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March 6, 1995


The opinion of the court was delivered by: DENNY CHIN



 On October 13, 1994, following an eight-day trial in this employment discrimination and retaliation case, the jury returned a verdict in favor of defendant The Port Authority of New York and New Jersey (the "Port Authority") on the claims of discrimination and in favor of plaintiff Stanley Altman ("Altman") on the claims of retaliation. The jury awarded Altman $ 15,000 in damages for lost wages, and found that the Port Authority's retaliatory actions were wilful.

 Before the Court are the Port Authority's motion for judgment as a matter of law or for a new trial on the issue of liability and Altman's cross-motion for additional damages, prejudgment interest, and attorneys' fees and costs.

 Summary of the Facts

 Altman is a 69-year old man who was employed by the Port Authority from March 1980 through his retirement on June 6, 1992. Beginning in the mid-1980's, he unsuccessfully applied for a number of positions within the Port Authority.

 In July 1987, Altman told his then-supervisor, John Davison, that he believed he was being denied promotions at the Port Authority because of his age. *fn1" In June 1988, Altman filed a charge of age discrimination with the United States Equal Employment Opportunity Commission (the "EEOC"). *fn2"

 Although Altman had received eight salary increases from the commencement of his employment in 1980 through 1987, he received no salary increases from 1988 through his retirement in 1992. Moreover, after he was placed in the Environmental Programs unit in 1990, he was given certain tasks to perform that were inappropriate for an employee at his level.

 Altman commenced this action in 1987 alleging age discrimination and retaliation in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"). Although Altman initially alleged discrimination with respect to ten positions for which he had applied, the trial was limited to three positions and Altman's claim of retaliation. The jury found in favor of the Port Authority on the discrimination claims and in favor of Altman on his retaliation claim.

 These motions followed.


 A. The Port Authority's Motion

 A jury verdict is not to be set aside and judgment entered as a matter of law pursuant to Fed. R. Civ. P. 50(b) 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 [jurors] could have reached.'" Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)). In considering a Rule 50(b) motion, a trial court "must view the evidence in a light most favorable to the non-movant and grant that party every reasonable inference that the jury might have drawn in its favor." Samuels, 992 F.2d at 16. Judgment notwithstanding the verdict is to be entered only where 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." Mattivi v. South American Marine Corp., 618 F.2d 163, 168 (2d Cir. 1980); accord Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir. 1994).

 A motion for a new trial pursuant to Fed. R. Civ. P. 59 may not be granted on the basis of the weight of the evidence unless the jury's verdict is "seriously erroneous." Piesco v. Koch, 12 F.3d 332, 344-45 (2d Cir. 1993). A trial court may refrain from setting aside a verdict and ordering a new trial "where the resolution of the issues depended on assessment of the credibility of the witnesses." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992), cert. denied, 124 L. Ed. 2d 662, 113 S. Ct. 2445 (1993).

 In this case, the Port Authority's attack on the sufficiency of the evidence is two-fold: First, it contends that the jury could not reasonably have found retaliation; it maintains that it presented "ample evidence" that Altman was denied pay increases because of his work performance and that Altman failed to refute this evidence. (Def. Mem. at 11-12). Second, it contends that there was insufficient evidence in the record to sustain the jury's award of $ 15,000 in lost wages. (Def. Mem. at 25-27).

 Neither of the Port Authority's contentions has merit. *fn3"

 1. The Evidence of Retaliation

 To prevail on his claim that he was denied salary increases because he had protested what he believed to be age discrimination, Altman had to prove a causal connection between the adverse employment decisions and his protected activity. Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993). The record contains sufficient evidence to support the jury's finding that he did so.

 In July 1987, Altman told Davison that he felt he was being discriminated against because of his age. (Tr. 90-91, 136). In June 1988, Altman filed his EEOC charge. (PX 68). Both of these actions constituted protected activity. See, e.g., Kotcher v. Rosa & Sullivan Appliance Center, 957 F.2d 59, 65 (2d Cir. 1992) (employee's complaint of sexual harassment made to company management deemed protected activity). See also 29 U.S.C. § 623(d). The jury could have reasonably found, from evidence in the record, that Altman was denied salary increases as a result of this protected activity.

 Altman presented evidence to show that prior to his conversation with Davison in 1987 and the filing of his discrimination charge in 1988, he received eight salary increases in approximately seven years. (Tr. 134). After the conversation and EEOC filing, however, Altman received no salary increases in 1988, 1989, 1990 or 1991. (Tr. 134-35, 137). *fn4" The jury surely could have concluded from this sequence of events that there was a causal connection between the protected activity and the denial of pay raises. See Malarkey v. Texaco, Inc., 983 F.2d at 1210 (evidence that an employee "moved up the professional ladder very rapidly" in years prior to her lodging charges of discrimination was relevant to jury's determination whether she "would have continued on the same upward trajectory" absent the employer's wrongful conduct).

 Moreover, in 1988, Altman was one of only two of twenty managerial employees in Risk Management not to receive a salary increase. (Tr. 428-30). From 1989 forward, because of a reorganization, the number of managerial employees in Risk Management increased to approximately 100. In 1989, Altman was one of only one or two managerial employees not to receive a pay increase. In 1990, he was the only one not to get a raise. In 1991 and 1992, he was one of only one or two not to get a raise. (Tr. 428-31). Hence, although the record contained evidence of other managerial employees with purportedly poor performances, Altman was the only managerial employee not to receive any pay increase from 1988 through 1992. The jury surely could have concluded that this was the result, at least in part, of retaliation.

 The refusal of the Port Authority to give Altman any salary increases for 1988 through his retirement in June 1992 (following eight increases in seven years) must be viewed in the context of evidence showing that during that same time period he was given demeaning tasks inappropriate for a junior managerial employee of his level. After his transfer into the environmental unit in 1990, Altman was assigned tasks such as sorting through garbage dumpsters for recyclable materials, lifting and moving bags of cans, lifting and moving boxes of toll receipts, and detaching the cardboard backing from several tons of toll receipts. (Tr. 149, 150-52, 165-67, 1016, 1111-13). *fn5" Nelson Chanfrau, the general manager of Risk Management, acknowledged that these were not appropriate tasks for an employee of Altman's level. (Tr. 474). Moreover, the record contains evidence that Altman's supervisors were making baseless or exaggerated complaints about him. For example, in 1988, Stephen Kay wrote a memorandum to the file complaining that Altman had worked on a day off. (PX 145). This evidence provided a context that supports the jury's finding that the denial of pay increases was punitive in nature.

 The jury was also entitled to take into consideration the decision of the New Jersey Department of Labor awarding Altman benefits after he retired because he "was denied pay increase without explanation for five (5) years and was harassed by his supervisors." (PX 195). See, e.g., Fitch v. R. J. Reynolds Tobacco Co., 675 F. Supp. 133, 138 (S.D.N.Y. 1987) (determination by unemployment insurance appeals board that plaintiff was terminated without cause admissible in subsequent employment discrimination action); Barfield v. Orange County, 911 F.2d 644 (11th Cir. 1990), cert. denied, 500 U.S. 954 (1991) (same); Baldwin v. Rice, 144 F.R.D. 102, 106 (E.D. Cal. 1992) (same).

 The Port Authority's contention that Altman failed to rebut its evidence of poor performance must be rejected, for Altman did present some evidence of satisfactory performance. Altman was rated acceptable for the period July 2, 1990 through July 1, 1991. (PX 88). *fn6" Stephen Kay, Altman's supervisor in the Environmental Unit of Risk Management, also testified that Altman did a good job in performing plan review, tracking radiation dosimetry reports, and distributing sanitation and food protection posters. (Tr. 1034-36, 1042-43, 1039-40, 1050; see also 1044-45, 1056). Likewise, Russel Earle, a former co-worker, testified that in his experience Altman performed well at the Port Authority from 1989 through 1992. (Tr. 407-12).

 On the basis of this evidence in the record, I find that the jury's finding of retaliation was not "the result of sheer surmise and conjecture," Mattivi, 618 F.2d at 168, and that its verdict was not "seriously erroneous." Piesco, 12 F.3d at 344-45. Moreover, there were conflicts in the testimony that required the jury to make credibility findings. Accordingly, the first prong of the Port Authority's motion for judgment as a matter of law or for a new trial is denied.

 2. Damages

 Likewise, the record contains sufficient evidence to support the jury's modest award of $ 15,000 in lost wages. The eight salary increases received by plaintiff prior to the retaliatory conduct resulted in an increase in plaintiff's salary from $ 23,504 at his date of hire to $ 39,104 as of June 28, 1987. (PX 12, 56). The increase of $ 15,600 over seven years averages to an annual increase of approximately $ 2,200 -- or an average annual increase of 7.47%. *fn7"

 The parties differ as to how the jury reached its award of $ 15,000. Altman suggests that the jury reached that number by awarding him an increase of 3.85% in his annual salary for each of the years commencing with his anniversary date (June 28th) in 1988, 1989 and 1990 and a lump sum award of approximately $ 1,000 in 1991. (Davis Aff. P 4). The Port Authority posits a slightly different theory, suggesting that the jury awarded Altman a raise in his annual salary of $ 1,000 per year for each year from 1988 through 1992. (Lee Aff. P 7). *fn8"

 Under either theory, the jury's award is reasonable. Whether the jury determined that Altman received raises of 3.85% and a $ 1,000 lump sum in 1992 or that he received annual increases of $ 1,000, it acted reasonably and on the basis of evidence in the record -- Altman's average annual increases of $ 2,200 or 7.47% in the seven years prior to the Port Authority's retaliatory actions.

 The Port Authority also argues, as a technical matter, that Altman's merit increase form for 1987 showed that his then salary of $ 39,124 was only $ 500 below the maximum salary for someone of his grade level. (PX 56). Because Altman offered no proof that his maximum salary increased after 1987, the Port Authority contends that the jury could only have awarded one $ 500 salary increase in annual salary for the entire period from 1988 through 1992 -- or a total for the five years of $ 2500. Any award beyond that, the Port Authority asserts, is speculative. (Def. Mem. at 25-26).

 The Port Authority's argument must be rejected. The jury could have reasonably concluded that the maximum salary for plaintiff's grade level increased after 1987. The evidence showed that for each year from 1988 through 1992 Altman was either the only or one of only two managerial employees in Risk Management not to receive a salary increase. (Tr. 429-31). *fn9" Hence, virtually all the managerial employees received salary increases each year. Moreover, as noted, Altman had received eight increases in the seven years prior to 1988. Finally, the Port Authority did not present evidence that Altman's 1987 salary range did not thereafter increase; if such evidence existed, the Port Authority surely would have presented it to the jury. On these facts, applying its common sense, the jury surely could have found that Altman's salary range increased to the extent necessary to permit the modest raises awarded. Hence, the second prong of the Port Authority's motion is denied as well.

 B. Altman's Cross-Motion

 Altman cross-moves for additional damages, prejudgment interest, and attorneys' fees and costs.

 1. Additional Damages

 At trial, the parties stipulated that the jury would only be asked, in the event it found liability, to calculate lost wages. The parties agreed that the issue of the effect any lost wages award would have on Altman's retirement benefits would be an issue for the Court to resolve after trial. (Tr. 873-74, 976). Both sides have now submitted additional evidence on the impact of a $ 15,000 backpay award on Altman's retirement benefits, i.e., the amount that would be necessary to compensate Altman for the reduction in his pension benefits caused by the loss of $ 15,000 in wages, projected through the expected balance of his life, discounted to present value.

 Altman's calculations would result in an award of $ 25,346 as of December 31, 1994, with a per diem adjustment thereafter of $ 5.55. (Davis Aff. PP 4-6). The Port Authority's calculations would result in an award of $ 16,970 as of January 31, 1995. (Lee Aff. PP 7-9). The difference of some $ 9,000 is due primarily to two factors: (1) differences in assumptions as to when the salary increases should have been implemented and the amounts thereof and (2) Altman's actuary used interest rates of 6% and the Port Authority's actuary used interest rates of 3.12%, 3.54%, 4.64% and 6.21%. *fn10"

 I will calculate the additional damages based on Altman's calculations, for three reasons. First, the Port Authority's assumptions do seem flawed, as they would result in pay increases totalling only $ 10,000, rather than the $ 15,000 awarded by the jury. (See Chosak report, at items 1 and 6 on pages 1 and 2, annexed to Lee Aff. as Exh. B). Second, the differences in interest rates utilized are minor, and I believe the rates used by Altman are more appropriate. Third, any uncertainty should be resolved in favor of Altman, for the Port Authority, having been adjudged guilty of unlawful retaliation, should not be allowed to benefit from any lack of precision. As Judge Weinfeld has held:


where one's conduct has prevented a precise computation of damages, the injured party is not to be deprived of adequate damages. The trier of the fact may draw reasonable inferences from relevant facts, and all doubts are to be resolved in favor of the injured party; the wrongdoer does not become the beneficiary of his own wrongful conduct.

 EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 923 (S.D.N.Y. 1976), aff'd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977). See also Malarkey v. Texaco, Inc., 794 F. Supp. 12337, 1243-44 (S.D.N.Y. 1992), aff'd, 983 F.2d 1204 (2d Cir. 1993).

 Accordingly, I will award additional damages of $ 25,717.85, consisting of the $ 25,346 as of December 31, 1994 and $ 371.85 in per diem adjustments through today (67 days x $ 5.55 per day). To that amount is added the jury's award of $ 15,000 in lost wages, for a total damages award of $ 40,717.85. In view of the jury's finding of wilfulness, that amount will be doubled to $ 81,435.70. 29 U.S.C. § 626(b); see Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 281 (2d Cir. 1987). *fn11"

  2. Prejudgment Interest

 Plaintiff seeks prejudgment interest on the damages awarded by the jury. The injuries for which the jury awarded Altman compensation were first sustained in 1988. As the Supreme Court has noted, money received today for services provided previously is not equivalent to the same dollar amount had it been received at the time the services were provided. Missouri v. Jenkins, 491 U.S. 274, 283, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989). For this reason, the Supreme Court has held that prejudgment interest is an element of complete compensation. West Virginia v. United States, 479 U.S. 305, 310, 93 L. Ed. 2d 639, 107 S. Ct. 702 (1987); General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 76 L. Ed. 2d 211, 103 S. Ct. 2058 (1983). Indeed, the Second Circuit has observed that "'it is ordinarily an abuse of discretion not to include prejudgment interest in a back-pay award . . . .'" Clarke v. Frank, 960 F.2d 1146, 1154 (2d Cir. 1992) (quoting Donovan v. Sovereign Security, Ltd., 726 F.2d 55, 58 (2d Cir. 1984)). Thus, Altman is entitled to an award of prejudgment interest on the compensation he would have received but for the Port Authority's retaliatory conduct. For the reasons set forth above in the discussion of Altman's additional damages, I will assume that the jury determined that, but for the retaliation, Altman would have received salary increases and a lump sum payment essentially as set forth in paragraph 4 of the Davis affidavit. For purposes of calculating prejudgment interest, I will assume further that the amounts in question would have been paid on the last day of the year in question. I have rounded off the numbers and calculated interest as follows: Received Per diem No. Days on: at 9% x to 3/8/95 Total 6/27/89 $ 1,500 $ .37 2,079 $ 769.23 6/27/90 3,100 .76 1,714 1,302.64 6/27/91 4,700 1.16 1,349 1,564.84 6/6/92 5,700 1.41 984 1,387.44 Totals $15,000 $5,024.15


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