The opinion of the court was delivered by: SPATT
Presently before the Court is the renewed motion of the defendants, the Port Washington Police District and two of its commissioners, Stephen Zaccherio ("Zaccherio") and Frank Scobbo ("Scobbo") ("Scobbo" collectively the "defendants" or "Police District"), for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) and/or a new trial including remittitur pursuant to Fed. R. Civ. P. 59. According to the defendants, after a jury trial, the plaintiff, Paul Gros ("Gros" or the "plaintiff"), has failed to establish that his First Amendment rights to free speech and free association have been violated. As a result, the defendants contend that they are entitled to judgment as a matter of law. In the alternative, the defendants seek a new trial or a remittitur of the damages awarded. Gros opposes the motion, arguing that the verdict should be upheld and that he entitled to the full amount of the damage award.
The plaintiff, Paul Gros, is a police sergeant in the Port Washington Police District. From the 1980's until the present, Gros has consistently remained active in the affairs of the Policemen's Benevolent Association ("PBA"). In 1985 he was appointed PBA vice president and served in that capacity until 1986 when he was elected president. The plaintiff served as president until 1990 when he was appointed a PBA trustee. In 1994, Gros was reelected president, which is the office he held at the time of the trial. According to the plaintiff, because of his participation in PBA affairs, he was subject to "a continual barrage of harassing and discriminatory treatment by the defendants." For example, Gros contends that as the result of his union activities, his promotion to the rank of sergeant was delayed for several years, that he was denied assignments he would have otherwise been given, and that he was denied job-related training, all in violation of his First Amendment rights.
A jury trial was held on June 19, 20, 24, 25, 26, 27, and July 1 and 2, 1996. Prior to the jury charge, the Court, ruling in part on the defendants' motion for judgment as a matter of law, recognized that in order for Gros to maintain his First Amendment claims, he must establish that the speech or association at issue touched upon matters of public concern. See Gros v. Port Washington Police Dist., 932 F. Supp. 63, 66 (E.D.N.Y. 1996) (holding that as a matter of law, to establish a claim for violation of plaintiff's First Amendment free association rights, Gros must show that the association, similar to the speech, involved a matter of public concern). Familiarity with this opinion, as well as prior proceedings before this Court is presumed. Assessing the evidence based on the representations of counsel, this Court's informal trial notes, and without the aid of the trial transcript, the Court instructed that the jury could find that Gros had spoken out on the following matters of public concern if the plaintiff could prove such events by a preponderance of the evidence:
1. That the plaintiff spoke at meetings with the police commissioners in 1989, 1990, 1991, 1992, 1993 and 1994 to the effect that there was a shortage of supervisory personnel, including sergeants, in the Port Washington Police District;
2. That in November 1993, Gros spoke out publicly about alleged criminal activities on the part of Commissioner Zaccherio; and
3. Also in November 1993, the plaintiff spoke to the District Attorney of Nassau County concerning alleged criminal activities on the part of Commissioner Zaccherio.
See Trial Transcript ("Tr.") at 1417-18 (jury charge as to the only evidence of speech on matters of public concern).
The Court further instructed the jury that if Gros had established the foregoing speech of public concern, the jury could determine that the plaintiff was harassed in violation of his constitutional rights if he was able to prove the following facts by a preponderance of the evidence:
1. In 1990, he was not paid overtime for a trip he took to Washington, D.C.;
2. In 1992, after he successfully investigated a serious bank crime, his award was downgraded;
3. In 1992, he received radar training instead of a narcotics assignment;
4. As a result of the Flower Hill Hose Co. meeting on February 2, 1993, he was investigated;
5. In May 1993, he was not paid overtime when he testified at a Human Rights Hearing for another officer;
6. He was not paid overtime when he testified at a PERB hearing in November 1993;
7. Also in November 1993, Gros was directed to see a police surgeon when there was nothing wrong with him;
Based on this evidence, the jury returned a verdict in favor of the plaintiff finding that the defendants violated his constitutional rights. As a result, the plaintiff was awarded $ 25,000 in back pay, $ 500,000 for emotional distress and $ 80,000 in punitive damages each, against Commissioners Scobbo and Zaccherio.
The defendants challenge the jury verdict and damages award on several grounds. Initially, the defendants contend that although the Court instructed the jury that Gros had engaged in protected speech between 1989 and 1994 regarding a shortage of supervisory personnel, a review of the trial transcript reveals that no such evidence was ever presented. According to the defendants, Gros spoke to the Commissioners only about his own promotion during these periods, which does not constitute a matter of public concern, and therefore is not shielded by the First Amendment. With respect to the second and third instances of speech regarding Commissioner Zaccherio's alleged illegal conduct, the defendants argue that the resulting harassment is "de minimis," and therefore does not rise to the level of a constitutional violation. Finally, with respect to the alleged harassment, the Police District contends that Gros failed to establish that speech was a "substantial" or "motivating" factor for the retaliation, as required in order to state a constitutional claim.
In addition to their substantive attacks on the plaintiff's free speech claims, the defendants challenge the verdict on a number of other grounds. First, the Police District contends that the back pay award cannot be sustained because the plaintiff's promotion claim is barred by the three-year statute of limitations. In the alternative, the defendant posits that even if the back pay award is not time barred, it must nevertheless be reduced because it is not supported by the evidence.
Second, the individual defendants, Commissioners Zaccherio and Scobbo, contend that even if the plaintiff may have otherwise established his First Amendment claims, they are entitled to judgment as a matter of law under the doctrine of qualified immunity. According to Zaccherio and Scobbo, any action they were found to have taken against Gros was not in violation of a clearly established constitutional right. As a result, they contend that they should be insulated against civil suit.
Third, the Police District contends that the $ 500,000 award for emotional damages should be reduced. According to the defendants, such a large award should shock the conscience of the Court and constitutes a denial of justice.
Fourth, the defendants argue that the award of punitive damages was inappropriate in this case as such an award is not support by the evidence. In the alternative, the Police District contends that even if punitive damages are appropriate, they should be reduced.
Finally, the defendants maintain that they were denied a fair jury trial because of the composition of the panel. Based on the fact that a number of the jurors were from New York City rather than the counties of Nassau and Suffolk, closer to where the events involved took place, the Police district contends that its Seventh Amendment right to a jury of its peers was violated.
Needless to say, the plaintiff opposes the defendants' motion and disputes all of the arguments advanced. Gros argues that the jury verdict is proper and is entitled to deference by the Court. Accordingly, the plaintiff contends that the verdict and the award of damages should stand.
Pursuant to Fed. R. Civ. P. 50(b), a renewed judgment for a matter of law may be made "at the close of all the evidence" and after the verdict. A motion for judgment of a matter of law may be granted where "there is no legally sufficient evidentiary basis for a reasonable jury to find [in favor of the non-moving] party." Fed. R. Civ. P. 50(a).
When ruling on a motion for judgment as a matter of law, 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.'" Concerned Residents for the Environment v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994), cert. denied, 131 L. Ed. 2d 721, 115 S. Ct. 1793 (1995), quoting, Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988). Accordingly, when ruling on a motion brought pursuant to Rule 50, the court may not rule on the credibility of the witnesses or the weight of the evidence. Caruso v. Forslund, 47 F.3d 27, 32 (2d Cir. 1995). In order to grant a motion for judgment as a matter of law, there must be 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 . . . such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men [and women] could not arrive at a verdict against [it].'" Concerned Residents, 34 F.3d at 117, quoting, Song v. Ives Lab, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992); Mattivi v. South African Marine Corp. "Huguenot", 618 F.2d 163, 168 (2d Cir. 1980).
In order to grant a new trial, the court must find that the verdict is "seriously erroneous" or constitutes a "miscarriage of justice." Smith, 861 F.2d at 370; Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983). To grant a motion for a remittitur, the Court must find that the damage award was so excessive as to "shock the judicial conscience and constitute a denial of justice." Walz v. Town of Smithtown, 46 F.3d 162, 170 (2d Cir.), cert. denied, 132 L. Ed. 2d 810, 115 S. Ct. 2557 (1995); Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990).
B. The Police District's motion
As stated above, the defendants move for judgment as a matter of law, or alternatively, for a new trial or a remittitur on a variety of grounds. For the sake of clarity, the Court will address each of these arguments in turn.
1. Failure establish a First Amendment claim
Initially, the Police District contends that Gros failed to prove a violation of his free speech or free association rights. To consider a cause of action under the First Amendment, the Supreme Court has set forth a multi-step analysis. In Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the Supreme Court established that a public employee's free speech claims should be evaluated by balancing the right of the worker to express his or her views against the right of the employer to maintain workplace efficiency as a justification for retaliatory conduct. Id. at 568. As stated in this Court's earlier opinion, this balancing test was further refined in Mount Healthy City School District v. Doyle, 429 U.S. 274, 283-87, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), which provides a three step process enabling the plaintiff to prove his case: (1) the plaintiff must show that the speech was constitutionally protected; (2) the plaintiff must demonstrate that the protected activity was a "substantial" or "motivating" factor for the retaliatory conduct; and (3) if these two criteria are met then the defendants must show that they would have reached the same decision even if the plaintiff had not engage in protected activity. In Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), the court elaborated on these standards by recognizing that not all speech by a public employee is entitled to constitutional protection, stating that:
When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of only personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. . . .
Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.
This inquiry constitutes a question of law to be decided by the Court, not one of fact for the jury. Id. Accordingly, when a dispute arises relating to the First Amendment rights of a public employee, the courts must balance the employee's rights to comment on matters of public concern with the government's interest as an employer, to provide public services effectively and efficiently. See Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 1884, 128 L. Ed. 2d 686 (1994); Pickering, 391 U.S. at 568; Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991). As a result, not every matter that transpires in a government office or pertains to the functioning of a public agency is a matter of "public concern." However, as the Second Circuit has observed, the Supreme Court has declined to establish a general standard against which ...