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November 8, 1993

JOANNE FLYNN, Plaintiff,
GOLDMAN, SACHS & CO., Defendant.


The opinion of the court was delivered by: KIMBA M. WOOD



 Joanne Flynn claims that her former employer, Goldman, Sachs & Co., discriminated against her because of her sex by


(1) failing to promote her to the position of Manager of Training and Development;


(2) failing to name her to the position of Manager of Sales Training as of December 13, 1988;


(3) terminating her; and


(4) giving her a severance package inferior to that of similarly situated male employees,

 in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the New York Human Rights Law ("NYHRL"), N.Y. Exec. L. § 296. *fn1" The state law claims were tried before a jury from October 7, 1993 through October 25, 1993; the Title VII claims were tried simultaneously, before the court. At the close of all the evidence, Goldman Sachs moved for judgment as a matter of law with respect to the claims to be decided by the jury pursuant to Fed.R.Civ.P. 50(a). The court reserved ruling on the motion at that time. Following the jury's verdict in favor of Ms. Flynn on the liability portion of all four state law claims, Goldman Sachs renewed its motion for judgment as a matter of law pursuant to Rule 50(b). *fn2" In the alternative, Goldman Sachs moved for a new trial pursuant to Fed.R. Civ.P. 59 on the ground that the verdict is against the weight of the evidence. For the following reasons, the court grants the motion for judgment as a matter of law and, in the alternative, grants the motion for a new trial.

 I. Motion for Judgment as a Matter of Law

 A. Legal Standard

 Fed.R.Civ.P. 50(a)(1) states the standard for granting a motion for judgment as a matter of law:


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

 (emphasis added). In this circuit, such a motion may be granted only where "there is such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture" or if the evidence is "so overwhelming that reasonable and fair minded persons could only have reached the opposite result." Lambert v. Genesee Hospital, 1993 U.S. App. LEXIS 24173 *14 (2d Cir. Sept. 17, 1993). In deciding a motion under Rule 50, made either before the verdict or after, the court may not weigh the evidence or pass on the credibility of witnesses, where credibility is at issue. Instead, the court must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all legitimate inferences that may be drawn from the evidence. See Samuels v. Air Transport Local 504, 992 F.2d 12, 14, 16 (2d Cir. 1993). However, the party bearing the burden of proof cannot create an issue for the jury's resolution by relying solely on the hope that the jury will not trust the credibility of the witnesses. "'If all the witnesses deny that an event essential to plaintiff's case occurred, she cannot get to the jury simply because the jury might disbelieve these denials. There must be some affirmative evidence that the event occurred.'" See Martin v. Citibank, 762 F.2d 212, 217 (2d Cir. 1985), quoting Wright & Miller, § 2527 at 563. See also Love v. King, 784 F.2d 708, 711 (5th Cir. 1986) (in view of the unimpeached testimony of defendant denying plaintiff's claim and "in view of the complete lack of any other direct evidence of a conspiracy, it is simply too speculative to draw an inference of conspiracy from the facts of this case").

 B. Ms. Flynn's Theory of the Case

 The theory of Ms. Flynn's case is that she was the lead candidate for the position of permanent Manager of Training and Development at Goldman Sachs prior to the time that she terminated a male subordinate named Edward Verlander on July 14, 1988. This termination, Ms. Flynn claims, caused Goldman Sachs (1) not to promote Ms. Flynn to the permanent position of Manager, (2) not to name Ms. Flynn Manager of Sales Training, (3) to terminate Ms. Flynn, and (4) to offer her a severance package inferior to those offered to similarly situated males. Tr. 2556, 2567-70. Ms. Flynn asserts that her sex actually played a role in each of these adverse employment decisions and had a determinative influence on their outcome. See Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1706 (1993). In support of this assertion, Ms. Flynn argues that a jury could reasonably find that Goldman Sachs decided not to promote her to the Manager position on July 25, 1988 because Goldman Sachs found her termination of Mr. Verlander objectionable in that she overstepped the line of aggressive behavior that it tolerated from its female professionals. Tr. 2556. Ms. Flynn characterizes the Verlander termination as the "linchpin" of her case and claims it supports the inference that Goldman Sachs had a sex-based motive for every adverse personnel decision Goldman Sachs made thereafter concerning her, including terminating her. Levinson Oct. 29, 1993 Letter at 6. She claims that to accomplish her termination, Goldman Sachs hired Doris Smith as Manager because either (1) it knew in advance that there existed a hostility between Ms. Smith and Ms. Flynn that would cause Ms. Smith to fire Ms. Flynn, or (2) once Ms. Smith was selected, Goldman Sachs learned of this hostility and accepted Ms. Smith's recommendations not to name Ms. Flynn to the position of Manager of Sales Training as of December 13, 1988 and to terminate her on March 7, 1989.

 The court's function at this stage is to assess whether there is evidence in the record to support the jury's finding that Ms. Flynn's sex actually played a role in each of these decisions.

 C. Evidence in the Light Most Favorable to Ms. Flynn

 The relevant events in this case, viewed in the light most favorable to Ms. Flynn, are as follows. Ms. Flynn joined Goldman Sachs as a Personnel Associate in 1980 in the recruitment section of the Personnel Department and was thereafter promoted to Assistant Manager in the Management Training and Development Department within the Personnel Department. Tr. 172-73, 278. n3 In December of 1987, Denny Scott, then head of Personnel, asked Ms. Flynn to take over the position of Acting Manager of the Department following the abrupt departure of the Manager, Peter Mathias. In late January or early February 1988, Mr. Scott began a search for a permanent Manager for the Training and Development Department. Tr. 1905. Mr. Scott commenced an internal search and then an external search for candidates for the Manager position. Id. As part of a search for internal candidates, Mr. Scott solicited the views of partners, including the views of Nicola Caporale. Tr. 1981-20. To assist Goldman Sachs in identifying qualified external candidates, in early March 1988 Mr. Scott retained the outside consulting firm of Handy Associates to identify and evaluate external candidates for the position. Tr. 1906. Some time between February and April 1988, Mr. Caporale told Mr. Scott that Ms. Flynn was too self-promoting, and stated that she was a "worse character" than Peter Mathias. Tr. 1922-23; 2159. n3 Ms. Flynn's total compensation increased each year from 1982 through 1988, as shown below: 1982 $ 35,050 1983 44,680 1984 57,400 1985 83,000 1986 95,000 1987 110,000 1988 180,944


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