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January 21, 1997


The opinion of the court was delivered by: FOSCHIO





 Plaintiff, Danny T. Greenway, filed a complaint against Defendant, Buffalo Hilton Hotel ("Buffalo Hilton"), on December 1, 1994, alleging that the Buffalo Hilton, Plaintiff's former employer, had discriminatorily discharged him, based on his disability, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York Human Rights Law, Executive Law § 297. Plaintiff, who had been employed as a bartender at the Buffalo Hilton, was terminated approximately eighteen months after Defendant learned that Plaintiff had tested positive for the HIV virus. Defendant denied that Plaintiff's disability was the reason for Plaintiff's termination, contending that Plaintiff was terminated pursuant to Defendant's progressive disciplinary policy after four unsatisfactory work incidents involving Plaintiff. *fn1"

 Jury selection began on October 8, 1996, with testimony commencing on October 10, 1996. At the close of Plaintiff's evidence, and again at the close of Defendant's case, Defendant moved for a directed verdict on the issue of liability, which were denied by the court. Following the conclusion of the trial, the jury found for the Plaintiff, and awarded $ 65,000 in backpay, $ 50,000 for future health insurance premiums, $ 324,000 for future medication costs, and $ 1,000,000 in punitive damages, for a total award of $ 1,439,000.

 Thereafter, on October 28, 1996, Plaintiff filed a motion for pre-judgment interest, front pay, and attorneys' fees and costs. On November 4, 1996, Defendant filed a motion to amend the judgment, pursuant to Fed.R.Civ.P. 59(e), for a judgment as a matter of law on backpay and compensatory damages, pursuant to Fed.R.Civ.P. 50(b), and for a new trial on punitive damages, pursuant to Fed.R.Civ.P. 59(a), a motion for judgment as a matter of law, or for a new trial, on the issue of liability, and a motion to extend the stay of execution of the judgment, or to reduce the amount required for the supersedeas bond, along with supporting memoranda. Defendant also requested oral argument on the motions.

 On November 22, 1996, Defendant filed a memorandum in opposition to Plaintiff's motion. On the same day, Plaintiff filed a memorandum in opposition to Defendant's motions. Thereafter, on December 4, 1996, Plaintiff and Defendant both filed reply memoranda. Oral argument on the motions was held before the undersigned on December 18, 1996.

 For the reasons as set forth below, Plaintiff's motions are GRANTED, in part and DENIED, in part. Defendant's motions are GRANTED, in part and DENIED, in part.


 Plaintiff, Danny T. Greenway, commenced his employment with Defendant, the Buffalo Hilton Hotel, on December 12, 1987, working as a bartender at Charlie's Saloon, a bar within the Buffalo Hilton. Greenway worked at the Buffalo Hilton from December, 1987 until July, 1992 without incident. During that time, Greenway's immediate supervisor was Jerry Kulwicki. Kulwicki, in turn, reported to Richard Seidler, the food and beverage manager. Greenway himself did not have much contact with Seidler.

 Greenway was diagnosed as carrying the HIV virus in 1987, prior to the commencement of his employment with the Buffalo Hilton. Greenway did not inform anyone at the Buffalo Hilton of his HIV positive status at the time of his hire.

 In July, 1992, Greenway took a one month disability leave because of fatigue and stress. In order to obtain disability benefits under the Buffalo Hilton's disability insurance program, Greenway was required to complete a proof of claim form. Greenway completed the form, which included a physician's statement, and gave the form to Kulwicki on July 21, 1992. The information on the form provided by Greenway's physician, Dr. Neal Rzepkowski, revealed that Greenway was HIV positive. Upon giving the form to Kulwicki, Kulwicki looked at the form and then told Greenway that he was required to give the form to Richard Kotas, the personnel manager for the Buffalo Hilton. Greenway then went to see Kotas and provided him with the disability form. Greenway discussed the contents of the form with Kotas, and requested that Kotas keep Greenway's HIV positive status confidential. The general manager, Rudy Rainer, however, was told of Greenway's HIV positive condition by Kotas, and Rainer informed Seidler.

 Greenway returned to work on August 17, 1992. In September, 1992, Greenway received his semi-annual employee evaluation. For the first time, Greenway received a below average evaluation from Kulwicki. In fact, Greenway's evaluation went from the second highest ranking in April, 1992 to the second lowest ranking in September, 1992.

 On September 20, 1992, Greenway was told that certain V.I.P.s, a group of travel agents evaluating the hotel, were going to be in Charlie's Saloon that evening. A waitress was added to the staff, and the evening proceeded without incident. The guests came into Charlie's Saloon at approximately 10:30 p.m., and by 2:00 a.m., only five or six guests were left. As the remaining guests had indicated that they did not want any further drinks, Greenway decided to close the bar. However, on October 5, 1992, Greenway received an employee discipline from Kulwicki, dated September 29, 1992. Kulwicki told Greenway that someone had complained to Seidler that Greenway had closed the bar too early on September 20, 1992, and Seidler told Kulwicki to write up Greenway. According to Greenway, normal hotel policy was that, in the bartender's discretion, the bartender was to close the bar if business was slow. While Greenway had closed the bar early many times before, he had never been disciplined for taking such action. Kulwicki was unable to recall the actual identity of the patron who allegedly made the complaint, relying upon Seidler's direction.

 On October 30, 1992, Greenway received a second employee discipline from Kulwicki. According to Greenway, Kulwicki informed him that a comment card had been received from a hotel guest indicating that Greenway had been rude to the guest, and that Seidler wanted Greenway written up for the incident.

 On January 13, 1993, Greenway received another employee discipline for allegedly being insubordinate. According to the employee discipline, Greenway had called the engineering department at the Buffalo Hilton because the employee bathroom was very cold, instead of simply submitting a work order which would have prompted the engineering staff to attend to the complaint. Greenway spoke to John Davies, the chief engineer, who told Greenway to submit a work order. Words were exchanged, and Davies hung up the telephone. At the end of Greenway's shift, he completed a work order to have the bathroom checked. Greenway then encountered Davies on his way to drop off the work ticket, and Davies told Greenway that he was supposed to go through the proper channels by completing a work ticket, and that he should not call the engineering department. At the conversation's end, Greenway gave Davies the work ticket and left. Davies immediately complained to Seidler about Greenway's attitude, and Seidler told Kulwicki to give Greenway an employee discipline. Based on that misconduct report, the third disciplinary action, Greenway was suspended from work for five days.

 On February 3, 1994, Greenway received an employee discipline on the basis that, on January 22, 1994, he failed to obtain help in the bar during the very busy period, that he failed to notify the manager on duty of the situation, and that he failed to cooperate with the hotel restaurant staff when they tried to help him. Greenway was asked to come to the personnel office after his shift. Upon arrival at Richard Kotas' office, Greenway found Kulwicki, Kotas, and Seidler waiting for him. Greenway was given the employee discipline form, and informed that he was being terminated pursuant to hotel policy which provided that any employee who received more than three disciplines would be terminated. Kotas told Greenway that he was still eligible for his health benefits. Greenway continued his benefits for three months, and then stopped paying the premiums to the Buffalo Hilton whereupon his health insurance coverage ceased.

 After his termination, Greenway worked for a temporary agency for six months, from May, 1994 through October, 1994. Despite his fourteen years experience as a bartender, Greenway did not apply for any other bartending positions because of his experience with the Buffalo Hilton. Greenway went into a retraining program to obtain skills as a machinist. Upon completion of the program, on January 12, 1996, Greenway was unable to find work in that occupation. As of the time of trial, Greenway remained unemployed.


 1. Judgment as a Matter of Law/New Trial on the Issue of Liability

 Defendant Buffalo Hilton first moves the court to grant it judgment as a matter of law, or, in the alternative, to grant it a new trial on the issue of liability on the following grounds: (1) Plaintiff offered no direct evidence to support a finding that he was discharged because of his disability; (2) the circumstantial evidence presented at trial was insufficient to enable a reasonable juror to find that Plaintiff had been discharged because of his disability rather than because of the Buffalo Hilton's disciplinary policy; and (3) the jury was influenced by Plaintiff's counsel's prejudicial comments to the jury during his closing argument.

 The party filing a motion for judgment as a matter of law bears a heavy burden. Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994). 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." Concerned Area Residents for the Environment, supra, at 117 (quoting Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988)). To grant a judgment as a matter of law, the court must find that 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 . . . such an overwhelming amount of evidence in favor of the movant that reasonable and fair-minded men could not arrive at a verdict against [it]." Concerned Area Residents for the Environment, supra, at 117 (quoting Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)). Further, it is well established that a motion for a directed verdict at the close of the evidence is a prerequisite for a judgment as a matter of law. Hilord Chemical Corp. v. Ricoh Electronics, Inc., 875 F.2d 32, 37 (2d Cir. 1989). A judgment as a matter of law is limited to those issues "specifically raised in [a] prior motion for a directed verdict." Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993).

 In the alternative, Defendant seeks a new trial pursuant to Fed.R.Civ.P. 59(a) on the same grounds. A trial court should grant a motion for a new trial when it is convinced that the jury has reached a seriously erroneous result, or that the verdict is a miscarriage of justice. Piesco v. Koch, 12 F.3d 332, 345 (2d Cir. 1993); Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir. 1992). A trial judge's disagreement with the jury's verdict is not alone a sufficient reason to grant a motion for a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983).

 Defendant argues that Plaintiff's conclusory allegations that Defendant terminated him because of his HIV positive status were wholly insufficient to support any federal or state claim of discrimination, and that Plaintiff did not produce any evidence to establish that he was discharged because of a disability. Further, Defendant contends that Plaintiff's counsel's interjection, during summation, of the subject of homosexuality was fatal to Plaintiff's claim of liability, because the jury could then have believed that Plaintiff was discharged because of his sexual orientation, not because of his disability, and that such discrimination, although improper, is not violative of either federal or state law. Plaintiff asserts that sufficient evidence was introduced that he was discharged because of his disability, and that, additionally, he never claimed that he was terminated because of his sexual orientation, nor did he ever contend that Defendant was displeased with the fact that he could have been gay. *fn3"

 Under the ADA, and the New York State Human Rights Law, it is unlawful for an employer to discharge an employee because of that employee's disability. As it was not disputed by the parties that Plaintiff's HIV positive condition was a disability protected under these laws, in order to establish a prima facie case of discrimination, Plaintiff was only required to show that he was terminated under circumstances inferring that his discharge was because of his HIV positive status. The jury found that Plaintiff was discriminated against and was terminated because of his disability, and the jury further found that Defendant did not establish any legitimate, non-discriminatory reasons for its actions.

 The evidence presented at trial showed that, as alleged by Defendant, Plaintiff was terminated from his position following a fourth disciplinary incident pursuant to Defendant's employment policy which mandated termination of an employee after three disciplinary warnings. It was not disputed that Plaintiff was fully apprised of the disciplinary policy. However, there was also evidence that Plaintiff, who was employed by the Buffalo Hilton from December, 1987 until February, 1994, never received a disciplinary warning during his first five years of employment, but only began to receive disciplinary warnings after it was revealed to Defendant's senior management that Plaintiff was HIV positive. There was also evidence that Plaintiff received favorable employee evaluations until Defendant learned that Plaintiff was HIV positive, at which time his evaluation ratings given by Kulwicki slipped markedly. There was, moreover, evidence that other employees were not disciplined for violations of Defendant's work rules while Plaintiff was always disciplined once his HIV positive status became known. Plaintiff also established that, according to the Buffalo Hilton Employee Handbook, some of these violations by other employees required termination after a fourth incident, but in the cases presented, no such termination occurred. Defendant introduced documentary evidence of Greenway's employee disciplines in an attempt to articulate a legitimate business reason for its actions, but it could not articulate any legitimate business reason for Kotas divulging Greenway's HIV positive condition to the general manager, Rainer, or Rainer's subsequent disclosure of it to Seidler. It was only after these senior management personnel became aware of Greenway's condition that Greenway's job performance was for the first time, in the form of written warnings, found to be substandard.

 In order to obtain a judgment as a matter of law, a moving party must demonstrate that the existence of the overwhelming amount of evidence in favor of the movant is such that a reasonable jury could not arrive at a verdict against it. A judgment as a matter of law is only appropriate when there is "such a complete absence of evidence supporting the verdict that the jury finding could only have been the result of sheer surmise and conjecture." King v. Macri, 800 F. Supp. 1157, 1160 (S.D.N.Y. 1992). On this record, the court finds that Defendant cannot meet this burden. Here, the jury's determination rested on its assessment of Plaintiff's testimony as opposed to the testimony of Defendant's employees. Defendant's witnesses portrayed a vastly different story than did Plaintiff. According to Defendant's witnesses, Greenway had employment difficulties prior to July, 1992 which were not documented, while Greenway testified that he had no difficulties prior to the time that his HIV positive status was revealed. Given the direct clash of testimony on numerous critical factual issues in this case, it was the jury's responsibility to make a determination as to which witnesses it chose to believe, as it is proper to leave any issues of credibility and fact-finding within the province of the jury. Piesco v. Koch, 12 F.3d 332, 345 (2d Cir. 1993). It is evident that the jury chose to believe Greenway's version of the facts, finding a substantial portion, if not all, of Defendant's evidence not credible. As such, the court cannot grant Defendant a judgment as a matter of law on the threshold question of Defendant's liability based on Defendant's contention that Plaintiff failed to introduce sufficient evidence to support his claim.

 Defendant also asserts that the jury failed to follow the court's instructions, and, according to Defendant, "apparently misunderstood the court's instruction," as it summarily rejected Defendant's defense, finding that Defendant had not presented evidence of a legitimate, non-discriminatory reason for Plaintiff's discharge. Defendant's Memorandum of Law in Support of Motion for Judgment as a Matter of Law, dated November 4, 1996, at p. 8. Defendant maintains that the jury committed plain error when it found that Defendant did not articulate any legitimate non-discriminatory business reasons for Greenway's termination, as, by simply presenting the documented evidence of Plaintiff's alleged poor performance, Defendant established its non-discriminatory reasons for Plaintiff's discharge sufficient to meet its burden of production.

 In the jury questionnaire, the jury was asked as follows:

 Question 1. Do you find that the Defendant, Buffalo Hilton Hotel, terminated Plaintiff, Danny T. Greenway, under circumstances giving rise to an inference of discrimination against him because of his disability, namely, Mr. Greenway's HIV positive status?

 The jury answered "YES."

 Question 2. Did the Buffalo Hilton Hotel present evidence that there were legitimate, non-discriminatory reasons for terminating Mr. Greenway from his position as a bartender?

 The jury answered "NO."

 The jury did not reach the third question posed by the questionnaire which asked whether the legitimate reasons set forth by the Buffalo Hilton Hotel were mere pretext for what was in truth a discriminatory termination, having been instructed that if the answer to Question 2 was "NO" they should proceed to Question 4 which discussed damages. Defendant surmises that, therefore, the jury misunderstood the instructions because the fact that Defendant put on the defense that it did, in Defendant's view, required the jury to answer "YES" to Question 2 of the jury questionnaire.

  Juries, however, are presumed to follow the court's instructions. Greer v. Miller, 483 U.S. 756, 777 n.7, 97 L. Ed. 2d 618, 107 S. Ct. 3102 (1987). In this case, the court, without objection, gave the jury a copy of the court's instructions to take into the jury deliberation room for their reference. *fn4" Defendant does not complain that the jury was improperly charged on the Plaintiff's ultimate burden of persuasion as to whether Defendant fired Greenway because of his disability. The fact that the jury ultimately discredited and rejected Defendant's defense does not lead to the conclusion that the jury must have disregarded the court's instructions. Indeed, the court's instructions fully discussed the burden on the Defendant to present a legitimate business reason for its actions against Greenway and Plaintiff's ultimate burden of proving he was discharged because of his disability. However, the law does not state that any time a defendant gives a reason for its actions that the jury must find that the reason was legitimate and non-discriminatory, and that liability can then only be premised on a finding that the reason given was a mere pretext. Such a statement would render the Defendant's burden of production practically non-existent. Rather, the employer in a discrimination case must articulate a legitimate, non-discriminatory reason, which is specific and clear enough for the employee to address, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), and legally sufficient to justify a judgment for the employer. Burdine, 450 U.S. at 255. "To satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decisions had not been motivated by discriminatory animus." Burdine, at 257. The jury, after considering the quantity of Defendant's evidence, obviously found that Defendant's reasons were not legitimate, finding that Defendant's discipline of Greenway was not legitimate where other employees were not disciplined similarly for equally or more serious work rule violations. The jury was therefore entitled to find for the Plaintiff on the issue of whether Plaintiff was discharged because of his disability.

 Other than a conclusory argument, Defendant has submitted no specific evidence to support its contention that the jury did not follow the court's instructions on whether Plaintiff had proven that he was discharged because of discrimination. Nor has Defendant pointed to any authority for its postulation that the jury must necessarily find that the defendant has articulated legitimate reasons for its actions if the defendant puts on any defense. Thus, this argument is insufficient to warrant either a judgment as a matter of law or a new trial.

 Defendant was required to articulate a reason for Greenway's discharge "which, if believed by the trier of fact, would [have] supported a finding that unlawful discrimination was not the cause" of the discharge. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993) (citing Burdine, supra, at 254-55) (emphasis in original). The jury's award to Plaintiff based upon its assessment of the truthfulness of Defendant's witnesses and the Defendant's evidence of its proffered non-discriminatory reasons is entirely consistent with the holding in St. Mary's, supra that establishing Defendant's reasons as not legitimate in itself does not compel a judgment for Plaintiff. St. Mary's makes clear that the trier of fact must nevertheless find a plaintiff has satisfied its ultimate burden of proving discrimination as a fact. St. Mary's Honor Center, supra, at 511. However, as the Court explained:

"The fact finder's disbelief of the reasons put forward by defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of [plaintiff's] prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . and, upon such rejection, no additional proof of discrimination is required."

 St. Mary's Honor Center, supra, at 511.

 The question here therefore is whether the jury had a basis upon which to reject Defendant's proffer of legitimate reasons the four disciplinary actions -- which together with its finding that Greenway had established a prima facie case of discriminatory discharge -- satisfied the requirement that the jury must make "a finding of discrimination." St. Mary's Honor Center, supra, at 512 n. 4.

 In this case, through a painstakingly detailed examination of Mr. Kulwicki, Greenway's supervisor, who was qualified as a hostile witness, and through his examination of Defendant's other witnesses, Greenway succeeded in giving the jury ample reason to find that Defendant's articulated reasons for discharge were, in numerous material respects, untrue, and therefore not legitimate. Further, Greenway was also able to satisfy the jury that, taken together with the coincidental and dramatic decline in Greenway's performance ratings, the Defendant's failure to discipline other employees with similar or more serious work rule violations were, under its claimed neutral 'four disciplines and you're out' policy, provided ample reasons for the verdict in Greenway's favor.

 For example, Greenway was disciplined for closing the bar on September 20, 1992 too early resulting in a report of customer dissatisfaction. Kulwicki insisted that although he was not present at the time, he later investigated and "the more I [Kulwicki] found out about it, it was a big thing." Trial Transcript, dated October 11, 1996, at p. 201. The discipline charged that Greenway failed to keep the bar open after the usual normal closing time of 1:00 a.m., although Greenway testified he stayed open until approximately 1:30 - 1:45 a.m. and closed the bar because the group from which the complaint emanated "were no longer drinking," "just sitting," when he gave the "last call" with no response. Trial Transcript, dated October 10, 1996, at p. 109. Greenway's recollection was corroborated by Ms. Linda Langan, who was Defendant's night audit manager. Trial Transcript, dated October 15, 1996, at p.173. Langan, who served as night manager on September 20, 1992, recalled that the VIP group was in Charlie's that night, and that she was asked to "Z-out," or close the bar's cash register, at 3:20 a.m., a task that was typically completed after a bartender had served the last check, and cleaned the bar, October 15, 1996 Transcript, at pp. 176, 181, and that she did recall telling an EEOC investigator that Greenway did not close the bar before 1:00 a.m. October 15, 1996 Transcript, at p. 177. ...

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