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ORSHAN v. MACCHIAROLA

September 7, 1983

DR. H. ALLEN ORSHAN, Plaintiff, against FRANK J. MACCHIAROLA, BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

HEAHER, District Judge.

 Plaintiff brought this civil rights action against the Board of Education of the City of New York, two of its Chancellors and one of its assistant Chancellors *fn1" alleging that their refusal to acknowledge his claim to tenure as a day high school principal violated his constitutional rights. On defendants' motion for summary judgment, this Court dismissed all but one of plaintiff's causes of action as legally deficient, leaving only the claim that he had acquired tenure by estoppel for further factual development. Orshan v. Anker, 489 F. Supp. 820 (E.D.N.Y. 1980). At the close of discovery, this claim was again placed before the Court for summary judgment, this time by both parties. Concluding that defendants were indeed estopped from denying plaintiff tenure as a day high school principal, this Court ruled that plaintiff's right to procedural due process was violated when the Board of Education summarily demoted him to the rank and salary of an assistant principal. Orshan v. Anker, 550 F. Supp. 538 (E.D.N.Y. 1982). *fn2"

 The case went to trial before a jury on the question of damages. *fn3" After three days of hearings, the jury concluded that plaintiff had suffered economic losses in the amount of $38,000 and non-economic harm valued at $30,000. On the question whether the procedural due process violation proximately caused plaintiff to retire and incur future economic losses, the jury found for the defendants.

 Both parties have timely moved for a new trial. F.R.Civ.P. 59(b). For their part, defendants claim that the damages awarded by the jury for mental anguish, humiliation and injury to professional reputation were not supported by sufficient evidence and must be set aside as a matter of law. Alternatively, they contend that the $30,000 is grossly excessive and should be vacated. Plaintiff, on the other hand, objects to the jury's ruling on the forced retirement issue. He complains that the Court ignored his aid in drafting the instructions on this issue and thus misinstructed the jury to his detriment. For the reasons stated below, the Court finds neither motion persuasive.

 DAMAGES

 In reviewing defendants' motion to set aside the jruy's verdict as contrary to the evidence, this Court is guided by the principles stated in Bevevino v. Saydjari, 574 F.2d 676 (2d Cir. 1978). In Bevevino, the Court held that in passing on such a motion

 [t]he trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the veredict aside; otherwise not.

 Id. at 684 (quoting 6A Moore's Federal Practice P59.05[5] at 59-160 to 59-161). Thus, even if the Court were to "characterize the evidence against plaintiff as "over-whelming" and conclude that a different result would have obtained had the case been tried to the Court, id. (quoting Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1133 (2d Cir.), cert. denied, 400 U.S. 916, 27 L. Ed. 2d 155, 91 S. Ct. 175 (1970)), a motion for a new trial need not be granted unless the verdict is so erroneous as to constitute "a miscarriage of justice." Id.

 Reviewing the record in a light most favorable to plaintiff, Rodgers v. Grow-Kiewit Corp.-MK, 535 F. Supp. 814, 816 (S.D.N.Y. 1982); Perfect Fit Industries v. Acme Quilting Co., 494 F. Supp. 505, 506 (S.D.N.Y. 1980), the Court cannot conclude that the jury's ruling on the non-economic harm issue was "seriously erroneous" or a "miscarriage of justice." Contrary to defendants' contention, the evidence provides ample support for the jury's conclusion that plaintiff had indeed suffered an injury to his professional reputation, a blow to his emotional well-being, and a loss in future career opportunities as a result of his summary demotion. Plaintiff himself testified that the demotion caused him great humilitation and depression, a condition corroborated by the testimony of family members and co-workers. Moreover, he testified, as did his wife, that the demotion dashed any hope for advancement in the New York City school system, where he had worked for 30 years. He also testified that being demoted without a hearing made it nearly impossible tfor him to obtain employment elsewhere since he would be unable to explain why he was demoted after nine years as a tenured principal. This loss of hope left him deeply depressed and anxious about the future and made it difficult for him to continue in his position at school.Various witnesses supported this testimony.

 Dr. Orshan's wife also testified that following the demotion Dr. Orshan was depressed and suffered bouts of sleeplessness over the loss in income. According to her testimony, the nearly $10,000 drop in annual income suffered by Dr. Orshan forced them to sell one of their two homes and relocate out of the metropolitan area. Dr. Orshan's daughter corroborated much of this testimony.

 Viewing the above testimony in light of the trial as a whole, it seems clear that the jury's verdict was not patently erroneous but was instead "reasonably based on evidence presented at trial." H.L. Moore Drug Exchange v. Eli Lilly and Co., 662 F.2d 935, 941 (2d Cir. 1982) (quoting Michelman v. Clark-Schwebel Fiber Glass Copr., 534 F.2d 1036, 1042 (2d Cir.), cert. denied, 429 U.S. 885, 50 L. Ed. 2d 166, 97 S. Ct. 236 (1976)). Defendants argue, however, that the testimony also showed that much of plaintiff's emotional distress emanated from the loss of his principalship in 1972, not from his subsequent demotion in 1978. While this is true to some degree, it does not necessarily undermine the jury's verdict. The jury could have found that the demotion exacerbated his emotional sufferings and independently injured his professional reputation and future career opportunities. The testimony surely supported such a finding, and at defendants' request the jury was instructed to carefully separate the two issues. The Court has no reason to believe that the jury failed in this task.Accordingly, defendants' motion to nullify their findings is denied.

 Defendants' claim that the amount of damages is grossly excessive presents a more difficult issue. Generally, "[w]hen a plaintiff in a § 1983 action has established liability for a deprivation of civil rights, an award of compensatory . . . damages . . . is necessarily left to the discretion of the trier of fact in the absence of out-of-pocket or other loss or injury," Manfredonia v. Barry, 401 F. Supp. 762, 770 (E.D.N.Y. 1974), citing Stolberg v. Members of Board of Trustees, etc., 474 F.2d 485, 489 (2d Cir. 1973). When the fact finder is a jury the trial judge, of course, retains the power to set aside their verdict as excessive, but only if the Court conscientiously believes that the jury's verdict is so unreasonable "that it would be a miscarriage of justice to permit it to stand." Dagnello v. Long Island Rail Road Co., 289 F.2d 797, 806 (2d Cir. 1961), quoting in Bevevino v. Saydjari, supra, 574 F.2d at 688. Stated another way, a jury award "should not be disturbed unless the amount shocks the "judicial conscience" or is so clearly excessive as to compel the conclusion that it is the result of passion or prejudice." Perfect Fit Industries v. Acme Quitling Co., 484 F. Supp. at 509 (citing cases); accord Garzilli v. Howard Johnson's Motor Lodges, Inc., 419 F. Supp. 1210, 1212-13 (E.D.N.Y. 1976).

 At first blush, the award of $30,000 seems large in relation to the wrong perpetrated. But the Court cannot say that it is so grossly excessive as to shock the conscience.As already noted, the evidence of harm to plaintiff's professional career was substantial, as was the testimony concerning his emotional injuries.Given the potential long-term nature of these injuries, the jury could have reasonably concluded that plaintiff's sufferings were real and substantial. Under these ...


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