Abel v. Town Sports Int'l, LLC

Full title: DIEUDONNE ABEL, Plaintiff, v. TOWN SPORTS INTERNATIONAL, LLC, Defendant.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Dec 18, 2012

09 Civ. 10388 (DF) (S.D.N.Y. Dec. 18, 2012)

Opinion

09 Civ. 10388 (DF)

12-18-2012

DIEUDONNE ABEL, Plaintiff, v. TOWN SPORTS INTERNATIONAL, LLC, Defendant.

DEBRA FREEMAN, U.S. Magistrate Judge

MEMORANDUM AND ORDER

DEBRA FREEMAN, U.S. Magistrate Judge :

In this employment discrimination case, before this Court on consent pursuant to 28 U.S.C. § 636(c), plaintiff Dieudonne Abel ("Plaintiff") sued his former employer, defendant Town Sports International, LLC ("Defendant"), alleging discrimination on the basis of race and national origin under federal, state, and local law. Plaintiff claimed damages for a hostile work environment, as well as for allegedly retaliatory and discriminatory termination. After a seven-day jury trial in October of 2011, the jury found for Plaintiff on his hostile-work-environment claims and awarded him $300,000 in damages for emotional distress. The jury found for Defendant on Plaintiff's retaliatory and discriminatory termination claims. Both parties later submitted post-trial motions.

Defendant moves, in the alternative, for (1) judgment in its favor on Plaintiff's hostile-work-environment claims, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure,¹ on the ground that there was purportedly no evidence to support a jury finding that Plaintiff had experienced any emotional distress during the period when he was Defendant's employee; (2) a new trial under Rule 59(a) on Plaintiff's hostile-work-environment claims, on the bases that (a) the award is a miscarriage of justice, (b) the jury reached a compromise verdict, and (c) Plaintiff engaged in trial misconduct; or (3) a remittitur of damages, pursuant to Rule 59(e), to not more than $5,000, on the grounds that, at most, Plaintiff submitted evidence at trial of no more than low-level, garden-variety emotional distress. Defendant, however, asks that the Court preserve the jury verdict in its favor on Plaintiff's retaliatory and discriminatory termination claims. Plaintiff, in turn, moves for a new trial on his termination claims, based on alleged errors in the jury instructions. Plaintiff wishes to preserve the favorable verdict and award on his hostile-work-environment claims, and has filed a fee application as the prevailing party on those claims.

1 Although Defendant refers to its Rule 50 motion as a motion for judgment notwithstanding the verdict ("JNOV"), the Court will refer to the motion as one for "judgment as a matter of law" ("JMOL"), in keeping with the language of the Rule.

For the reasons stated below, the Court denies Defendant's motion for judgment as a matter of law pursuant to Rule 50(b), as well as Defendant's motion for a new trial pursuant to Rule 59(a), but conditionally grants Defendant's motion for a new trial pursuant to Rule 59(e). The Court will order a new trial on the issue of compensatory damages on Plaintiff's hostile-work-environment claims unless Plaintiff agrees by January 11, 2013, in writing, to a remittitur reducing the award in his favor on that claim to $100,000. Plaintiff's motion for a new trial on his retaliatory and discriminatory termination claims is denied. Plaintiff's application for attorneys' fees and costs is conditionally granted in the amount of $130,870.50 in fees and $2,412 in costs.

BACKGROUND ²

2 The Court assumes the parties' familiarity with the underlying facts and provides the following non-exhaustive narrative for some context.

Plaintiff, a dark-skinned man from Haiti who speaks English with a Creole accent, began working as a personal trainer at Defendant's sports club in June 2005. (Trial Tr. I³ 146:11-16; 159:13.) Within a few months of working at the club, Plaintiff was making the most sales, eclipsing the figures posted by trainer Tony Smith ("Smith"), the previous top seller. (Id. 158:20-24.) Plaintiff alleges that Smith and other Latino-identified trainers, including Geovanna Collazo ("Collazo"), who was herself of partially Haitian descent (id. 1167:19-20), created a hostile work environment in an attempt to force Plaintiff out of the club. (See, e.g., id. 83 (Plaintiff's opening statement).) Plaintiff testified to being called vulgar names that were racially and/or ethnically charged, such as "nigger" (id. 348:22), "stupid Haitian" (id. 165:20-176:4), "monkey" (id. 327:13), "fucking Negro" (id. 110:20-23), and "voodoo man with HIV" (id. 384:5-9), on a daily basis. According to Plaintiff, he was accused of using voodoo to cause one patron to die on a treadmill (id. 195:13-196:7) and of causing another member to suffer a miscarriage (id. 179:14-183:12, 185:4-19). Plaintiff testified to two occasions on which another trainer challenged him to a physical fight and then taunted him for declining. (Id. 189:17-191:2 (regarding Collazo), 191:17-192:19 (regarding Smith).) He also testified to at least three more incidents of physical menacing. (Id. 330:18-331:11 (Smith removed his shirt and said he was ready to fight Plaintiff); 332:13-333:15 (Smith let cable fall toward Plaintiff's head); 333:23-334:22 (Smith threatened Plaintiff with "the clench").) Plaintiff further testified that he complained to his supervisors and to Human Resources officers, and that he sent several letters detailing the abuse to the club management. (Id. 217:9-13; 346:5-347:23.)

3 Pre-trial proceedings and the trial of this case were conducted during the period from October 11-20, 2011. The pages of the transcript, however, are somewhat confusingly numbered, in three sections. The first section, with pages numbered 1-513 (referred to herein as "Trial Tr. I"), covers the proceedings held on October 11-13. The second section, with pages numbered 1-139 (referred to herein as "Trial Tr. II"), covers the first portion of the proceedings held on October 14. The third section, with pages numbered 654-1562 (referred to herein as "Trial Tr. III"), covers the second portion of the proceedings held on October 14, as well as the remainder of the trial proceedings, through October 20.

At trial, Defendant presented a different story - one in which the club was still a dysfunctional, racially-divided workplace, but in which Plaintiff created the hostile work environment for others, rather than being its victim. (See, e.g., Trial Tr. I 90-92 (Defendant's opening statement).) According to Defendant, Plaintiff never actually sent the complaint letters he produced at trial (see Trial Tr. III 1278:2-3 (Fitness Manager Emanuel Ramos testifying that he never received the letters); 1020:7-9 (Robert Carpio, former Human Resources Generalist for Defendant, testifying to the same)), and Defendant terminated Plaintiff in March 2008 after a series of complaints about him, from his co-workers (id. 1094:2-1098:9; 1155:5-1159:9). Plaintiff did not deny at trial that those complaints about him were made, but contended that they were manufactured as part of a conspiracy to drive him out of the club. (See, e.g., Trial Tr. II 50:13-16; Trial Tr. III 1088:19-25.)

The jury found that Plaintiff had been subjected to a hostile work environment by Defendant's managerial and non-managerial employees and that Defendant had failed to take appropriate corrective and preventative measures. (Trial Tr. III 1548:18-1550:17.) The jury also found that Plaintiff, based on a good-faith belief that he had been discriminated against, complained of race or national origin discrimination to Defendant. (Id. 1550:19-1551:4.) The jury found, however, that Plaintiff was not retaliated against for making his complaint and that he was not ultimately terminated for a discriminatory reason. (Id. 1551:5-10.) As noted above, the jury awarded Plaintiff $300,000 in compensation for emotional distress on his hostile-work-environment claims. (Id. 1551:18-25.)

The motions currently before the Court are ripe for adjudication after a somewhat convoluted history. After trial, the Court instructed the parties to submit a jointly-proposed briefing schedule for any post-trial motions, and the parties did so in January 2012, proposing a deadline of early March for the submission of opening briefs. The Court adopted the proposed schedule (Dkt. 54), but, two days before opening briefs were due, Plaintiff's counsel requested an extension of time to determine whether to make a motion for a new trial, based on several issues that had just been brought to his attention by new co-counsel. (Letter to the Court from Matthew Presseau, Esq., dated Feb. 29, 2012 ("Pl. 2/29/12 Ltr.") (Dkt. 93).) In a telephone conference, the Court declined to extend the briefing schedule, but instructed Plaintiff to write to the Court by March 16, 2011 if he decided that he wished to make the contemplated motion.

In a letter to the Court dated March 16, Plaintiff proceeded to set out the grounds for a motion for a new trial on his claims for retaliatory and discriminatory termination, as well as on his claim for punitive damages. (See Letter to the Court from Robert B. Davis, Esq., dated Mar. 16, 2012 ("Pl. 3/16/12 Ltr.") (Dkt. 95).) Defendant then responded by letter, explaining its position that Plaintiff's proposed motion was "clearly meritless, if not frivolous." (See Letter to the Court from Christopher R. Strianese, Esq., dated Mar. 20, 2012 ("Def. 3/20/12 Ltr.") (Dkt. 98), at 5.) In a June telephone conference, the Court deemed Plaintiff's March 16 letter to be a motion for a new trial, and permitted both parties to submit supplemental letter briefs. (See Dkt. 91.) In Plaintiff's supplemental submission, he dropped the portion of his motion seeking a new trial on punitive damages, but pressed forward with his motion seeking a new trial on his retaliatory and discriminatory termination claims. (Letter to the Court from Matthew Presseau, Esq., dated June 26, 2012 ("Pl. 6/26/12 Ltr.") (Dkt. 96); see also Letter to the Court from Christopher R. Strianese, Esq., dated July 5, 2012 ("Def. 7/5/12 Ltr.") (Dkt. 97).)

Separately, Defendant timely moved for, in the alternative, judgment as a matter of law, remittitur of damages to $5,000 or less, or a new trial. (See generally Defendant's Post trial Memorandum of Law in Support of Its Motion for J.N.O.V., a Remittitur of Damages, or a New Trial, dated Mar. 2, 2012 ("Def. Mem.") (Dkt. 74); Affirmation of Zachary A. Hummel, Esq., in Support of Defendant's Motion for a Directed Verdict, a New Trial, and/or a Remittitur of Damages, dated Mar. 2, 2012 ("Hummel Aff.") (Dkt. 73).) Plaintiff opposed the motion (see Plaintiff's Memorandum of Law in Opposition of Defendant's Motion for J.N.O.V. a Remittitur of Damages, or a New Trial, dated Mar. 30, 2012 ("Pl. Opp.") (Dkt. 83); Affirmation of Matthew Presseau, Esq., dated Mar. 30, 2012 (Dkt. 82)), and Defendant filed a reply (see Defendant's Reply Memorandum of Law in Further Support of Its Motion for J.N.O.V., a Remittitur of Damages, or a New Trial, dated Apr. 13, 2012 ("Def. Reply") (Dkt. 86); Affirmation of Christopher R. Strianese, Esq., in Further Support of Defendant's Motion for J.N.O.V., a Remittitur of Damages, or a New Trial, dated Apr. 13, 2012 (Dkt. 87)).

Finally, Plaintiff timely moved for an award of attorney's fees for work performed by attorneys Matthew Presseau, Esq., of Ogihara & Associates, PLLC, and Robert B. Davis, Esq. (See Memorandum of Law in Support of Plaintiff's Motion for Attorney's Fees and Costs, dated Mar. 2, 2012 ("Pl. Fee Mem.") (Dkt. 79); Declaration of Matthew Presseau, Esq., dated Mar. 2, 2012 ("Presseau Decl.") (Dkt. 78).) Defendant filed an opposition to the fee application (Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for an Award of Attorneys' Fees and Costs, dated Mar. 30, 2012 ("Def. Fee Opp.") (Dkt. 80); Affirmation of Christopher R. Strianese, Esq., in Opposition to Plaintiff's Motion for Attorneys' Fees and Costs, dated Mar. 29, 2012 ("Strianese Fee Aff.") (Dkt. 81)), and Plaintiff filed a reply (Plaintiff's Memorandum of Law in Reply to Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for an Award of Attorneys' Fees and Costs, dated Apr. 13, 2012 ("Pl. Fee Reply") (Dkt. 88); Supplemental Declaration of Matthew Presseau, Esq., dated Apr. 13, 2012 ("Suppl. Presseau Decl.") (Dkt. 89)).

DISCUSSION

I. DEFENDANT'S POST-TRIAL MOTIONS

A. Defendant's Motion for Judgment as a Matter of Law on Plaintiff's Hostile-Work-Environment Claims

For the reasons discussed below, Defendant's motion for judgment as a matter of law on Plaintiff's hostile-work-environment claims is denied as both procedurally and substantively defective.

1. Rule 50 Standards

Rule 50(a) of the Federal Rules of Civil Procedure permits a district court to grant judgment as a matter of law on a claim if "a reasonable jury would not have a legally sufficient evidentiary basis" to find for one side on a particular issue, and the claim cannot be maintained without proof of that issue. Fed. R. Civ. P. 50(a). A motion for judgment as a matter of law under Rule 50(a) must be made before the case is submitted to the jury and "must specify the judgment sought and the law and facts that entitle the movant to the judgment." Id. "If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed. R. Civ. P. 50(b) (emphasis added).

A Rule 50(a) motion specifying certain "law and facts" entitling the moving party to judgment does not allow the moving party to make a "renewed" post-trial motion, under Rule 50(b), based on an entirely different argument. Lore v. City of Syracuse, 670 F.3d 127, 152 (2d Cir. 2012) ("A Rule 50(a) motion requesting judgment as a matter of law on one ground but omitting another is insufficient to preserve a JMOL argument based on the latter."). Rather, a "posttrial motion is limited to those grounds that were specifically raised in the prior motion for JMOL; the movant is not permitted to add new grounds after trial." Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001) (internal quotations omitted) (collecting cases). "As to any issue on which proper Rule 50 motions were not made, JMOL may not properly be granted by the district court . . . unless that action is required in order to prevent manifest injustice." Lore, 127 F.3d at 153.

When a Rule 50(b) motion is properly submitted, "[t]he district court can grant the motion only if[,] after viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in favor of the non-moving party, it finds that there is insufficient evidence to support the verdict." Fabri v. United Techs. Int'l, Inc., 387 F. 3d 109, 119 (2d Cir. 2004) (internal citations omitted). "The district court cannot set aside the jury's credibility findings and cannot find for the movant based on evidence the jury was entitled to discredit." Id.

2. Defendant Is Not Entitled to Judgment as a Matter of Law.

Before this case was submitted to the jury, Defendant explicitly moved for judgment as a matter of law "with respect to the termination claim and with respect to the retaliation claim." (Trial Tr. III 1387:12-13.) In that motion, Defendant's counsel duly set out "the law and facts," Fed. R. Civ. P. 50(a), which, in counsel's view, precluded a finding of either discriminatory retaliation (Trial Tr. III 1399:3-20) or discriminatory termination (Trial Tr. III 1402:22-1404:14). Defendant's counsel did not, however, argue that the evidence presented was insufficient to support damages for emotional distress due to a hostile work environment - the argument that Defendant now presses as a "renewal" of its prior motion. Indeed, when defense counsel segued into a tangential discussion of hostile-work-environment claims at the close of the evidence, the Court noted that the topic was not relevant to "the current motion" for judgment as a matter of law, and counsel did not disagree. (Trial Tr. III 1402:17-21.) Given that Defendant now bases its post-trial argument for judgment as a matter of law on grounds not raised in its Rule 50(a) motion, the post-trial motion under Rule 50(b) is fatally defective. See Trivedi v. Cooper, No. 95 Civ. 2075, 1996 WL 724743, at *3 (S.D.N.Y. Dec. 17, 1996) (holding defendant "has waived his right to [move for judgment as a matter of law] for the hostile work environment claim as he did not preserve this right during trial by moving for a directed verdict at the end of plaintiff's case"; defendant only properly preserved motion for directed verdict on claims for discriminatory failure to promote and retaliation).

Defendant ignores this fundamental problem with its motion until a footnote in its reply brief, where Defendant asserts, without addressing the cases cited by Plaintiff and without citations of its own, that Defendant "is not required to move on each separate theory presented by Plaintiff." (Def. Reply, at 10 n.6.) Defendant's response borders on the frivolous; the plain language of Rule 50 and the great weight of controlling precedent are clear that, as a general rule, a "renewal" based on new arguments is improper.

Further, although the Second Circuit does allow an exception to this rule in cases where denying an untimely Rule 50(b) motion would result in "manifest injustice," Lore, 670 F.3d at 152, no such injustice is present here. Defendant argues that, to the extent there is any evidence in the trial record that Plaintiff suffered emotional distress, that evidence relates solely to the period following Plaintiff's termination - not to the period while he was still employed and, based on the jury's verdict, subjected to a hostile work environment. (See Def. Mem., at 2-6; Def. Reply, at 8-10.) Yet the jury's apparent determination that Plaintiff suffered emotional distress even before his termination is, in fact, supported by sufficient evidence.

"While a 'plaintiff's subjective testimony, standing alone, is generally insufficient to sustain an award of emotional distress damages,' the award can be substantiated by other evidence, such as the testimony of witnesses 'or the objective circumstances of the violation itself.'" Reiter v. Metro. Transp. Auth., No. 01 Civ. 2762, 2003 WL 22271223, at *7 (S.D.N.Y. Sept. 30, 2003) (quoting Patrolmen's Benevolent Ass'n v. City of N.Y., 310 F.3d 43 (2d Cir. 2002) ("PBA") and applying PBA standard in Title VII case). In this case, Plaintiff's own testimony that he suffered emotional distress due to the hostile work environment, while sparse, was corroborated by third parties, as well as by "the objective circumstances" of the work environment itself.

As noted above, Plaintiff testified that, at the time of his harsh treatment in the workplace, he sent letters to his managers complaining of discriminatory harassment. Although there was conflicting testimony as to whether Plaintiff had, in fact, delivered these letters during the period of the described harassment, the jury was entitled to credit Plaintiff's testimony that the letters were written contemporaneously with his employment and was further entitled to treat them as evidence of Plaintiff's emotional state prior to his termination. The letters included statements suggesting emotional distress, such as "I can't take it anymore" (Plaintiff's Trial Exhibit ("PX") 16), and a description of the harassment that Plaintiff was suffering as "painful[]." (PX 38.) In one letter, Plaintiff stated that he "fe[lt] disrespected," "distracted," and not left "in peace." (PX 46.) The jury could have reasonably inferred from these contemporaneous accounts of Plaintiff's experiences and feelings that the conduct of his coworkers was hurtful, and was indeed causing him emotional injury.

The jury could also have inferred that some of the distress Plaintiff reportedly suffered after his termination resulted from the hostility he had encountered before, as emotional damage resulting from a hostile work environment need not manifest immediately. Plaintiff testified, for example, that other trainers had threatened and violently menaced him on the job and that, after his termination, he was extremely fearful and would imagine people lying in wait to take his life. (Trial Tr. I 414:22-415:2.) That testimony supports a reasonable inference that some of Plaintiff's post-termination fearfulness resulted from the hostile work environment, not the termination alone.

Further, third parties corroborated Plaintiff's testimony of emotional distress during the period of his employment. For example, one of Plaintiff's former fitness managers, Edwin Deloatch, testified that Plaintiff "very often [] would look stressed out." (Trial Tr. III 671:11.) Although the jury could have inferred, as Defendant argues, that Plaintiff's stress was due to his long hours at work, the jury was not compelled to do so; it was also entitled to infer that the hostile work environment caused or contributed to Plaintiff's stress. In addition, one of Plaintiff's former co-workers, Jimmy Gary ("Gary"), testified that Plaintiff was "hurt" by the campaigns against him, "wasn't himself," and gained weight.⁴ (Id. 743:1-11.)

4 Defendant correctly points out that the Court later upheld a hearsay objection to certain portions of Gary's testimony - specifically, to Gary's testimony as to what Plaintiff said about the reasons why Plaintiff was "hurt" and "wasn't himself." (Trial Tr. III 751:5-15.) At trial, Defendant did not object to Gary's underlying statement that Plaintiff was hurt (see id. 742:18-743:1), and thus any hearsay objection to that part of Gary's testimony has been waived.

The psychiatrist whom Plaintiff eventually saw for treatment, Dr. Marthe Abraham, also testified that Plaintiff "seemed very hurt, very ashamed" when discussing the names he had been called during his employment, and that those names made Plaintiff feel "bad" and "very low." (Id. 873:10-15.) Although Dr. Abraham did not see Plaintiff until after his termination, her testimony regarding Plaintiff's affect in recalling the pre-termination hostility was relevant to Plaintiff's pre-termination state of mind. Defendant's own psychiatric expert, Dr. Thomas Boland, also testified at trial that, well after Plaintiff was terminated, Plaintiff still reported "emotional problems as a result of harassment he experienced working as a trainer." (Id. 1362:8-9.)

The "objective circumstances" of the harassment further corroborate Plaintiff's testimony of pre-termination emotional distress. There was ample evidence in the record that Plaintiff was subjected to a coordinated campaign of harassment, including incessant and vulgar name-calling and mockery, spanning nearly three years, and that Plaintiff's managers were either indifferent to or complicit in the harassment. On such a record, the jury's determination that Plaintiff suffered emotional distress during the period of his employment cannot be said to be based on the type of "sheer surmise and conjecture" that would justify judgment as a matter of law in a defendant's favor. Cash v. Cnty. of Erie, 654 F. 3d 324, 333 (2d Cir. 2011).

Defendant makes much of Plaintiff's supposed "admissions" that the derogatory remarks made to him by his co-workers "d[id]n't bother" him. (Trial Tr. I 284:13, Def. Mem. at 9.) Even if it were clear - which it is not - that Plaintiff truly meant that the name-calling he endured did not affect him emotionally, Plaintiff never said that he did not care or was not bothered by the additional harassment he faced, such as physical threats and slander. The jury might have also understood Plaintiff's testimony that he was not "bother[ed]" or did not "pay it no mind much" (Trial Tr. I 163:2) to refer to his resolve to retain professionalism in the face of harassment, not to any lack of emotional distress. Indeed, at one point during trial, Plaintiff referred to that resolve as his "revenge" (id. 163:9) - an unlikely mind-set had Plaintiff, in fact, been unaffected by the hostility.

Moreover, the full context of several of Plaintiff's supposed trial "admissions," as cited by Defendant, suggests that Plaintiff was describing how remarks that initially did not bother him evolved into incidents that did. For example, Plaintiff's testimony that he initially told a client that "they say a lot of things about me. I don't care" (Trial Tr. I 181:15 (cited in Def. Mem., at 3)), was closely followed by his testimony that, when the client told him of the specific accusation that Plaintiff had caused her miscarriage, he had a different reaction: "I said what? Then right away. I said I thought that was the name stupid Haitian, that was not - I said whoa" (Trial Tr. I 183:9-11; see also, e.g., id. 161:18 ("it didn't bother me at that time" (emphasis added)); 162:24-163:11 ("I didn't pay it no mind from the beginning from the first couple of weeks they start saying that stupid Haitian . . . . Then one day they say this Haitian was one HIV here. And after that I said, these people are crazy . . . . I didn't pay no attention. And then they start calling me black monkey . . . ."); 283:22-23 ("So at that point he don't bother me." (emphasis added)).)

Finally, the jury certainly could have inferred from Plaintiff's repeated written complaints about the name-calling and harassment that he was, in fact, "bothered" by such conduct.

Viewing the evidence as a whole, the Court cannot say that the jury overstepped the bounds of permissible inference in finding that Plaintiff suffered emotional distress as a result of his hostile work environment. There would thus be no "manifest injustice" in allowing the jury's finding of liability to stand. For the same reason, even if Plaintiff's motion were not subject to the high "manifest injustice" standard due to waiver, the motion would still be denied for lack of merit under the ordinary Rule 50(b) sufficiency-of-the-evidence standard.

B. Defendant's Motion for a New Trial

Defendant moves in the alternative for a new trial on Plaintiff's hostile-work-environment claims under Rule 59(a) of the Federal Rules of Civil Procedure, on the grounds that (1) the jury verdict is a miscarriage of justice, (2) the jury reached a compromise verdict, and (3) Plaintiff's counsel's trial conduct deprived Defendant of a fair trial. For the reasons that follow, Plaintiff's motion for an unconditional new trial is denied.

1. Rule 59(a) Standards

The standard for granting a new trial under Rule 59(a) is less stringent than the standard for judgment as a matter of law under Rule 50. See Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003). A motion for a new trial "may be granted even if there is substantial evidence to support the verdict." DeWitt v. New York State Housing Fin. Agency, No. 97 Civ. 4651, 1999 WL 672560, at *1 (S.D.N.Y. Aug. 24, 1999) (quoting Bevevino v. Saydjari, 574 F.2d 676, 683 (2d Cir. 1978)). In addition, the court is not required to view the evidence in the light most favorable to the nonmoving party, but may weigh it independently. See Ruhling v. Newsday, Inc., No. 04 Civ. 2430, 2008 WL 2065811, at *4 (E.D.N.Y. May 13, 2008) (citing Manley, 337 F.3d at 244-45). Nonetheless, a motion for a new trial may only be granted where "the court is convinced that the jury reached a seriously erroneous result, or that the verdict is against the weight of the evidence," Manley, 337 F.3d at 244-45, or where "the trial was not fair to the moving party," DeWitt, 1999 WL 672560, at *1 (quoting Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983)). "In evaluating a Rule 59 motion, the trial judge's duty 'is essentially to see that there is no miscarriage of justice.'" DeWitt, 1999 WL 672560, at *1 (quoting Sharkey v. Lasmo (AUL Ltd.), 55 F. Supp. 2d 279, 283 (S.D.N.Y. 1999)).

Applying this standard to Defendant's motion, the Court finds that a new trial is not warranted for any of the reasons Defendant proffers.

2. The Jury Verdict Is Not a Miscarriage of Justice.

Defendant first argues that the damages award is a miscarriage of justice because it is "clearly inconsistent with, and shockingly out of proportion to," the evidence presented. (Def. Mem., at 15.) The proper remedy for such lack of "proportion," however, is not a new trial on the entire claim but either remittitur or a new trial on damages. Defendant seems to realize as much, as it also moves, in the alternative, for remittitur.⁵ As discussed in more detail in Part I(C), infra, to the extent Defendant's proportionality concerns are well founded, remittitur provides adequate redress, without resort to a new trial on liability.

5 Indeed, in its brief, Defendant placed its argument for remittitur, which it seeks under Rule 59(e) of the Federal Rules of Civil Procedure, before its arguments for an unconditional new trial, which it seeks under Rule 59(a).

Second, Defendant contends that the jury could not have concluded that Plaintiff was subject to a "severe and pervasive" hostile work environment that "alter[ed] the terms and conditions of [his] employment" (Def. Mem., at 16) because of Plaintiff's testimony that he did not care about being subjected to racial and ethnic slurs. As explained with regard to Defendant's motion for judgment as a matter of law, though, Defendant ignores Plaintiff's testimony that he complained both verbally and in writing about the harassment he endured, and that his letters detailed pervasive, hostile employment conditions. Defendant also again ignores the different ways that the jury could have understood Plaintiff's remarks about not being "bothered"; as discussed above, those remarks are more equivocal than Defendant allows. The jury's choice to believe Plaintiff over Defendant's witnesses did not lead to a "seriously erroneous result" or one that was "against the weight of the evidence," Manley, 337 F.3d at 244-45, as would justify a new trial.

Third, Defendant asserts that the jury could not have concluded that management knew of the hostile work environment and failed to take action reasonably calculated to prevent Defendant's employees from continuing to discriminate. Defendant cites undisputed testimony regarding a "Town Hall" meeting conducted by its upper management in October 2007 (Trial Tr. II 34:2-4), at which employees received and signed copies of Defendant's non-discrimination policy. According to Defendant, the record reflects that its Human Resources executives told Plaintiff, at that time, to bring any future complaints to them - something he concedes he did not do. (Trial Tr. II 14:14-16, 16:17-17:2.)

The record, however, is actually somewhat inconsistent regarding the instructions Plaintiff received from Human Resources. (See, e.g., id. 14:14-15:17 (Plaintiff testifying that he was told to continue to address problems with his own managers first).) Moreover, the jury could have concluded that a "Town Hall" meeting, even coupled with an instruction to Plaintiff to bring further complaints directly to Human Resources, would not have been "reasonably calculated" to alleviate the particular problem about which Plaintiff had complained. Indeed, the meeting conducted by Human Resources was convened, at least in part, in response to an incident having nothing to do with Plaintiff. (Trial Tr. I 343:18-344:3; Trial Tr. III 1084:18-25; 1151:18-1152:5.) There was also no testimony that Human Resources ever directly addressed Plaintiff's complaints of discrimination with the individuals whose conduct was the subject of those complaints; rather, all Defendant claims to have done was to make a general statement to everyone at the club to behave professionally. (Trial Tr. III. 1084:9-17.) Even if the Town Hall meeting was reasonably calculated to alleviate the hostile environment, the jury could still have concluded that, for at least some of the two-and-a-half years before the meeting, Defendant had known of the harassment and failed to act. Plaintiff testified that he had lodged complaints with several supervisors during that time, and one former supervisor conceded that he knew of, but did not formally act to correct, the problems between Plaintiff and other trainers. (Id. 691:1-692:4.)

Finally, Defendant contends that "it was a miscarriage of justice for the jury, in the face of overwhelming evidence, not to conclude that Plaintiff was the cause of the hostility he complained of at trial." (Def. Mem. at 17.) The evidence only "overwhelmingly" favors Defendant if the Court determines that Defendant's witnesses were credible and that Plaintiff and his witnesses were not - a credibility determination the Court will not take out of the hands of the jury. Defendant did present evidence that Plaintiff initiated some confrontations and, shortly before his firing, was the subject of complaints for his behavior. (See, e.g., Trial Tr. III 1094:2-1098:9; 1155:5-1159:9.) The jury, however, was entitled to weigh that evidence against evidence presented by Plaintiff and others that the complaints against Plaintiff were themselves a continuation of the harassment designed to make it more difficult for Plaintiff to work at the club. (See, e.g., Trial Tr. II 50:13-16.) There is hardly a "miscarriage of justice" in allowing the jury's evaluation of competing evidence to stand.

3. The Jury Verdict Is Not Clearly a Compromise.

Defendant argues that the Court should order a new trial on both liability and damages because the jury verdict reflects an impermissible "compromise." (Def. Mem. at 18-20.) It is well-settled that, if the record "clearly demonstrate[s] the compromise character of the verdict," a court may set aside the entire verdict rather than set aside only an inappropriately low damages award. Maher v. Isthmian Steamship Co., 253 F.2d 414, 419 (2d Cir. 1958). The court, however, should not speculate that the jury arrived at its award by impermissible compromise, if "one inference is as good as another" as to how the jury deliberated, id., and there are no "other indicia of compromise, such as difficulty in jury deliberations or close questions of liability." Diamond D Enters. USA, Inc. v. Steinsvaag, 979 F.2d 14, 17 (2d Cir. 1992). A charge of "compromise verdict" requires more than a "reprise" of the argument that the verdict was unsupported by the weight of the evidence. See Anderson v. Metro-North Commuter R.R., No. 10-5223-cv, 2012 WL 2877365, at *2 & n.6 (2d Cir. July 16, 2012).

Defendant contends that, because the large award in this case was "inconsistent with the evidence adduced at trial" and the testimony on hostile work environment was highly conflicted, the verdict was demonstrably a compromise. (Def. Mem., at 19.) In support, Defendant cites language from Atkins v. New York City, 143 F.3d 100 (2d Cir. 1998), to the effect that a court may "infer that a verdict is a compromise verdict where damages are awarded in an amount inconsistent with the theory of liability offered at trial together with other indicia such as a close question of liability," id., at 104. As the "inconsisten[cy]" in Atkins was evident from a low damages award, Defendant also cites Tse v. U.S.B. Fin. Servs., Inc., 568 F. Supp. 2d 274, 300 & n.14 (S.D.N.Y. 2008), to argue that an unusually high award can also support the inference of compromise. Neither case requires the outcome Defendant seeks.

In Atkins, the plaintiff had been physically injured during an arrest and sued under 42 U.S.C. § 1983. The jury found the defendant liable for both false arrest and excessive force, but awarded only nominal damages. Noting that a "beating severe enough to leave marks is sufficient proof of a compensable injury," the Second Circuit remanded for a new trial because the award of nominal damages was inconsistent with the physical beating the plaintiff had received. 143 F.3d at 104 (citing Wheatley v. Beetar, 637 F.2d 863, 866-67 (2d Cir. 1980)). More specifically, the award of nominal damages was inconsistent with both "the theory of liability offered at trial" (i.e., that the plaintiff was unjustifiably beaten during an unjustified arrest) and the undisputed "facts adduced at trial" (i.e., that Plaintiff was injured during the arrest). Id. (emphasis added). It was this "fundamental[] and conceptual[] inconsisten[cy]" that led the court to order a new trial. Fox v. City Univ. of N.Y., 187 F.R.D. 83, 96 (S.D.N.Y. 1999) (analyzing Atkins). In this case, regardless of whether the jury's award of $300,000 was excessive in light of the relevant evidence, it was not fundamentally "inconsistent with [Plaintiff's] theory of liability" or with the facts adduced at trial, in the way in which the jury's failure, in Atkins, to award any compensatory damages was.

Defendant also highlights Atkins' language that "it is sufficient that the issue of liability was close and vigorously contested," 143 F.3d at 104, noting the conflicting nature of the testimony in this case (see Def. Mem, at 19). The Court is unpersuaded, though, that Atkins requires a new trial every time opposing lawyers "vigorously contest" liability. Indeed, "[i]n every case that goes to trial, if the defendant does not concede liability he 'question[s]' it by definition, and may 'vigorously contest[]' the issue even though plaintiff's evidence against him is strong." Fox, 187 F.R.D. at 94 (quoting Atkins). It is not sufficient to show that it is possible that the verdict represented a juror compromise, as "that possibility exists in virtually every case in which a plaintiff receives a jury award of less than the plaintiff was seeking." Aczel v. Labonia, 584 F. 3d 52, 60 (2d Cir. 2009) (emphasis in original). Nor is it enough to show that the jury has made a large award on one presented claim, while finding no liability on another. "If new trials were required whenever a possibility exists that jurors with conflicting views had compromised, trial would become a hopeless and ineffectual way to settle disputes." Id. Based on the record and the jury verdict in this case, there is no basis for the Court to indulge the "speculative possibility of incompatible inconsistency." Id. Instead, as explained below, the Court can deal with any excessive damages award through the recognized mechanism of remittitur.

Remittitur, not a new trial, was actually the approach taken in Tse, the additional case that Defendant cites in support of its argument that the verdict should be vacated as a purported "compromise" verdict. In Tse, the jury rejected the plaintiff's discriminatory termination claim, but found in her favor on her claim that the defendant had discriminated against her by placing her on a performance improvement plan. Tse, 568 F. Supp. 2d at 283. The court found the jury's award of $500,000 in economic damages to be excessive in light of the jury's split verdict, and ordered remittitur of economic damages to $45,000, an amount supported by the evidence as to what the plaintiff had lost as a result of her placement on the plan. Id. at 299. "Presumably," the court reasoned, "the jury attributed the remaining $455,000 to economic harm [the] plaintiff incurred after her employment ended." Id. As the jury had not found the employer liable for the plaintiff's termination, it could not have awarded post-employment damages, and thus the proper course was remittitur. Id. at 299-300. The court noted that the inconsistent damages award was "not the fault of the jury," id. at 300 n.15, as neither party had requested a specific jury instruction "advising the jury as to the extent of permissible damages if they found liability only with respect to putting Tse on the Plan but not with respect to the termination of her employment," id. The case now before this Court is similar, in that the jury found Defendant liable for discriminatory conduct while Plaintiff was employed, but not for discriminatory termination, but then made an award that likely reflected post-termination damages. As in Tse, the jury was not specifically instructed as to how it should calculate damages if it found liability on only certain of Plaintiff's claims, and, as in Tse, the proper course here is remittitur to the amount supported by evidence of Plaintiff's pre-termination emotional injury.⁶

6 Defendant ignores the fact that the court, in Tse, denied the defendant's motion for a new trial and instead ordered remittitur, on a record similar to that presented here. Instead, Defendant cites a footnote in Tse, in which the court notes that, had the jury award not reflected an unsupported award for post-employment damages, the only alternative explanation of the award would have been an impermissible jury compromise. Tse, 568 F. Supp. 2d at 299-300 n.14. As Defendant itself argues (see Def. Mem., at 19-20), the award in this case appears to reflect compensation for emotional distress suffered by Plaintiff post-termination. That is not the same thing as a "compromise" among jurors with differing views on liability, and the footnote in Tse is thus not applicable here.

Overall, the record here does not "clearly demonstrate" a compromise verdict, Maher, 253 F.2d at 419. Rather, as "the circumstances raise no more than a speculative possibility" of compromise, Aczel, 584 F.3d at 59, a new trial on liability is unwarranted.

4. Defendant Was Not Deprived of a Fair Trial.

Defendant argues that it was deprived of a fair trial because:

(a) Plaintiff improperly testified regarding an alleged "cover-up" of a club patron's death;

(b) Plaintiff's counsel disobeyed the Court's in limine ruling when he asked defense witnesses about accepting cash payments;

(c) Plaintiff's counsel used improper leading questions to elicit testimony from a witness (Gary) about the racial aspects of other trainers' comments about Plaintiff;

(d) Plaintiff's witnesses improperly testified as to the reasons that trainers other than Plaintiff were terminated;

(e) Plaintiff failed, during discovery, to produce certain letters sent to him by a client, but then sought to introduce the letters at trial; and

(f) Plaintiff published exhibits to the jury that were not admitted into evidence.

(Def. Mem at 20-25.) Plaintiff does not contest that most of these actions were improper, but argues that they all were cured or curable through means less drastic than a new trial. (Pl. Opp., at 21-24.)

Rule 61 of the Federal Rules of Civil Procedure provides that "no error in admitting or excluding evidence - or any other error by the court or a party - is ground for granting a new trial" unless "justice requires otherwise." Fed. R. Civ. P. 61. "At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights." Id. A "substantial right" is affected if "it is likely that in some material respect the factfinder's judgment was swayed by the error." Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir.1997) (internal quotation marks and citation omitted). "Obviously not all misconduct of counsel taints a verdict to such a degree as to warrant a new trial. Some misconduct is de minimis in the context of the entire trial, and some is promptly dealt with by the trial court's rulings and curative instructions." Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 540 (2d Cir. 1992) (citation omitted). Further, "[a]bsent evidence to the contrary, we must presume that juries understand and abide by a district court's limiting instructions." U.S. v. Downing, 297 F.3d 52, 59 (2d Cir. 2002).

Defendant first complains that Plaintiff improperly testified that Defendant sought to "cover up" the death of a club patron on the treadmill. Defendant's complaint in this regard refers to a single, vague comment made by Plaintiff at trial (Trial Tr. I 198:19-19 ("they make us sign so we don't talk about it because there was a problem"). Defense counsel immediately asked for a sidebar conference, and the Court stopped the line of questioning and instructed the jury to disregard the testimony. (Id. 201:20-202:24.) Given both the clipped nature of the testimony and the Court's curative instruction to the jury, any prejudice to Defendant was minimal.

Defendant's second argument is that it was prejudiced by testimony that certain trainers received "under-the-table" cash payments, and by Plaintiff's counsel's questioning that attempted to elicit such testimony. In particular, Defendant contends that Plaintiff's counsel's suggestion, on Collazo's cross-examination, that she had received impermissible cash payments cast her credibility into doubt, which necessarily affected Defendant's entire defense to Plaintiff's claims. (Def. Mem., at 20-21.) The questioning highlighted by Defendant was patently improper, as it was in direct contravention of a pre-trial ruling by the Court on a motion in limine. (See Dkt. 49; Trial Tr. III 1189:2-17.) Yet, even "plainly . . . improper" questioning by counsel does not require a new trial, where the trial court has "act[ed] promptly to minimize any damage from it." Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988). In this case, the improper questioning was immediately stopped by the Court, even before the question to Collazo was fully posed, much less answered by the witness. (See Trial Tr. III 1188:5-12.) In fact, the Court immediately instructed the jury to disregard the question, instructed counsel to refrain from eliciting testimony about the subject, and instructed the witness not to give such testimony. (Id.) To the extent Plaintiff's own testimony, at other points in the trial, may have suggested that trainers wanted to be paid cash under the table, such testimony was either not objected to by Defendant (see Trial Tr. I 180:14-16), or was so innocuous that Defendant's counsel agreed with the Court that drawing attention to the testimony with an instruction would be unnecessary and ill advised (see id. 228:21-232:6). All in all, there was little testimony presented to the jury on the subject of any cash payments, that testimony was never fleshed out, and the Court, in any event, made plain to the jury that the subject of cash payments should not be considered. In the context of the trial as a whole, there is no basis to believe that impermissible questions or testimony in this regard had any influence on the jury's ultimate determination. See Pappas, 963 F.2d at 540.

Defendant's third argument is that Plaintiff's counsel used improper leading questions to elicit testimony from Gary that there was a racist aspect to Smith's and Collazo's antipathy for Plaintiff. The jury, however, heard considerable testimony to the same effect by other witnesses. (See, e.g., Trial Tr. I 166:16-25 (Abel), 661:19-662:15 (Deloatch).) Thus, even assuming that Gary's testimony on this subject was impermissibly tainted by the leading questions that elicited it, any finding of racial hostility finds "substantial support" in the other evidence of record, suggesting that any improper conduct was "de minimis in the context of the entire trial" and does not warrant a new trial. Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005).

Defendant fourth contends that Plaintiff improperly presented evidence regarding the reasons why employees other than Plaintiff were terminated, again in violation of an in limine ruling that had been made by the Court. (Def. Mem., at 23-25.) Despite the Court's ruling, Plaintiff's counsel did, in fact, ask Plaintiff why another employee had been fired. (Trial Tr. I 270:21.) Plaintiff gave a vague response regarding a manager who was "doing favoritism in the company" (id. 226:25), at which point the Court interrupted to instruct the jury, Plaintiff, and Plaintiff's counsel that testimony as to why anyone other than Plaintiff was fired was irrelevant to Plaintiff's claims in the case (see id. 271:1-17). To the extent other witnesses testified as to the reasons why they or others had left Defendant's employ, their testimony was also brief and vague, and the Court again intervened, either to cut off the testimony or to instruct the jury that the subject was irrelevant and should not be considered.⁷ Taken as a whole, the testimony at trial concerning other employees' terminations does not rise to the level of extreme prejudice necessary to justify a new trial. Indeed, in other cases, significantly more prejudicial comments have been held not to justify a new trial. See, e.g., Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d Cir. 1996) (declining to order a new trial, where counsel and trial court had improperly informed jury that defendant was previously found to have engaged in "wilful misconduct").

7 See Trial Tr. III 708:15-22 (directing Gary not to testify as to the reasons why anyone other than Plaintiff had been terminated, after Gary volunteered that he, himself, had been fired because of a change in "energy" at the club); id. 814:7-822:9 (instructing the jury that the reasons why others no longer worked for the company were irrelevant, after another trainer, Muhammad Ali ("Ali"), testified that he quit because he "couldn't take . . . the racist stuff," and directing Ali to refrain from testifying about racism directed towards anyone other than Plaintiff); Trial Tr. I 909:19-910:5 (cautioning witness Alain Davis ("Davis"), another former trainer, that the case was "about [Plaintiff] and not about anybody else," after Davis testified that "[t]he people directly associated with [Plaintiff] started getting fired").

Defendant's fifth argument is that the trial was rendered unfair by Plaintiff's production of certain documents for the first time at trial, when those documents - letters sent to Plaintiff by a client at the club - fell within the scope of Defendant's pre-trial document requests. The Court agreed that the letters should have been produced in discovery, but offered Defendant the opportunity to depose Plaintiff about them, before their introduction at trial, with Plaintiff bearing the cost of the deposition. (See Trial Tr. I 883:19-884:24.) Defendant's decision to forgo that opportunity, which would have reasonably cured any prejudice resulting from Plaintiff's late production of evidence, does not mean that Defendant is now entitled to a new trial. Furthermore, Defendant does not explain how an earlier production of the letters would have significantly changed Defendant's trial strategy.

Lastly, Defendant's complaint about Plaintiff's improper publication to the jury of documents not in evidence also does not justify a new trial. Certain of the incidents of which Defendant complains reflected plainly inadvertent conduct (see 1478:17-22 (screen shown to jury while counsel was setting up for closing argument)), as Defendant concedes. Such conduct, which was similar to inadvertent conduct by Defendant's own counsel (compare Trial Tr. II 104:4-9 (Plaintiff's publication of unredacted PX 38), with 501: 7-23 (defense publication of same unredacted document)), was too trivial to warrant a new trial, and the Court, in any event, gave appropriate curative instructions (see Trial Tr. II 104:6-8). Defendant also complains of Plaintiff's counsel's intentional publication of one of the previously unproduced letters from Plaintiff's client (see Trial Tr. I 290:1-10), but Defendant does not even attempt to explain how it was prejudiced by that publication. In short, none of the brief publications that are the subject of Defendant's motion warrants a new trial.⁸

8 Nor is a new trial warranted by Plaintiff's counsel's visual display, during summation, of a quote from the ancient Chinese strategist Sun Tzu, stating that "all warfare is based on deception." (Trial Tr. I 1494:11-17.) The quote did not, as Defendant contends, "in essence call[] all of Defendant's witnesses liars." (Def. Mem., at 25.) Rather, counsel's use of the quote was a reference to Davis's trial testimony. (Trial Tr. I 1494:18-22.) Davis had testified that Gerald DuClair, a trainer at the club who made a written complaint about Plaintiff shortly before Plaintiff's termination, was fond of quoting Sun Tzu's The Art of War to the effect that "his main thing was, like, deceive people so you can get ahead." (Trial Tr. I 898:14-19.) At worst, counsel's use of the actual Sun Tzu quote improperly dramatized testimony that was already before the jury. The Court sees no basis for concluding that the jury was improperly swayed by their brief viewing of the quote on a screen, after having already heard Davis's testimony.

C. Defendant's Motion for Remittitur

Defendant's third alternative motion - for remittitur of damages - is granted, but not to the extent Defendant seeks. Defendant asks the Court to remit Plaintiff's $300,000 damages award to $5,000 or less, but, as discussed below, the Court finds that, while the award given by the jury is excessive, on the evidence presented at trial an award of $100,000 would not shock the conscience.

1. Remittitur Standards

"Remittitur is the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984). Though often requested pursuant to Rule 59(e) of the Federal Rules of Civil Procedure ("Motion to Alter or Amend a Judgment"), which Defendant cites in its motion, remittitur is not expressly allowed by that Rule, but is rather "a practice, now sanctioned by long usage, by which the court may condition a denial of the motion for a new trial upon the filing by the plaintiff of a remittitur in a stated amount." Dixon v. Mar. Overseas Corp., 490 F. Supp. 1191, 1194 (S.D.N.Y. 1980) (quoting 11 Wright & Miller, Federal Practice & Procedure: Civil § 2815).

Under federal law, the court should reduce a jury award only if it is "so high as to shock the judicial conscience and constitute a denial of justice." Ismail v. Cohen, 899 F.2d 183, 187 (2d Cir. 1990) (citations omitted). "Under New York law, which is pertinent to the extent that [Plaintiff] was found entitled to recover under the [New York State Human Rights Law], an award is deemed excessive 'if it deviates materially from what would be reasonable compensation.'" Lore v. City of Syracuse, 670 F. 3d 127, 177 (2d Cir. 2012) (citation omitted; quoting N.Y.C.P.L.R. § 5501(c)). This "'deviates materially' standard for reviewing jury awards is less deferential to a jury verdict than the federal 'shock the conscience' standard because it does not permit a reviewing court to sustain a damage award that is out of line with other awards for similar injuries, even if the amount the jury awarded was not shocking to a court's conscience." Fowler v. New York Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *10 (S.D.N.Y. Jan. 31, 2001). As the jury in this case made its award under both federal and state law, and as "the successful plaintiff [should] be paid under the theory of liability that provides the most complete recovery," Singleton v. City of N.Y., 496 F. Supp. 2d 390, 393 (S.D.N.Y. 2007) (quoting Magee v. U.S. Lines, Inc., 976 F.2d 821, 822 (2d Cir.1992)), the Court reviews the award under the federal standard.⁹

9 The Second Circuit's pronouncement, in Lore, of the applicable state standard for motions seeking remittitur of damages on New York Human Rights Law claims seems at odds with the court's prior statements in Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008). In Brady, the circuit appeared to reject the "deviates materially" standard, in favor of a "more nuanced," factor-based standard, as set out in New York City Transit Auth. v. State Div. of Human Rights, 78 N.Y.2d 207, 219 (1991). See Brady, 531 F.3d at 138 & n.2. This Court, however, need not reach the question of what standard for remittitur applies to Plaintiff's New York state-law claims, because neither version of the state standard would be less favorable to Plaintiff than the federal standard, and, as discussed above, a plaintiff with both federal and state claims is entitled, in the face of a remittitur motion, to the most generous recovery that his claims permit.

In evaluating whether an award is excessive, "courts have reviewed awards in other cases involving similar injuries, 'bearing in mind that any given judgment depends on a unique set of facts and circumstances.'" Scala v. Moore-McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993) (quoting Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir.1988)). "[A] district court should remit the jury's award only to the maximum amount that would be upheld by the district court as not excessive"; the court must not order remittitur to an award of its own preference below the "maximum limit of a reasonable range" of possible awards. Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1330 (2d Cir. 1990).

Courts in the Second Circuit analyzing the excessiveness of an award for emotional distress generally begin by assigning the claim to one of three categories. First, there are claims warranting recovery for so-called "garden variety" emotional-distress:

In garden variety emotional distress claims, 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. Such claims typically lack [ ] extraordinary circumstances and are not supported by any medical corroboration.

MacMillan v. Millenium Broadway Hotel, No. 09 Civ. 6053 (PGG), 2012 WL 2105832 (S.D.N.Y. June 11, 2012) (internal quotation marks omitted; alteration in original) (quoting Olsen v. Cnty. of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009)). Second, there are "significant" emotional distress claims, which "differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Id. Finally, claims may fall into the category warranting damages for "egregious" emotional distress; such "claims generally involve either outrageous or shocking discriminatory conduct or a significant impact on the physical health of the plaintiff." Id. "In significant or egregious cases, where there is typically evidence of debilitating and permanent alterations in lifestyle, larger damage awards may be warranted." Id.

2. Maximum Reasonable Damages for Hostile Work Environment

In this case, Defendant argues that, based on prior statements made by Plaintiff to the Court, Plaintiff should be estopped from seeking anything more than "garden variety" emotional-distress damages - i.e., damages for the least severe level of emotional injury. (See Def. Mem., at 14 (citing Letter to the Court (Cote, J.) from Matthew Presseau, Esq., dated Feb. 17, 2011); Hummel Aff., Ex. YY-1 (attaching same).) While Plaintiff did previously inform the Court that he was not claiming more than "'garden variety' emotional distress" - and resisted certain discovery on that basis (see Hummel Aff., Ex. YY-1), the Court need not reach Defendant's estoppel argument, both because Plaintiff does not now seriously contest that his emotional injury rose above the "garden variety" level (see Pl. Mem., at 13-14), and because the evidence of record would not, in any event, support a finding of more serious emotional harm.

In cases involving garden-variety emotional distress, damages awards "are based primarily on the plaintiffs' description of mental anguish in somewhat general terms, there is little or no evidence of medical treatment, and there is little detail of the duration, severity, or consequences of the condition." Reiter, 2003 WL 22271223 at *8-9 & n.4. Here, while Plaintiff did offer somewhat more than just his own testimony of emotional distress, the additional evidence that he was "hurt" by "painful[]" conduct, that he was "stressed" and not himself, that he gained weight, and that he was later fearful, was still "vague" and "general" and provided "little detail of the duration, severity, or consequences of [his] condition." Such evidence of distress during a plaintiff's employment does not show more than garden-variety distress. See, e.g., MacMillan, 2012 WL 2105832 at *10-11 (plaintiff's testimony that he felt "horrible" because of racial harassment and daughter's testimony that plaintiff was "always sad," without evidence of physical manifestations or disruption of daily life, demonstrated garden-variety damages "at best"); Reiter, 2003 WL 22271223 at *9 (plaintiff's claims that he was nervous, on-edge, stressed, and clammy, but did not have difficulty sleeping or eating, placed his injuries "at the low end" of garden-variety damages); Fowler, 2001 WL 83228 at *14 (plaintiff's testimony, corroborated by doctor and therapist, that she suffered headaches and attended therapy briefly, but also had other sources of stress in her life, set out claim for garden-variety damages; "the only objective physical manifestation of any distress was one partial day of elevated blood pressure").¹⁰

10 In contrast, where courts have found "significant" or "egregious" distress, there has typically been more, and more detailed, evidence of substantial and long-term harm. See, e.g., Caravantes v. 53rd Street Partners, LLC, No. 09 Civ. 7821, 2012 WL 3631276, at *22-23 (S.D.N.Y. Aug. 23, 2012) (employee subjected to unwanted sexual acts by supervisor suffered "significant" emotional distress where harassment led to enduring social isolation, sexual dysfunction, marital problems, and hospital admission for suicidal ideation; testimony was corroborated by wife and treating doctor; plaintiff was diagnosed with depressive disorder and post-traumatic stress disorder); Thorsen v. Cnty. of Nassau, 722 F. Supp. 2d 277, 292 (E.D.N.Y. 2010) (emotional damages were "egregious" where plaintiff saw therapist twice weekly for six months and both plaintiff and therapist testified "at length" regarding Plaintiff's anxiety and depression, including physical symptoms and "major stress attack"); Rainone v. Potter, 388 F. Supp. 2d 120, 124-25 (E.D.N.Y. 2005) (claim for emotional distress "f[ell] squarely in the low end of the 'significant' range" where plaintiff's testimony that he took six months of leave because his distress at discriminatory non-promotion was corroborated by wife's testimony that plaintiff "was depressed, had difficulty sleeping, was 'completely distraught,' 'frustrated,' and 'completely shattered,'" and where plaintiff saw therapist for four years and was diagnosed with major depression).

At trial, Defendant's counsel indicated, on the record, that Defendant would apply to reduce Plaintiff's award to "$15,000 to $25,000," which counsel contended was "the range of garden variety emotional distress damages as has been held under the law for that type of claim." (Trial Tr. I 1557:12-15.) Now, however, Defendant takes the aggressive position that Plaintiff's garden-variety distress entitles him to not more than $5,000. (See Def. Mem. at 10.)

Even though Defendant is correct that Plaintiff cannot recover for more than garden-variety emotional distress, neither Defendant's current position that the maximum appropriate award in this case is $5,000, nor its suggestion at trial that the award should be reduced to a figure within the $15-25,000 range, is compelling. Not only do most of Defendant's cited cases uphold awards of more than $5,000,¹¹ but nearly all of the cases on which Defendant seeks to rely were decided in the 1990s.¹² Several other, more recently reported, cases, have actually "uph[e]ld awards of more than $100,000 without discussion of protracted suffering, truly egregious conduct, or medical treatment." Meacham v. Knolls Atomic Power Lab., 381 F.3d 56, 78 (2d Cir.2004) (collecting cases), vacated and remanded on other grounds, 544 U.S. 957 (2005).¹³ Indeed, the Second Circuit has explicitly "rejected" the argument, sometimes advanced by losing defendants, that awards in garden-variety emotional-distress cases should be presumptively limited to $30,000. Lore, 670 F.3d at 177 (citing Meacham). Taking their cue from Meacham and Lore, many courts within this circuit have, in the last several years, begun to allow six-figure awards for garden-variety emotional distress. See, e.g., Campbell v. Cellco P'ship, No. 10 Civ. 9168, 2012 WL 3240223 (S.D.N.Y. Aug. 6, 2012) (remitting to $125,000 based on the plaintiff's testimony "that he felt financially strained, had difficulty sleeping, was unnerved, and suffered a loss of dignity"); Port Auth. Police Asian Jade Soc. of N.Y. & N.J. Inc. v. Port Auth. of N.Y. and N.J., 681 F. Supp. 2d 456, 469 (S.D.N.Y. 2010) ("Asian Jade Soc.") (upholding award of $300,000 in multiple-plaintiff, pattern-and-practice case, while noting usual "formula that 'garden variety' emotional distress claims merit an award between $30,000 and $100,000"); Olsen v. Cnty. of Nassau, 615 F. Supp. 2d 35, 46 & n.4 (E.D.N.Y. 2009) (upholding awards of $100,000 and $400,000 for plaintiffs who offered extensive testimony of ongoing emotional distress and years of therapy, but noting that "recent cases" find range for garden-variety claims to be $30,000 to $125,000).

11 See Def. Mem., at 11-13 (listing only three cases in which damages were remitted to $5,000, and 11 cases in which "garden variety" emotional distress damages were remitted to higher amounts, ranging from $10,000 to $25,000).

12 Of the three decisions listed by Defendant in which the courts remitted damages awards to $5,000, one was issued in 1993, and another was issued in 1989. (See Def. Mem., at 13 (citing Quality Care, Inc. v. Rosa, 599 N.Y.S.2d 65 (2d Dep't 1993); Cosmos Forms, Ltd. v. State Div. Of Human Rights, 541 N.Y.S.2d 50 (2d Dep't 1989)).) Of the 12 remaining cases listed by Defendant as exemplifying appropriate remittitur decisions in cases purportedly similar to this one, nine were decided from 1994 to 2003. (See generally Def. Mem., at 11-13.)

13 In Meacham, the Second Circuit found that this potentially higher range of damages applied under the state-law standard for remittitur. Meacham, 381 F.3d at 78. As the federal standard is even more deferential to plaintiffs, the range of awards that may potentially be upheld under federal law would presumably be at least as high.

Plaintiff seizes on Meacham and a number of other cases to argue that the Court should not reduce the award in this case at all. (Pl. Opp., at 25-30.) As much as Defendant has understated the appropriate range for most garden-variety emotional injuries, however, Plaintiff has overstated that range. For the most part, the cases on which Plaintiff relies involved more extensive and long-lasting emotional injuries than those at issue here, and those cases often involved emotional distress that had been manifest through physical symptoms, near or actual mental breakdowns, and/or disruption of family relationships. See, e.g., Philips v. Bowen, 278 F.3d 104, 108, 111 (2d Cir. 2002) (cited in Pl. Opp., at 28) (upholding individual damages awards of $200,000, where plaintiff was not only subjected to constant harassment, but where she testified that she had "cried excessively, was sick to her stomach, had diarrhea, and avoided going to work," and where her boyfriend testified "in detail" about significant changes in their lifestyle due to her anxiety and physical symptoms); Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157, 185, 198 (E.D.N.Y. 2006) (cited in Pl. Opp., at 28) (remitting to $600,000, where discrimination against a disabled youth "had far more severe consequences . . . than mere 'garden-variety' emotional distress"; among other things, youth suffered deteriorating family relationships and "total breakdown" that required his family to take him to hospital; youth also took anti-anxiety medication for two years and was in psychotherapy).¹⁴

14 Other cases cited by Plaintiff are similarly not comparable to this case. See Quinby v. WestLB AG, No. 04 Civ. 7406, 2008 WL 3826695, at *3-4 (S.D.N.Y. Aug. 15, 2008) (remitting to $300,000 where plaintiff suffered physical symptoms such as headaches, hives, and welts, and had been "subjected to an extreme level of public scrutiny"); Singleton v. City of N.Y., 496 F. Supp. 2d 390, 393 (S.D.N.Y. 2007) (remitting to $300,000 where supervisor's harassment both in and out of workplace led to dissolution of plaintiff's relationship with his girlfriend and separation from his son, and where the plaintiff felt "pervasive fear"); Marchisotto v. City of N. Y., No. 05 Civ. 2699, 2007 WL 1098678, at *3 (S.D.N.Y. Apr. 11, 2007) (upholding $300,000 award to plaintiff who was taken to the hospital after retaliation caused him claustrophobia, increased heart rate, and difficulty breathing, and where plaintiff was too "shattered" to return to work and was in psychotherapy); Simmons v. New York City Transit Auth., No. 02 Civ. 1575, 2008 WL 2788755 (E.D.N.Y. June 17, 2008) (upholding $150,000 award where plaintiff had to stop contributing to her grandson's schooling and move to different apartment when she lost her job); Petrovits v. New York City Transit Auth., No. 95 Civ. 9872, 2003 WL 22349676 (S.D.N.Y. Oct. 15, 2003) (finding $150,000 award justified where plaintiff and her friend testified to plaintiff's crying, sickness, and ongoing distress, and where plaintiff saw a therapist for five years to deal with distress).

Further, the Second Circuit has made clear that its allowance of a six-figure award for garden-variety distress in Meacham should not be read as giving the district courts carte blanche to approve such awards in all cases. See Lore, 670 F.3d at 176-80. In fact, in Lore, the Court of Appeals noted that, were it not for the fact that the plaintiff's supervisor had publicly maligned the plaintiff to the local press, the jury's award of $150,000 would not have been sustainable. Id. at 178. The other evidence in the record in that case - including testimony from the plaintiff and her mother that the plaintiff cried, "suffered from stress, had stomach problems, and became reclusive" because of discriminatory retaliation - would not have supported the jury's award. Id.

In light of the analysis in Lore and the nature of the evidence presented in this case, this Court concludes that the jury's award to Plaintiff of $300,000 shocks the judicial conscience. Even an award of $125,000 - the high-end of the range of damages that have recently been upheld for garden-variety emotional distress - would be somewhat excessive here, especially given that Plaintiff's compensable distress does not include any distress arising from his termination. See Lore, 670 F.3d at 178-78 (explaining that large award of $125,000 was justified in Meacham only because plaintiff suffered emotional distress from unlawful termination). At the same time, Plaintiff's demonstrated emotional distress appears to the Court to be at least as serious as, if not more serious than, that suffered by the plaintiff in Brown v. Junction Pool Commons, Inc., 301 Fed. App'x 24, 2008 WL 5083137 (2d Cir. 2008), in which the Second Circuit upheld a $90,000 award for emotional distress caused by the "experience of discrimination" when a landlord attempted (unsuccessfully) to evict the plaintiff's business. Id. at *2. The jury award in Brown was not supported by medical evidence, id., and the decision contains no mention of any other corroborative support for the plaintiff's account of her emotional injury.

Every case has unique "facts and circumstances," and thus it can be "difficult to discern a consistent practice" for remittitur. Asian Jade Soc., 681 F. Supp. 2d at 469. Nevertheless, in view of all the circuit precedent that the parties have provided to the Court and that the Court has found through its own research, the Court concludes that, on Plaintiff's hostile-work-environment claims, the "maximum limit of [the] reasonable range" of damages, Earl, 917 F.2d at 1330, is $100,000. Accordingly, the Court conditionally grants a new trial on damages unless the plaintiff agrees by January 11, 2013, in writing, to remittitur reducing his damages award to $100,000.

II. PLAINTIFF'S MOTION FOR A NEW TRIAL ON HIS RETALIATORY AND DISCRIMINATORY TERMINATION CLAIMS

In his own post-trial motion, Plaintiff argues that a new trial should be granted on his retaliatory and discriminatory termination claims, based on purportedly incomplete or improper jury instructions. These arguments are too late, and, in any event, without merit.

A. By Stipulating to the Jury Charge , Plaintiff Waived His Right To Seek a So-Called "Cat's Paw" Instruction, and the Court's Omission of Such an Instruction Was Not Plain Error.

Plaintiff's motion for a new trial on his termination claims is based on an argument that the Court impermissibly failed to give the jury a so-called "cat's paw" instruction. Under a "cat's paw" theory of liability, an employer may be held liable on a discriminatory termination claim if a supervisor with a discriminatory motive influenced the termination decision, even if that supervisor was not the ultimate decision-maker. See Abdelhadi v. City of N.Y., No. 08 Civ. 380, 2011 WL 3422832, at *4-*5 (E.D.N.Y. Aug. 4, 2011) (analyzing cat's-paw liability under Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011)). Here, Plaintiff apparently argues that the jury should have been instructed that, if it found that Plaintiff's immediate supervisor, Ramos, acting with a retaliatory or discriminatory motive, had influenced the decision of the upper-level managers who actually terminated Plaintiff, then the jury should have found Defendant liable on Plaintiff's retaliatory and discriminatory termination claims, regardless of whether the upper-level managers themselves had any unlawful motive for the termination. Plaintiff, however, never sought a specific cat's-paw instruction at trial; to the contrary, Plaintiff stipulated to the jury instructions that were given by the Court.

Under Rule 51 of the Federal Rules of Civil Procedure, Plaintiff was required to raise any objections to the jury charge before the case was submitted to the jury. Fed. R. Civ. P. 51(c)(2) (timeliness requirement for objecting to jury instructions); Barrett v. Orange Cnty. Human Rights Comm'n, 194 F.3d 341, 349 (2d Cir. 1999) ("The purpose of Rule 51's timeliness requirement is 'to prevent unnecessary new trials because of errors the judge might have corrected if they had been brought to his attention at the proper time.'" (quoting Bonner v. Guccione, 178 F.3d 581, 586 (2d Cir. 1999))). Instead, Plaintiff here retained new co-counsel well after the jury verdict was returned, and new counsel apparently found fault with the instructions to which trial counsel had consented. In fact, Plaintiff raised the issue of a cat's-paw charge for the first time several months after the trial had been completed. (See Letter to the Court from Matthew Presseau, Esq., dated Feb. 29, 2012 ("Pl. 2/29/12 Ltr.").) At this point, Plaintiff is hardly "in a position to complain," Blackwell v. Kalinowski, No. 08-cv-7257, 2011 WL 3046320, at *8 (N.D. Ill. July 25, 2011), as "[f]ailure to object to a jury instruction . . . prior to the jury retiring results in a waiver of that objection," John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210, 223 (2d Cir 2011) (quoting Jarvis v. Ford Motor Co., 283 F.3d 33, 57 (2d Cir. 2002)).

Plaintiff argues that, despite the seeming waiver of his objections, he is entitled to a new trial because, absent the cat's-paw instruction, the jury charge was so flawed that the verdict cannot stand. Rule 51 does contain an exception to the preservation requirement when a "plain error" in an instruction "affects substantial rights." Fed. R. Civ. P. 51(d)(2). The "plain error" exception, however "should only be invoked with extreme caution in the civil context." Liverpool v. Con-Way Freight, No. 11-1528-cv, 2012 WL 2549110 (2d Cir. July 3, 2012). "Only where an unpreserved error [is] so serious and flagrant that it goes to the very integrity of the trial will a new civil trial be warranted." Id. (quoting Pescatore, 97 F.3d at 18).

Indeed, where an objection to a jury charge is unpreserved, the Second Circuit has occasionally applied an even more rigorous "fundamental error" standard, which Defendant urges on the Court here. (See Def. 3/20/12 Ltr.; see also, e.g., Fabri, 387 F.3d at 121 (applying fundamental error standard, and noting that "[f]undamental error is more egregious than the 'plain' error that can excuse a procedural default in a criminal trial and is so serious and flagrant that it goes to the very integrity of the trial." (citations and quotations omitted)).) Although Plaintiff does not appear to object to the Court's use of this more exacting standard (see Pl. 6/26/12 Ltr., at 6), the "plain error" standard is more in keeping with the text of Rule 51, see Macquesten Gen. Contracting, Inc. v. HCE, Inc., 128 Fed. App'x 782, 785 (2d Cir. 2005) (noting that "[t]he plain error standard replaces the more stringent "fundamental error" standard that was employed in this Circuit prior to the 2003 amendment [of Rule 51]"). Ultimately, however, this Court need not reach the question of which standard is applicable here, as Plaintiff's motion would fail under even the less stringent "plain error" standard. Cf. Snyder v. New York State Educ. Dept., No. 11-1101, 2012 WL 2345397, at *1 & n.2 (2d Cir. June 21, 2012) (citing cases applying both plain and fundamental error standards under Rule 51 and reserving decision as to which standard should apply).

Plaintiff offers several arguments as to why the omission of a cat's-paw instruction represented error, and why this was a sufficiently serious error to warrant a new trial. Primarily, Plaintiff argues that, at the time of trial, the cat's-paw theory of liability was established law in this circuit (Pl. 6/26/12 Ltr., at 2); that this theory was both presented by Plaintiff and "acknowledged" by Defendant and the Court throughout the trial (id. at 3); that Plaintiff did not make a strategic choice to omit the cat's-paw theory from the jury instructions (id. at 6); and that the omission foreclosed one avenue by which the jury could have awarded Plaintiff back-pay damages (id.). Based on the trial record, these proffered reasons fall short.

As an initial matter, even if Plaintiff is correct that this case presented an opportunity for cat's-paw liability, the Court is unconvinced that there was any error, plain or otherwise, in the jury charge as given. While no explicit cat's-paw charge was given in this case, the jury was also never told that it could only find Defendant liable if it found that the ultimate decision-maker acted with discriminatory animus. Rather, the jury was instructed that, for Plaintiff to prevail on his retaliatory or discriminatory termination claim, he would need to establish that he was terminated "because" of his complaints of discrimination, or that discrimination "was the reason" for his termination. (See Trial Tr. III 1520:16-20, 1522:14-25.) The ordinary meaning of these words allowed the jury to find Defendant liable for Plaintiff's termination if it found that decision-making executives were influenced by a discriminating subordinate - the very circumstances that lead to cat's-paw liability.¹⁵

15 The jury was also properly instructed that it should not find Defendant liable for retaliatory or discriminatory termination, if Defendant offered a legitimate non-discriminatory reason for Plaintiff's termination, and Plaintiff then failed to carry his burden of demonstrating that such reason was pretextual. (Trial Tr. III 1523:8-1524:15.) Given that instruction, the jury could have reasonably found that, even if Ramos had acted with discriminatory intent to influence the termination decision (giving rise to potential cat's-paw liability), that decision was ultimately made by upper management for a legitimate, non-discriminatory reason. See Holcomb v. Iona College, 521 F. 3d 130, 142-433 & n.4 (2d Cir. 2008) (noting the availability of this affirmative defense in "mixed motive" cases); see also Trial Tr. III 986:14-987:22; 1104:24-1106:19) (testimony of Defendant's witnesses Robert Carpio and Kevin Hyatt to the effect that Plaintiff was fired because he was himself believed to be an instigator of racial or ethnic conflict in the workplace). Thus, the jury's finding in Plaintiff's favor on his hostile-work-environment claims - which suggests that the jury discredited Ramos's testimony, at least in part - is not necessarily inconsistent with the jury's findings in Defendant's favor on Plaintiff's remaining claims.

Further, even assuming that the general instruction was insufficient and the jury should have been expressly instructed on cat's-paw liability, any error in the Court's omission of such a charge would still not justify a new trial. The charge, while general, was "sufficiently clear to aid the jury in making a rational decision" on Plaintiff's claims. SCS Commc'ns, Inc. v. Herrick Co., Inc., 360 F.3d 329, 343 (2d Cir. 2004). Moreover, the charge was "compatible" with a cat's-paw theory of liability and certainly did "not call into question the integrity of the trial." Id.

Plaintiff's contention that the omission was not only erroneous, but plainly or fundamentally so, strains credulity on a basic level, as Plaintiff's trial counsel did not notice the supposed error until several months after trial, and then only after consulting with new co-counsel. See, e.g., Morse/Diesel, Inc. v. Trinity Indus., Inc., 875 F. Supp. 165, 172-73 (S.D.N.Y. 1994) (any error in failing to charge jury with narrow scope of insurer liability not "plain" or "obvious" where insurer, whether "by design or blunder," failed to raise "supposedly-dispositive" issue for 10 years of litigation and six weeks of trial, and objected for the first time after retaining new counsel); see also Galin v. Goldfischer, No. 03 Civ. 9019, 2008 WL 5484318, at *14 (S.D.N.Y. 2008) (any error "minor enough to escape the parties' attention during the trial and for three weeks after the jury's verdict" hardly "obvious" and jury was not "deprived . . . of adequate legal guidance to reach a rational decision").

Plaintiff attempts to downplay the belated nature of his objection by asserting that, at trial, the parties and the Court all "understood" his claims to include a cat's-paw theory. (Pl. 6/26/12 Ltr., at 6.) The record, however, indicates the opposite. Just before the commencement of trial, the Court heard oral argument from counsel on the question of whether Plaintiff's punitive damages claim should be stricken. On this point, Defendant's counsel argued that, if Plaintiff were proceeding on a theory that a low-level manager was, for discriminatory reasons, providing false information to upper-level management for the purpose of trying to orchestrate Plaintiff's termination (in other words, if Plaintiff were proceeding on a cat's-paw theory), then, although the company could be held liable for a discriminatory termination, punitive damages would be foreclosed. (Trial Tr. I 8:19-10:14.) When the Court asked Plaintiff's counsel for clarification as to whether that was, in fact, Plaintiff's "theory of the case" (id. 10:15-11:5), Plaintiff's counsel did not confirm that it was. Instead, Plaintiff's counsel - successfully defeating Defendant's motion to strike the punitive damages claim - pressed a theory that those who terminated Plaintiff were themselves motivated by discrimination, both because the upper management knew more than they let on and because Plaintiff's immediate supervisor, Ramos, himself had significant authority. (Id. 11:6-13:21.)

In his opening statement to the jury, Plaintiff's counsel suggested that the corporate decision-makers acted with a culpable state of mind when they terminated Plaintiff. (Id. 83:16-22.) In summation, counsel argued that Ramos, who, Plaintiff claimed, had a discriminatory motive, himself had firing authority. (Trial Tr. III 1496:24-1497:15.) In neither opening nor summation did Plaintiff present a cat's-paw theory - i.e., that the hiring authority rested with central management, that management did not act with a culpable state of mind, but that Ramos, acting with discriminatory intent, in some manner led the corporate authorities to terminate Plaintiff. Under the circumstances, Plaintiff gave the Court little reason to believe that he wanted the jury to consider a cat's-paw theory of liability.¹⁶

16 Ignoring the statements he made on the trial record regarding his intended theory of the case, Plaintiff now resorts to suggesting that the Court should have divined an alternate intention from arguments made at the close of trial regarding the requirements of the New York City Human Rights Law (the "City HRL"). (Pl. 6/26/12 Ltr. at 4-6.) According to Plaintiff's counsel, he made arguments in that context that related to Plaintiff's cat's-paw theory and that placed the Court on notice that it should have issued a cat's-paw charge. With regard to the City HRL, however, Plaintiff's counsel principally argued that, unlike under federal law, an employer can be held "strictly liable" under the City HRL for a discriminatory termination. (See Trial Tr. III 1450:18.) Plaintiff's argument about strict liability under local law did not require the Court, sua sponte, to issue a cat's-paw instruction regarding Plaintiff's federal termination claims. Moreover, in framing his arguments about the City HRL, Plaintiff's counsel never even made clear that he was seeking a cat's-paw instruction with respect to that law. Nor, as discussed below, is it evident that such an instruction, under local law, would have been appropriate. (See Discussion in Part II(B), infra.)

In fact, not only did the Court not understand Plaintiff to be proceeding at trial with a cat's-paw theory, but, to the contrary, the Court understood that Plaintiff had good reason to avoid such a theory and instead to claim discrimination by the corporate decision-makers: as Defendant argued and as Plaintiff's counsel himself eventually conceded at trial, cat's-paw liability would have been inconsistent with Plaintiff's claim for punitive damages. (Trial Tr. I 258:22-23.) It was not error for the Court to allow Plaintiff to make the strategic choice to pursue the theory of liability that he did, and it does not become error retroactively, simply because Plaintiff now wishes that he had offered the jury an alternative avenue to find Defendant liable on his termination claims. Compare Proteus Books Ltd. v. Cherry Lane Music Co., 873 F.2d 502, 514 (2d Cir. 1989) (holding that a failure to charge the jury on one specific theory of recovery, common-law liens, was not plain error, where the defendant had not pleaded the theory in its answer and had only requested an instruction on contractual, but not common-law, liens), with Kerman v. City of N.Y., 374 F.3d 93, 131-32 (2d Cir. 2004) (finding fundamental error in jury charge where plaintiff's failure to request omitted instruction on available damages did not represent a strategic choice, and where damages were "inherent" in the jury's findings).

In contrast to the scenario presented here, the overwhelming majority of cases in which jury instructions have been found to constitute plain (or fundamental) error have involved affirmative misstatements of established law, the submission of non-factual issues to the jury, internally incoherent or inconsistent instructions that led to jury confusion, and/or instructions that deprived the jury of even minimal guidance. See, e.g., Jin v. Metro. Life Ins. Co., 310 F. 3d 84, 89, 98 (2d Cir. 2002) (finding plain error where instruction, inter alia, involved an affirmatively erroneous statement of law); Schaafsma v. Morin Vermont Corp., 802 F.2d 629, 637 (2d Cir. 1986) (finding plain error both in jury-verdict form that led to double recovery, and in submission to jury of non-factual question that should have been decided by court as a matter of law); Frederic P. Wiedersum Assocs. v. Nat'l Homes Constr. Corp., 540 F.2d 62, 66 (2d Cir. 1976) (finding fundamental error where the trial court gave contradictory jury charges that were "hopelessly confusing" and failed "to provide even the barest legal guideposts to aid the jury in rationally reaching a decision"); Ferrara v. Sheraton McAlpin Corp., 311 F. 2d 294, 297-98 (2d Cir.1962) (failure to define "constructive notice" in jury instructions "deprived the jury of the minimum guidelines necessary and appropriate for responsible decision").

In this case, Plaintiff does not actually contend that any affirmative instruction given by the Court misstated the law. Nor does Plaintiff contend that any aspect of the Court's instructions were inconsistent or necessarily led to an untenable outcome. At bottom, what Plaintiff contends is that a finding by the jury of cat's-paw liability on his retaliatory and discriminatory termination claims would have been "consistent" with (although not required by) the jury's verdict on his hostile-work-environment claims (see Pl. 3/16/12 Ltr., at 7), and that the jury might have made such a finding - and awarded additional damages as a result - had an explicit cat's-paw charge been given. Such speculation, and the "Monday-morning quarterbacking" that is evident in Plaintiff's arguments, are insufficient to demonstrate that the Court committed "plain error," as would be necessary to justify a new trial.

B. Plaintiff Also Waived His Right To Challenge the Court's Instruction on the New York City Human Rights Law , and That Instruction Was Also Not Plainly Erroneous.

In Plaintiff's initial post-trial submissions, in February and March 2012, Plaintiff argued only that the jury should have been given a cat's-paw instruction. (See Pl. 2/29/12 Ltr., at 1-2; Pl. 3/16/12 Ltr., at 6.) Neither submission took issue with the Court's jury instructions regarding Plaintiff's termination claims under the City HRL. In a supplemental letter brief submitted by Plaintiff three months later, however, Plaintiff, for the first time, raised an argument that the Court's jury charge was not only fundamentally erroneous for its omission of a cat's-paw instruction, but also for the language of the "strict liability" instruction that the Court gave regarding the City HRL. (Pl. 6/26/12 Ltr., at 6.) Although, even then, Plaintiff raised his objection to the City HRL instruction obliquely, and without making clear exactly how he believed an alternative instruction would have affected the outcome of the case, the Court will address this additional argument out of an abundance of caution.

At the close of trial, the Court raised a question about the parties' proposed instruction on the difference between the City HRL, on the one hand, and federal law, on the other. (Trial Tr. III 1416:2-1420:16; see also id. 1400:17-1406:6.) Defense counsel explained that the principal difference between these laws was that, on the City HRL, a defendant would not have a so-called "Faragher-Ellerth" defense¹⁷ available to it, at least on a hostile-work-environment claim. (See id. 1416:9-12.) When, however, the Court asked counsel for their views as to whether the resulting "strict liability" provided by the City HRL would also apply to termination-based claims, the parties - and the Court - took some time to struggle with that issue. (Id. 1420:8-9.) As the Court had raised the question at the end of a trial day, it told counsel to consider and research the law, and to return to Court the next morning prepared to address it. (Id. 1420:12-14.)

17 In the companion decisions of Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257 (1998), the Supreme Court held that a defendant in a federal hostile-work-environment or harassment case could rely on an affirmative defense that it had exercised reasonable care to prevent and correct any unlawful conduct, and that the plaintiff had unreasonably failed to avail him- or herself of corrective opportunities that the defendant offered.

The next morning, Defendant's counsel, having conducted legal research, argued that the language of any instruction regarding the difference between federal and City law should be focused on hostile-work-environment claims. (Id. 1440:5-1443:2 (citing, inter alia, Zakrzewska v. New School, 14 N.Y.3d 469 (2010)).) The Court then pressed Plaintiff's counsel, to see if he could articulate any meaningful way in which the laws would differ, with respect to discriminatory termination claims. (Id. 1445:13-1446:4.) Plaintiff's counsel could not (id. 1446:5-1449:23), and ultimately agreed to the following charge, which the Court later delivered to the jury:

Where the conduct of employees with managerial or supervisory responsibility is at issue, the standards for defendant's liability for hostile work environment claims is somewhat different under Title VII, Section 1981, and the New York Human Rights Law on the one hand and the New York City Administrative Code on the other. Under the federal and state laws, the defendant would still have the [Faragher-Ellerth] defense I have just described. In other words, the defendant could avoid liability by proving, by a preponderance of the evidence, that: (1) defendant exercised reasonable care to prevent and correct any discriminatory or harassing behavior; and (2) the plaintiff, unreasonably, did not take advantage of any preventive or corrective opportunities provided by defendant. Under the New York City Administrative Code, however, if plaintiff proves that an employee with managerial or supervisory responsibility subjected plaintiff to a hostile work environment on the basis of his race, color or national origin, then defendant would be liable for that conduct regardless of whether defendant was made aware of the manager's conduct or took reasonable steps to correct and prevent it.

(Trial Tr. III 1525:11-1526:5; see also id. 1458:24-1459:4 (confirming that Plaintiff had no objections to the Court's proposed jury charge).)

Now, despite his acceptance of this proposed charge at the time it was given,¹⁸ Plaintiff contends that this instruction was erroneous because the jury should have been instructed that the City HRL provides for strict liability on termination-based claims, as well as on hostile-work-environment claims. (Pl. 6/26/12 Ltr., at 5-6.) Not only has Plaintiff failed to preserve his objection to the Court's modification of the proposed jury charge, but, for the reasons that follow, even if the objection were preserved, the Court would adhere to its prior determination that the modification was proper. At a minimum, the Court's instruction on this point did not constitute "plain error."

18 Plaintiff apparently attempts to explain away his agreement to the charge by referring to the supposed "expedited manner" in which any issues about the charge were discussed at trial. (Pl. 6/26/12 Ltr., at 5.) Plaintiff ignores, however, the fact that the Court did not adopt the proposed charge until it had first given both parties' counsel an overnight opportunity to research the law (Trial Tr. III 1420:12-14), and further neglects to mention that, to the extent the next morning's proceedings may have seemed "expedited," this was in part because Plaintiff's counsel arrived to court half an hour late, when the Court had deliberately reserved that time to allow for further argument regarding the charge (see id. 1436:5-11). The Court notes that, even with the time pressure caused by Plaintiff's counsel's late arrival, it still afforded the parties an opportunity to be heard regarding the proposed charge, and even took the time that morning to print out a copy of a case cited by Defendant's counsel and to provide it to Plaintiff's counsel, so that he could read it and respond fully to arguments advanced by Defendant. (See id. 1444:14-25.)

As a threshold matter, Plaintiff has still not explained to the Court what "strict liability" under the City HRL would mean in the context of a termination claim. The concept makes greater sense in the hostile-work-environment or harassment context, where it is easier to see how the defendant employer might otherwise have a viable Faragher-Ellerth defense. Indeed, it is in the context of hostile-work-environment claims that the City law's "strict liability" concept is generally cited. See, e.g., Zakrzewska v. New School, 14 N.Y.3d 469, 475-76 (2010); McRedmond v. Sutton Place Rest. and Bar, Inc., 945 N.Y.S.2d 35, 38 (1st Dep't 2012). Plaintiff has not provided any support for the proposition that a Faragher-Ellerth defense could be available, even under federal law, in the context of a termination claim, or that a retaliatory or discriminatory termination claim, for practical purposes, should be viewed any differently under federal and City law. Nor has Plaintiff explained how, on the facts of this case, the modified charge he belatedly proposes would have led to a different outcome. Plaintiff has thus failed to show that the Court's instruction on the City HRL was actually deficient.

Particularly puzzling is Plaintiff's assertion that, because the City HRL instruction given by the Court did not mention termination, that instruction "directly contradicted the text of the City Law." (Pl. 6/26/12 Ltr., at 5 (citing N.Y.C. Admin. Code §8-107(13)(b)(1)).) In fact, the provision of the City HRL that Plaintiff cites does not even mention termination. See N.Y.C. Admin. Code § 8-107(13)(b)(1) (stating that "[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent . . . only where: (1) The employee or agent exercised managerial or supervisory responsibility . . . ."). Without any citations or explanation regarding what this provision would mean in a termination case in general, or in this case in particular, Plaintiff's mere citation to the City HRL does not show that the Court's instruction was in error.

Even if Plaintiff had offered a plausible reading of the City HRL's strict-liability provision that would apply the provision in termination cases, that interpretation would hardly be settled, given the lack of any explicit reference to termination in the text and the lack of caselaw supporting Plaintiff's reading. In the absence of settled law supporting Plaintiff's position, Plaintiff has not demonstrated that any deficiency in this instruction could constitute plain error. See, e.g., Fabri, 387 F.3d at 122 (2d Cir. 2004) (circuit "typically will not find [plain] error where the operative legal question is unsettled, including where there is no binding precedent from the Supreme Court or this Court" (quoting United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004))).

To the extent Plaintiff is again arguing that the Court's instructions should have made explicit that cat's-paw liability is available under the law (in this instance, the City law), the Court's analysis of its federal-law instructions, as set forth above, applies with equal force here. Once again, the Court's instruction cannot be considered plain error where nothing about the instruction was incompatible with a theory of cat's-paw liability. This is especially true in light of the fact that the jury was entitled to find for Defendant under the City HRL, if it found that Plaintiff was terminated for a legitimate, non-discriminatory reason. See Bennett v. Health Mgmt. Sys., Inc., 936 N.Y.S.2d 112 (1st Dep't 2011) (holding modified McDonnell-Douglas framework¹⁹ applies to claims under City HRL).

19 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

In sum, it appears that Plaintiff made a conscious and strategic choice to proceed not on a cat's-paw theory, but rather on a theory that those who made the decision to terminate his employment were themselves acting with retaliatory or discriminatory animus. Further, even if Plaintiff's counsel merely made a mistake in failing to object to the Court's jury instructions, either with respect to federal or City law, and even if the Court's omission of specific cat's-paw instructions constituted error, any such error is hardly "plain" enough to outweigh the Court's - and the parties' - substantial interests in finality and judicial economy. See Morse/Diesel, 875 F. Supp. at 172 (noting importance of "finality," as the court engaged in "a careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed" (internal quotation marks and citations omitted)). In the absence of plain error, and in the interest of finality, Plaintiff's motion for a new trial on his retaliatory and discriminatory termination claims is denied, in its entirety.

III. PLAINTIFF'S FEE APPLICATION

Plaintiff seeks the attorneys' fees available to "prevailing parties" under federal antidiscrimination statutes and New York City law. (See Plaintiff's Motion for Attorney's Fees, dated Mar. 2, 2012 (Dkt. 77); Pl. Fee Mem.; Presseau Decl.) More specifically, Plaintiff seeks compensation for two attorneys, Matthew Presseau, Esq. ("Presseau"), who has represented Plaintiff for the duration of this litigation in this Court, and Robert B. Davis, Esq. ("Davis"), who represented Plaintiff before the EEOC, prior to the commencement of this litigation, and who has now come onboard again, as Presseau's co-counsel on the post-trial motions.²⁰ Plaintiff's total fee request for Presseau is $224,531.25, and for Davis is $38,850. Plaintiff also requests $2,662 in costs. (Pl. Fee Mem., at 10-11; Pl. Fee Reply, at 15.)

20 Apparently, once proceedings concluded in the EEOC, Plaintiff and Davis could not agree on terms for Davis's continued representation of Plaintiff (see Presseau Decl., Ex. H ¶ 6(f)), leading Davis to decline such representation and Presseau to take his place. After the jury verdict, however, Plaintiff again retained Davis (id. ¶ 11), and Davis has served as co-counsel to Presseau since then.

Defendant cannot contest that the denial of its motion for judgment as a matter or law or a new trial renders Plaintiff the "prevailing party" in this action, under the relevant statutes. Defendant, however, raises numerous objections to Plaintiff's fee application, asking the Court to award no fees at all or, at a maximum, $24,720 for Presseau and $2,520 for Davis - a reduction of nearly 90 percent of what Plaintiff seeks. (See generally Def. Fee Opp.)

As detailed below, the Court calculates Plaintiff's appropriate fee award as $130,870.50 plus $2,412 in costs, conditional upon Plaintiff's acceptance of the remittitur ordered above. If Plaintiff chooses to proceed with a new trial on damages, then his application for attorneys' fees will be denied, without prejudice to renew at the conclusion of the re-trial.

A. Applicable Legal Standards

Both federal and New York City anti-discrimination laws provide for an award, in the Court's discretion, of attorney's fees to prevailing parties. See 42 U.S.C. § 1988 (attorney's fees available to prevailing party under 42 U.S.C. § 1981, in court's discretion); 42 U.S.C. § 2000e-5(k) (fees available under Title VII, in court's discretion); N.Y.C. Admin. Code § 8-502(f) (fees available to prevailing party under City Law, in court's discretion). The New York City Local Civil Rights Restoration Act of 2005, N.Y.C. Admin. Code § 8-130, generally requires the City HRL - including its fee provision - to be construed "liberally" to accomplish the law's "uniquely broad and remedial purposes," id., but, under both federal and City law, "even where a party establishes that it is a prevailing party, 'the requested fee must . . . be reasonable,'" Degregorio v. Richmond Italian Pavillion, Inc., 935 N.Y.S.2d 70, 72 (2d Dep't 2011) (quoting Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996); N.Y.C. Admin. Code § 8-502(f) ("[T]he court, in its discretion, may award the prevailing party costs and reasonable attorney's fees.").

As a general matter, the "starting point" in analyzing whether claimed attorneys' fees are reasonable is "the lodestar - the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (lodestar calculation creates "presumptively reasonable fee" (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010) (internal quotation marks omitted)). There is a "strong presumption" that the lodestar represents the appropriate award, although "enhancements may be awarded in rare and exceptional circumstances." Perdue, 130 S. Ct. at 1673.

The party seeking fees bears the burden of demonstrating that its requested fees are reasonable. See Blum v. Stenson, 465 U.S. 886, 897 (1984); Robinson v. City of N.Y., No. 05 Civ. 9545 (GEL), 2009 WL 3109846, at *3 (S.D.N.Y. Sept. 29, 2009). To that end, the fee application must be supported by contemporaneous time records that "specify, for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). The reasonable hourly rate is what "a reasonable, paying client would be willing to pay," Arbor Hill, 522 F.3d at 184 (2d Cir.2008), and varies by location and practice area, id.. at 192.

Where the requested amount of fees is excessive because the number of stated hours is greater than should have been required, the Court should reduce the stated hours accordingly. See Seitzman v. Sun Life Assurance Co. of Canada, 311 F.3d 477, 487 (2d Cir. 2002) (the time component should not reflect excessive hours). A reduction is also appropriate where the proffered attorney time records are inadequate to enable the Court to determine the reasonableness of the work performed or the time expended. See Hensley, 461 U.S. at 433. In this regard, a percentage reduction may be applied as a "practical means of trimming fat" from a fee application. Carey, 711 F.2d at 1142, 1146 (allowing percentage reductions to correct for deficiencies in fee application including "inadequate detail in documentation"). In determining whether an excessive amount of time was expended on a matter, the Court may also consider the nature and quality of the work submitted by counsel, see Kirsch v. Fleet St. Ltd., 148 F.3d 149, 173 (2d Cir. 1998); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987), as well as the degree of counsel's success, see Hensley, 461 U.S. at 436.

B. Appropriate Fees and Costs in This Case

1. Threshold Requirement of Contemporaneous Time Records

Defendant argues that both Presseau and Davis have not met their burden of providing adequate time records on which the Court can base an award of fees, and that the Court should therefore award no fees at all. Regarding Presseau, Defendant asserts that "the Presseau Declaration does not state that attorney time was recorded contemporaneously" and that the exhibits annexed to that Declaration "do[] not contain anything resembling actual time records." (Def. Fee Opp., at 3.) As a result of these deficiencies, Defendant argues that the Court may not award Plaintiff any fees for Presseau's work, or, at the very least, may not award fees without holding an evidentiary hearing on the nature of Presseau's records. (See Def. Fee Opp., at 4; Scott v. City of N.Y., 626 F. 3d 130, 133 (2d Cir. 2010) (noting "strict rule" that "absent unusual circumstances attorneys are required to submit contemporaneous records with their fee applications").) The Court disagrees, and accepts Presseau's submitted time records as sufficient to justify an award of fees.

In a passage Defendant itself quotes (see Def. Fee Opp., at 3), Presseau declared, under penalty of perjury, that the records he submitted were "a printout of [his] contemporaneously recorded time records." (Presseau Decl. ¶ 24.) Further, Presseau responded to Defendant's criticisms by providing additional details regarding his record-keeping, as well as direct printouts from his time-keeping software to supplement the tabular format of the same information he had earlier submitted. (Suppl. Presseau Decl. ¶¶ 3-4 & Ex. J.) Defendant does not explain why a table containing dates, lengths of time, and descriptions of work does not "resembl[e] actual time records," but its principal objection to the records seems to be that their format mirrors that of other records, which Presseau conceded were "reconstructed," and as to which he has withdrawn any request for reimbursement. (See Def. Fee Opp., at 3.) The Court finds that Presseau's explanation of his submission (Suppl. Presseau Decl. ¶¶ 3-4) is adequate to demonstrate that the particular records on which he now relies are based on his contemporaneous recording of data in a computerized record-keeping system.

Regarding Davis, Defendant initially pointed out, correctly, that Davis had not affirmed that his submitted time sheets were contemporaneously recorded. (Def. Fee Opp., at 3.) Davis, however, then submitted a second affirmation, remedying that deficiency. Davis has now explained that his "time records [were] drawn from [his] time notations on contemporaneous notes of work performed pre-litigation and post-trial." (Suppl. Presseau Decl., Ex. L ¶ 2 ("As I performed work in this matter I made handwritten or computer inputted notes to reflect the time expended and the tasks performed.").) This is sufficient to satisfy the requirement that time records be contemporaneous, and, indeed, Davis notes that the Second Circuit has approved "the same method of time record keeping . . . for this same counsel" in another case. (Suppl. Presseau Decl., Ex. L ¶ 2 (citing Cruz v. Local Union No. 3, IBEW, 24 F.3d 1148, 1160-61 (2d Cir. 1994)).)

There is thus no need for this Court to conduct a hearing on the question of whether counsel's time was recorded contemporaneously with the work performed, and the Court will proceed with the lodestar calculation.

2. Lodestar Calculation

a. Reasonable Hourly Rates

i. Presseau

Presseau seeks to be compensated at a rate of $375 per hour, which he states "appropriately reflects [his] level of experience," "compares favorably" to rates charged by similarly experienced lawyers at "the largest firms in the U.S.," and is "routinely" paid by his clients. (Presseau Decl. ¶¶ 22-23.) In addition to making his own arguments in this regard, Presseau also submits a supporting affirmation from Kevin O'Rourke Moore, Esq. ("Moore") a former partner in Presseau's firm,²¹ containing Moore's "opinion, as an experienced litigator," that the $375-per-hour rate sought by Presseau is "fair and reasonable." (Presseau Decl., Ex. C.)

21 Presseau is an associate lawyer at Ogihara & Associates, PLLC. Moore was a litigation partner at what was apparently the Ogihara firm's predecessor, Ogihara & Moore, LLP, from 1996-2004. (Presseau Decl., Ex. C)

Presseau, however, does not describe himself as having any prior background in employment litigation. (See id. ¶ 34; see also Strianese Fee Aff. ¶ 4 (noting that two employment cases listed by Presseau commenced after the instant action).) Indeed, Presseau has effectively conceded a lack of relevant knowledge by informing the Court that, until he later consulted with Davis (a more experienced employment lawyer), Presseau was unaware of certain arguments that he could have raised at trial. (See Pl. 2/29/12 Ltr., at 1.) Moreover, although trial skills are "transferrable," A.R. ex rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 82 (2d Cir. 2005), and thus an experienced trial lawyer may merit a higher billing rate despite inexperience in a particular field, see id., Presseau has also admitted a lack of any prior trial experience (Presseau Decl. ¶ 35). In fact, Presseau made a strategic decision to highlight his "obvious" inexperience to the jury, stating in summation:

Before I turn to the substance of my closing arguments I just want to make one request. Obviously, I am not a seasoned trial attorney. In case it wasn't obvious, this is my first trial. I know I have stumbled through the proceedings, taxing the limits of your patience and probably everybody in this room and I just ask that . . . whatever aggravation I may have caused you, that you not hold it against my client.

(Trial Tr. III 1479:1-7.) Having admitted and even emphasized his inexperience when it seemed tactically expedient to do so, Presseau cannot now claim that he should be compensated at the same rate that a more seasoned litigator would command. Even Presseau appears to concede that some reduction in his requested $375-per-hour billing rate may be warranted (see Pl. Fee Reply, at 5-6), although he resists a reduction as severe as the one proposed by Defendant (see id.; see also Def. Fee Mem., at 7-9 (proposing that Presseau's rate be reduced to $200 per hour)).

Presseau graduated from law school in 1999, was admitted to the New York bar in 2000, and began his first job as a lawyer in the fall of 2001. (Presseau Decl., ¶¶ 31, 33.) Although Plaintiff's brief states that Presseau has been "representing clients in dispute resolution and litigation matters as lead counsel . . . since 2001" (Pl. Fee Mem., at 6), Presseau's Declaration makes clear that, at the beginning of that period, he was also pursuing a graduate degree in another field and that, for a span of two years, his graduate studies took the place of his law practice. (See Presseau Decl. ¶¶ 31, 33.) At most, then, Presseau had about six years of practice experience at the time he took on this case in 2009, and about seven years of experience when he then tried the case in 2010. It is thus appropriate to set his compensation at the level of an associate with not more than six or seven years of experience.

While courts in this district have approved rates higher than Presseau's requested rate of $375 per hour for partners with significant experience in employment litigation, see, e.g., Gurung v. Malhotra, 851 F. Supp. 2d 583, 597 (S.D.N.Y. 2012) (collecting cases where awards for "experienced civil rights and employment law litigators" ranged up to $450/hour), Presseau's requested rate falls above the high end of rates that have generally been approved in such cases for associates, see, e.g., Mugavero v. Arms Acres Inc., 03 Civ. 5724 (PGG), 2010 WL 451045, at *5 (S.D.N.Y. Feb. 9, 2010) (noting that, while higher awards had been approved for partners, rates for associates had ranged from $200-$350/hour, "with average awards increasing over time"); Mawere v. Citco Fund Servs. (USA) Inc., No. 09 Civ. 1342 (BSJ) (DF), 2011 WL 6779319, at *4-5 (S.D.N.Y. Sept. 16, 2011) (relying on Mugavero in recommending $350/hour rate for fifth-year employment-law associate), report and recommendation adopted by 2011 WL 6780909 (Dec. 17, 2011). Indeed, many courts in this district have recently awarded $300 per hour or less to senior associates, even where those attorneys had demonstrated considerable experience in the practice area. See, e.g., Torres v. Gristede's Operating Corp., No. 04 Civ. 3316 (PAC), 2012 WL 3878144, at *4 (S.D.N.Y. Aug. 6, 2012) ("Senior Associates [at 34-person employment-law firm] with eight or more years of experience . . . are awarded $300 per hour, reduced from their requested rates of $370 to $400."); Clover v. Shiva Realty of Mulberry, Inc., No. 10 Civ. 1702 (RPP), 2011 WL 1832581, at *5 (S.D.N.Y. May 13, 2011) (approving $300/hr for senior associate at small firm who had been "practicing law for nearly nine years"); Adorno v. Port Auth. of N.Y. and N.J., 685 F. Supp. 2d 507, 513-514 (S.D.N.Y. 2010) (reducing rate for sixth-year associate from $300 to $250 in "complex and difficult" case; noting that court "had the opportunity to observe him at trial in this case, and . . . while he is a capable lawyer, [the court does] not believe he falls into the category of 'senior associate'"). Although Presseau took the lead in representing Plaintiff at trial, the Court must also consider the moderate length of his legal practice, as well as his lack of either prior employment-law or trial experience. In light of all of these factors, the Court finds $275 to be a reasonable hourly rate for Presseau's services in this case. See Reiter v. Metro. Transp. Auth., No. 01 Civ. 2762, 2007 WL 2775144, at *8 (S.D.N.Y. Sept. 25, 2007) (setting rate of $275/hour for attorney with nearly 20 years of criminal experience but "relative inexperience in civil litigation in general and employment litigation in particular").

ii. Davis

Davis, who is apparently far more experienced than Presseau in the employment-law area, seeks compensation at the rate of $525 per hour.²² (Id.) Davis has submitted his own affirmation in support of his asserted rate (Presseau Decl., Ex. H), detailing his nearly 30 years of experience, including approximately 20 in employment law (id. ¶¶ 16-18). Davis has also offered a supporting affidavit from his former law partner, Herbert Eisenberg, Esq., who states that Davis's requested rate "is entirely reasonable." (Presseau Decl., Ex. I ¶ 8.) Defendant, however, argues that Davis should be compensated at $300 per hour for his pre-trial representation of Plaintiff (i.e., for representing Plaintiff before the EEOC) - work which Defendant characterizes as comprising "the type of activities usually assigned to junior associates." (Def. Fee Opp., at 9-10.) Defendant further suggests that the upper boundary for Davis's pay rate, even for litigation-related tasks, should be $400 per hour. (Id.)

22 Although Presseau reports Davis's rate as $550/hour (Suppl. Presseau Decl., at 3), Davis himself requests $525/hour (see Presseau Decl., Ex H ¶ 2; Suppl. Presseau Decl., Ex. L ¶ 2).

Upon its review of rates that have been approved in this district for attorneys of comparable experience, the Court finds that Davis should be compensated at the rate of $450 per hour for both his pre-trial and post-trial work on this case. See Gurung, 851 F. Supp. 2d at 597 (surveying cases where awards of up to $450/hour for experienced employment lawyers were approved); see also Serin v. N. Leasing Sys., Inc., No. 7:06 Civ. 1625, 2011 WL 1467560, at *11 (S.D.N.Y. Apr. 19, 2011) (reviewing previously-upheld market rates of up to $425 for mid-size civil rights firms, and "adjusting for inflation" to reach $450/hour); Kahlil v. Original Old Homestead Rest., Inc., 657 F. Supp. 2d 470, 476 (S.D.N.Y. 2009) (finding $400 per hour to be "unexceptional . . . for a senior lawyer with 25 years' experience" in labor and employment law); Ashkinazi v. Sapir, No. 02 Civ. 2 (RCC) (MHD), 2005 WL 1123732 (S.D.N.Y. May 10, 2005) (holding, in 2005, that $425 was proper rate for "senior small-firm partner[]" in employment case).

b. Reasonable Number of Hours

Plaintiff has submitted records detailing nearly 600 hours of work performed by Presseau²³ and 74 hours of work performed by Davis. (See Suppl. Presseau Decl., at 3 & Ex. K, M; Presseau Decl., Ex. D, G.) Plaintiff bears the burden of showing that this time was "reasonably expended." Robinson, 2009 WL 3109846, at *3 ("[T]he burden is on the fee applicant to submit evidence to support the number of hours expended and the rates claimed.").

23 Plaintiff has dropped his claim to compensation for an additional 20.75 hours for which Presseau provided only "reconstructed," but not contemporaneous, time records. (See Pl. Fee Mem., at 1 & n.1, 9.) This Order therefore does not discuss the parties contentions as they relate to those "reconstructed" records.

i. Presseau's Hours

Presseau has submitted records reflecting that he spent 412.25 hours on this case from February 2009, when he drafted the Complaint, through March 2, 2012, when he filed the fee application (Presseau Decl., Ex. D), and another 186.5 hours from March 2, 2012 through April 13, 2012 (Presseau Decl., Ex. K). Both totals purport to exclude some time in the exercise of "billing discretion." (Presseau Decl. ¶¶ 24-26; Suppl. Presseau. Decl. ¶ 8.) Presseau's records, however, are wholly inadequate to justify compensating him for all of the hours he has listed.

First of all, Presseau has accounted for large blocks of time with vague, often two- or three-word descriptions, such as "Draft Opposition" or "Interrog." (See Presseau Decl., Ex. D, at 1-2 (entries for 7/31/2010, 8/6/2010, 12/7/2010, 12/8/2010, 12/9/2010, 12/10/2010.) Several entries give almost no indication of nature of the work in which Presseau was actually engaged, such as an entry that accounts for 6.5 hours of his time with the minimal description: "Research case law, Draft notes." (Suppl. Presseau Decl, Ex. K, at 1 (entry for 4/5/2012).) The records also tend to repeat the exact same, vague descriptions for several days in a row, with no indication of the particular tasks involved. For example, Plaintiff has reiterated the phrase "Research, Draft Reply Atty Fees Motion" to account for more than 42 hours of work, over five days. (See id., at 1-2 (entries for 4/9/2012, 4/10/2012, 4/11/2012, 4/12/2012, 4/13/2012).) These amorphous descriptions are insufficient to allow the Court to determine what research or other tasks Presseau was actually performing, and therefore whether the amount of time expended was reasonable. See, e.g., Clarendon Nat'l Ins. Co. v. Compuplan, LLC, No. 03 Civ. 7966 (LAP) (KNF), 2006 U.S. Dist. LEXIS 88161, at *20 (S.D.N.Y. Dec. 5, 2006) (time entries such as "draft documents" failed to describe adequately the work performed); Vishipco Line v. Charles Schwab & Co., Nos. 02 Civ. 7823, 7846, 7877, 7915, 7928, 7929 (SHS), 2003 WL 1936142, at *2 (S.D.N.Y. Apr. 23, 2003) (time entries such as "legal research" too vague to allow court to determine reasonableness of time expended); Shannon v. Fireman's Fund Ins. Co., 156 F. Supp. 2d 279, 301 (S.D.N.Y. 2001) (time entries such as "legal research," which do not indicate the subject matter of the work performed, "do not permit a thorough evaluation").

Second, compounding these difficulties, while Presseau occasionally recorded multiple time entries per day, he also used the practice known as "block billing," by which he recorded several tasks in a single entry, without breaking out how much time was spent on each separate task. (See Pl. Fee Reply, at 11 (referencing several block-billed time entries).) Several of the block-billed entries include references to clerical tasks that should not be billed at an attorney rate. For example, Presseau attributes 1.75 hours to "EM [email] complaint to SDNY, Mail ECF; review Judge rules." (Presseau Decl., Ex. D, at 1 (entry for 12/23/2009).)

Third, further frustrating any attempts to assess whether his records reflect reasonable expenditures of time, Presseau apparently kept time in quarter-hour increments. Quarter-hourly billing has been deemed a practice that "adds an upward bias in virtually all cases" and therefore "justifies some further conservatism in calculating the amount of compensable time." Lucky Brand Dungarees, Inc. v. Ally Apparel Res., LLC, No. 05 Civ. 6757 (LTS) (MHD), 2009 WL 466136, at *4 (S.D.N.Y. Feb. 25, 2009). Based on the records presented, it is impossible for the Court to discern, for example, whether the ".25 hours" recorded by Presseau for sending opposing counsel an email "re deposition" (see Presseau Decl, Ex. D (entry for 9/16/2010)) was spent writing a one-line message confirming a deposition date or time, or a substantive communication that legitimately took 15 minutes to draft, or something in between.

Courts frequently respond to vague and difficult-to-decipher billing statements with an across-the-board percentage reduction in the hours claimed, often in the range of 20 to 30 percent. See Carey, 711 F.2d at 1146; see also Kirsch, 148 F.3d at 173 (2d Cir. 1998) (affirming 20% fee reduction for vagueness and other deficiencies in attorney billing records); Terminate Control Corp. v. Nu-Life Constr. Corp., 28 F.3d 1335, 1342-43 (2d Cir. 1994) (holding 30% fee reduction for "lack of specific record keeping" was within the district court's discretion); Suchodolski Assocs., Inc. v. Cardell Fin. Corp., Nos. 03 Civ. 4148 (WHP), 04 Civ. 5732 (WHP), 2008 WL 5539688, at *2 (S.D.N.Y. Dec. 18, 2008) (collecting cases applying percentage reductions of up to 30%). In this case, given the nearly complete lack of detail in Presseau's records, the Court will apply a 30-percent reduction to his claimed number of hours.²⁴

24 Defendant argues that Presseau's hours should also be reduced for time spent on settlement discussions in this case, including time at a settlement conference before the Court, because, in Defendant's view, Plaintiff did not engage in "good faith" discussions. (See Def. Fees. Opp., at 11 & n.4.) Having conducted the settlement conference in question, this Court cannot conclude that Plaintiff's positions were taken in bad faith, especially in light of the fact that Plaintiff has now prevailed on at least certain of his claims.

ii. Davis's Hours

As for Davis, the Court notes that his records are substantially more detailed in their descriptions than Presseau's records, generally provide separate entries for each specified task, and reflect billing in precise increments of time. (See, e.g., Suppl. Presseau Decl., Ex. M, (entry for 3/6/12 ("review transcript for Rule 50 motions, pltf's arguments opposing def post-trial motions, review Ramos & DuClair testimony (1.25 [hours]), meeting with co-counsel strategy for verdict issues and opp to def's Rule 50 & 59 motions (1 hr 20)"); entry for 4/9/12 ("17 min phone MP re: reply arguments")).) The Court, therefore, will not apply a percentage reduction to Davis's claimed time for any inadequacy in his record keeping.

Defendant urges, though, that certain specific time entries relating to Davis's work in the early stages of this case should be reduced as excessive. Specifically, Defendant argues that the six hours of time that Davis supposedly recorded for drafting a demand letter to Defendant, prior to filing the EEOC charge, should be reduced to two hours (see Def. Fee Opp., at 14), and that the Court should entirely disallow the two hours that Davis recorded for meeting with Plaintiff, after Davis had determined that they were unable to agree on terms for his continued representation of Plaintiff in this litigation (see id.). Based on the Court's own review of Davis's records, it appears that he only spent about four hours drafting the demand letter, not six, and the Court does not find four hours (the equivalent of a single morning) to be facially excessive for drafting a demand. Nor does the Court find it appropriate to reduce Davis's time for meeting with his client in connection with the unwinding of their relationship, prior to litigation. As a general matter, it was reasonable for Davis to meet with Plaintiff, to counsel him as to potential next steps and to explain to him the time-line requirements for filing suit. Moreover, Davis states that he has already deducted an hour of his time, "for time expended unsuccessfully attempting to reach terms with [his] client to prosecute his claims in court." (Presseau Decl., Ex. H ¶¶ 2, 6(h).) No further deduction from the recorded time is warranted.

Defendant also argues that none of the time that Davis expended in the post-trial phase of this case should be recoverable, as the services performed at that point by Davis were, according to Defendant, entirely duplicative of those performed by Presseau, and unnecessary. (See Def. Fee Opp., at 13-14.) It was reasonable, however, for Presseau to seek the input of more experienced counsel at the post-trial stage, especially in light of the complexity of some of the arguments being advanced, and Plaintiff should be permitted to recover for Davis's consultation, as well as for his contributions to the planning and drafting of Plaintiff's post-trial submissions. As for the duplicative nature of at least some of the services rendered by Davis, an adjustment of his hours - either by a percentage or a number of hours - would be appropriate to address this issue. See, e.g., Lochren v. Cnty. of Suffolk, 344 Fed. Appx. 706, 709 (2d Cir. 2009) (holding that 25% reduction due to "needless duplication of work" was not abuse of discretion); Cooper, 2001 WL 740765, at *3 (deducting five hours from one attorney and four from another, where both claimed to have done approximately 35 hours of work, but court found much of that work to be duplicative).

All told, Davis is seeking compensation for about 47 hours of work after the verdict was returned. Of that time, approximately nine hours were spent in conferences with Presseau,²⁵ approximately 10 hours were spent reviewing the trial transcript²⁶ (which Presseau also purportedly reviewed (see Suppl. Presseau Decl. ¶ 7)), and approximately three hours were spent reviewing and critiquing Presseau's drafts.²⁷ Where co-counsel perform "functions in tandem," such as "reviewing each other's drafts," a deduction is warranted. Cooper v. Sunshine Recoveries, Inc., No. 00 Civ. 8898, 2001 WL 740765, at *3 (LTS) (JCF) (S.D.N.Y. June 27, 2001). Similarly, an attorney's claimed hours should be reduced where "necessary to correct for the inefficiencies resulting from [a] co-counsel arrangement" in which responsibilities are not divided efficiently. Simmonds v. New York City Dept. of Corr., No. 06 Civ. 5298 (NRB), 2008 WL 4303474, at *7-8 (S.D.N.Y. Sept. 16, 2008) (applying 40% deduction to adjust for such inefficiencies). In this case, the Court finds it appropriate to reduce Davis's requested 47 hours by seven hours (i.e., by approximately 15%), which represents about one-third of the time that he was engaged in work that appears to have had a duplicative component.

25 See Presseau Decl., Ex. G (entries for 10/27/11, 11/9/11, 12/1/11, 1/27/12, 2/14/12, 2/15/12, 2/24/12, 2/27/12, 2/28/12, 2/29/12); Suppl. Presseau Decl., Ex. M (entries for 3/6/12, 3/14/12, 3/19/12, 4/4/12, 4/9/12, 4/12/12).

26 See Presseau Decl., Ex. G (entries for 2/20/12, 2/21/12, 2/22/12, 2/23/12, 2/27/12, 2/29/12); Suppl. Presseau Decl., Ex. M (entry for 3/6/12).

27 See Suppl. Presseau Decl., Ex. M (entries for 3/19/12, 3/21/12, 3/26/12, 3/28/12).

iii. Partial Success

As a general matter, the reasonable number of hours used for a lodestar calculation should exclude "any 'hours dedicated to severable unsuccessful claims.'" Mugavero, 2010 WL 451045 at *9 (quoting Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)); Metrokane, Inc. v. Built NY, Inc., Nos. 06 Civ. 14447, 07 Civ. 2084 (LAK) (MHD), 2009 WL 637111, at *1 (S.D.N.Y. Mar. 6, 2009) (noting, in context of discovery sanctions, that percentage reductions "are appropriate . . . for work on unsuccessful claims and arguments"). "Attorney's fees may be awarded for unsuccessful claims as well as successful ones, however, where they are inextricably intertwined and involve a common core of facts or are based on related legal theories." Quarantino, 166 F.3d at 425 (emphasis added; internal quotation marks and citations omitted).

Even where unsuccessful claims are not "severable," the Court may still, in the exercise of its discretion to determine the "reasonable number of hours worked," consider, among other factors, "the degree of success obtained." See Hensley, 461 U.S. at 435-36; Arbor Hill, 522 F.3d at 186 n.3 (court should consider "results obtained" in determining reasonable fee (quoting Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974)). "The task of determining whether to reduce a fee award for limited success is left to the discretion of the district court, and should be guided by the degree of success obtained, rather than by 'a mathematical approach comparing the total number of issues in the case with those actually prevailed upon.'" G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., No. 09 Civ. 859 (KMK), 2012 WL 4108111, at *4 (S.D.N.Y Sept. 18, 2012) (quoting Hensley, 461 U.S. at 435 n.11).

In this case, while Plaintiff succeeded in obtaining compensatory damages on his hostile-work-environment claims, he did not obtain most of the relief he sought in his original complaint, losing at trial on his claims for retaliatory and discriminatory termination, as well as his claim for punitive damages.²⁸ Although the jury returned a sizeable award, and that award will still be sizeable even if Plaintiff consents to remittitur, Plaintiff had sought much more on the claims that the jury rejected. Plaintiff also achieved only limited success in post-trial motion practice. As set forth in this Order, while the Court has rejected Defendant's motion for judgment as a matter of law or a new trial, it has granted Defendant's alternative motion for remittitur. The Court has also denied Plaintiff's motion for a new trial on his termination claims. Indeed, Plaintiff's post-trial effort to inject into the case a cat's-paw legal theory that should have been presented earlier - when it would have been less costly to raise and more likely to succeed - strikes the Court as especially unworthy of full reimbursement.

28 Plaintiff also withdrew an early-asserted defamation claim, although fees would not have been available to him on such a claim, in any event. See, e.g., Millea, 658 F.3d at 158 ("When calculating a lodestar, the number of hours spent on a case should include only those hours spent on claims eligible for fee-shifting. Hours spent solely on common law claims . . . must be excluded to reflect the default rule that 'each party must pay its own attorney's fees and expenses.'").

Overall, at least a modest reduction in counsel's requested hours is warranted for the fact that Plaintiff has only partially succeeded on the claims and legal arguments raised throughout this case. In light of relevant precedent, the Court finds that a 10-percent reduction, from both Presseau's and Davis's requested hours, would be appropriate. See, e.g., Lynch v. Town of Southampton, 492 F. Supp. 2d 197, 215 (E.D.N.Y. 2007) (applying 10% reduction where plaintiff was unable to proceed on three causes of action and did not prevail against individual defendant, making punitive damages unavailable); Reiter, 2007 WL 2775144 at *17 (applying 10% reduction for limited success where Plaintiff obtained reinstatement, but no money damages); Parrish v. Sollecito, 280 F. Supp. 2d 145, 173 (S.D.N.Y. 2003) (applying 10% reduction for lack of success where $500,000 jury award was reduced due to statutory damages cap, and plaintiff did not prevail at all on one of her claims); cf. Robinson, 2009 WL 3109846, at *10 (applying 25% reduction where plaintiff, despite six-figure verdict, had not prevailed on "recovery-rich" claims that had been the focus of counsel's attention).

In setting the amount of the reduction for partial success, the Court is mindful of the "broad and remedial purposes" of the City HRL. N.Y.C. Admin. Code § 8-130. Certainly, courts should avoid limiting fee awards in discrimination cases to the point where attorneys would be reluctant to bring meritorious cases to trial, for fear of being unable to recover fees sufficient to justify the commitment. See Syrnik v. Polones Constr. Corp., No. 11 Civ. 7754 (KBF), 2012 WL 4122801, at *2 (S.D.N.Y. Sept. 19, 2012) (noting that fee-shifting under federal, state, and city law "has the salutary effect of encouraging civil rights litigants to act as private attorneys general, enforcing important federal policies even when the financial stakes are low"). Nevertheless, the Court concludes that the remedial purposes of the City law would not be served by completely ignoring a litigant's degree of success in making a fee award. Such an approach could create skewed incentives for attorneys to waste resources by adding weak claims, with little chance of success, to otherwise strong cases. In this case, in particular, it would be inappropriate to reward Plaintiff's counsel with a full reimbursement of fees, where counsel waited until months past the date of trial to raise supposedly important legal issues. Even under the City HRL, a 10-percent deduction for partial success is appropriate here.

iv. Computation of Lodestar

Presseau seeks compensation for 598.75 hours of work on this case. Applying a 30-percent reduction based on the vagueness of his time records, as discussed above, leaves 419.13 hours. Applying a further 10-percent deduction for lack of success leaves 377.22 hours. The lodestar for Presseau is thus $103,735.50, calculated as follows:

377.22 hours x $275/hour = $103,735.50

Davis seeks compensation for 74 hours of work in this case: 27 before trial and 47 after trial. As discussed above, Davis will be compensated for all of his claimed and documented pre-trial hours, and - after applying a deduction for duplicativeness - 40 of his post-trial hours, for a total of 67 hours. Applying a 10-percent reduction for lack of success yields 60.30 hours. The lodestar for Davis is thus $27,135.00, calculated as follows:

60.30 hours x $450/hour = $27,135.00

The Court finds no exceptional circumstances here that would warrant deviation from the lodestar. See Purdue, 130 S. Ct. at 1673. Accordingly, the total attorneys' fees conditionally awarded to Plaintiff in this case is $130,870.50.

v. Costs

Plaintiff also seeks costs in the amount of $2,662 (Pl. Fee Mem., at 11; Presseau Decl. ¶ 29 & Ex. F; Pl. Fee Reply, at 15), and Defendant raises no objections to the costs sought. Plaintiff includes an invoice from a court reporter for $1,092 in connection with the deposition of Robert Carpio (Presseau Decl., Ex. F), and the $350 filing fee is reflected on the Court's Docket. Presseau submits a declaration under penalty of perjury asserting that Dr. Abraham's witness fee was $800 and that Plaintiff paid $170 for the service of subpoenas. (Presseau Decl. ¶ 29.) Plaintiff's requests for these costs are thus all adequately supported. Plaintiff's request for $250 for "Copying/Exhibit Costs,"²⁹ however, is based only on what Presseau characterizes as a "good faith estimate." Presseau submits nothing to demonstrate how he arrived at the sum he seeks, and the Court finds that such an unsubstantiated "estimate" is too speculative to support an award of costs. Plaintiff is therefore conditionally awarded $2,412.00 in costs.

29 At one point Presseau lists this line-item as $750 (Presseau Decl., Ex. F), but that is apparently a typographical error, as the sum of all costs reflects the $250 amount, not $750. --------

CONCLUSION

For all the foregoing reasons:

(1) Defendant's post-trial motions (Dkt. 72) are resolved as follows:

(a) Defendant's motion under Rule 50(b) for judgment as a matter of law on Plaintiff's hostile-work-environment claims is denied;

(b) Defendant's alternative motion under Rule 59(a) for a new trial on Plaintiff's hostile-work-environment claims is denied; and

(c) Defendant's further alternative motion under Rule 59(e) for remittitur is granted, to the extent that, no later than January 11, 2013, Plaintiff shall inform the Court, in writing, whether he agrees to a remittitur reducing the award in his favor on his hostile-work-environment claims to $100,000. If Plaintiff does not agree to accept this reduced damages award, the Court will schedule a new trial on compensatory damages on that claim.

(2) Plaintiff's post-trial motion for a new trial on his retaliatory and discriminatory termination claims (Dkt. 95) is denied.

(3) Plaintiff's application for attorneys fees (Dkt. 77) is conditionally granted, to the extent that, if Plaintiff elects to accept the remittitur, then Plaintiff shall be awarded $130,870.50 in fees and $2,412.00 in costs as the prevailing party on his

hostile-work-environment claims. If, however, Plaintiff elects to proceed with a new damages trial on that claim, then the Court will reexamine the issue of attorneys fees following that trial.

Dated: New York, New York

December 18, 2012

SO ORDERED

/s/_________

DEBRA FREEMAN

United States Magistrate Judge Copies to: All counsel (via ECF)