursuant
to statutory authority.”
388 F. Supp. 2d at 163 (internal quotations and citations omitted). Seeking fees for
individuals who had little or no involvement in a case is indicative of poor billing judgment.
See Costa, 212 F. Supp. 3d at 425 (“the fact that Plaintiff’s counsel included time of about
one hour for two separate attorneys . . . who really had no involvement in the case . . .
suggests . . . that Plaintiff’s counsel has done anything but exercise billing judgment”).
Paying clients would likely not be billed, nor would they tolerate being billed, for such time.
Here, Small seeks attorneys’ fees for work performed by several individuals who
are only peripherally related to this case. For example, of the 3,012.2 total attorney hours
billed, only 24 of those hours (or less than 1%) were billed by attorneys other than
Shoemaker and Nadir. Similarly, of the 1,376.6 total paralegal hours billed, only 16.7 of
those hours (or less than 2%) were billed by paralegals other than Hance, Cross, and
Coleman. Given this lack of billing judgment, this Court will not award fees for work done
by Ramsey, Fitch, Keneally, Nunes, Hull, Cordello, Gregorio, Farrar, Smith-Schuler,
Soeffing, and Bansbach, each of whom is only tangentially related to this litigation. See
id. at 426 (disallowing fees for individuals only tangentially involved in the case, ranging
from an individual who billed .7 hours to one who billed 28.3 hours).
Defendants next argue that the total number of hours claimed—now 4,347.6—is
excessive given the circumstances of this particular case. Defendants maintain that “the
legal analysis was the same [for all claims] and [the] factual record was particularly
simple.” (Memorandum of Law, Docket No. 215, p. 2.) Without citing any examples, they
40

fault Small’s attorneys for expending an “excessive, redundant number of hours for
attorneys who have practiced as long as they have.” (Id.) They also contend that “[m]any
of the time entries raise serious concerns about the accuracy of the time spent on certain
days and for certain tasks.” (Id. at p. 3.) In particular they argue that Small’s counsel
spent an unreasonable amount of time preparing for trial and completing discovery and
summary judgment motions. This Court disagrees.
Although the legal claims were not unusually complicated, this case was not as
straightforward as Defendants suggest. The parties heavily litigated for more than seven
years. After Defendants answered Small’s amended complaint on August 27, 2013, it
took approximately 2½ years to complete discovery (complete with motions), after which
the parties litigated their summary judgment motions. Small’s counsel interviewed more
than 24 witnesses and reviewed thousands of pages of documents.

(Shoemaker

Affirmation, Docket No. 218, ¶ 6.) Significantly, counsel had to fully prepare for trial three
different times, due to the first two trials needing to be unexpectedly adjourned.10 This
explains the significant trial preparation charges. The parties litigated motions in limine
and prepared extensive pretrial submissions. Trial then lasted 12 days. An unusual
amount of time and effort was therefore required to bring this case to trial.
Defendants’ contention that many of the time entries “raise serious concerns” is
also unfounded. Defendants cite several instances in which “Plaintiff’s counsel” billed

10

Trial was first scheduled to commence on September 26, 2017, but a criminal trial involving detained
defendants took priority and forced an adjournment. (See Docket No. 146.) Trial was then scheduled to
commence on March 13, 2018, but had to be adjourned due to a death in Defendants’ counsel’s family.
(See Docket No. 155.) Trial finally proceeded on September 11, 2018. (See Docket No. 179.)

41

more than 24 hours in a single day, a circumstance that, if true, would certainly raise
suspicion. (Memorandum of Law, Docket No. 215, p. 3.) But what Defendants fail to
recognize is that multiple legal professionals worked on the case in a single day, thus
leading to what otherwise would appear to be billing anomalies. For example, on June
13, 2017, Shoemaker worked on the case for 13.2 hours; Nadir for 12.3 hours; and Hance
for 5 hours. (Billing Statement, Docket No. 201-2, pp. 107-108.) Similar circumstances
occurred on June 14 and September 14, 2017. (Id. at pp. 108, 127.) There is, of course,
nothing improper about multiple legal professionals working on a single case at the same
time so long as it is not redundant or duplicative.
The rich and unusual facts of this case required painstaking preparation and
detailed presentation to the jury. Witness testimony was crucial, particularly that of Small,
who surely required delicate preparation given her fragile state. Counsels’ preparation
was therefore a critical factor in obtaining the result achieved, one that was
overwhelmingly in Small’s favor. In this Court’s view, the time billed is commensurate
with counsels’ task. This Court therefore finds that, under the unique circumstances of
this case, the time expended was not unreasonable.
Finally, Defendants argue that the billing statement contains impermissibly vague
entries and block-billing, such as “meet with client,” “continue to review documents,”
“continue

document

review,”

“work

on

complaint,”

and

“continue

research.”

(Memorandum of Law, Docket No. 215, pp. 6-7.) This Court agrees to a limited extent.
A billing entry “cannot be so vague as to bar the court from being able to decipher
its meaning in the context in which it appears.” Lewis v. Am. Sugar Ref., Inc., No. 14-CV42

02302(CRK), 2019 WL 116420, at *6 (S.D.N.Y. Jan. 2, 2019).

“The practice of

aggregating multiple tasks into a single billing entry, known as block billing, is not per se
prohibited, but where such entries make it hard to discern the reasonableness of time
allotted to a given task, courts do consider its prevalence in deciding whether reduction
is appropriate.” Mayo-Coleman v. Am. Sugars Holding, Inc., 2019 WL 1034078, 2019
WL 1034078, at *4 (S.D.N.Y. Mar. 5, 2019); see also Hnot v. Willis Grp. Holdings Ltd.,
No. 01 CIV. 6558 GEL, 2008 WL 1166309, at *6 (S.D.N.Y. Apr. 7, 2008) (“Block-billing
can make it difficult for a court to conduct its reasonableness analysis, because a single
billing entry might mix tasks that are compensable with those that are not, or mix together
tasks that are compensable at different rates.”).
Here, the billing statement is largely adequate and sufficiently detailed, but
Defendants are correct that it contains some vague entries and extensive block-billing,
which makes the overall reasonableness of the listed tasks difficult to discern. This Court
will therefore apply a 10% across-the-board reduction. See Aiello v. Town of Brookhaven,
No. 94 Civ. 2622, 2005 WL 1397202, at *3 (E.D.N.Y. June 13, 2005) (ordering 10%
reduction for difficulties arising from block-billing); Sea Spray Holdings, Ltd. v. Pali Fin.
Grp., Inc., 277 F. Supp. 2d 323, 326 (S.D.N.Y. 2003) (ordering 15% reduction).
Accordingly, Small’s final approved attorneys’ fee award is $862,395.30 as follows:
Name

Position

Hourly Rate

Hours Billed

Total

Shoemaker

Partner

$295

1,670.6

$492,827

Nadir

Associate

$250

1,317.6

$329,400

43

Hance

Paralegal

$100

1,180.1

$118,010

Cross

Paralegal

$100

130.4

$13,040

Coleman

Paralegal

$100

49.4

$4,940

Billed Fees

$958,217

10% reduction

($95,821.70)

Approved Fees

$862,395.30

2. Small is entitled to costs in the amount of $100,448.72.
The party seeking to recover costs bears the burden of adequately documenting
and itemizing the costs requested. Baker v. Power Sec. Corp., 174 F.R.D. 292, 294-95
(W.D.N.Y. 1997) (“The burden is therefore upon the party seeking costs to provide
adequate documentation of its costs, and a failure to do so may result in the costs being
reduced or denied.”). A party is not entitled to recover costs when its application fails to
provide substantiation for the costs sought. See Mendez v. Radec Corp., 907 F. Supp.
2d 353, 360 (W.D.N.Y. 2012) (denying costs that were “not adequately explained through
Plaintiffs’ submission”); Douyon v. N.Y. Med. Health Care, P.C., 49 F. Supp. 3d 328, 352
(E.D.N.Y. 2014) (“[W]ith this record, the Court has no way of confirming that these costs
. . . were incurred by counsel.”); Joe Hand Promotions, Inc. v. Elmore, No. 11–cv-3761,
2013 WL 2352855, at *12 (E.D.N.Y. May 12, 2013) (declining to award costs due to an
absence of documentation).
Here, Small seeks reimbursement of her costs in the amount of $100,448.72,
including expert fees and legal research, and she has submitted a detailed invoice in
44

support. (Invoice of Costs, Docket No. 201-3, pp. 30-49.) Defendants do not oppose this
request. Small’s application for costs is therefore approved.
3. Small is entitled to pre- and post-judgment interest on the judgment.
Small seeks pre-judgment interest on her Title VII compensatory damages and
Title VII and New York Human Rights Law back pay awards compounded annually at the
applicable New York State rate. Small further seeks post-judgment interest on her entire
award, including attorneys’ fees and costs. Defendants do not meaningfully oppose these
requests.11
Small first seeks pre-judgment interest on her Title VII compensatory damages
award. “Under Title VII, in its discretion, a court may award pre-judgment interest on
awards of compensatory damages for pain and suffering and emotional distress.”
Lamberson v. Six W. Retail Acquisition, Inc., No. 98 CIV. 8052(DC), 2002 WL 207016, at
*1 (S.D.N.Y. Feb. 11, 2002). Whether to award pre-judgment interest is informed by “(i)
the need to fully compensate the wronged party for actual damages suffered, (ii)
considerations of fairness and the relative equities of the award, (iii) the remedial purpose
of the statute involved, and/or (iv) such other general principles as are deemed relevant
by the court.” Wickham Contracting Co. v. Local Union No. 3, 955 F.2d 831, 833-34 (2d

Defendants’ only opposition to Small’s requests for pre- and post-judgment interest is this throw-away
line in the conclusion of their memorandum of law: “. . . and to the extent that damages are in the form of
equitable relief, the plaintiff is not entitled to pre-judgment interest.” (Memorandum of Law, Docket No. 215,
p. 9.) Defendants cite 28 U.S.C. § 1961 (a) immediately after this statement. See id. Nothing in § 1961
(a), however, addresses equitable relief. This Court therefore deems Small’s requests for pre- and postjudgment interest to be effectively unopposed.
11

45

Cir. 1992). Given the size of the recovery in this case, this Court finds that Small has
been fully compensated. Pre-judgment interest is therefore not required to make Small
whole and will be denied. See Lamberson, 2002 WL 207016, at *1 (denying pre-judgment
interest where not necessary to fully compensate the plaintiff or make her whole).
Small also seeks pre-judgment interest on her back-pay awards.

“Title VII

authorizes a district court to grant pre-judgment interest on a back pay award.” Saulpaugh
v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993). “Pre-judgment interest on back
pay awards is an element of complete compensation.” Joseph v. HDMJ Rest., Inc., 970
F. Supp. 2d 131, 151 (E.D.N.Y. 2013) (citing Loeffler v. Frank, 486 U.S. 549, 558, 108 S.
Ct. 1965, 100 L. Ed. 2d 549 (1988)). It also discourages employers from delaying back
pay payments. See id. at 151. As such, failing to award pre-judgment interest on back
pay is ordinarily an abuse of discretion. See Clark v. Frank, 960 F.2d 1146, 1154 (2d Cir.
1992); Syrnik v. Polones Const. Corp., No. 11 Civ. 7754, 2012 WL 4122801, at *4
(S.D.N.Y. Sept. 29, 2012).
For federal claims under Title VII, courts award pre-judgment interest on back pay
at the federal rate, see 28 U.S.C. § 1961 (a), compounded annually from the date the
claim arises through the date of judgment. See Holness v. Nat’l Mobile Television, Inc.,
No. 09 CV 2601, 2012 WL 1744847, at *7 (E.D.N.Y. Feb. 14, 2012); Joseph, 970 F. Supp.
at 151 (“the award of pre-judgment interest should be calculated from the time the claim
arises through the date of judgment”); Poliard v. Saintilus Day Care Ctr., No. 11 CV 5174,
2013 WL 1346238, at *5 (E.D.N.Y. Mar. 7, 2013) (applying interest compounded annually
to back pay award). The court applies “the federal interest rate based on the average
46

rate of return on one-year Treasury bills for the relevant time period between the time the
claim arises until the entry of judgment pursuant to 28 U.S.C. § 1961 (a).” Levy v. Powell,
No. 00-cv-4499 (SJF), 2005 WL 1719972, at *3 (E.D.N.Y. July 22, 2005). Pre-judgment
interest is thus calculated as follows:
First, the [back pay] award[ ] should be divided pro rata over
the appropriate time period. Second, once the award is
divided, the average annual United States treasury bill rate of
interest referred to in 28 U.S.C. § 1961 will be applied. Third
and finally, in order to guarantee complete compensation to
the plaintiff, the interest will be compounded annually.
Id. (alterations in original; citation and quotation marks omitted).
Here, the Title VII back pay award is $370,000. The relevant time period is January
30, 2011 (day after termination) to October 11, 2018 (date of judgment).12 The average
rate of return on one-year Treasury bills for this time period is .63%.13 Applying the
formula above, this Court finds that Small is entitled to $18,250.79 in pre-judgment
interest on her federal back pay award.
The same method of calculation applies for Small’s state law back pay award, but
pre-judgment interest is calculated at 9% under New York CPLR § 5004. See Marfia v.
T.C. Ziraat Bankasi, 147 F.3d 83, 90 (2d Cir. 1998) (“federal law does not apply to the
calculation of prejudgment interest on supplemental state law claims”). Applying the
same formula above using the New York interest rate, this Court finds that Small is entitled
to $346,371.35 in pre-judgment interest on her state back pay award.

12

For ease of calculation, this Court has rounded this time frame to 92 months.

13

Calculated at https://www.federalreserve.gov/datadownload/Choose.aspx?rel=H.15 (last visited April 4,
2019).

47

Finally, Small seeks post-judgment interest on her entire award, including
attorneys’ fees and costs. By statute, “[i]nterest shall be allowed on any money judgment
in a civil case recovered in a district court.” 28 U.S.C. § 1961 (a). Accordingly, this Court
will grant post-judgment interest on the award reflected in the amended judgment under
28 U.S.C. § 1961 (a) running from October 11, 2018, the date of the original judgment.
See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 55 (2d Cir. 1998).
IV. CONCLUSION
The jury determine that Defendants unlawfully subjected Pamela Small to
discrimination and a hostile work environment and then retaliated against her when she
complained about it.

For the reasons stated above, the jury’s determinations are

supported by the evidence adduced at trial, and Defendants have failed to show that they
are entitled to judgment as a matter of law or a new trial. Defendant Cuer, however, has
demonstrated that the jury’s $3.85 million compensatory damages award against him
requires remittitur to $2.88 million, for the reasons stated herein. Finally, Small is entitled
to recover $862,395.30 in reasonable attorneys’ fees, $364,622.14 in pre-judgment
interest, and $100,448.72 in costs. Post-judgment interest under 28 U.S.C. § 1961 (a)
will run on the entire award from October 11, 2018, the date of the original judgment.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ post-trial motions (Docket Nos. 204,
206) are GRANTED in part and DENIED in part, consistent with this Decision and Order.
FURTHER, that a new trial on damages against Defendant Carl Cuer will be
scheduled by separate order if Plaintiff does not accept this Court’s remittitur of
48

compensatory damages against Defendant Cuer from $3.85 million to $2.88 million.
Plaintiff must file an affidavit within 10 days of the entry date of this Decision and Order
advising whether she will accept the remittitur.
FURTHER, Plaintiff’s Motion for Attorneys’ Fees, Interest, and Costs (Docket No.
202) is GRANTED in part and DENIED in part, consistent with this Decision and Order.
Defendants must pay Plaintiff $862,395.30 in attorneys’ fees, $364,622.14 in prejudgment interest, and $100,448.72 in costs, consistent with this Decision and Order.
FURTHER, that the Clerk of Court is directed to file an amended judgment against
Defendants New York State Department of Corrections and Community Supervision,
Sandra Dolce, and James Conway as follows:
IT IS ORDERED AND ADJUDGED: that judgment is entered
in Plaintiff’s favor against Defendant New York State
Department of Corrections and Community Supervision on
Claims 1 and 2 in the amount of $2,488,250.79.
FURTHER, that judgment is entered in Plaintiff’s favor against
Defendant Sandra Dolce on Claim 3 in the amount of
$480,000.
FURTHER, that judgment is entered in Plaintiff’s favor against
Defendant James Conway on Claim 3 in the amount of
$240,000.
FURTHER, that judgment is entered in Plaintiff’s favor against
Defendants New York State Department of Corrections and
Community Supervision, Sandra Dolce, and James Conway
in the amount of $862,395.30 for attorneys’ fees.
FURTHER, that judgment is entered in Plaintiff’s favor against
Defendants New York State Department of Corrections and
Community Supervision, Sandra Dolce, and James Conway
in the amount of $100,448.72 for costs.

49

FURTHER, that post-judgment interest under 28 U.S.C. §
1961 (a) will run from October 11, 2018.
FURTHER, that the amended judgment may be amended further to include
Defendant Cuer once Plaintiff notifies this Court of her remittitur decision.
SO ORDERED.

Dated: April 14, 2019
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

50