Opinion
01-CV-6302.
January 29, 2005
DECISION AND ORDER
Background
Plaintiff brought this lawsuit alleging that he was discriminated against on the basis of his sex in the form of quid pro quo sexual harassment and was thereafter retaliated against by his employer for having complained about the harassment. A four day jury trial was completed on October 9, 2003. The jury returned a verdict in favor of the plaintiff on his retaliation claim only and awarded punitive damages in the amount of $30,000.00.
Presently before the Court are: (1) defendant's post-trial Motions for Judgment as a Matter of Law (JMOL) or for a New Trial (Docket #36); and (2) plaintiff's application for back pay (Docket #45). Following argument of these motions, the parties advised the Court that they were attempting to resolve their disputes and asked the Court to postpone a ruling on the motions. Thereafter, the Court was notified that all settlement discussions had dissolved and the parties were jointly requesting that the Court determine the post-trial issues.
Discussion
Rule 59 (a) Motion For a New Trial: A trial court should grant a motion for a new trial when it is convinced that the jury has reached a seriously erroneous result, or that the verdict is a miscarriage of justice. Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998); Piesco v. Koch, 12 F.3d 332, 345 (2d Cir. 1993). The defendant alleges that a new trial is warranted because: (1) plaintiff lied about "every single incident of harassment" and its "witnesses were never impeached" and (2) the jury's verdict finding retaliation, but no quid pro quo harassment, "makes no sense." See Defendant's Memorandum of Law (Docket #38) at page 2-3.Like many trials involving claims of discrimination and retaliation, the jury in this case was required to make assessments on the credibility of the witnesses. Here, plaintiff testified at length regarding the conduct of Doreen King and Robert Nevil and the events culminating in his termination on November 20, 1998. Whether or not this Court would make the same decision as the jury is not the issue. See Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983) ("It is well settled that a trial judge's disagreement with the jury's verdict is not sufficient reason to grant a new trial."). Particularly "[w]here the resolution of the issues depended on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial."Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992), cert. denied, 508 U.S. 952 (1993). The jury's verdict pays tribute to the fact that they believed plaintiff was terminated because he complained about being sexually harassed by Doreen King and not solely because of economic difficulties faced by the defendant. This Court will not disturb that finding. See Holt v. Home Depot, U.S.A., Inc., 2004 WL 178604, *2 (D. Conn. January 22, 2004) ("The jury's verdict may be fairly debatable, as many verdicts are, but by no means is it clearly erroneous or unjust.").
The defendant also argues that the jury's finding that there was no quid pro quo sexual harassment necessarily means plaintiff had no reason to complain about any harassment and, thus, could not have been retaliated against. The verdict as to quid pro quo and retaliation was not inconsistent. First, it is well settled that a retaliation claim is not dependent on the ultimate merits of any underlying discrimination claim and that an employee may be successful in a retaliation claim even if he does not prevail in the discrimination claim. Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986) ("A finding of unlawful retaliation is not dependent on the merits of the underlying discrimination complaint."). Moreover, even a potential inconsistency is not enough to warrant the granting of a new trial. "Before a court may set aside a special verdict as inconsistent and remand for a new trial, it must make every attempt to reconcile the jury's findings, by exegesis if necessary." Turley v. Police Department of City of New York, 167 F.3d 757, 760 (2d Cir. 1999) (internal quotation and citation omitted). "The court must search for a reasonable way to read the verdicts as expressing a coherent view of the case (citation omitted), and if there is any way to view a case that makes the jury's answers to the special verdict form consistent with one another, the court must resolve the answers that way even if the interpretation is strained." McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1311 (2d Cir. 1993). Application of these principles to the case at bar demands rejection of defendant's new trial motion. Here, it was entirely plausible that the jury found that Doreen King either did not have the authority to cause plaintiff's termination or was not involved in defendant's decision to terminate plaintiff after he complained about sexual harassment. See DeWitt v. Lieberman, 48 F. Supp. 2d 280, 289 (S.D.N.Y. 1999) ("If the supervisor possesses no authority to affect the benefits or privileges of employment, a plaintiff cannot sustain a quid pro quo claim of sexual harassment."). Thus, the jury could have reasonably determined that while plaintiff did not prove that he was subjected to quid pro quo sexual harassment, he was fired from his job because he complained about being sexually harassed by Doreen King. See Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 65 (2d Cir. 1992) (internal complaint made by employee to company management protesting the sexually harassing conduct of supervisor was protected activity within the policies of Title VII).
Rule 50 (b) Motion for Judgment as Matter of Law (JMOL): In ruling on defendant's JMOL, this Court "is required to 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 men could have reached." Sir Speedy, Inc. v. LP Graphics, Inc., 957 F.2d 1033, 1038-39 (2d Cir. 1992) (internal citations and quotations omitted). See Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 60 (2d Cir. 1993) (because the trial judge cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury, nonmoving party must be given the benefit of all reasonable inferences in Rule 50 (b) motion determinations). With this legal standard firmly in mind, the Court considers the grounds for defendant's request for relief.
Defendant's Rule 50(b) motion has three prongs. First, defendant claims there was no proof of retaliation and that the decision to terminate plaintiff was based solely on "business conditions." See Defendant's Memorandum of Law (Docket #38) at page 8. For the reasons earlier stated, it is not this Court's role in deciding post-trial motions to second guess the jury's credibility determinations in whether to believe or disbelieve a witness. Viewing the record in the light most favorable to plaintiff, there was evidence upon which a jury could have determined that plaintiff's termination was influenced by his complaints to Robert Nevil (one of four principals of defendant corporation) about being sexually harassed by Doreen King. Nevil met with plaintiff and other drivers employed by defendant in early November 1998. Plaintiff testified that Nevil informed the drivers that although the business environment was challenging and some layoffs had occurred, there was still a high demand for deliveries and all the drivers' jobs were "secure." See October 7, 2003 Trial Testimony of David Tuszynski at page 8. At the conclusion of the meeting, plaintiff testified that he approached Nevil and explained that he was being sexually harassed by King. According to plaintiff, Nevil expressed shock, promised to look into the matter and told plaintiff that "you got nothing to worry about." Id. at 12-13.
A week to ten days later, King called plaintiff and told him to immediately return to the office. When plaintiff arrived, he was informed by Tony Artessa and Greg Lopresti (two principals of defendant) that he was being fired. Plaintiff testified that although he was among the most senior drivers with the company, he nevertheless told Artessa and Lopresti that he would be willing to take a pay cut. His offer, however, was rejected. Plaintiff then asked Artessa and Lopresti whether his termination had anything to do with his recent complaint to Nevil about King's sexual advances towards him. Atressa denied knowing anything about the King harassment allegations and asked plaintiff if he wanted to make a complaint about King "now." Plaintiff testified that he was so frustrated, he "just stood up and walked out." Id. at 15-20. The meeting in which plaintiff was fired occurred in Nevil's office.
The fact that Nevil was not present at the plaintiff's termination, and that both Artessa and Lopresti denied knowledge of plaintiff's complaints about Doreen King, does not shield defendant from a finding of retaliation. The defendant corporation was a closely held and operated organization and the jury need not have credited Artessa and Lopresti's claim of ignorance of the King harassment allegations. Indeed, the timing of plaintiff's termination, coming within a week or so after being assured by Nevil that (1) driver layoffs were not being contemplated and (2) Tuszynski had "nothing to worry about" after he reported that King sexually harassed him, would be circumstantial evidence of retaliation. Proof of the causal connection between plaintiff's protected activity in reporting King's alleged sexual harassment and his termination "can be established indirectly by showing that the protected activity was closely followed in time by the adverse [employment] action."Manoharan v. Columbia University, 842 F.2d 590, 593 (2d Cir. 1988). See Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986) (inference of discrimination established where protected activity followed closely by adverse personnel actions). Moreover, the jury could have rejected defendant's economic justifications for plaintiff's termination based on the fact that (1) plaintiff was the only driver who was terminated, (2) Nevil had recently assured all drivers, including plaintiff, that layoffs were not contemplated for drivers, (3) defendant's immediate rejection of plaintiff's offer to remain employed solely as a driver at a lower hourly rate, and (4) another individual (Scott Grepenster) was hired to perform many of plaintiff's job duties a few months after plaintiff was fired. See Holt v. Home Depot, U.S.A., Inc., 2004 WL 178604, *2 (D. Conn. January 22, 2004) (jury was entitled to reject defendants' testimony that they were unaware that plaintiff had complained about her immediate supervisor as pretextual in light of how the sequence of events unfolded).
Defendant next asserts that there was "no proof to support punitive damages." Defendant's Memorandum of Law (Docket #38) at page 9-10. Defendant objects to the Second Circuit's holding inCush-Crawford v. Adchem Corporation, 271 F.3d 352, 357 (2d Cir. 2001) that "[a]n award of actual or nominal damages is not a prerequisite for an award of punitive damages in Title VII cases," yet concedes that this Court is bound to follow it. Alternatively, defendant argues that the jury erred in awarding punitive damages based on the proof presented. To justify punitive damages, plaintiff "need not show that the defendant committed egregious or outrageous acts," but simply that the employer "discriminated in the face of a perceived risk that its actions will violate federal law." Id. at 356 (quoting Kolstad v. American Dental Assoc., 527 U.S. 526, 536 (1999). Defendant concedes that it had a company policy expressly forbidding all forms of discrimination and retaliation. The jury was entitled to find that defendant's retaliatory actions toward plaintiff in apparent violation of its own anti-discrimination policy met the "reckless indifference" threshold and, thus, punitive damages were within the jury's discretion to award.
Defendant seeks a remittitur of punitive damages or a partial new trial on damages. Relying on the Supreme Court's decision inBMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), defendant argues that the ratio between punitive damages and compensatory damages is "infinite" here and, thus, the "punitive damage award should be reduced to zero". See Defendant's Memorandum of Law (Docket #38) at page 12. However, the ratio analysis set forth Gore is not as relevant in cases where, as here, the jury declines to award compensatory damages. See, e.g., Local Union No. 38 V. Pelella, 350 F.3d 73, 88 (2d Cir. 2003) (ratio rule "may not apply with equal force when punitive damages are compared to nominal damages"), cert. denied, ___ U.S. ___, 124 S.Ct. 2821 (2004); Lee v. Edwards, 101 F.3d 805, 811 (2d Cir. 1996) (ratio analysis does "not necessarily control" where punitive and compensatory damages are awarded but the compensatory damages are nominal in nature);Edwards v. Jewish Hospital of St. Louis, 855 F.2d 1345, 1352 (8th Cir. 1988) ("To apply the proportionality rule to a nominal damages award would invalidate most punitive damages awards because only very low punitive damages awards could be said to bear a reasonable relationship to the amount of a nominal damages award."). The jury's determination here that $30,000.00 in punitive damages was appropriate reflects reasoned restraint given the facts of the case and is not "so high as to shock the judicial conscience and constitute a denial of justice." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (internal citation omitted).
Finally, defendant argues that the testimony of Ron Clements regarding a conversation between plaintiff and Clements during which plaintiff's meeting with Nevil was discussed, constituted hearsay and should not have been admitted at trial. This Court ruled that Clements would only be allowed to testify about whathe said during the conversation and not what plaintiff said. The same ruling was made by the Court when plaintiff testified about the same conversation. I see no reason to find that these particular evidentiary rulings denied defendant a fair trial and, therefore, decline to order post-trial relief based on the arguments made by defendant. Plaintiff's Application for Back Pay: Based on the proof presented at trial plaintiff seeks an award of back pay in the amount of $122,022.00. Because it is an equitable remedy, the court determines the issue of back pay under Title VII. Hine v. Mineta, 238 F. Supp. 2d 497, 498 (E.D.N.Y. 2003). The remedy of back pay is designed to compensate the plaintiff for economic injury suffered as a result of discrimination from the date of discharge until the date of judgment. Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 144-45 (2d Cir. 1993), cert. denied, 510 U.S. 1164 (1994). "The choice of whether to award back pay is left to the equitable discretion of the district court." Townsend v. Exchange Insurance Co., 196 F. Supp. 2d 300, 307 (W.D.N.Y. 2002).
The evidence at trial was that at the time of his termination on November 22, 1998, plaintiff had worked for defendant for three years. Plaintiff had earned $27,170.00 in 1998 and, based on his work schedule and overtime, would have earned approximately $30,000.00 for the full year. Plaintiff collected $6,116.00 in unemployment benefits in 1999. Plaintiff testified that immediately after being terminated he tried to find comparable work with two companies which were in the same type of business as defendant. Neither offered plaintiff a position. Plaintiff testified that he also conducted a job search for comparable employment on the internet and in the newspaper. While on unemployment insurance, plaintiff testified that he used their resources to find work without success. After a few weeks of receiving unemployment insurance, plaintiff testified that he met with an unemployment insurance job counselor who, according to plaintiff, recommended that plaintiff try to find a job in a field where he could "use his hands." Plaintiff enrolled in barbering school and completed a 600 hour course in order to gain a New York State barber license. In the "middle of 2000," while still an apprentice barber, plaintiff began working at "Sports Clips" earning "$6 or $7 an hour." In 1999, plaintiff earned $3,018.00 and in 2000 he earned $6,490.00 from his job at Sports Clips. In October 2001, plaintiff testified that he earned his full barber license. In 2001, plaintiff opened his own barber shop ("Big Daddy's"), which generated gross receipts of $6,222.00 and a profit of $2,848.00. In 2002, Big Daddy's generated gross receipts of $4,400.00 and a profit of $698.00. Plaintiff testified that while some weeks he might have forty clients, in other weeks, he might only have ten. See October 7, 2003 Trial Testimony of David Tuszynski at page 66.
Plaintiff did not testify to any other source of post-termination income, other than unemployment insurance and income generated from cutting hair. In addition, the Court was troubled by the fact that plaintiff admitted on cross-examination that in his answers to interrogatories served before trial (Trial Exhibit 420), he denied reviewing "the classified section of any newspaper in search of employment," denied "responding to any advertisements for employment contained in any newspaper," and denied contacting by telephone "any prospective employer to inquire about possible employment." Plaintiff also admitted that he never prepared a resume after being fired. See October 7, 2003 Trial Testimony of David Tuszynski at pages 71-73, and Trial Exhibit 420.
"An employee discharged in violation of Title VII has an obligation to attempt to mitigate [his] damages by using reasonable diligence in finding other suitable employment."Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 695 (2d Cir. 1998) (internal citation and quotation). The defendant urges the Court to refuse to award Tuszynski any back pay due to his failure to mitigate his damages. The defendant has the burden of demonstrating that the plaintiff failed to attempt to mitigate.Id. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998) ("Victims of employment discrimination are required to mitigate their damages."). "The burden to mitigate is not onerous, and only requires that the employee make reasonable efforts to obtain suitable other employment." Hine v. Mineta, 238 F. Supp. 2d at 500.
As stated above, this Court has real concerns over the testimony of plaintiff regarding any "diligent efforts" he made to obtain comparable employment once he was terminated by defendant, particularly in light of the significant discrepancies between his direct examination testimony and his answers to interrogatories served in February 2002 (Trial Exhibit 420). It appears that after being discharged and during the period that plaintiff was receiving unemployment insurance, plaintiff made the decision to enter a new line of work and pursue the barber trade as a full-time occupation. A change in occupations, undertaken in good faith, may be considered permissible mitigation. See Hawkins v. 1115 Legal Service Care, 163 F.3d at 696 ("Self-employment, if it is undertaken in good faith and is a reasonable alternative to seeking other comparable employment, may be considered permissible mitigation."). While I credit plaintiff's testimony that he attempted to mitigate his damages by entering a training program and embarking on a career as a barber, there comes a point where it is apparent that the new career will not generate income comparable to the previous occupation and a plaintiff has a duty to either seek other employment or give up his right to a back pay award. Here, I find that it was clear by the end of 1999 that plaintiff's new career was not going to generate income comparable to other types of available suitable employment, including his former job as a driver and rehabilitation specialist. Indeed, despite the fact that his income as an employee of Sports Clips was far below his salary in his previous occupation, in 2001 plaintiff decided to start his own business which resulted in a further reduction of income. Plaintiff's decision to abandon his former line of work and embark on a career as a barber was made shortly after his termination and, once made, plaintiff did not try to find other suitable and higher paying positions to replace or supplement his relatively meager income as a barber. Plaintiff is not entitled to have defendant subsidize his reduced barber income for years after he decided to change careers. See Davis v. Integrated Systems Solutions Corp., 2003 WL 1733111, *2 (N.D. Ill. March 31, 2003) (back pay award should be cut-off when plaintiff voluntarily chose to change her career path).
Based on the foregoing, I find that plaintiff is entitled to back pay for the period from November 23, 1998 through December 31, 1999. I find that at the time of his discharge, plaintiff was earning approximately $578.00 per week ($27,170.00 ÷ 47 weeks = $578.00 per week) and for the five remaining weeks of 1998 would have earned $2,890.00 (5 weeks × $578.00 per week = $2,890.00). I find that given the financial situation of defendant, plaintiff would have likely earned the same average salary for the year 1999, that is $30,056.00. Thus, the total back wages for the relevant time period is $32,946.00. Given the lack of candor in plaintiff's testimony regarding his efforts to mitigate damages and his quick decision to embark on a complete change of career, I exercise my discretion and determine that the back wages should be offset by the $6,116.00 in unemployment benefits paid to plaintiff in 1999. See Dailey v. Societe Generale, 108 F.3d 451, 460 (2d Cir. 1997) ("[T]he decision whether or not to deduct unemployment benefits from a Title VII back pay award rests in the sound discretion of the district court."). Thus, the total back pay award shall be $26,830.00 ($32,946.00-$6,116.00 = $26,830.00). I further find that plaintiff is entitled to prejudgement interest. While the decision whether to award prejudgment interest is also left to the discretion of the district court, "to the extent that the damages awarded to the plaintiff represent compensation for lost wages, it is ordinarily an abuse of discretion not to include pre-judgment interest." Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 375 (2d Cir. 2000) (internal citations and quotations omitted). Thus, I find plaintiff is entitled to prejudgment interest on the back pay award. The pre-judgment interest on the back pay award will be calculated at the current federal rate in accordance with 28 U.S.C. § 1961(a).
Conclusion
Defendant's motions for a new trial and judgement as a matter of law are denied. For the reasons set forth in this Decision, the Court finds plaintiff entitled to an award of $26,830.00 in back pay, plus interest computed in accordance with this Decision.
Judgment shall enter accordingly.
The parties are directed to confer and follow the methodology set forth in Robinson v. Instructional Systems, Inc., 80 F. Supp. 2d 203, 208 (S.D.N.Y. 2000) in calculating the interest portion of the back pay award. Within one week after entry of this Decision and Order, counsel shall report to the Court in writing the total back pay judgment computed in accordance with this opinion so that a final judgment can be entered by the Court.