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finding that the discussion in Patrolmen's of the proof required to obtain emotional distress damages applies to both Title VII and § 1983 cases
Summary of this case from United States v. Vulcan Soc., Inc.Opinion
01 Civ. 2762 (JGK)
September 30, 2003
OPINION and ORDER
The plaintiff, John Reiter ("Reiter"), was employed by the New York City Transit Authority ("NYCTA") as Deputy Vice President of Engineering Services, until, in June 2000, he was transferred to the position of Deputy Vice President of Technical Services. Alleging that the reassignment constituted unlawful discrimination and retaliation, Reiter sued the NYCTA, his former supervisor Mysore L. Nagaraja ("Nagaraja"), and the Metropolitan Transportation Authority ("MTA"), seeking damages and equitable relief.
The plaintiff raised Title VII claims alleging that he was subject to retaliation-in the form of verbal reprimands, negative performance reviews, and demotion-for filing a complaint with Equal Employment Opportunity Commission ("EEOC"). See Civil Rights Act of 1964, 42 U.S.C. § 2000e at seq. The EEOC complaint asserted that Reiter was subjected to discrimination and retaliation because his wife, also a NYCTA employee, had raised claims of discrimination and sexual harassment against NYCTA and Nagaraja, Reiter's supervisor at the time of the complaints.
The plaintiff also brought claims for, among other things, race and marital status discrimination pursuant to 42 U.S.C. § 1981, Title VII, and the New York State Human Rights Law, N.Y. Exec. Law § 296. This Court granted summary judgment dismissing all claims except the plaintiff's claim against the NYCTA that he was subjected to retaliation for filing a complaint with the EEOC on March 25, 2000. Reiter v. Metro. Trans. Auth., No. 01 Civ. 2762, 2002 WL 31190167 (S.D.N.Y. Sept. 30, 2002) (granting summary judgment in part and providing more detailed account of claims asserted in plaintiff's original action). This Court found "a genuine issue of material fact as to whether there was a causal connection between the plaintiff's filing of the March EEOC complaint and his June, 2000 transfer." Id. at *11.
The case was divided into legal and equitable issues, with the jury instructed to make findings on the issues of liability and compensatory damages for pain and suffering. It was left for the Court to order appropriate equitable relief pursuant, to 42 U.S.C. § 2000e-5(g)(1). Following a six-day trial, the jury returned a verdict in favor of the plaintiff, finding that the defendant unlawfully retaliated against Reiter for filing the March 25, 2000 EEOC complaint. The jury awarded the plaintiff $140,000.00 in compensatory damages.
The defendant, NYCTA, has renewed its motion for judgment as a matter of law under Federal Rule of Civil Procedure Rule 50(a) and moves, pursuant to 50(b), to vacate the entire jury award. In the alternative, the defendant moves for a new trial pursuant to Rule 59(a), or for remittitur pursuant to Rule 59(e) reducing the award to $5000-$10,000. The plaintiff has submitted a request for equitable relief, seeking, among other things, reinstatement, back pay and front pay, restoration of seven vacation days he used to attend the trial, pre-and post-judgment interest, and a permanent injunction to prevent NYCTA from retaliating against him in the future.
The parties rely on the trial record and have submitted various additional materials in connection with the request for equitable relief. This Opinion contains the Court's findings of fact and conclusions of law with respect to the requests for equitable relief as well as the Court's decision on all outstanding motions.
I.
The defendant's first motion is for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. The defendant contends that, as a matter of law, the plaintiff did not present sufficient evidence to entitle him to compensatory damages for emotional distress. It is well-established that a district court should deny a Rule 50 motion unless "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 Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)); see also Fowler v. N.Y. Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *1 (S.D.N.Y. Jan. 31, 2001); 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).
A trial court considering a Rule 50(b) motion "must view the evidence in a light most favorable to the nonmovant and grant that party every reasonable inference that the jury might have drawn in its favor."Samuels v. Air Transport Local 504, 992 F.2d 12, 16 (2d Cir. 1993). A jury verdict should be set aside only when "there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or [where there is] such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [jurors] could not arrive at a verdict against [the movant]." Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1022 (2d Cir. 1996) (internal quotations and citations omitted) (alteration in original); see also Dailey, 915 F. Supp. at 1321.
In the alternative, the defendant argues that the jury award was excessive, and it moves pursuant to Rule 59 for a new trial or a remittitur of the jury award from $140,000 to $5000-$10,000.See Fed.R.Civ.P. 59(a), (e). "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." Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996) (quoting Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir. 1995)); Fowler, 2001 WL 83228, at *10.
Federal Rule of Civil Procedure 59(a) provides: "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. . . . "Federal Rule of Civil Procedure 59(e) provides for a "motion to alter or amend the judgment."
In determining whether a new trial is appropriate under Rule 59(a), a court makes the same type of inquiry as on a motion for judgment as a matter of law, but it 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 Ins. Co., 784 F.2d 127, 132 (2d Cir. 1986). A Rule 59(a) motion "ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Patrolmen's Benevolent Assoc. v. City of New York, 310 F.3d 43, 54 (2d Cir. 2002) (internal quotations omitted); Katara, 835 F.2d at 970; Newmont Mines, 784 F.2d at 132; Fowler, 2001 WL 83228, at *2.
Remittitur is the "process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial."Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990). When, as in this case, a claim is brought under federal law, remittitur may be ordered where the "award is so high as to shock the judicial conscience." Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990); see also Lee v. Edwards, 101 F.3d at 80S. To determine whether an award of damages is shockingly 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) (internal quotation omitted).
The federal "shock the conscience" standard contrasts with the less deferential standard used when a claim is brought under New York law, which directs a judge to reduce an award that "deviates materially" from reasonable compensation as measured by awards in similar cases.See N.Y. C.P.L.R. § 5501(c); see Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 424-25, 437-38 (1996) (explaining that district courts must apply New York's standard, codified in § 5501(c), to determine whether awards in cases decided under New York law are excessive). However, even under the "shock the conscience" standard it is appropriate to consider the awards in comparable cases under federal and state law to determine whether the award in this% case is so out of line with other cases that it shocks the judicial conscience or whether the Court should allow it to stand without reduction.Ismail, 899 F.2d at 186-87.
A.
The NYCTA provides public transportation and is comprised of several departments, including Capital Program Management ("CPM"), which is responsible for major architectural and engineering projects in the NYCTA and has an annual budget in excess of one billion dollars. (Trial Transcript ("Tr.") 49.) In 1999, the plaintiff, Reiter, was Deputy Vice President of Engineering Services ("DVP Engineering Services"), making him the head of Engineering Services. (Tr. 46-47.) Reiter was one of around thirteen senior-level executives who reported directly to the Senior Vice President and Chief Engineer of CPM ("SVP-CPM"), Mysore Nagaraja. (Tr. 396, 449.)
On January 31, 2000, the plaintiff received his annual performance evaluation for his work in 1999. Nagaraja rated his work as marginal (the "Marginal Review"). (Tr. 92.) Reiter disagreed with the evaluation of his performance. He believed that he received the Marginal Review in retaliation for the fact that his wife, also a NYCTA employee, had filed with the EEOC a discrimination and harassment charge that complained, among, other things, about Nagaraja. (Tr. 253-55.)
Over the course of February 2000, Reiter protested the Marginal Review in various ways. He called a meeting to discuss the Marginal Review with the managers who reported directly to him (his "direct reports") and who also ultimately reported to Nagaraja. (Tr. 143-45.) Thereafter he had his secretary contact NYCTA President Lawrence Reuter to set up a meeting to consider whether the Marginal Review was appropriate. (Tr. 112-13, 459.) Reiter then met with Kevin Hyland, Vice President of Human Resources, who advised him not to air his grievances with Nagaraja to his staff and to pursue NYCTA's internal process for appealing performance evaluations. (Tr. 115.)
The plaintiff commenced a formal appeal, and, around February 18, 2000, Reiter met with Nagaraja to discuss the Marginal Review. (Tr. 116.) Nagaraja denied the appeal, and Reiter, following internal procedures, filed additional appeals, which were also denied. On March 25, 2000, Reiter filed an EEOC complaint alleging that he received the Marginal Review in retaliation for his wife bringing an EEOC charge. (Tr. 118.)
Effective June 1, 2000, the plaintiff was transferred to the position Deputy Vice President of Technical Services ("DVP Technical Services"). (Tr. 120.) The Technical Services department is responsible for working with CPM's customers (the user departments) on the acceptance of capital projects. It plays a role in ensuring that capital projects that CPM builds can be used by customers and are capable of being maintained by them over time. (Tr. 372, 470-71.) The Technical Services Department, however, is relatively small and plays a relatively less critical role within CPM compared to the Engineering Services Department, which includes 900 of the 1600 employees within CPM, although the Engineering Services personnel are assigned to various program areas. (Tr. 78-81.) While Engineering Services is the largest Department within CPM, with roughly 60% of the CPM workforce, the Department of Technical Services includes only around ten people. (Tr. 78, 150.)
Reiter retained the same title of Deputy Vice President, with the same benefits and the same salary as before the transfer. (Tr. 471.) Nonetheless, he believed that he had been demoted in retaliation for filing the EEOC complaint. To describe the loss of status connected with being moved from Engineering Services to Technical Services, the plaintiff testified that he was placed in a position that "had no job description, no significant responsibilities, and had never had any Hay points assigned to it." (Tr. 181.) Reiter explained the significance of Hay Points as follows. The Hay Points System ranks the importance and/or difficulty of various positions. (Tr. 83.) The salary and compensation structures are based on the Hay points system and by definition a lateral transfer is a transfer to from a managerial position to a managerial or executive position with little or no change in Hay points. (Tr. 182-84.) The plaintiff went from having 1560 Hay points as DVP Engineering Services, to a position with no Hay points. (Tr. 182.) The plaintiff, however, did not experience a loss in salary. (Tr. 273.)
The plaintiff testified that his transfer was the equivalent of a demotion. For example, as DVP Engineering Services, Reiter had overall responsibility for the 900 people in the department, and he had eight direct reports, all of whom were executives. (Tr. 80-82.) As DVP Technical Services, the plaintiff had no staff and no direct reports, and the unit had only ten or eleven people. (Tr. 150.) Moreover, Reiter lost his confidential secretary when he was transferred and received the assistance of a less experienced secretary. (Tr. 151-52.) Reiter was also moved from his corner office on the seventh floor to a less desirable office on the second floor in the building-a move that, the plaintiff testified, isolated him from his staff. (Tr. 152-58.)
The plaintiff testified that in his new position he had no specific assigned responsibilities or functions and did not have projects to fill his work day. (Tr. 158.) Whereas Reiter had a feeling of accomplishment and purpose in Engineering Services, he had "really no job" as DVP Technical Services. (Tr. 158-59.) Whereas Engineering Services oversaw billion dollar projects, the areas handled by Technical Services were "very very limited.'" (Tr. 159.) The plaintiff described his new position as a "non-job with very little contact with other people in CPM," and he testified to feeling like it was the "[e]nd of my career essentially." (Tr. 161.) He was ashamed to put his new position on his resume and called it a "career buster." (id.)
Reiter testified that he felt humiliated and embarrassed. (Tr. 158, 162.) He felt isolated from his peers, like "people were trying to avoid [him]." (Tr. 163.) He was excluded from meetings and executive retreats, and he felt that he no longer had a role in CPM department wide. (Id.) Reiter testified that he experienced a lot of stress-the stress of "having nothing to do, of not feeling right about the job, about, about yourself, what you're doing, what you can do." (Tr. 161.) He stated that he felt "[n]ervous, anxious, tense, on edge," and sometimes his body felt "clammy." (Tr. 356.) Reiter also testified, however, that he never had problems eating or sleeping and that he never went to see a doctor with respect to his condition after the transfer. (Tr. 370.) To occupy his time at work, he read trade journals and learned how to use his computer. (Tr. 159.)
As DVP Technical Services, Reiter reported to the Vice President of Technical Services, Jack Carter, with whom he got along well. (Tr. 262, 372.) Reiter received positive evaluations for his 2000 and 2001 reviews and also received the standard 3% annual raise in 2001 and 2002, for a total annual salary of $125,956. (Tr. 267, 279.)
The plaintiff did not receive a midyear raise for 2001, but neither did sixty percent of CPM managers eligible for the raise. (Tr. 280, 282; Aff. of Mysore Nagaraja sworn to Feb. 6, 2003 ("Nagaraja Aff.") ¶¶ 33-36.) CPM managers do not automatically receive midyear raises, and Reiter did not receive a midyear raise for the year 1999, which was decided prior to any problems between the plaintiff and Nagaraja. (Tr. 281-82.) When asked whether it was "more likely than not that" that he would not have received the raise under the guidelines, Reiter agreed it was "[m]ore likely." (Tr. 280.)
In November 2002, Mr. Carter retired from the NYCTA. (Tr. 371-72.) Following Mr. Carter's retirement, the plaintiff took over the responsibilities of running Technical Services on a day-to-day basis. (Tr. 385.) Thereafter, his workload and productivity "did increase somewhat." (Tr. 287.) Reiter acquired eight direct reports, was assigned a confidential secretary, and was offered and accepted a new office on the same floor as the rest of his group. (Tr. 277-78, 385.) As the day-to-day leader of the Technical Services Division, the plaintiff reported to Angelo Tomesetti, who was the Program Manager for Line Equipment. (Tr. 282.) Trial in this case began on January 14, 2003. The jury heard seven witnesses over the course of five days, and at the close of the defendant's case, the defendant made a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). (See Tr. 560-65.) The defendant argued, among other things, that, as a matter of law, the plaintiff was not entitled to compensatory damages for pain and suffering because he did not offer evidence of any concrete physical manifestations of his emotional distress. The Court denied the motion and, after the summations, instructed the jury on the issue of damages as follows:
You may award damages for any pain, suffering, humiliation or mental anguish that the plaintiff experienced as a consequence of the defendant's subjecting him to retaliation. . . . There is no exact standard for fixing the compensation to be awarded for these elements of damages, and no expert testimony need be introduced. Any award you make should be fair and just in light of the evidence presented at trial.
In order to recover damages for mental and emotional distress, the plaintiff must present credible evidence either by competent medical proof or by the circumstances of the case. Psychiatric or other medical treatment is not a precondition to recovery. Mental and emotional distress may be proved by the plaintiff's own testimony corroborated by reference to the circumstances of the alleged misconduct.
In determining the amount of any damages that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guesswork. On the other hand, the law does not require that the plaintiff prove the amount of his losses with mathematical precision, but only with as much definiteness and accuracy as the circumstances permit.
(Tr. 661-63.)
The jury, having been informed of the relevant law, was given two questions on the special verdict form:
1. Is the defendant liable to the plaintiff based on the plaintiff's claim of retaliation for filing his March 25, 2000 complaint?
2. If you answered yes to the preceding question, then what is the dollar amount of damages that would compensate the plaintiff for any damages, he suffered because of the defendant's violation of his rights, which you found in response to the preceding question?
(Tr. 664-65.) Having heard the evidence and assessed the credibility of witnesses, the jury returned a verdict in favor of the plaintiff, finding the defendant liable for unlawful retaliation. In response to the second question, the jury awarded the plaintiff $140,000.00 for pain and suffering.
B.
The defendant renews its Rule 50(a) motion, and pursuant to Federal Rule of Civil Procedure 50(b), it asks the Court to set aside the jury award of $140,000 in compensatory damages for the plaintiff's emotional distress. Relying on Annis v. County of Westchester, 136 F.3d 239 (2d Cir. 1998), the defendant argues that to recover emotional distress damages under Title VII, a plaintiff must offer evidence of "concrete emotional problems." Id. at 249. In Annis, the Court of Appeals vacated a compensatory damages award in a sexual harassment case under 42 U.S.C. § 1983 because the plaintiff had not "alleged any physical manifestations of her emotional distress," and although she testified to seeking counseling, she introduced no evidence to corroborate that claim.Id.
The defendant has not attempted to argue that it is entitled to judgment as a matter of law under Rule 50 or a new trial under Rule 59 on the ground that there was error in the jury's finding that there was retaliation, including the necessary element that the plaintiff suffered a materially adverse employment action. See Reiter, 2002 WL 31190167, at *10.
Citing decisions that followed the rationale in Annis, the defendant contends that the plaintiff is not entitled to any compensatory damages because he failed to establish the physical manifestations of his alleged distress and offered no evidence other than his own self-serving testimony to corroborating the source or severity of his emotional suffering. See Ortiz-Del Valle v. Nat'l Basketball Ass'n, 42 F. Supp.2d 334, 341 (S.D.N.Y. 1999) (following Annis rejecting, as matter of law, damages for emotional distress in Title VII gender discrimination case where plaintiff's own testimony was only evidence of distress and plaintiff alleged no physical manifestations); cf. Uddin v. New York City, No. 99 Civ. 5843, 2001 WL 1512588, at *5 (S.D.N.Y. Nov. 28, 2001) (refusing, in Title VII national origin discrimination case, to readAnnis so broadly as to require corroborating testimony of emotional distress because "such a reading would be inconsistent with the well-established general proposition that fact-finding and credibility are matters for the jury," but following requirement that plaintiff show physical manifestations of emotional distress).
In Patrolmen's Benevolent Assoc. v. City of New York, 310 F.3d 43 (2d Cir. 2002), the Court of Appeals for the Second Circuit clarified the impact of Annis on the proof required to obtain emotional distress damages. While Patrolmen's Benevolent Assoc., like Annis, was a case brought under § 1983, there is no reason to apply different standards to the award of compensatory damages for emotional distress under Title VII. InPatrolmen's Benevolent Assoc., the Court of Appeals noted that the plaintiff must establish actual injury and the award must be "supported by competent evidence concerning the injury." Id. at 55 (quoting Carey v. Piphus, 435 U.S. 247, 264 n. 20 (1978)). 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."Id. Upholding a $50,000 award, the Court of Appeals specifically concluded that "Annis should not be read to require physical symptoms of emotional distress." Id. at 56.
In this case, the plaintiff testified to being "humiliated" and "embarrassed." He described the period after his transfer as "stressful" because of "having nothing to do, of not feeling right about the job, about, about yourself, what you're doing, what you can do." (Tr. 161.) He stated that he felt "[n]ervous, anxious, tense, on edge," and sometimes his body felt "clammy." (Tr. 356.) The plaintiff has not alleged extensive physical manifestations of his emotional distress. He admitted that he did not suffer from sleeplessness or loss of appetite, and he never sought counseling for any emotional problem. (Tr. 370.)
In this case, there was some evidence of minimal physical manifestations from the plaintiff's testimony and that was corroborated by the circumstances of the adverse employment action, which included objective conditions that caused his emotional distress. See Patrolmen's Benevolent Assoc., 310 F.3d at 55. He testified to the loss of self-esteem, stress, and anxiety caused by being transferred to a position with far less status, responsibility, and purpose. He offered evidence of more demeaning office conditions, isolation from his peers, and exclusion from executive meetings and retreats. See Walz v. Town of Smithtown, 46 F.3d 162, 170 (2d Cir. 1995) (upholding award for "Mistress and discomfort" under § 1983 where plaintiffs' home lost water for protracted period and where plaintiffs were "shocked" and "shaking" because of contacts with defendants).
The discussion, below, of whether to grant a remittitur confirms the validity of compensatory damages in this case. The evidence of emotional distress in this case is similar to many discrimination or retaliation claims, where the 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.See Fowler, 2001 WL 83228, at *13-14 (describing "garden-variety" claims). In those cases, compensatory damages have been allowed, although the courts have reduced excessive awards.
It was proper for the jury to weigh the credibility of the plaintiff's complaints and to determine whether the circumstances described by the plaintiff caused him emotional distress. See Uddin, 2001 WL 1512588, at *5. The jury's verdict cannot be vacated as a matter of law. The motion pursuant to Rule 50(b) is therefore denied.
C.
The defendant argues that, even if the plaintiff is entitled to some compensatory damages as a matter of law, the jury award was excessive, and, pursuant to Rule 59(a), the Court should grant a new trial because the jury has reached a "seriously erroneous result" and "the verdict is a miscarriage of justice." Patrolmen's Benevolent Assoc., 310 F.3d at 54 (internal quotations omitted); Katara, 835 F.2d at 970; Newmont Mines, 784 F.2d at 132; Fowler, 2001 WL 83228, at *2. For the reasons explained above, there was sufficient evidence presented at trial for the jury to find that the defendant retaliated against the plaintiff, causing him to suffer stress, anxiety, and a loss of professional status. There was no seriously erroneous result or miscarriage of justice requiring a new trial, and any excessiveness in damages will be the subject of a remittitur. The motion pursuant to Rule 59(a) is denied.
D.
In the alternative to a new trial, the defendant seeks a remittitur pursuant to Rule 59(e), asking the Court to reduce the plaintiff's damages to $5000-$10,000 because $140,000 is so excessive as to "shock the judicial conscience." See Ismail, 899 F.2d at 186. While respecting the jury's role in determining damages, a court may "reduce an award where there is 'sparse evidence with respect to the magnitude and duration of emotional injury or mental distress' in order to guard against awards based on speculation." Trivedi v. Cooper, No. 95 Civ. 2075, 1996 WL 724743, at *8 (S.D.N.Y. Dec. 17, 1996) (quotingMcIntosh v. Irving Trust Co., 887 F. Supp. 662, 665 (S.D.N.Y. 1995) ("It is this Court's function, while appropriately respecting the jury's crucial role, to guard against such speculative damage awards.")) Although the plaintiff presented sufficient evidence to defeat motions for judgment as a matter of law and for a new trial, the jury award is shockingly excessive in light of the minimal evidence of actual emotional distress damages and the objective details of the retaliation involved in this case.
In evaluating the reasonability of a jury award in a retaliation or discrimination suit, it is useful to look at "the duration, extent and consequences of the mental anguish suffered by plaintiff" and to see whether the case fits into a class of "so-called 'garden-variety' mental-anguish claims, in which the awards hover in the range of $5,000 to $30,000." Bick v. City of New York, No. 95 Civ. 8781, 1998 WL 190283, at *25 (S.D.N.Y. Apr. 21, 1998). In such cases, the evidence usually is limited to the testimony of the plaintiff, who describes the emotional distress in vague or conclusory terms, presents minimal or no evidence of medical treatment, and offers little detail of the duration, severity, or consequences of the condition. See Fowler, 2001 WL 83228, at *13 (reviewing awards in "garden variety" cases); see also Hill v. Airborne Freight Corp., 212 F. Supp.2d 59, 73-74 (E.D.N.Y. 2002) (comparing cases "entailing a plaintiff's general testimony of humiliation and stress, without medical corroboration" where damages "have generally been awarded in the range of $5,000 to $100,000");Borja-Fierro v. Girozente Vienna Bank, No. 91 Civ. 8743, 1994 WL 240360, at *3-4 (S.D.N.Y. May 27, 1994) (analyzing case where testimony about distress was "brief, not particularly strong, and included a single reference to a visit to a psychologist," and finding "no case based on similar facts in which an award of over $15,000 was upheld; in the vast majority of cases, courts found awards of $5,000 to $10,000 to be appropriate").
The plaintiff's injury in this case falls in the low end of the spectrum of "garden-variety" claims. The plaintiff testified to feeling "stressed," "nervous," "on edge," and "clammy," but he also admitted that he never had trouble eating or sleeping and he never sought medical or psychological help. Cf. Fowler, 2001 WL 83228, at *13-15 (characterizing case as not on low end of "the 'garden variety emotional distress' spectrum" because plaintiff sought medical treatment, including seven therapy sessions, but reducing award from $50,000 to $20,000 because plaintiff provided little evidence quantitatively or qualitatively of lasting problems or objective physical manifestations of distress). Reiter's case is similar to-and in fact, there is even less evidence than-the case in McIntosh, where this Court reduced the compensatory damages award from over $219,428 to $20,000 because the plaintiff
did not testify in any detail with respect to the magnitude or duration of any mental distress. He did not testify that his life activities were curtailed in any way. Additionally, there was no evidence that plaintiff sought any medical or psychological help except for one visit to a doctor. . . .McIntosh 887 F. Supp. at 664-65, cited in Tanzini v. Marine Midland Bank, 978 F. Supp. 70, 79-80 (S.D.N.Y. 1997) (reducing award from $200,000 to $30,000 where discrimination was "a very traumatic experience," but plaintiff did not detail "the duration or magnitude of his emotional injuries" and produced no evidence of medical or psychological treatment); see also Kim v. Dial Serv. Int'l, No. 96 Civ 3327, 1997 WL 458783, at *12-13 (S.D.N.Y. Aug. 11, 1997) (evaluating $300,000 award under "shock the conscience" standard and reducing it to $25,000 because plaintiff complained only of general problems, like feeling gloomy, losing weight, and having trouble sleeping); Trivedi, 1996 WL 724743, at *9 (reducing $700,000 award to $50,000, which was "the maximum that does not shock the judicial conscious" where there was "no evidence of psychological counseling, [or] physical manifestations of distress"); Buffalo Athletic Club v. State Div. of Human Rights, 672 N.Y.S.2d 210, 211 (App.Div. 1998) (reducing $20,000 award to $10,000 where plaintiff felt irritable and stayed in bed with headaches and stomach problems).
The plaintiff contends that if a remittitur is granted, the plaintiff's award should only be reduced to $125,000, because, according to the court in Meachum v. Knolls Atomic Power Laboratory, 185 F. Supp.2d 193, 220-21 (N.D.N.Y. 2002), that is the maximum award permitted in "garden-variety" cases. But even compared to so-called "garden-variety" cases, the evidence of Reiter's anguish is sparse quantitatively and qualitatively. Unlike in most of the cases cited above, including Meachum, Reiter did not lose his job or suffer a loss in income-factors that increase the humiliation and anxiety connected with discrimination or retaliation. InMeachum, for example, the court awarded $125,000 to one plaintiff, who, after being terminated from the employment he held for thirty years, testified that he "suffered stress at the loss of his job as he was the sole support for his family, he suffered sleeplessness for months, he was lethargic, he felt small and inadequate, and he has worried constantly . . . about having his employment terminated again."Id. at 221.
In addition to the fact that the plaintiff's symptoms inMeachum were more severe than in this case-where the plaintiff did not lose sleep and filled his time at work by reading journals and learning to use his computer-the award inMeachum was substantially more generous that in similar cases. In Miner v. City of Glens Falls, 999 F.2d 655 (2d Cir. 1993), for example, the court affirmed an award of $12,000 for a discharged police officer who had feelings of inadequacy due to his inability to provide for his family; suffered embarrassment while applying for public assistance in front of acquaintances; felt stress at being forced to sell his new home; experienced deteriorating relations with his family; and considered committing suicide. Id. at 662. In Binder v. Long Island Lighting Co., 847 F. Supp. 1007 (E.D.N.Y. 1994), rev'd on other grounds, 57 F.3d 193 (2d Cir. 1997), a terminated plaintiff testified to the stress of not being able to meet his financial obligations, but the court reduced his almost $500,000 award for pain and suffering to just $5000 because he offered little concrete evidence of distress. Id. at 1028; see also Hill, 212 F. Supp.2d at 73 (reducing $150,000 award to $50,000 where plaintiff's termination left him unable to support his wife and three children, leading to family problems and separation); Tanzini, 978 F. Supp. at 78 (reducing $200,000 award to $30,000 where plaintiff spent sleepless nights contemplating change in lifestyle due to loss of income);McIntosh 887 F. Supp. at 664 (describing how plaintiff's termination caused him such shame that he avoided his family and had "feelings of inadequacy because his wife had to support him," and setting $20,000 as reasonable damages).
Moreover, the circumstances surrounding the violation in this case were not egregious or demeaning, as they were in other discrimination or harassment cases where higher awards have been granted. See, e.g., N.Y. City Transit Auth. v. State Div. of Human Rights, 581 N.Y.S.2d 426, 429 (App.Div. 1992) (affirming $450,000 award in pregnancy discrimination case, which hearing judge found to be "the most shocking instance of abuse of an employee by an employer"); see also Hill, 212 F. Supp.2d at *67-68 (expalining how plaintiffs' managers consistently used racial slurs toward plaintiffs); Ginsburg v. Valhalla Anesthesia Assocs., P.C., No. 98 Civ. 6264, 1997 WL 669870 (S.D.N.Y. Oct 28, 1997) (reducing award from $400,000 to $100,000 in case where pregnant woman, who was also caring for autistic child, lost her job because she could not return to work during her maternity leave); Anderson v. YARP Rest., Inc., No. 94 Civ. 7543, 1997 WL 27043, at *2-4, 8 (S.D.N.Y. Jan. 23, 1997) (finding $65,000 award reasonable where plaintiff was subjected to continuous verbal and physical sexual harassment and suffered extensive emotional trauma, documented by her therapist).
In sum, the plaintiff, while testifying to feelings of distress-being stressed, nervous, on edge, clammy-as well as the circumstances creating his distress, did not detail the severity, duration, or consequences of his mental suffering, which were relatively minor on all fronts. The evidence of his mental injury is largely vague and conclusory testimony, without any evidence of medical treatment, and there are no signs that his demotion disrupted his family or personal life. Moreover, the plaintiff, while suffering some loss of status, retained a significant job at the same salary, which increased with 4 standard raises to over $125,000. The jury award of $140,000 is plainly based on sympathy or speculation rather than dispassionate common sense. See McIntosh, 887 F. Supp. at 664-65 ("Because 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.")
Based on a review of comparable cases and the evidence presented in this case, an award for compensatory damages in excess of $10,000 would shock the judicial conscience. The defendant's motion pursuant to Rule 59(e) is granted, and the Court will order a new trial on the issue of compensatory damages unless the plaintiff agrees by October 21, 2003, in writing, to a remittitur reducing the award to $10,000.
The defendant argues that if the Court orders a new trial, the trial should concern the liability issue as well as damages because, it claims, those issues are so closely connected. See In re Joint E. Dist. S. Dist. Asbetos Litig., 995 F.2d 343, 346 (2d Cir. 1993); Trivedi, 1996 WL 724743, at *9-10 (ordering new trial on liability and damages because extent of damages depended on extent of liability and issue of causation). In this case, the jury found the defendant liable for unlawful retaliation. The defendant has not challenged that finding. The only disputed issue is the amount of damages and that issue can be tried as a discrete issue without retrying the issue of liability.
II.
Having received a favorable verdict, the plaintiff submitted a request for equitable relief pursuant to 42 U.S.C. § 2000e-5(g)(1), seeking, among other things, reinstatement as "Head of Engineering Services." The defendant responded that reinstatement should not be ordered because another employee, Cosema Crawford, had filled the plaintiff's requested position, and removing her would be unfair to her and overly disruptive to the NYCTA. The defendant further contended that reinstating the plaintiff would be impractical because his supervisor would be Nagaraja, and the hostility between the two would prevent them from having a functional working relationship. Because of organizational changes in the NYCTA that occurred in late July 2003, the parties' positions have changed. The Court thus received supplemental submissions from the parties.A.
Following the plaintiff's transfer to Technical Services, the NYCTA temporarily filled the position of DVP Engineering Services with another executive before searching for a full-time replacement. (Nagaraja Aff. ¶ 9.) During the search, the NYCTA decided to add certain responsibilities to the job and upgrade it to Vice President and Deputy Chief Engineer. (Id. ¶ 10.) These added responsibilities included, among other things, cost estimating, project scheduling, sustainable design, and internal audits and close outs. (Id.; Aff. of Cosema Crawford sworn to Feb. 6, 2003 ("Crawford Aff."), ¶ 4.)
In May 2001, Cosema Crawford ("Crawford") was hired as Vice President of Engineering Services ("VP Engineering Services"). (Nagaraja Aff. ¶ 11.) Crawford was hired away from a highly-regarded engineering and consulting firm in the private sector, has over 20 years experience working on complex design and construction projects, and has authored a number of articles on these subjects. (See id.; Crawford Aff. ¶ 3.) She stated that she would not have taken the position without the added responsibilities. (Crawford Aff. ¶ 7.)
At the time she started working her responsibilities included: serving as second in command to Nagaraja, the SVP-CPM; overseeing sustainable design efforts; maintaining the Chiefs of Engineering Services, which at that time were Civil/Structural, Mechanical, Electrical, Communications, Architectural, Environmental, Program Coordination, Code Compliance Engineering Support Services, Scheduling, Estimating, and Internal Controls (which included sustainable design and closeouts); allocating and developing professional resources; reviewing and signing off on drawings; developing technical standards and guidelines; directing procurement and contract management strategies for all program areas; providing technical support in disputes with vendors; and public speaking and industry outreach on behalf of the NYCTA. (Supplemental Aff. of Cosema Crawford sworn to Sept. 5, 2003 ("Crawford Suppl. Aff.") ¶ 3; Second Supplemental Aff. of Mysore L. Nagaraja sworn to Sept. 5, 2003 ("Nagaraja Suppl. Aff."), ¶ 15.) Three Chief positions-Scheduling, Estimating, and Internal Controls-have been transferred to Engineering Services since Crawford was hired. (Crawford Suppl. Aff. ¶ 3; Nagaraja Suppl. Aff. ¶ 9.)
Crawford later received additional responsibilities, such as overseeing compliance with the Americans with Disabilities Act on capital projects, including station accessibility mandates. (Crawford Aff. ¶ 8.) Since September 11, 2001, she has also taken on significant transit rebuilding efforts. (Id.) In her position, Crawford states, she has made changes in how Engineering Services is managed by delegating discretion to Chiefs who are experts in particular fields. (Crawford Suppl. Aff. ¶ 6.)
On January 23, 2003, the jury returned its verdict, finding the defendant liable for unlawfully retaliating against the plaintiff by transferring him to DVP Technical Services. The plaintiff then submitted his request for equitable relief, seeking, among other things, reinstatement as Head of Engineering Services — the position, which, at the time, was held by Crawford.
On April 23, 2003, this Court appointed Judge Kenneth Conboy as Special Master to attempt to resolve the issues of equitable relief. The parties were unable to agree on the appropriate equitable relief.
On July 30, 2003, the MTA approved the creation of MTA Capital Construction Co. ("MTA Capital") and named Nagaraja President of MTA Capital. (Crawford Suppl. Aff. ¶ 7; Nagaraja Suppl. Aff. ¶ 2.) MTA Capital was formed for the purpose of overseeing large scale capital projects relating primarily to the expansion of the transit system, such as the Second Avenue Subway project. As such, the management of several large projects has been transferred from CPM to MTA Capital. (Crawford Suppl. Aff. ¶¶ 7-8; Nagaraja Suppl. Aff. ¶ 18.)
On August 4, 2003, Crawford was named acting SVP of CPM. (Crawford Suppl. Aff ¶ 7; Nagaraja Suppl. Aff. ¶ 3.) The creation of MTA Capital has thus created an opening in CPM, such that the plaintiff could be reinstated to his original position as DVP Engineering Services without displacing Crawford or creating a potentially hostile work relationship with Nagaraja. The defendant has agreed that the plaintiff could be returned to his prior position as DVP Engineering Services with the core responsibilities he had prior to the transfer. The plaintiff, however, has responded by demanding the VP Engineering position, including the expanded functions exercised by Crawford.
B.
The plaintiff seeks equitable relief under 42 U.S.C. § 2000e-5(g) (1), which provides that if the defendant has engaged in an unlawful employment practice, "the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement . . . or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g)(1).
1.
Because Nagaraja has left the NYCTA and Crawford has been promoted, there is no longer any practical obstacle to ordering the plaintiff's reinstatement to his prior position, and the defendant has submitted that it will "appropriately effectuate any reinstatement order." (Letter from Defense Counsel to the Court dated Sept. 5, 2003, at 1.) The plaintiff, however, argues that to be made whole, he should be given the position of Vice President of Engineering Services.
Reinstatement is the favored form of relief in discrimination and retaliation cases. See Shea v. Icelandair, 925 F. Supp. 914 (S.D.N.Y. 1996) ("Courts strongly favor reinstatement over alternative forms of relief."); Rao v. N.Y. City Health Hosps. Corp., 882 F. Supp. 321, 329 (S.D.N.Y. 1995) (noting that reinstatement is preferred because it "serves the general purpose of making the plaintiff whole"); Miano v. AC R Adver., Inc., 875 F. Supp. 204, 224 (S.D.N.Y. 1995) (recognizing "the strong preference for reinstatement"); see also Whittlesey v. Union Carbide, 742 F.2d 724, 728 (2d Cir. 1984) (observing that reinstatement makes plaintiff whole with least amount of uncertainty by reestablishing prior employment relationship). Defendants who resist reinstatement generally have to show why that remedy is not feasible. See Shea, 925 F. Supp. at 1030 (explaining that reinstatement may not be feasible when (1) plaintiff's position has been changed or eliminated, (2) reinstatement would displace innocent third party, or (3) relationship between parties is too damaged). Plaintiffs who are offered reinstatement in the course of litigation generally have to justify rejecting it. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982) (ruling that plaintiffs, as part of duty to mitigate damages, must accept offer of reinstatement unless there is reasonable justification to refuse it); Miano, 875 F. Supp. at 224 (examining whether plaintiff justifiably rejected offer because reinstatement is preferred remedy).
While the issue of reinstatement may have been difficult before the creation of MTA Capital, there is no longer any reason why that remedy is not feasible. The plaintiff notes that the position of DVP Engineering Services no longer exists, having been transformed into the position of VP Engineering Services. But courts often order reinstatement to a nominally eliminated position where an employee's former responsibilities were merely redistributed. See Losciale v. Port Auth., No. 97 Civ. 0704, 1999 WL 587928, at *6-7 (S.D.N.Y. 1999) (reinstating plaintiff in ADEA case, even though position was eliminated, because corporate structure was not rigid and defendant could reassign old functions to plaintiff). The plaintiff is entitled to be placed in the position that he would have been in had there been no retaliation-that is, his prior position, not the enhanced position offered to Crawford and accepted by her.
The plaintiff claims that he should receive the enhanced position and title that Crawford had because he would have received the position if there had been no retaliation. However, this is not a case likePrice Waterhouse v. Hopkins. 490 U.S. 228 (1989), where the plaintiff claimed that she was denied a promotion because of discrimination. There is no evidence proving that Reiter would have been entrusted with the responsibilities that were given to Crawford in part to recruit her. Restoring Reiter to the position he previously held with the same core functions will make him whole. The Court therefore orders that the plaintiff be reinstated as Deputy Vice President of Engineering Services, with his title restored retroactively to the date of transfer so that his resume will be corrected.
In his position as DVP Engineering Services, the plaintiff should have the core responsibilities he held prior to being transferred, but without the additional responsibilities given to Crawford at the time she filled the position or after. The plaintiff will report directly to the Senior Vice President of Capital Program Management (currently Crawford); supervise and manage the operational chiefs of engineering services; allocate and develop professional resources; review and approve technical drawings; develop technical standards and guidelines; and provide technical support in disputes with vendors. (See PI. Att'y's Decl. in Supp. of Pl.'s Req. for Equitable Relief, Ex. 6 (providing NYCTA Management Position Questionnaire that described duties of DVP Engineering Services as of 1995).) The plaintiff's position shall have a Hay Point rating of 1560-the same it was when the plaintiff was transferred — and the plaintiff's salary shall remain at least at its current level, which is higher than when he was transferred. Finally, a confidential secretary should be assigned to assist the plaintiff, and he should be moved to an office comparable to the one he previously had as DVP Engineering Services.
The defendant has requested that, in light of the reorganization occurring within CPM, the specific functions assigned to the plaintiff as DVP Engineering Services should be allowed to change. All organizations undergo structural change, and, in particular, the creation of MTA Capital and the promotion of Crawford may lead to the reorganization of CPM. Moreover, there is no reason to believe that Crawford-the person responsible for the potential reorganization-has any hostility toward the plaintiff. The plaintiff's specific job functions and direct reports, therefore, shall remain flexible and may be changed for legitimate business reasons.
2.
The plaintiff requests that the seven vacation days he used to attend this trial be restored to him. There is no evidence that requiring a worker to take vacation days for trial is inconsistent with company policy. There is, therefore, no reason to view the vacation days as a "cost" of litigation, nor is there a reasonable basis for awarding these days to the plaintiff.
3.
The plaintiff is not entitled to back pay in the form of lost compensation or benefits. The only claim to lost compensation involves a $4000 raise in 2001 that the plaintiff did not receive. The evidence at trial, however, established that only 40% of the managers eligible for the raise actually received it. Moreover, the plaintiff admitted that it was "[m]ore likely" that he would not have received the raise even if he were DVP Engineering Services. (Tr. 280.) The plaintiff has not established that he is entitled to the 2001 raise, and similarly there is no evidence that his pension benefits were reduced in any way because that claim was premised on being awarded the 2001 raise. The plaintiff's pension benefits were not reduced because of his transfer and therefore there is no adjustment necessary to place the plaintiff in the position he would have been in without the retaliation. His pension benefits are in that position already.
4.
The plaintiff requested front pay in the amount of $1.8 million. The request was made in the alternative if the plaintiff did not receive his first preference of reinstatement, and the plaintiff is being reinstated. Moreover, there is no basis for the requested front pay. The plaintiff has at all times continued to be employed in a senior executive position at the NYCTA. He has not lost his job. The request for front pay is frivolous.
5.
The plaintiff asks for a permanent injunction to prevent future retaliation. Nagaraja is no longer the head of CPM, and there is no showing that Crawford would retaliate against the plaintiff in any way. There is no need for the injunction sought. Moreover, as explained above, the plaintiff's job functions should not be frozen.
6.
The plaintiff is not entitled to prejudgment interest. Under Title VII, it is in a court's discretion to grant prejudgment interest on awards for pain and suffering and emotional distress, but courts have declined to do so when it is unnecessary to make the plaintiff whole. See Lamberson v. Six W. Retail Acquisition, Inc., No. 98 Civ. 8052, 2002 WL 207016, at *1 (S.D.N.Y. Feb. 11, 2002); Gilbert v. Hotline Delivery, No. 00 Civ. 0160, 2001 WL 799576, at *4 (S.D.N.Y. July 10, 2001). In this case, the Court has set the amount of compensatory damages at the reasonable amount to make the plaintiff whole, and, therefore, prejudgment interest is unnecessary. The plaintiff's award will, of course, accrue post-judgment interest from the date of entry of the judgment, at the statutory rate. See 28 U.S.C. § 1961(a).
7.
The plaintiff is entitled to reasonable costs and attorney's fees pursuant to 42 U.S.C. § 2000e-5(k). However, the Court has ordered a remittitur, so no final judgment can yet be entered. Upon entry of final judgment, the plaintiff is entitled to file a bill of costs and a motion for attorney's fees and costs. See Fed.R.Civ.P. 54(d)(1), (2).
The foregoing represents the Court's findings of facts and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
Conclusion
The defendant's motions for a judgment as a matter of law pursuant to Rule 50 and a new trial pursuant to Rule 59(a) are denied. The motion for remittitur pursuant to Rule 59(e) is granted and the award will be reduced from $140,000 to $10,000. If the plaintiff does not accept the reduced award by October 21, 2003, a new trial will be ordered on the issue of damages.
With respect to the plaintiff's request for equitable relief:
(1) The defendant is required to reinstate the plaintiff as Deputy Vice President of Engineering Services, with the same core responsibilities he had before being demoted; with a Hay Point ranking of 1560; and with an office and confidential secretary comparable to what he had as DVP Engineering Services.
(2) The plaintiff is not entitled to recoup seven days vacation time he spent at trial as "costs" of litigation.
(3) The plaintiff is not entitled to back pay in the form of the 2001 raise or additional pension benefits.
(4) The plaintiff is not entitled to front pay.
(5) The Court will not grant a permanent injunction to enjoin any future retaliation nor will it freeze the plaintiff's job functions.
(6) The plaintiff is not entitled to pre-judgment interest but he will be able to receive post-judgment interest.
(7) The plaintiff is entitled to attorney's fees and costs but must file appropriate applications upon entry of a final judgment.
SO ORDERED.