Fowler v. New York Transit Authority

Full title: CLARK FOWLER, Plaintiff, v. NEW YORK TRANSIT AUTHORITY, et al., Defendants

Court: United States District Court, S.D. New York

Date published: Jan 22, 2001

96 Civ. 6796 (JGK) (S.D.N.Y. Jan. 22, 2001)

Opinion

96 Civ. 6796 (JGK)

January 22, 2001

Charmaine M. Stewart, Rosedale, NY, George Lewis, Brooklyn, NY, for the plaintiff.

Kathy R. Perry, New York, NY, for the defendants.

OPINION AND ORDER

John G. KOELTL, U.S.D.J.

On September 18, 2000, a jury trial began on the claims of Clare Fowler ("Ms. Fowler") against The New York City Transit Authority ("NYCTA") and the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA"), a subsidiary of the NYCTA (collectively, the "Authorities").¹ The plaintiff, who is African American, is employed by MABSTOA as a Transit Property Protection Supervisor, Level I ("TPPS I").² As a TPPS I, the plaintiff supervises transit property protection agents, or security guards, who protect various operating bus depots in New York City. The plaintiff alleged that the defendants violated 42 U.S.C. § 1981, 42 U.S.C. § 1983 and N.Y. Executive Law § 296, part of the New York Human Rights Law ("NYHRL"), by (1) discriminating against her because of her race and sex by failing to promote her to TPPS II positions that were announced in February 1996 and February 1997 and (2) by retaliating against her after she complained of discrimination.

1 A previous jury trial in this case ("First Jury Trial") ended in a mistrial on September 14, 2000.

2 The department in which the plaintiff is assigned has been restructured during the time period that covers this dispute. (See Tr. at 74-75, 577-579; Defs.' Exs. R-9, 0-9, P-9.) For purposes of these motions the department will be referred to as the "Property Protection Department."

At the end of the plaintiff's case, the defendants moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. The Court reserved decision pending completion of the evidence. The Court continued, to reserve on the defendants' renewed motion and on the plaintiff's Rule 50(a) motion after the evidence was complete, and the case was sent to the jury. On Oct 3, 2000, the jury, on a Special Verdict Form, rendered its verdict. The jury rejected the plaintiff's discrimination claims under Sections 1981 and 1983 and the NYHRL and her retaliation claim under Sections 1981 and 1983. The jury found in favor of the plaintiff on her claim that the Authorities retaliated against her in violation of the NYHRL and awarded the plaintiff $50,000.00 in compensatory damages, but did not award the plaintiff back pay or front pay.

The defendants now renew their motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a), and move for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) and, in the alternative, for a new trial under Fed.R.Civ.P. 59(a), and for a new trial on damages pursuant to Fed.R.Civ.P. 59(a) or for a remittitur pursuant to Fed.R.Civ.P. 59(e). The defendants also move to impose sanctions on the plaintiff's trial counsel for causing a mistrial in the First Jury Trial. The plaintiff moves for an award of back pay, front pay, and costs on the grounds that the jury returned a verdict in favor of the plaintiff on her retaliation claim and erroneously failed to calculate the back and front pay damages.

I.

The standards for granting a Rule 50 motion are well established.³ In ruling on a motion for judgment as a matter of law, the district court must deny the motion "unless, viewed in the light most favorable to the nonmoving party, 'the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.'" Cruz v. Local Union Number 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)); see also Sir Speedy, Inc. v. L P Graphics, Inc., 957 F.2d 1033, 1038-39 (2d Cir. 1992); Dailey v. Societe Generale, 915 F. Supp. 1315, 1321 (S.D.N.Y. 1996), aff'd in relevant part, 108 F.3d 451 (2d Cir. 1997); Chase Manhattan Bank v. T N, 87 Civ. 4436, 1997 WL 221203, at *4 (S.D.N.Y. Apr. 28, 1997), aff'd, 162 F.3d 1147 (2d Cir. 1998). "In other words, there must be either an utter lack of evidence supporting the verdict, so that the jury's findings could only have resulted from pure guess-work, or the evidence must be 'so overwhelming that reasonable and fair-minded persons could only have reached the opposite result.'" Doctor's Associates, Inc. v. Weible, 92 F.3d 108, 112 (2d Cir. 1996) (quoting Baskin v. Hawley, 807 F.2d 1120, 1129 (2d Cir. 1986)). The Court, in ruling on a Rule 50 motion, is "required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988) (internal quotation omitted).

3 Fed.R.Civ.P. 50(a) provides that:

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.

Fed.R.Civ.P. 50(a). Fed.R.Civ.P. 50(b) provides in relevant part:

If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, 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. The movant may renew its request for judgment as a matter of law by filing a motion no later than ten days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59.

Fed.R.Civ.P. 50(b).

Rule 59(a) provides that "[a] new trial may be granted to all or any of the parties on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . . ." In ruling on a Rule 59 motion a court makes the same type of inquiry as on a motion for judgment as a matter of law, but imposes a less stringent standard. See Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987); Newmont Mines Ltd. v. Hanover Insurance Co., 784 F.2d 127, 132 (2d Cir. 1986). "A trial court should grant [a motion for a new trial] when convinced that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice."Katara, 835 F.2d at 970; see also Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir. 1992); Newmont Mines, 784 F.2d at 132; Chase Manhattan, 1997 WL 221203, at *4. A court's disagreement with the jury's verdict alone, however, is insufficient reason to grant a motion for a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983).

II. A.

The defendants' motions for judgment as a matter of law pursuant to Rules 50(a) and 50(b) are based on the contention that the plaintiff failed to establish at trial one or more of the requisite elements of a retaliation claim under the NYHRL, the only claim on which the jury found that the plaintiff was entitled to recover. New York Executive Law § 296, part of the NYHRL, prohibits an employer from discriminating "against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article." N Y Exec. Law § 296(1)(e). Stating a retaliation claim under the NYHRL is substantially similar to stating a retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n. 4 (2d Cir. 1995).

Claims of retaliation are analyzed according to the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Cosgrove v. Sears, Robuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993). The plaintiff must first establish a prima facie case of retaliation. If the plaintiff succeeds in making out a prima facie case the burden of production shifts to the defendant to articulate a legitimate, nonretaliatory reason for the adverse employment action. If the defendant meets that burden, the plaintiff has the opportunity to demonstrate that the defendant's proffered reason was merely a pretext for retaliation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998). A violation may be found if the adverse employment action was based in part on a retaliatory purpose, even if that was not the sole motive. See Cosgrove, 9 F.3d at 1039; Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986); Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410 (S.D.N.Y. 1996). "[W]hen a retaliation claim goes to the jury, the jury's task is simply to determine the ultimate question of whether the plaintiff met her burden of proving that the defendant was motivated by prohibited retaliation." Gordon v. New York City Board of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (internal quotation and brackets omitted).⁴

4 Once the plaintiff demonstrates that a retaliatory factor played a "motivating part" in the adverse employment decision, the defendant must demonstrate that it would have made the same decision based on the legitimate factor alone. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Cosgrove, 9 F.3d at 1040.

To make out a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. See Gordon, 232 F.3d at 113; Quinn, 159 F.3d at 769. To establish that an activity was protected, a plaintiff need only prove that she was acting under a good faith belief that the activity was of the kind covered by the statute. Cosgrove, 9 F.3d at 1039. "Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Manoharan v. Columbia University College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); see also Gordon, 232 F.3d at 117.

According to the defendants, the plaintiff did not establish a prima facie case of retaliation. Specifically, the defendants argue that, with respect to some of the alleged instances of adverse employment action, the plaintiff did not establish that the individuals who took the adverse action against her knew she had engaged in protected activity. In addition, the defendants contend that the plaintiff failed to establish that any actions taken against her were sufficiently significant to constitute adverse employment actions and they contend that the plaintiff did not establish a causal connection between the alleged adverse employment actions and her protected activity.

The evidence presented by the plaintiff at trial, viewed in the light most favorable to the plaintiff, was sufficient to establish each element of a retaliation claim. First, there is sufficient evidence to find that, on or about February 25, 1996, the plaintiff complained that she was being discriminated against on the basis of her race and gender when she complained to Mr. Monteleone, the Department of Security's Executive Officer for Manhattan and the Bronx. (Tr. at 795, 816-819, 870, 1020-1022.) In addition, the plaintiff filed a formal internal complaint with the Authorities' Office of Equal Employment Opportunity ("EEO") on April 9, 1996 and filed an external complaint with the Equal Employment Opportunity Commission ("EEOC") on May 6, 1996. (Tr. at 1016.)

Contrary to the defendants' arguments, in order to satisfy the second prong of the plaintiff's retaliation claim, the plaintiff is not required to show that individual decisionmakers within the Authorities knew that she had made a complaint. See Gordon, 232 F.3d at 116 ("Neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity."); Alston v. New York City Transit Authority, 14 F. Supp.2d 308, 311 (S.D.N Y 1998) ("[C]orporate entities can be put on notice of certain acts without individuals within the corporation having been explicitly told of them.").⁵ In this case, there was evidence that the plaintiff put the Authorities on notice that she engaged in protected activity when she first complained of discrimination to Mr. Monteleone.

5 As the Court in Alston noted, Raney v. Vinson Guard Service, 120 F.3d 1192 (11th Cir. 1997), cited by the defendants to argue the significance of individuals within the Authorities being aware of the plaintiff's complaints, goes to the "causal link" prong of the prima facie case for a retaliation claim and not to the "knowledge" prong. Alston, 14 F. Supp.2d at 311 n. 4. As the Court of Appeals explained recently inGordon:

[P]roof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.

Gordon, 232 F.3d at 117.

The plaintiff testified to several incidents that occurred after she complained to Mr. Monteleone and which she alleged were retaliatory. Specifically, she testified that her supervisors improperly: (1) removed her from a labor job pick in June 1996 (Tr. at 882-885); (2) terminated the plaintiff's application process for peace officer status on February 26, 1996 — one day after she complained to Mr. Monteleone (Tr. at 874-877); (3) deprived the plaintiff of her desk and keys in July 1996 (Tr. at 885-890); (4) changed her regular days off in late August 1996 (Tr. at 907-915); (5) relieved her of her administrative duties in connection with Worker's Compensation case management in July 1996 (Tr. at 890-893); (6) accused the plaintiff of writing unauthorized comments on her time card in September 1996 (Tr. at 915-918); (7) falsely accused her of stealing a box of sanitary napkins in late 1996 (Tr. at 933-936); (8) berated and reinstructed the plaintiff with respect to her completion of medical forms in late July 1996 (Tr. at 893-896; 927-932); and (9) failed to promote the plaintiff to the Transit Property Protection Supervisor, Level II positions advertised by the Authorities in 1996 and 1997 (collectively, the "TPPS II positions") (Tr. at 879-880, 936-940.)

The defendants contend that none of the alleged incidents constituted an adverse employment action and that none of the actions were causally linked to her engaging in protected activity.⁶ An adverse employment action is a "'materially adverse' change in the terms or conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citing Richardson v. New York State Department of Correctional Service, 180 F.3d 426, 446 (2d Cir. 1999)); see also Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. See Galabya, 202 F.3d at 640. "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (internal quotation omitted). Whether an action is adverse, however, is not defined solely in terms of job termination or reduced wages and benefits, and less flagrant reprisals by employers may indeed be adverse. Richardson, 180 F.3d at 446; Wanamaker, 108 F.3d at 466. "Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of 'adverse.'" Wanamaker, 108 F.3d at 466; Zerilli v. New York City Transit Authority, 973 F. Supp. 311, 324 (E.D.N.Y. 1997), vacated in part on other grounds, 162 F.3d 1149 (2d Cir. 1998).

6 In this case, the jury did not find retaliation based on the failure to promote the plaintiff to the two TPPS II positions because no back pay or front pay is awarded. Thus, the defendants' arguments are directed to the other alleged adverse actions. While the plaintiff argued for the first time at the argument of these motions that the defendants "waived" any argument under Rule 50 that they were entitled to judgment as a matter of law dismissing allegations of retaliation based on the defendants' failure to promote the plaintiff to the two TPPS II positions, there was no argument to waive. For the reasons explained in greater detail below, because the jury did not find retaliation based on a failure to promote, there was no jury finding to be set aside and there was no reason for the defendants to seek judgment as a matter of law with respect to any alleged retaliation in failing to promote the plaintiff to the two TPPS II positions.

There was sufficient evidence for the jury to have found that the Authorities took materially adverse employment actions against the plaintiff and that there was a causal connection between the adverse actions and the plaintiff's complaints of discrimination. The plaintiff introduced evidence that on February 26, 1996, the day after Ms. Fowler complained to Mr. Monteleone, the Authorities, in particular Henry Seda ("Seda"), the Senior Director of the Department of Security, (Tr. at 554) and Francis O'Hare ("O'Hare"), the Deputy Inspector and Executive Officer for the Department of Security (Tr. at 1457) took steps to terminate the plaintiff's application for peace officer status. (Tr. at 392-393, 874-877; Pl.'s Ex 23.) The actual notification to the Police Department for the cancellation stated: "Please cancel license for Ms. Clare Fowler . . . due to her being demoted from her present acting title." (Pl.'s Ex. 23.) Although the defendants argued that peace officer status was not a requirement for the plaintiff's position, there was evidence presented that a supervisor at the Authorities had selected the plaintiff to receive peace officer training, that she was ordered to attend such training in 1994 and that other persons in her position also received peace officer training. (Tr. at 386-394, 406-407, 454-55, 783-788, 877, 990, 997.) There was ample evidence to support the conclusion that abruptly taking away the plaintiff's opportunity to become a peace officer after first granting her the opportunity to become a peace officer resulted in a loss of status and clouded the plaintiff's job opportunities. In addition, the fact that the Peace Officer application was canceled about one day after the plaintiff first engaged in protected activity raises a strong inference that the defendants retaliated against her because of her protected activity.

The plaintiff also introduced evidence that, in July 1996, Mr. Seda directed that the plaintiff be relieved of her administrative duties in connection with Worker's Compensation case management, which she had been performing for over two years. (Tr. at 890-893.) The Authorities argued that case management work was a managerial duty and that the plaintiff was not a manager. However, the Authorities permitted the plaintiff to assume these increased management responsibilities (Tr. at 892, 954-957, 1090) and, although the Authorities were entitled to take away these additional responsibilities, they could not do so for a retaliatory reason. In addition, there is evidence that Michael Thompson, another TPPS I, had performed case management duties indicating it was not just a managerial duty. (Tr. at 893, 1090-1092.) Thus, the jury could reasonably have determined that the plaintiff's removal from case management duties resulted in a loss of status and authority, and a decrease in job responsibilities and job satisfaction, all of which prejudiced the plaintiff's efforts for career advancement within MABSTOA.

The plaintiff introduced sufficient evidence to establish a causal connection between her removal from case management duties and her protected activity. There was evidence that Seda instructed the plaintiff's direct supervisor, James Montgomery, to remove the plaintiff from case management duties on July 11, 1996, the same day that Seda was first interviewed by Joel Andrews from the Authorities' EEO office in connection with the plaintiff's internal complaints. (Tr. at 430-431, 454, 890; Pl.'s Ex. 18.) There was also testimony that the plaintiff had competently performed her case management duties. Despite the Authorities' argument that the plaintiff was removed in part because Thomas Savage, the Chief Security Officer, had assigned a manager, Mr. Monteleone, to the plaintiff's area, and that the case management responsibilities were appropriately handled by him, after the plaintiff was removed no one replaced her in carrying out the case management duties for MABSTOA for some time. (Tr. at 79, 890-891, 1090-1092; Pl.'s Ex 18.) In fact, Dennis Monsen, Senior Director of Administration at the time, questioned the decision to remove case management responsibilities from the plaintiff. (Tr. at 78-79.) Moreover, Mr. Thompson, another TPPS I, continued to perform case management work for the TA after the plaintiff had been ordered not to perform case management work for MABSTOA. (Tr. at 892, 1091-1092.)

The jury could also have reasonably found that O'Hare's order to have the plaintiff give up her desk to Mr. Monteleone was an adverse employment action. The plaintiff testified that each TPPS I at the Gunhill Depot was permitted the use of a desk, which was shared with another TPPS I. (Tr. at 886-887.) The plaintiff presented evidence that on July 9, 1996, Mr. O'Hare ordered Mr. Montgomery to have the plaintiff give up her desk so that Mr. Monteleone would have a desk to use. (Tr. at 885, 888.) As a result, the plaintiff testified she was forced to carry all of her paperwork in a bag and complete the paperwork while in the, field. (Tr. at 888-889.) Mr. Monteleone, on the other hand, had another office and did not in fact use the desk that was taken away from the plaintiff. (Tr. at 889.) The jury was entitled to weigh the credibility of the witnesses and could reasonably have determined that in this case removing the plaintiff's desk and relegating her to the position of an itinerant supervisor working out of a bag was an effort to humiliate her, adversely affected the plaintiff's ability to perform her job and was a materially adverse change in the conditions of her employment. Although the defendants argue that the plaintiff did not establish that O'Hare was aware that the plaintiff had engaged in protected activity, proof of causation can be shown indirectly, through circumstantial evidence, and a jury "can find retaliation even if the agent denies direct knowledge of the plaintiff's protected activities." Gordon, 232 F.3d at 117. Here, the decision to have the plaintiff vacate her desk was made only five months after she first engaged in protected activity, four months after she complained to the EEO, and two months after she filed a complaint with the EEOC.

Moreover, "the accumulation of small reprisals may be aggregated so as to permit consideration of their impact in their totality and to support their being deemed sufficient to constitute adverse employment action sustaining a claim of retaliation for engaging in a protected activity."Gonzalez v. Police Commissioner William Bratton, Nos. 96 Civ. 6330, 97 Civ. 2264, 2000 WL 1191558, at *15 (S.D.N.Y. Aug. 22, 2000); see also Alston, 14 F. Supp.2d at 312 (finding that the defendant's actions, when viewed in the aggregate, to be adverse); Bigelow v. New York Department of Corrections, No. 97 Civ. 460, 1997 WL 733867, at 5 (N.D.N.Y. Nov. 7, 1997) ("Although if taken individually they are unlikely to support a retaliation claim, taken in the aggregate, plaintiff's allegations are sufficient to show a material adverse employment action."). Cf. Collins v. Christopher, 48 F. Supp.2d 397, 410 (S.D.N.Y. 1999); Cahill v. O'Donnell, 7 F. Supp.2d 341, 350 (S.D.N.Y. 1998). Here, the evidence presented at trial of a series of actions taken by the plaintiff's supervisors, when viewed in the aggregate, can reasonably lead to the conclusion that the Authorities subjected the plaintiff to adverse employment action. The actions could be viewed as a series of incidents which diminished the responsibilities the plaintiff had been exercising, humiliated the plaintiff, and substantially changed the conditions under which the plaintiff had been performing her job. The evidence at trial also indicated that the first of the series of actions that the plaintiff complained of as being retaliatory — the canceling of her peace officer application — occurred the day after she complained of discrimination and that other incidents occurred in sufficiently close proximity to protected activity to raise a strong inference of retaliation.

The defendants argued at trial that their actions were motivated by nondiscriminatory reasons. Despite the fact that the defendants proffered nonretaliatory justifications for their actions, the jury was entitled to weigh the evidence, credit the plaintiff's evidence, and find that the Authorities' explanations for their actions were pretextual. For example, with respect to canceling the plaintiff's application for peace officer status, the defendants argued that they did so because her position, as a TPPS I, did not require peace officer status. (Tr. at 877.) The plaintiff, however, introduced evidence that a supervisor designated her for peace officer training while she was in the TPPS I position, that another TPPS I took the training with her, and that her application was canceled a day after she first complained of discrimination, months after she completed training. (Tr. at 874-878.) In addition, with respect to removal of the plaintiff from case management duties, the plaintiff presented evidence that she had adequately performed those duties for two years, and that despite the Authorities' explanation that the plaintiff was removed because it was a managerial duty intended for Mr. Monteleone, Mr. Monteleone never, carried out the case management duties for MABSTOA and another person with her same title was permitted to continue case management duties at the TA. (Tr. at 890-893.) Thus, as these examples indicate, the jury could conclude that the Authorities' explanations were pretextual and that the Authorities were motivated, at least in part, by a retaliatory purpose.

Accordingly, based upon a review of the evidence presented at trial, the Court is persuaded that the jury's verdict in this case was not "the result of sheer surmise and conjecture," Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993), and a reasonable jury could have arrived at a verdict in favor of the plaintiff on her retaliation claim.

B.

The defendants are also not entitled to a new trial under Rule 50(b) or Rule 59. For the reasons explained above, the defendants are not entitled to a judgment as a matter of law under Rule 50(b).⁷ Although the standard to be applied to a motion for a new trial under Rule 59 based on alleged insufficiency of the evidence is less stringent than on a Rule 50 motion for judgment as a matter of law, see, e.g.,Katara, 835 F.2d at 970, the defendants do not satisfy that standard. The evidence at trial amply supported the jury's findings, and there is no basis to conclude that the jury reached a seriously erroneous result or that its verdict was a miscarriage of justice.

7 Rule 50(b) provides that, in ruling on a renewed motion for judgment as a matter of law where a verdict was returned, a court may: "(A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law . . . ." Fed.R.Civ.P. 50(b)(1). While Rule 50(b) permits a court to order a new trial rather than enter judgment, it is a discretionary remedy available to the court where the moving party would be entitled to judgment as a matter of law and the court "believes that the defect in the nonmoving party's proof might be remedied on a second trial." 9A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2538, p. 357-359 (1995); see also Manley v. Ambase Corp., 121 F. Supp.2d 758, 771 (S.D.N Y 2000). In this case, as explained above, the defendants are not entitled to judgment as a matter of law under Rule 50(b) and there is therefore no predicate for a motion for a new trial under Rule 50(b).

The defendants, in a footnote, discuss an objection they made at trial to question 2(D) of the Special Verdict Form submitted to the jury. The Special Verdict Form, in relevant part, asked:

2. Do you find that the defendants are liable to the plaintiff for violation her rights under the New York Human Rights Law by:

(D) her claim of retaliation for engaging in protected activity

Yes ________ No ________

The jury responded by marking an answer of "Yes" to this question on the Special Verdict Form. (Tr. at 1674.) The defendants appear to argue that they are entitled to a new trial because the Court denied their request that if the jury answered "yes" to question 2, the Court should give a special interrogatory to the jury in which the Court asked the jury to explain the specific incidents that they believed were retaliatory.⁸ The defendants contend that the failure to ask the interrogatory resulted in an ambiguous verdict because the defendants cannot determine which incidents the jury found were retaliatory. The defendants argue that they are therefore entitled to a new trial pursuant to Marilyn Galdieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 286 (2d Cir. 1998).

8 In their Memorandum in Support of the present motion, the defendants argued that they were entitled to judgment as a matter of law and that, therefore, there was no need to seek a new trial. Since the Court has already denied the defendants' motion for a judgment as a matter of law, the Court will treat this argument as an argument in support of the defendants' motion for a new trial on this basis.

In Galdieri-Ambrosini, the Court of Appeals for the Second Circuit affirmed a district court's decision granting a defendant's Rule 50 motion following a jury verdict in favor of the plaintiff.Galdieri-Ambrosini, 136 F.3d at 292. When the case was submitted to the jury in Galdieri-Ambrosini, the plaintiff had two Title VII claims remaining, a discrimination claim and a retaliation claim. Id. at 285. The Court of Appeals, however, noted that, although the district court referred to the retaliation claim, the instructions given to the jury did not set out the elements of a claim for retaliation and did not give sufficient guidance as to the elements of a claim of retaliation. Id. The charge on the claim of retaliation was therefore legally defective. In addition, the special verdict form furnished to the jury posed a single liability question and did not differentiate between the claim of discrimination and the claim of retaliation. Id. at 286. Although the Court of Appeals found the lack of differentiation harmless in that case, it observed:

Where two (or more) claims are submitted to the jury, a form of verdict that does not require the jury to specify on which claim or claims it finds in favor of the plaintiff may pose an insurmountable problem for review of the verdict. Assume, for example, that the evidence were sufficient to support one of the plaintiff's two claims but not the other. If the defendant made an adequate Rule 50(a) motion . . . as to the claim on which the evidence was insufficient, the defendant would be entitled to prevail if the jury found for the plaintiff only on that claim; but the plaintiff would be entitled to prevail if, instead, the jury found in her favor either on both claims or only on the claim as to which the evidence was sufficient. A verdict that did not specify on which of the plaintiff's claims the jury found in her favor would leave both the district court and this Court unable to determine which party should prevail and would likely require a new trial. . . . Thus, when more than one claim is submitted to the jury, the trial court should foreclose the possibility of an ambiguous verdict by requiring the jury to specify its liability finding as to each claim.

Id.

The reasoning of Galdieri-Ambrosini, however, does not support the defendants' contention that the Court should have given a special interrogatory to the jury asking the jury to explain the specific incidents that they believed were retaliatory. The defendants' argument relies on the notion that each incident or action taken by the defendants that the plaintiff argued was evidence of retaliation constituted a separate claim of retaliation or, in other words, a different theory of liability. The plaintiff in this case, however, alleged one claim of retaliation and presented factual evidence of various actions taken by the defendants that she argued supported that retaliation claim. The jury was entitled to weigh the evidence and make a factual determination as to what evidence supported or did not support her claim of retaliation. Moreover, for the reasons explained above, there was sufficient evidence to support a claim of retaliation. Actions that individually would not support a retaliation claim may be sufficient in the aggregate to show an adverse employment action. See Gonzalez, 2000 WL 1191558, at *15;Alston, 14 F. Supp.2d at 312; Bigelow, 1997 WL 733867, at 5. Thus, every alleged action taken by an employer that a employee argues is retaliatory does not become a separate claim of retaliation, but rather may be taken into consideration with other alleged actions. The plaintiff's retaliation claim, including the various incidents that the plaintiff alleged were retaliatory, constituted a single theory of liability and there was sufficient evidence presented at trial for the jury to find, after weighing all of the evidence, that the conduct of the defendants was retaliatory.

"[D]istrict courts have broad discretion under Rule 49(a) to formulate special interrogatories for submission to the jury." Romano v. Howarth, 998 F.2d 101, 104 (2d Cir. 1993). A court's questions on a special verdict form must be read in conjunction with the judge's charge to the jury. Id., see also P.K. Vichare v. Ambac Inc., 106 F.3d 457, 466 (2d Cir. 1996) (finding no error in the trial court's refusal to break down a charge of discrimination on a special verdict form into a question concerning each alleged instance of discrimination). Unlike the situation in Galdieri-Ambrosini, the Special Verdict Form provided to the jury in this case differentiated between the plaintiff's discrimination claim and her retaliation claim and the Court properly instructed the jury on the elements that it was required to find before concluding that the defendants had discriminated against the plaintiff as well as the elements for the plaintiff's claim of retaliation. The Court, in its discretion, determined that when read in conjunction with the jury charge, the Special Verdict Form was sufficiently clear and accurate.⁹ Moreover, the defendants in this case presented no specific special interrogatory to be given to the jury other than their request to have the jury explain the incidents of retaliation it found. The jury was not required to write an essay. Therefore, the defendants' motion for a new trial under Rule 50(b) or Rule 59(a) is denied.

9 It should be noted that the Court of Appeals has been presented with special verdict forms similar to the one used in this case and, although the Court of Appeals has not been presented with the exact issue by a party appealing a denial of a Rule 50 or Rule 59 motion, the Court of Appeals has not raised any issue with respect to the specificity of the special verdict form. See Matima v. Celli, 228 F.3d 68, 78 (2d Cir. 2000); Gierlinger v. Gleason, 160 F.3d 858, 867 (2d Cir. 1998); see also P.K. Vichare, 106 F.3d at 465-66.

C.

The defendants next move pursuant to Rule 59 for a new trial on the issue of compensatory damages, or, in the alternative, remittitur from $50,000 to less than $7,500. "If a district court finds that a verdict is excessive, it may order a new trial, a new trial limited to damages, or, under the practice, of remittitur, may condition a denial of a motion for a new trial on the plaintiff's accepting damages in a reduced amount."Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93, 96 (2d Cir. 1995) (citing Phelan v. Local 305 of the United Ass'n of Journeymen and Apprentices of the Plumbing Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir. 1992)); see also Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998).

A federal district court must apply New York law to evaluate whether awards in cases decided under New York law are excessive. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 437-438 (1996). Under N.Y. C.P.L.R. § 5501(c), a trial court should reduce an award when it "deviates materially" from reasonable compensation as measured by awards in similar cases. See N.Y. C.P.L.R. § 5501(c); Gasperini, 518 U.S. at 425.¹⁰ The "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. See, e.g., Gasperini, 518 U.S. at 424-25.

10 New York C.P.L.R. § 5501(c) provides in relevant part:

In reviewing a money judgment . . . in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

Id. Though directed at the appellate divisions, § 5501(c) has been held to apply to trial courts as well. See Gasperini, 518 U.S. at 425.

"[I]t does not follow that simply because there was retaliation, there must be an award of compensatory damages; rather, the compensatory damages must be proven and not presumed." McIntosh v. Irving Trust Co., 887 F. Supp. 662, 665 (S.D.N.Y. 1995). Rather than evidence of retaliation, the plaintiff must provide proof that she "in fact suffered mental anguish or humiliation[.]" Cullen v. Nassau County Civil Serv. Comm'n, 425 N.E.2d 858, 861 (N.Y. 1981); see also McIntosh, 887 F. Supp. at 665.

In this case, the jury awarded the plaintiff $50,000 in compensatory damages. The jury, however, did not award the plaintiff any back pay or front pay, and thus the jury's award reflects an award for mental anguish or emotional injury. The defendant argues that the jury's award for these compensatory damages deviates materially from comparable cases, which they argue indicate that an award of less than $7,500.00 is appropriate.

1.

At trial, the plaintiff testified regarding the extent of the mental anguish that she suffered. The plaintiff testified that during the time that the she was retaliated against she was "angry," "hurt" and she "felt disrespected and somewhat humiliated." (Tr. at 875.) The plaintiff testified that on July 30, 1996, she saw Dr. Isenberg, a medical assessment physician at the TA medical assessment center, that she was placed on "no work" status, and that Dr. Isenberg referred her to a psychologist.¹¹ (Tr. at 894, 898-899.) Dr. Isenberg testified that when he saw the plaintiff on July 30, 1996, she "complained of low back pain, tension and stress due to harassment on the job." (Tr. at 1113.) Dr. Isneberg testified that his records indicated that the plaintiff had high blood pressure; however, the return to a normal blood pressure that same day indicated it was temporary and of no significance. (Tr. at 1116, 1125.)

11 Physicians at the TA medical assessment center do not treat patients, but rather assess their ability to return to work. (Tr. at 1111.)

The plaintiff testified that she also saw her treating physician Dr. Hong on July 30, 1996 because she had a headache that worsened during each negative encounter with her supervisors from July 26, 1996 through July 30, 1996. (Tr. at 899-900.) She, stated that that the headache "felt as though a rope had twisted and it was . . . about to pop and nothing [she] could do would help [her] to get rid of the headache." (Tr. at 900.) There was evidence, however, that the plaintiff suffered headaches from two previous automobile accidents. (Tr. at 1078-1081.)

The plaintiff testified that on August 1, 1996, she saw a psychologist from the TA medical assessment center. (Tr. at 899.) The psychologist, Dr. Jeffery Mitchell, noted that the plaintiff complained of harassment and on one particular occasion the plaintiff "became overwhelmed by the harassment" and that she began "crying uncontrollably and developed a headache which did not subside for several days." (Tr. at 1119.) The plaintiff reported to Dr. Mitchell that she had "difficulty sleeping, poor appetite, sad mood, labile affect." (Id.) Dr. Mitchell's diagnosed the plaintiff with an "[a]djustment disorder with depressed mood" and recommended counseling. (Id.) He determined that, although the plaintiff was emotionally upset, her psychological difficulties should not have prevented her from performing her job. (Id.)

The plaintiff testified that she went back to the TA medical assessment center for a follow-up visit on August 6, 1996, and eventually returned to work after yet another follow up visit on August 19, 1996. (Tr. at 905-906.) The plaintiff testified that she returned to the TA medical assessment center on September 16, 1996, and again on September 30, 1996, where Dr. Isenberg recommended that the plaintiff be given "no work" status at the latter visit. (Tr. at 919-920.) The plaintiff also testified that she had an initial interview report with Dr. Barella at the Advanced Center for Psychotherapy on October 1, 1996, and had a psychiatric evaluation with Dr. Aslan Mizrahi at the Advanced Center for Psychotherapy on October 9, 1996. (Tr. at 925.) The plaintiff stated that she visited with Dr. Mizrahi because she felt she needed "coping skills" to deal with what she was experiencing. (Tr. at 926.) The plaintiff testified that she was again advised not to report to work at a visit with Dr. Isenberg at the TA medical assessment center on October 15, 1996. (Tr. at 926.) The plaintiff testified that she visited the TA medical assessment center again on October 21, 1996. (Tr. at 927.)

From October 21, 1996 to December 23, 1996, the plaintiff had eleven scheduled appointments with a social worker therapist, Marie Mith-Joseph, at the Advanced Center for Psychotherapy. (Defs.' Ex. V2; Tr. at 1082-1085.) of these eleven visits the plaintiff testified and the records indicate that she missed four of the sessions. (Tr. at 1083; Defs.' Ex. V2.) While the plaintiff and Ms. Mith-Joseph discussed the plaintiff's complaints of harassment at work and her stress and coping skills, (see Defs.' Ex. V2, session notes dated October 21, 1996, October 28, 1996, December 4, 1996), Ms. Mith-Joseph also wrote in her session notes dated December 9, 1996, that the plaintiff "may be using treatment to strengthen lawsuit." (Defs.' Ex. V2, session notes dated December 12, 1996.) Dr. Michael Welner, the defendants expert psychiatrist, testified that Ms. Mith-Joseph's records indicated that she questioned the plaintiff's motivation for seeking therapy. (Tr. at 1379, 1403-1404.)

There was evidence that, during this period of time factors other than the plaintiff's employment situation created stress and anxiety. The plaintiff recalled telling Ms. Mith-Joseph that creditors were calling her home and the plaintiff testified that this made her upset and caused stress. (Tr. at 1082-1083.) The plaintiff admitted that she told Ms. Mith-Joseph that she was having difficulty paying the mortgage and the plaintiff testified that this made her upset and caused anxiety. (Tr. at 1082-1084.) The plaintiff also testified that she was involved in community activities and that "[n]ot being able to attend these activities created stress." (Tr. at 1082, 1084; Defs.' Ex. V2, session notes dated November 25, 1996, December 4, 1996.)

The plaintiff's treating physician Dr. Hong testified regarding medical examinations of the plaintiff he conducted during the relevant period. In a series of visits from July 30, 1996 through October 16, 1996, the plaintiff complained to him of headaches, along with complaints of tension, emotional stress, anxiety and at one point, vomiting. (Tr. at 836-846; Defs.' Ex. U2.) Dr. Hong prescribed Esgic-Plus for the plaintiff's headache and Ativan, a tranquilizer prescribed for anxiety and mild depression. (Tr. at 836, 845, 1122.) Dr. Welner, however, testified that the plaintiff indicated to him that she did not take either the Esgic Plus or the Ativan medication prescribed by Dr. Hong. (Tr. at 1416.) Dr. Hong testified that his assessment throughout this period was "anxiety and tension headaches" and in August 1996 and October 1996, he recommended a psychiatric consultation. (Tr. at 842-846.) Dr. Hong noted, however, that the plaintiff's blood pressure was relatively normal. (Tr. at 853-854, 857.)

Dr. Hong testified that the plaintiff complained again of anxiety and tension headaches in a visit on March 26, 1997. (Tr. at 846.) During the visit, she mentioned that she was psychiatric care and was taking the Esgic Plus medication. (Id.) His assessment was "anxiety reaction, depressive mood." (Id.) Again, Dr. Hong noted that the plaintiff's blood pressure was normal. (Tr. at 858.) Dr. Hong testified that the plaintiff complained again of anxiety and depression in a visit on March 9, 1998, however she did not complain of headaches. (Tr. at 847, 860.) Dr. Hong also stated that his records did not indicate that the plaintiff's anxiety had any physical manifestations. (Tr. at 868.) In addition, Dr. Hong testified that he had no record indicating that he was aware of the plaintiff's head injuries from prior accidents. (Tr. at 852.)

2.

A review of comparable cases supports the defendants' argument that the jury's award for emotional damages in this case is excessive. In reviewing damage awards of other cases it is important to examine the particular facts and circumstances of the other cases and compare them to those of this case. See Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993).

Courts performing reviews of jury verdicts in discrimination and retaliation cases have noted that with "so-called 'garden variety' mental anguish claims, . . . awards hover in the range of $5,000 to $30,000."Bick v. The City of New York, No. 95 Civ. 8781, 1998 WL 190283, at *25 (S.D.N.Y. Apr. 21, 1998); see also McIntosh, 887 F. Supp. at 668 (noting that at oral argument, counsel for the plaintiff conceded that the most common award of compensatory damages under the NYHRL ranged between $5,000.00 to $10,000.00)¹² In those cases, the evidence of mental anguish suffered is generally limited to the testimony of the plaintiff, is described in vague or conclusory terms, without presenting evidence of the duration, severity or consequences of the condition, and there is minimal or no evidence of medical treatment. For example, in Tanzini v. Marine Midland Bank, 978 F. Supp. 70 (N.D.N.Y. 1997), the court reduced a damage award for mental anguish suffered in connection with discrimination from $200,000 to $30,000. Tanzini, 978 F. Supp. at 80. The plaintiff and his spouse testified that he was in a "state of shock," that he did not leave the house for a week, that his termination was a "very traumatic experience," and that he suffered from a loss of memory and loss of sleep. Id. at 78. The plaintiff, however, did not present any evidence detailing the duration or magnitude of his emotional injuries, nor did he present evidence of medical or psychological treatment. Id.

12 Due to inflation, an amount that may have been excessive five to ten years ago might be reasonable today. See Luciano v. Olsten Corp., 912 F. Supp. 663, 673 (S.D.N.Y. 1996).

Similarly, in McIntosh, the court reduced a $219,428.00 compensatory damage award under the NYHRL to $20,000. McIntosh, 887 F. Supp. at 669.¹³ The plaintiff in McIntosh testified that the defendant's acts of discrimination and retaliation, including terminating him, made him feel "humiliated," "shocked" and "angry," and that as a result, he suffered from short-lived physical manifestations of his mental distress that forced him to visit a doctor on one occasion. Id. at 664. The plaintiff also testified that upon being terminated he "was devastated," angry and depressed. Id. He testified that he stayed home sick for several days and that he suffered from weakness in his legs, stomach cramps, and chest pains. Id. The court concluded that "[b]ecause the plaintiff introduced such sparse evidence with respect to the magnitude and duration of any emotional injuries or mental distress that he sustained, the jury was forced to speculate in awarding him compensatory damages." Id. at 665.

13 Notably, the court in McIntosh applied the more stringent federal "shock the conscience" standard in determining that the verdicts in those cases were excessive. McIntosh, 887 F. Supp. at 664.

Those holdings are consistent with a number of other cases under the NYHRL dealing with similar evidence of emotional distress. See Kim v. Dial Service Intern., No. 96 Civ. 3327, 1997 WL 458783, at *12-13 (S.D.N.Y. Aug. 11, 1997) (reducing $300,000 compensatory damage award to $25,000 after applying "shock the conscience" standard where the plaintiff testified and his wife corroborated that he felt "gloomy," had lost weight, drank more, lost interest in socializing, took sedatives, and had trouble sleeping); Boria-Fierro v. Girozentrale Vienna Bank, No. 91 Civ. 8743, 1994 WL 240360, at *3-4 (S.D.N.Y. May 27, 1994) (reducing a damage award for mental anguish suffered in connection with a retaliatory discharge from $160,000.00 to $15,000.00 where the plaintiff, who went to a psychologist in part because of the discrimination by the defendant, was the only witness to testify to his mental anguish, the court characterized the plaintiff's testimony as "brief" and "not particularly strong"); Buffalo Athletic Club v. New York State Division of Human Rights, 672 N.Y.S.2d 210, 211 (App.Div. 1998) (reducing $20,000.00 award to $10,000.00 for discriminatory failure to hire where the plaintiff testified that she "felt hurt," was "generally irritable," remained in bed and suffered from headaches and stomach distress, postponed job seeking activities for two months, but did not seek medical treatment);Manhattan and Bronx Surface Transit Operating Authority v. New York State Executive Department, 632 N.Y.S.2d 614, 644 (App.Div. 1995) (reducing award of $30,000.00 for mental anguish for discriminatory failure to hire to $7,500.00 where the plaintiff testified that he felt "devastated," that his distress "disturbed his sleep" and caused him to gain weight, exacerbating his high blood pressure, but did not seek medical or psychiatric treatment and there was no indication of the duration of the distress or the causal relation of the weight loss and high blood pressure to the discrimination); Cosmos Forms. Ltd. v. State Div. of Human Rights, 150 A.D.2d 442, 442, 541 N.Y.S.2d 50, 51 (2d Dep't 1989) (reducing $35,000.00 award for discriminatory termination to no more than $5,000.00; the only evidence of mental anguish was the complainant's own testimony that she was "'[e]motionally and benefits and the emotional pain of being arbitrarily and summarily dismissed aggravated plaintiff's psychological problems to such an extreme extent that he ceased to be able to function in society" and that there was evidence that his condition would continue indefinitely. Id.¹⁴ In Shea v. Icelandair, 925 F. Supp. 1014 (S.D.N.Y. 1996), the district court reduced a $250,000.00 jury award for compensatory damages in an age discrimination case under the NYHRL to $175,000.00. Shea, 925 F. Supp. at 1029. In that case, the plaintiff presented expert medical testimony that the stress brought on by the defendant's discriminatory acts aggravated the symptoms of his Parkinson's disease and brought on cardiac symptoms and there was "compelling, evidence of [the plaintiff's] emotional anguish and humiliation," including detailed testimony by the plaintiff of the effect his demotion had on his day-to-day living. Id. at 1022-25. The court found that the aggravation of the plaintiff's physical symptoms and the severity of the emotional distress suffered by him set the case apart from cases of garden variety emotional distress. Id. at 1025; see also New York City Transit Auth. v. State Div. of Human Rights, 581 N.Y.S.2d 426, 429 (App.Div.), physically screwed up'" and there was no evidence of the duration of her condition, its severity or consequences, or any medical treatment).

14 Ramirez was a Title VII case and thus applied the federal "shocks the conscience" standard and the court determined that $500,000 was the amount that could reasonably be awarded without "shocking the conscience." Ramirez, 1996 WL 210001, at *6.

This case is comparable to the above cases, although the evidence of mental anguish is stronger than in the cases at the low end of the "garden variety emotional distress" damage spectrum. Here, the plaintiff's testimony regarding her emotional distress and her headaches was corroborated to a degree by testimony from her treating physician and a TA physician. In addition, the plaintiff sought and attended seven therapy sessions with a social worker over a two-month period. Such evidence that a plaintiff sought medical or psychiatric treatment, generally entitles a plaintiff to greater damages for mental anguish and emotional distress. See DiStefano v. Long Island Rail Road Co., NO. 96 Civ. 5487, 1999 WL 1704784, at *7 (E.D.N Y Dec. 21, 1999); Bick, 1998 WL 190283, at *25. However, both physicians relied on the plaintiff's representations regarding her condition and the source of her distress. Dr. Hong admitted that the plaintiff did not appear to exhibit any physical manifestations of anxiety, and there was evidence that preexisting head injuries from two prior automobile accidents had caused headaches. Furthermore, the plaintiff admitted that, during the period of time that she was seeking therapy, other factors contributed to her stress and anxiety and her own therapist questioned the plaintiff's motive for seeking therapy. The plaintiff attended only seven therapy sessions and missed four appointments. She did not take the medicine that was prescribed for her and the only objective physical manifestation of any distress was one partial day of elevated blood pressure. Moreover, this is not a case where the plaintiff was terminated or demoted to a significantly lesser position and the plaintiff's own testimony offered little evidence of her mental anguish. Thus, the evidence submitted at trial with respect to the plaintiff's emotional distress and mental anguish was in line with the range of damages awarded in the cases discussed above.

This case differs from those cases upholding higher awards, including those cited by the plaintiff, which involved circumstances far more egregious than those in the present case. For example, in Ramirez v. New York City Off-Track Betting Corp., NO. 93 Civ. 692, 1996 WL 210001 (S.D.N.Y. Apr. 30, 1996), aff'd in relevant part, 112 F.3d 38 (1997),modified on other grounds, 1997 WL 160369 (S.D.N.Y. Apr. 3, 1997), the court reduced an award of $1,145,625.00 for emotional distress to $500,000.00. Ramirez, 1996 WL 210001, at *6. In that case, the evidence at trial demonstrated that the plaintiff was retaliated against and that "the loss of employment, the loss of health insurance and appeal denied, 607 N.E.2d 818 (N.Y. 1992) (upholding a $450,000.00 award for compensatory damages in a sexual harassment case under the NYHRL where the plaintiff suffered four intentional instances of sex discrimination relating to her pregnancy, and testified that she "suffered anguish, guilt, depression, and anger at the time of each occurrence, and that her mental anguish persisted . . . [for] a period of more than six years" and the court found sufficient evidence that such anguish would persist for the remainder of the plaintiff's life and was at a loss to find any New York case involving "the type of prolonged, intentional sex discrimination committed by the NYCTA in this case, or any case where the magnitude of the psychic injury was comparable to that suffered by the complainant . . .").¹⁵

15 Two of the cases that the plaintiff cites, Lightfoot v. Union Carbide Corp., 901 F. Supp. 166 (S.D.N.Y. 1995) and Sogg v. American Airlines, Inc., 603 N.Y.S.2d 21 603 N.Y.S.2d 21 (App.Div. 199 3), do not provide a discussion of the plaintiff's evidence of mental anguish and thus are not instructive for purposes of determining whether the plaintiff's award in this case is excessive.

Moreover, in cases where courts uphold compensatory damage awards of the approximate magnitude of the jury's award in this case, there is significantly more evidence, both quantitatively and qualitatively than exists in this case. For example, in Gleason v. Callanan Indus. Inc., 610 N.Y.S.2d 671 (App.Div. 1994), the Appellate Division, Third Department, upheld a jury award under the NYHRL of $54,000.00 in compensatory damages for emotional distress related to the plaintiff's retaliatory discharge. Gleason, 610 N.Y.S.2d at 673. In that case, the plaintiff's testimony, which was corroborated by other witnesses' testimony, established that she "suffered from irritable bowel syndrome, pains in her sides, insomnia, migraines and depression." Id. Because of these ailments, the plaintiff sought medical treatment. Id. Recently, inGreenville Board of Fire Comm'rs v. State Div. of Human Rights, 2000 WL 1716254 (N Y App. Div. Nov. 1, 2000), the court reduced a compensatory damage award related to a sex discrimination claim from $100,000.00 to $50,000.00 where the plaintiff, corroborated by her doctor, testified that she suffered mental anguish resulting in physical manifestations, such as irritable bowel syndrome and amenorrhea. Greenville Board of Fire Comm'rs, 2000 WL 1716254, at 1.

Upon reviewing cases under the NYHRL awarding damages for mental anguish and emotional distress, it is plain that the compensatory damage award for mental anguish or emotional distress in this case amounts to unreasonable compensation because there plainly was insufficient evidence of the plaintiff's emotional injury to support it and because the award materially deviates from awards in comparable cases. The award should be reduced to that amount that would not "deviate materially" from awards in similar cases. Therefore, the defendants' motion for a new trial on compensatory damages is granted unless the plaintiff agrees by February 5, 2001, in writing, to a remittitur reducing the award from $50,000.00 to $25,000.00.

D.

The defendants also move to impose sanctions on the plaintiff's trial counsel for causing a mistrial in the First Jury Trial. They argue that the plaintiff's trial counsel willfully violated this Court's Order dated September 6, 2000, granting the defendants' motion in limine to preclude reference to a particular opprobrious racial epithet. The defendants argue that the plaintiff's trial counsel violated the Order when he asked an improper question of Henry Seda during the course of the First Jury Trial that included the racial epithet. (See Order dated September 6, 2000, Fifth Motion in Limine; First Jury Trial Tr. at 438.) The defendants contend that the plaintiff's trial counsel could not have reasonably misunderstood this Court's Order and must have deliberately been attempting to violate the Order. The defendants suggest that an appropriate sanction would be to award the defendants the legal fees and costs incurred in defending the First Jury Trial totaling $16,231.22.

The Court of Appeals for the Second Circuit has made it clear that the basis for a motion for sanctions must be explicit to give the subject of a sanctions motion proper notice. See Schlaifer Nance Company, Inc. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999). Here, the defendants base their motion for sanctions on the inherent power of the Court to supervise and control its own proceedings and sanction an attorney who violates a Court order in bad faith."¹⁶ A district court's inherent power to sanction derives from the fact that courts are 'vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates.'" Schlaifer Nuance Company, 194 F.3d at 336 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). "In order to impose sanctions pursuant to its inherent power, a district court must find that: (1) the challenged claim was without a colorable basis and (2) the claim was brought in bad faith, i.e., motivated by improper purposes such as harassment or delay." Id. (citations omitted).¹⁷ Bad faith may also be found in the conduct of the litigation. See Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986). When a party has acted in bad faith, a court may assess and award attorneys' fees. See Chambers, 501 U.S. at 45-46; Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59 (1975).

16 Separate and distinct from a court's inherent power to supervise and control its own proceedings, 28 U.S.C. § 1927 provides that a court may impose sanctions on an attorney who "so multiplies the proceedings in any case unreasonably and vexatiously." 28 U.S.C. § 1927. The Court of Appeals for the Second Circuit has interpreted this provision to require the same findings as those required under the court's inherent powers to supervise and control its own proceedings. See Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir. 2000). Thus, § 1927 permits sanctions "only when there is a finding of conduct constituting or akin to bad faith." Sakon v. Andreo, 119 F.3d 109, 114 (2d Cir. 1997);see also Schlaifer Nance Company, 194 F.3d at 336. An award under Section 1927 "is proper when the attorney's actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay." United States v. International Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991) (internal quotation marks omitted); see also Keller v. Mobil Corp., 55 F.3d 94, 99 (2d Cir. 1995). In practice, "the only meaningful difference between an award made under § 1927 and one made pursuant to the court's inherent power is . . . that awards under § 1927 are made only against attorneys or other persons authorized to practice before the courts while an award made under the court's inherent power may be made against an attorney, a party, or both." Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986). The defendants, however, have not relied on 28 U.S.C. § 1927 in their motion for sanctions, and, in any event, as discussed below, there was no bad faith conduct on the part of the plaintiff's counsel sufficient to warrant sanctions.

17 Recently, in United States v. Seltzer, 227 F.3d 36 (2d Cir. 2000), the Court of Appeals for the Second Circuit held that, given a court's "inherent power 'to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases,'" sanctions may be justified without a showing of bad faith where the charges involve an attorney's "negligent or reckless failure to perform his or her responsibility as an officer of the court." Seltzer, 227 F.3d at 41 (citing Chambers, 501 U.S. at 43 (internal quotation omitted)). The Court of Appeals distinguished the facts in Seltzer, which concerned the sanctioning of an attorney for returning to court late, from cases "where the court sanctioned an attorney by reason of excesses in conduct of the sort that is normally part of the attorney's legitimate efforts at zealous advocacy for the client," which require a showing of bad faith.Id. at 40. In this case, the conduct that the defendants argue is sanctionable was undertaken as part of the plaintiff's trial counsel's role in representing his client. As the plaintiff's trial counsel argued at the argument of the pending motion, his error was a mistake that occurred as part of his function of questioning a witness, which was part of his role in representing his client. Thus, a showing of bad faith is a prerequisite to the imposition of sanctions. Even if bad faith were not required, this is not a case where the Court would exercise its discretion to impose sanctions as part of its power to manage its own affairs.

In deciding the defendants' application for a mistrial in the First Jury Trial, the Court determined on the record that the improper question asked by the plaintiff's trial counsel was not asked in bad faith. (Hearing Tr. of September 15, 2000 ("Hr.") at 41-43.) Although at one point the Court stated that, "there is no good-faith basis for asking the question whether he ever referred to anyone by that opprobrious racial epithet," (First Jury Trial Tr. at 447-448), in later determining that the mistrial would not be with prejudice, after reflection, and having listened to the plaintiff's trial counsel and assessed his credibility, the Court concluded that the question was not a bad faith attempt to violate the Court's Order deliberately, but was a mistaken effort to circumvent it. (Hr. at 41.) The Court observed that the plaintiff's trial counsel appeared to have confused two separate Orders of the Court ruling on the defendants' motions in limine. (Hr. at 41-42.) Thus, the Court has already found that the plaintiff's trial counsel did not act in bad faith and there is no evidence to cause the Court to change that finding.

Accordingly, the motion for sanctions is denied because the plaintiff's trial counsel did not act in bad faith. The motion for sanctions is also denied in the exercise of the Court's discretion because sanctions are a severe penalty and the plaintiff's trial counsel did not intentionally attempt to violate the Court's Order.

III. A.

The plaintiff first moves for an award of back pay and front pay on the grounds that the jury returned a verdict in favor of the plaintiff on her retaliation claim and erroneously failed to calculate the back pay and front pay damages. The plaintiff does not explain what Federal Rule of Civil Procedure she is relying on and she does not attempt to set forth any basis in fact or law for her application.¹⁸ Most generously construed, the plaintiff's application is an application pursuant to Fed.R.Civ.P. 50(b) for judgment as a matter of law that the defendants violated the NYHRL by retaliating against her by failing to promote her to the TPPS II positions, or in the alternative, for a new trial on damages pursuant to Fed.R.Civ.P. 59(a), or to set aside the damage award pursuant to Fed.R.Civ.P. 60 because the jury did not award the plaintiff back pay or front pay based on her claim that the defendants retaliated against her by failing to promote her to the TPPS II positions in violation of the NYHRL.

18 In an Affirmation of Charmaine M. Stewart, dated October 26, 2000 ("Stewart Aff."), the plaintiff's counsel asserts that this motion is made pursuant to New York Executive Law § 297(4)(c) (ii). (Stewart Aff. ¶ New York Executive Law § 297(9) permits a plaintiff aggrieved by an unlawful discriminatory practice to seek remedies provided by § 297(4) in a court of appropriate jurisdiction. However, although § 297(4)(c) (ii) indicates that an award of back pay is available, it does not provide a basis for disturbing a jury verdict that does not include back pay.

1.

The plaintiff's application for a judgment as a matter of law pursuant to Rule 50 is without merit. It is clear there is sufficient evidence to support the jury's obvious conclusion that the defendants retaliated against the plaintiff not by failing to promote the plaintiff to the TPPS II positions announced in February 1996 and February 1997, but rather by taking the adverse employment actions discussed above. The defendants presented evidence that the defendants had substantial, non-retaliatory reasons for failing to place the plaintiff in the two TPPS II positions. With respect to the TPPS II position announced in 1996, the defendants introduced substantial evidence that the position was rescinded because the Authorities were seriously considering outsourcing the security function of the Property Protection Department to a private contractor and that no one was promoted to the position. (Tr. at 51-52, 65-67, 117, 122-127, 313, 571-572, 720-721.) Other posted positions were also not filled during this period while the Authorities' considered outsourcing. (Tr. at 117-118, 572-573.) When the Authorities determined that they would not outsource the Property Protection Department, they advertised the TPPS II position again. (Tr. at 130-131.)

With respect to the TPPS II position advertised in February 1997, there was substantial evidence that the position was never filled and was eliminated due to budgetary considerations, along with other TPPS II positions. (Tr. at 69, 81-82, 400-402, 722-723, 1216-1217, 1227.) The jury could reasonably have accepted this evidence and found that the failure to promote the plaintiff to the TPPS II positions was not retaliation for her complaining of discrimination.

On the other hand, as already discussed, the jury could well have accepted the plaintiff's evidence of other alleged retaliatory acts, such as the canceling of her peace officer application, reducing her managerial and administrative duties, taking away her desk, and reassigning her to different tours and days off despite her seniority. If the jury accepted that these actions were retaliatory, which the jury was entitled to do, the jury would have found, as it did, that the defendants retaliated against the plaintiff and that the plaintiff was entitled to compensatory damages, but that those damages should not include an award of back pay or front pay.¹⁹ Therefore, the plaintiff is not entitled to front pay or back pay and her motion for a judgment as a matter of law is denied.

19 Any claim that the jury's answers to the special verdict form are inconsistent is without merit. Pursuant to Fed.R.Civ.P. 49(a), a jury's answers to a special verdict form "must be consistent with each other since they form the basis for resolving the case." Brooks v. Brattleboro Memorial Hospital, 958 F.2d 525, 529 (2d Cir. 1992) (internal quotation omitted) "When confronted with a potentially inconsistent jury verdict, the court must 'adopt a view of the case, if there is one, that resolves any seeming inconsistency.'" Turley v. Police Dept. of the City of New York, 167 F.3d 757, 760 (2d Cir. 1999) (quoting Fiacco v. City of Rensselaer, 783 F.2d 319, 325 (2d Cir. 1986)); see also Brooks, 958 F.2d at 529. The jury's finding that the defendants retaliated against the plaintiff in violation of the NYHRL is not inconsistent with the failure to award front pay or back pay on the special verdict form. It is clear that the jury's finding that the defendants did not retaliate against the plaintiff in failing to promote her did not preclude the jury from finding that other actions taken by the defendants were retaliatory and such findings are wholly consistent.

2.

The plaintiff is also not entitled to a new trial on damages under Rule 59. For the reasons explained above, the jury's finding that the defendants' failure to promote the plaintiff was not retaliatory is amply supported by the evidence at trial and there is no basis to conclude that the jury's award of no back pay or front pay was seriously erroneous or that its verdict was a miscarriage of justice. Accordingly, the plaintiff's motion for a new trial pursuant to Rule 59 is denied.

3.

The plaintiff has not made any showing that would warrant relief from judgment under Rule 60(b). Rule 60(b) allows the Court to "relieve a party . . . from a final judgment, order, or proceeding." Fed.R.Civ.P. 60(b). Rule 60(b) provides an extraordinary remedy that is granted only when the movant can demonstrate that "exceptional circumstances" justify the relief requested. See Employers Mut. Casualty Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant under Rule 60(b) must demonstrate 'exceptional circumstances' justifying the extraordinary relief requested."); Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1994) ("This Circuit has indicated . . . that since 60(b) allows extraordinary judicial relief, it is invoked only if the moving party meets its burden of demonstrating "exceptional circumstances.'"). Five specific grounds for granting this relief are enumerated in the Rule:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application . . . .

Fed.R.Civ.P. 60(b). Rule 60(b) also contains a catch-all provision permitting relief for "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). The Court of Appeals for the Second Circuit has held that this provision is "'properly invoked where there are extraordinary circumstances or where the judgment may work an extreme and undue hardship.'" DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994) (citing Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986)).

The plaintiff's argument that she is entitled to back pay and front pay does not satisfy any of the five enumerated grounds for relief under Rule 60(b), nor is there any other basis for relief on any of these five grounds. There is also no basis to conclude that the judgment in this case may work an extreme and undue hardship or that there are any other extraordinary circumstances that warrant relief from the judgment under the catch-all provision of Rule 60(b)(6). Accordingly, the plaintiff's motion pursuant to Rule 60(b) is denied.

B.

The plaintiff has also made an application for costs relying upon New York Executive Law § 297(4)(c) (ii). (Stewart Aff. ¶ 2.) New York Executive Law § 297(4)(c) (ii) does not provide for litigation costs as a remedy and such costs are not available under the NYHRL. See N.Y. Exec. Law § 297(4)(c) (ii); see also Grullon v. South Bronx Overall Economic Dev. Corp., 712 N.Y.S.2d 911, 917 (Civ.Ct. 2000).²⁰ As the prevailing party in this litigation, however, the plaintiff is entitled to costs that are taxed by the clerk pursuant to Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920.

20 The plaintiff has not specifically sought an award of attorneys' fees and, as the defendants point out, such attorneys' fees are not authorized under the NYHRL under which the plaintiff prevailed except in cases of housing discrimination. N.Y. Exec. Law § 297 (10); see also Bonner v. Guccione, 178 F.3d 581, 595 (2d. Cir. 1999); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 914 (2d. Cir. 1997).

CONCLUSION

For the foregoing reasons, the defendants' motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a) or Fed R. Civ. P. 50 (b), or in the alternative, for a new trial pursuant to Fed.R.Civ.P. 50(b) and 59(a) is denied. The defendants' motion for a new trial on damages pursuant to Fed.R.Civ. p. 59(a) is granted unless the plaintiff agrees by February 5, 2001, in writing, to a remittitur reducing the award from $50,000.00 to $25,000.00. The defendants' motion to impose sanctions on the plaintiff's trial counsel is denied. The plaintiff's motion for an award of back pay and front pay is denied and the plaintiff's motion for costs is denied except to the extent that the plaintiff is entitled to costs that are taxed by the clerk pursuant to Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920.

SO ORDERED.