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April 25, 1996

ALFRED J. SHEA, Plaintiff, against ICELANDAIR, Defendant.

The opinion of the court was delivered by: FRANCIS



 This case lies at the intersection of employment discrimination jurisprudence and personal injury law. Although the jury found that the plaintiff was demoted for discriminatory reasons, his damages are attributable not to any loss in compensation but rather to the fact that he suffered physically and emotionally as a result of the defendant's conduct. At the same time, the plaintiff's disabilities complicate the process of reinstating him to his prior position.

 The jury awarded the plaintiff, Alfred Shea, damages of $ 250,000. The defendant, Icelandair, has now moved pursuant to Rule 59 of the Federal Rules of Civil Procedure for a new trial on damages or, in the alternative, for remittitur. Mr. Shea, in turn, has cross-moved for reinstatement or for an award of front pay. I will address each motion in turn.

 Since May of 1956, Alfred Shea, an American citizen, has been an employee of Icelandair, which, as its name implies, is an airline based in Iceland. (Tr. at 59). *fn1" Mr. Shea was employed in the company's cargo department, and in 1971 he became cargo operations manager for the United States, with an office at John F. Kennedy International Airport ("JFK"). (Tr. at 59, 62-63). Mr. Shea remained in this position until 1991. (Tr. at 110-11). In 1980 his official title was modified to "Manager for the Western Hemisphere." (Tr. at 64). While in that position he regularly worked ten- to twelve-hour days and accepted telephone calls at home at night and on weekends when his attention to cargo operations was required. (Tr. at 71-72 ). In thirty-five years of working for Icelandair, Mr. Shea took only two sick days prior to 1991. (Tr. 72-73). In 1985, he received an industry-wide award for being an outstanding employee in the cargo business. (Tr. at 73-74). Following Mr. Shea's receipt of this award, Icelandair issued a press release that read:

Al Shea, a 28 year veteran with Icelandair, was chosen for his outstanding contributions in developing the airline's cargo business out of the United States over the years and for maintaining it at high levels, although working with limited manpower assistance. Al was also cited for his fine start-up work in FI's [Icelandair's] new gateways of Baltimore-Washington, Detroit and Orlando. Al works out of offices at JFK, but directs the cargo activities for FI at our other U.S. gateways through local handling companies. It's a busy, often hectic job and one that can involve a substantial amount of travel to the other gateways, but Al loves the line and he is a very popular fellow with his coworkers. Congratulations, Al, and thanks for putting Icelandair in the limelight again, too.

 (Tr. at 74-75).

 In 1991, at the age of sixty-three, Mr. Shea became the subject of what amounted to a campaign to force his retirement. He received repeated complaints from his superiors about his allegedly unsatisfactory performance and about various mishandled cargo transactions. (Tr. at 85-110). On May 8, 1991, Mr. Shea was summoned into the office of his supervisor, Sigfus Erlingsson. (Tr. at 110). Mr. Erlingsson informed Mr. Shea that the company had decided to demote him because of dissatisfaction with his performance, and implied that age was a factor in the decision. (Tr. at 110-11). *fn2" Over Mr. Shea's strenuous objections, Icelandair issued a press release to its employees and customers announcing that Mr. Shea was proceeding toward retirement. (Tr. at 121-22).

 In the summer of 1991, Mr. Shea was demoted to the position of district sales manager. (Tr. at 116, 119, 122-23). He was replaced by Jon Theodorsson, a younger, less experienced employee of Icelandic origin. (Tr. at 116-17, 119, 122-23). Mr. Shea was relieved of supervisory responsibilities over cargo department employees and was required to report to Mr. Theodorsson. (Tr. at 119). Although Mr. Theodorsson took over Mr. Shea's position without assuming any additional duties, he was given the title "Director," which is more prestigious than "Manager" in the Icelandair hierarchy. (Tr. at 123-24). While Mr. Shea's salary was frozen, it was not reduced, and it remained higher than that of Mr. Theodorsson. (Tr. at 122).

 Following Mr. Shea's demotion, the atmosphere in the department changed dramatically. Mr. Shea was routinely excluded from department meetings. (Tr. at 126-27). Mr. Theodorsson and Sigurdur Gundmundsson, another employee, consistently spoke Icelandic to each other and to some of the customers in the office, effectively barring Mr. Shea from the conversations. (Tr. at 125-26). Further, the plaintiff was told that it was time to relinquish his role as chairman of Icelandair's pension committee and let the "younger generation" assume leadership. (Tr. at 167-68). Finally, Mr. Shea was often left by himself with the responsibility of answering five telephone lines that sometimes rang simultaneously. (Tr. at 168-70).

 Mr. Shea complained to the Equal Employment Opportunity Commission ("EEOC") that he was being discriminated against because of his age and because he was not Icelandic. The EEOC found that age and ethnic origin "were factors in the decision to force [Mr. Shea's] retirement, which led to his subsequent demotion." (Tr. at 172; PX 175).

 Following his demotion, Mr. Shea's health rapidly declined. Immediately after the demotion he sought treatment from his physician, Dr. Paul Brodsky. (Shea Tr. at 7-8). In 1992, Mr. Shea was diagnosed with Parkinson's disease, and he began exhibiting significant symptoms. (Shea Tr. at 2-4, 15-16, 21-22). Most recently, in the fall of 1995 Mr. Shea required hospitalization following an angina attack. (Tr. at 169-170). Mr. Shea's cardiologist linked Mr. Shea's heart condition to the stressful situation at work. (Tr. at 320-21).

 In 1992, Mr. Shea commenced this action against Icelandair pursuant to the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 ("ADEA"), Title VII of Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17 ("Title VII"), and the New York Human Rights Law, N.Y. Exec. L. §§ 296-298 ("Human Rights Law"). The parties consented to my jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c).

 The plaintiff asserted that the defendant's campaign to force him to retire early, culminating in his demotion, exacerbated the symptoms that he suffered as a consequence of Parkinson's disease. He further contended that the conditions he worked under following his demotion resulted in angina attacks in the fall of 1995. In addition to arguing that the defendant willfully discriminated against him on the basis of age and national origin, Mr. Shea contended that Icelandair retaliated against him for filing a grievance with the EEOC.

 The trial was bifurcated into liability and damages stages. On December 14, 1995, following the four-day liability phase, the jury found that Icelandair had discriminated against Mr. Shea because of his age by demoting him or adversely affecting the terms and conditions of his employment. However, the jury did not find this discrimination to be willful. The jury also rejected the plaintiff's claims of discrimination based on national origin and on retaliation. After hearing an additional two days of testimony concerning damages, the same jury awarded Mr. Shea $ 250,000 in compensatory damages for pain and suffering, mental and emotional stress, anguish, humiliation, or loss of enjoyment of life as a result of age discrimination. The jury declined to award the plaintiff any damages for lost compensation or future medical costs.


 A. Defendant's Motion

 The defendant moves for a partial new trial on the issue of damages, or, in alternative, for remittitur on the ground that the jury's award is excessive.

 1. Standard for New Trial and Remittitur

 In considering a motion for a new trial, in contrast to a motion for judgment as a matter of law, the trial judge may weigh conflicting evidence and need not view the record in the light most favorable to the nonmoving party. See Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992); Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978); United States v. Real Property Known as 77 East 3rd Street, New York, New York, 869 F. Supp. 1042, 1064 (S.D.N.Y. 1994); Koerner v. Club Mediterranee, S.A., 833 F. Supp. 327, 331 (S.D.N.Y. 1993). A motion for a new trial should be granted when "the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988). Thus,

the 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 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 verdict aside; otherwise not.

 Bevevino, 574 F.2d at 684. Since the defendant's motion is directed to the size of the damage award, these principles must be applied here in conjunction with those governing purportedly excessive verdicts.

 A district court that finds a verdict to be excessive does not have the power simply to reduce the damage award. See Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93, 96 (2d Cir. 1995) (citing Vasbinder v. Scott, 976 F.2d 118, 122 (2d Cir. 1992)); see also Phelan v. Local 305, 973 F.2d 1050, 1064 (2d Cir. 1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1415, 122 L. Ed. 2d 785 (1993). It can order a new trial on all issues or one limited to the question of damages. Tingley Systems, 49 F.3d at 96. In the alternative, the court may grant remittitur by conditioning denial of a motion for a new trial on the plaintiff's accepting damages in a reduced amount. Id. Thus, remittitur is "the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Earl v. Bouchard Transportation Co., 917 F.2d 1320, 1328 (2d Cir. 1990) (quoting Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984)).

 The threshold task here is to identify the proper standard for determining whether the jury award was excessive. Although this lawsuit was brought in federal court and the plaintiff won a verdict under both the ADEA and the Human Rights Law, the jury awarded damages only for pain and suffering. Since the plaintiff is not entitled to such damages under the ADEA, see Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 147 (2d Cir. 1984) (plaintiffs not entitled to recovery for emotional distress under ADEA), the jury award was necessarily rendered pursuant to the pendent state claim.

 A federal court must apply state substantive law to state claims such as this over which it exercises supplemental jurisdiction. Baker v. Coughlin, 77 F.3d 12 (2d Cir. 1996) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)); Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991), cert. denied, 502 U.S. 1059 (1992). Here, the question of how much money Mr. Shea may be awarded for pain and suffering attributable to a violation of the Human Rights Law is an issue of substantive rights. See Consorti v. Armstrong World Industries, 72 F.3d 1003, 1011 (2d Cir. 1995). Therefore, New York state law regarding the excessiveness of the verdict must be applied.

 This choice is significant. In cases where federal law governs, a jury's verdict may not be overturned unless it is so excessive that it shocks the conscience of the court. See id.; Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir. 1993); Wade v. Orange County Sheriff's Office, 844 F.2d 951, 955 (2d Cir. 1988). By contrast, the state standard is far less deferential:

In reviewing a money judgment in an action . . . in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

 N.Y. Civ. Prac. L. & R. § 5501(c) (McKinney Supp. 1995) (emphasis added).

 The inquiry does not stop here. The New York State Legislature adopted Section 5501 in its current form in 1986. Previously, both trial and appellate courts in New York had applied the "shocks the conscience" test to jury verdicts. See, e.g., Neal v. Rainbow House Fruits, 87 A.D.2d 511, 512, 447 N.Y.S.2d 487, 488 (1st Dep't 1982). The 1986 amendment explicitly requires only the Appellate Division to apply the "deviates materially" standard. Thus, it leaves open the possibility that state trial courts -- and, by analogy, federal district courts exercising supplemental jurisdiction -- are intended to continue using the "shocks the conscience" test. *fn3" See Consorti, 72 F.3d at 1012-13; David D. Siegel, Supplementary Practice Commentary, C5501:10 reprinted in 7B McKinney's Consolidated Laws of New York Ann. at 25-26 (1995).

 Where, as here, the highest state court has not spoken on an issue of substantive state law, a federal court must attempt to forecast how that court will rule. O'Neill v. City of Auburn, 23 F.3d 685, 689-90 (2d Cir. 1994); In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 850 (2d Cir. 1992). Lower state court decisions, while not binding, carry substantial weight in formulating that prediction. See O'Neill, 23 F.3d at 690.

 Here, three out of four of the Appellate Division departments have held that the state trial courts are bound by the "deviates materially" standard. See Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 1015, 619 N.Y.S.2d 440, 440 (4th Dep't 1994); Prunty v. YMCA of Lockport, Inc., 206 A.D.2d 911, 912, 616 N.Y.S.2d 117, 118 (4th Dep't 1994); Cochetti v. Gralow, 192 A.D.2d 974, 975, 597 N.Y.S.2d 234, 235 (3d Dep't 1993); Shurgan v. Tedesco, 179 A.D.2d 805, 806, 578 N.Y.S.2d 658, 659 (2d Dep't 1992). Furthermore, at least one federal district court has applied this test to a jury verdict under the Human Rights Law in an age discrimination case. Lightfoot v. Union Carbide Corp., 901 F. Supp. 166, 169 (S.D.N.Y. 1995); see also Travelers Companies v. New York General Mechanical, Inc., No. 90-CV-0902E(M), 1994 U.S. Dist. LEXIS 15093, *4, 1994 WL 584926, at *1 (W.D.N.Y. Oct. 12, 1994) (applying § 5501(c) to damages in a diversity action); but see McIntosh v. Irving Trust Co., 887 F. Supp. 662, 664 (S.D.N.Y. 1995) (applying "shocks the conscience" test to verdict under Human Rights Law without reference to N.Y. Civ. Prac. L. & R. § 5501(c)).

 While the Appellate Division opinions incorporate little legal analysis, they are uniform in their result. Furthermore, it would be anomalous for trial courts and appellate courts to review the same jury verdict using different standards. I therefore conclude that the New York Court of Appeals would most likely rule that the "deviates materially" standard must be used by trial courts, and I will utilize it here.

 In evaluating the magnitude of a jury verdict, "the best guide for a federal court, if available, would be decisions of the state's courts in comparable cases indicating at what point awards become excessive." Consorti, 72 F.3d at 1013. Such decisions, however, are instructive rather than binding. See id. at 1012; Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir. 1984); Senko v. Fonda, 53 A.D.2d 638, 639, 384 N.Y.S.2d 849, 851 (2d Dep't 1976). This is the case, in part, because "any given judgment depends upon a unique set of facts and circumstances." Nairn v. National R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988). Accordingly, I will now turn to the facts underlying the jury's award.

 2. Evidence at Trial

 a. Parkinson's Disease

 The most important factor that sets this case apart from others involving emotional pain and suffering is the fact that Icelandair's discriminatory conduct had physical consequences. In 1992, six months after the demotion, Mr. Shea was diagnosed with Parkinson's disease. He is now experiencing a number of debilitating symptoms including muscle spasms, insomnia, slurred speech, rigidity, tremors, and loss of balance. (Shea Tr. at 12, 20-22). Mr. Shea testified about the progress of the disease:

Q: What is happening with your Parkinson's disease, sir?
A: It's worsening.
Q: What particular problems are you having now?
A: Well, the balance problems are more . . . I have been falling around the house and on my property when I'm trying to do some work outside last year, and I have to be very careful how I walk, and I have to hold on to the bannister and things like that . . . I trip and I become very clumsy.
I spill things, a cup of coffee or something on my desk. I've never done that before.

 (Shea Tr. 20-21). These symptoms have significantly altered Mr. Shea's lifestyle. Once an active sportsman, he can no longer bike, play golf, garden, or engage in a variety of tasks around the house. (Shea Tr. at 2-4, 21-22). Mr. Shea also confessed that he fears the future:

Q: Mr. Shea, the fact that your Parkinson's disease is getting worse, what affect [sic] has that had on you emotionally?
A: It has a devastating effect on me emotionally. It is very hard on me. I, I, I dread the future. I, I -- it's just not a good situation; poor situation.

 (Shea Tr. at 22).

 Dr. Paul Roach, the plaintiff's expert, testified at length that there is a definite relationship between stress and the aggravation of Parkinson's disease. (Roach Tr. at 8-11 ). He explained that the linkage is attributable to "free radicals," molecules that are formed during the normal course of metabolism in the body. These free radicals are attracted to lipid or fatty tissues in the body, particularly in the brain. Once they attach to the tissue they disrupt the natural functions in the cell. This process is characteristic of Parkinson's disease as well as other neurodegenerative conditions. (Roach Tr. at 12). Dr. Roach further testified that emotional stress has been shown to increase the production of free radicals. (Roach Tr. at 11).

 With respect to Mr. Shea specifically, Dr. Roach testified that demotion-related stress played a significant part in exacerbating the symptoms of Parkinson's disease:

Q: Now based on everything that you looked at and your 40 years of experience, did you formulate an opinion as to whether the occupational stress sustained by Mr. Shea was a competent producing factor in the development or the aggravation of his Parkinson's disease?
A: I did.
Q: And what is your opinion, Doctor?
A: Very definitely.
Q: Now, what specifically did you look at, sir, when you reached that opinion?
A: Well, I looked at the history of the progression of his disorder, the temporal relationship between his job stress and the accelerated symptoms and signs that he experienced, and I think that speaks for itself.
Q: You know that he was under the case or had been examined by a Dr. Mortati, is that right?
A: I recall that, yes.
Q: Right. And did you note that Dr. Mortati had diagnosed Parkinson's disease in ...

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