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LUCIANO v. OLSTEN CORP.

January 21, 1996

MARY ANN LUCIANO, Plaintiff, against THE OLSTEN CORPORATION, FRANK N. LIGOURI, GORDON J. BINGHAM and MARTIN GELERMAN, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiff Mary Ann Luciano commenced this action on November 8, 1993, claiming that the defendants The Olsten Corporation ("Olsten") and three of its executive officers, Frank N. Ligouri who is Chairman of the Board of Directors and Chief Executive Officer of Olsten, Gordon J. Bingham who serves as Olsten's Senior Vice President of Sales/Marketing and Martin Gelerman, the Vice President of Human Resources for Olsten, violated her rights under federal and state anti discrimination statutes. Specifically, the amended complaint, which was filed on April 21, 1994, alleged that the defendants failed to grant Luciano a promised promotion and subsequently terminated her, as well as a disproportionate number of other female managers and officers, because of her gender in violation of 42 U.S.C. § 2000e et seq ("Title VII") and N.Y. Exec. Law § 290 et seq (the "New York State Human Rights Law"). Luciano alleged that gender based discrimination foreclosed her opportunity to attain the highest level management positions at Olsten, whose workforce is predominately female.

 On November 9, 1995, following a month-long trial, the jury returned a verdict in favor of Luciano and awarded her damages in the following amounts: compensatory damages of $ 150,714.00 for back pay including salary and bonuses, emotional distress damages in the sum of $ 11,400.00, other expenses in the sum of $ 17,713.00 and punitive damages in the sum of $ 5,000,002.00. The defendants moved the Court for an order granting them judgment as a matter of law, pursuant to Rule 50(b), a new trial pursuant to Rule 59(a), or in the alternative for remittitur of the jury's damage award. The defendants challenged each category of the jury's damage award.

 The plaintiff cross moves the Court for an order granting her prejudgment interest on the amount of compensatory damages awarded by the jury.

 DISCUSSION

 I. The defendants' motion for judgment as a matter of law

 A. Rule 50(b) standard

 A motion for judgment as a matter of law, known in the past as a "judgment notwithstanding the verdict" or a "directed verdict" is governed by Rule 50 of the Federal Rules of Civil Procedure, which states in relevant part:

 
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 that 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.

 Fed. R. Civ. P. 50(a) (1); see also Zahra Town of Southold, 48 F.3d 674 (2d Cir. 1995). The Second Circuit recently discussed the standard that is to guide the district court in its application of this rule as follows:

 
The moving party bears a heavy burden to prevail on its motion for judgment m.o.l. Fed. R. Civ. P. 50(b); Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 109 S. Ct. 1095, 103 L. Ed. 2d 230 (1989). In ruling on such a motion, the court must 'consider the evidence in the light most favorable to the [non moving party] and . . . give that party the benefit of all reasonable inferences that the jury might have drawn in [its] favor from the evidence.'" Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988).

 Concerned Area Residents for Environment v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994), cert. denied, 131 L. Ed. 2d 721, U.S. , 115 S. Ct. 1793 (1995).

 A motion for judgment as a matter of law should be granted following a jury's verdict only upon a finding that

 
(1) 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 (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].

 Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir. 1994) (quoting Bauer v. Raymark Indus., Inc., 849 F.2d 790, 792 (2d Cir. 1988)). In deciding a motion for judgment as a matter of law, the Court must not weigh the evidence, pass on the credibility of witnesses or substitute its judgment of the facts for that of the jury. Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 59-60 (2d Cir. 1993).

 Finally, the Court is mindful that motions pursuant to Rule 50 "should be cautiously and sparingly granted." Id. at 59 (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2524, at 541-45 (1971)).

  When reviewing damage awards, all evidence and factual inferences are to be construed in favor of the non-movant and the court is to give considerable deference to the jury's determinations. Scala v. Moore McCormack Lines, Inc., 985 F.2d 680 (2d Cir. 1993). It is appropriate to reduce a damage award where its excessive nature shocks the judicial conscience. Id. "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." Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93, 96 (2d Cir. 1995).

 B. Liability

 As a preliminary matter, and as noted at the trial by the Court and both parties, the defendants Ligouri, Bingham and Gelerman are not subject to individual liability under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295, 1316-17 (2d Cir. 1995). However, under certain circumstances, the individual defendants are subject to personal liability under the New York State Human Rights Law. Id.

 C. Back pay

 42 U.S.C. § 1981a(b) (2) expressly excludes backpay and interest on backpay from the compensatory damages awarded under that section and the limitations that govern compensatory and punitive damage awards, which are set forth in subsection (b) (3). The jury found that Luciano sustained damages of $ 150,714.00 for back pay, including salary and bonuses.

 In a footnote to the opening paragraph of their memorandum of law, the defendants state that one of the grounds for their motion for a new trial under Rule 59(a) is that the $ 150,714.00 back pay award is unsupported by and/or against the weight of the evidence. No support for this argument or reference to the record is presented in the defendants' papers. The defendants' reply brief states that their "use of footnote argument--to preserve for appeal issues raised in their earlier Rule 50(a) motions--was entirely proper in light of this Court's denial of those Rule 50(a) motions (Tr. at 2518-23, 3351-56), and the view expressed by the Court on the issue of liability during the November 28, 1995 telephone conference with the parties. (Tr. of Nov. 28, 1995 Conf. at 4-5)."

 To digress briefly, in this Court's view, the use of footnotes in briefs other than to identify support papers such as trial transcripts, is to be discouraged. As New Jersey Court Justice Robert L. Clifford stated:

 
They distract. They cause the reader to drop the eyes; to absorb what is usually a monumental piece of irrelevancy or pseudo-scholarship, but is sometimes - as here - a significant pronouncement that rightly belongs in the text; and then to return, without skipping a beat, to the point of departure on the upper part of the page. The whole irritating process points up the soundness of John Barrymore's observation that "[reading footnotes is] like having to run downstairs to answer the doorbell during the first night of the honeymoon," quoted in Norrie Epstein, The Friendly Shakespeare 75 (1992).

 In Re Opinion 662, 133 N.J. 22, 32, 626 A.2d 1084, 1089 (N.J. 1993) (Clifford, J. concurring). In this regard the attorneys are also directed to the Second Circuit opinion in U.S. v. Restrepo, 986 F.2d 1462 (2d Cir. 1993), as follows:

 
We do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review. The enormous volume of briefs and arguments pressed on each panel of this court at every sitting precludes our scouring through footnotes in search of some possibly meritorious point that counsel did not consider of sufficient importance to include as part of the argument.

 Id.

 Returning to the subject of back pay, the plaintiff's trial exhibits #24 and #30 relating to lost salary and bonuses support the jury's calculation of back pay. The plaintiff suggests that the jury used the following method of calculation based on exhibits 24 and 30: "the sum of: (a) the salary losses documented on Plaintiff's Exhibit 30; (b) the bonuses lost documented on Plaintiff's Exhibit 24; (c) the additional salary lost by Luciano during October 1995, which is not reflected on Plaintiff's Exhibit 30; (d) minus the amounts by which Luciano's bonus exceeded the bonus of the average male VP at Olsten as reflected on Exhibit 24." See Gesinsky Aff. in Support of Plaintiff's Motion of Prejudgment Interest.

 In any event, it is not necessary to comprehend the jury's calculation with arithmetic certainty, but only to assure that is supported by the evidence. Here, one need look no further to find such support than to Plaintiff's Exhibit 30, which is a chart setting forth alleged total salary losses in the sum of $ 130,164.00, and Plaintiff's Exhibit 24, which is a chart setting forth alleged total bonus losses of $ 26,230.00. The Court declines to disturb the jury's back pay finding. Accordingly, the Court denies the defendants' motion for a new trial on the grounds that $ 150,714.00 is excessive, ...


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