Greenway received employee evaluations from Kulwicki on a semi-annual basis throughout his employment with the Buffalo Hilton. Throughout the five year period from December, 1987 through July, 1992, Greenway received consistently favorable evaluations.
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 January 22, 1994, Charlie's Saloon was filled to capacity because of the presence of guests staying at the hotel who were participating in or attending a National Football League playoff game to be held the next day, Sunday, in Buffalo. Kulwicki was unavailable, so Greenway claimed he tried to ask Seidler, who was briefly present in the bar, to obtain more help to serve the customers. Seidler, however, did not offer any assistance, although he testified that Greenway did not request any help. The waitress who was working at the time, Tamara Nunn, asked to come behind the bar to make drinks, but Greenway declined because she was not a seasoned bartender, and he felt she was not competent to make drinks. Greenway was scheduled to work until 6:30 p.m. that evening, however, he stayed until 7:45 p.m. because of the crowd.
When Greenway left, he believed that the situation in Charlie's Saloon was in control.
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.
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.
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. Langan also testified that typically the bartender would call her to "zero-out" about fifteen to twenty minutes before she would actually arrive to perform this audit task. October 15, 1996 Transcript, at p. 181. Langan also testified that, as the manager on duty that evening, she received no customer complaints about the bar closing too early. Id.
In attempting to justify the discipline given to Greenway as a result of a patron complaint in October, 1992, Kulwicki stated he believed the unidentified patron's complaint because Greenway "always had problems with customers," Trial Transcript, dated October 15, 1996, at p. 16 (emphasis added), yet when asked if it was not true that prior to July, 1992, when Greenway took a one-month disability leave based on the disability form which Greenway presented to Kulwicki, Kulwicki had never "even indicated [in Greenway's performance evaluations] that Danny Greenway ever had problems with patrons," Kulwicki conceded he had not, stating "This is true." October 15, 1996 Transcript, at p. 18. As to the fourth discipline which was based on Greenway's failure to request assistance to handle the large crowd of customers at Charlies on January 22, 1994, Kulwicki, who did not observe the conditions because he was not at the hotel at the time, also conceded that the report of the manager on duty for that evening failed to indicate that, other than the bar being extremely crowded during Greenway's shift, there were any "problems with any guests at Charlie's Bar." October 15, 1996 Transcript, at pp. 66-67.
The jury therefore had before it a record upon which it could fairly determine that the Defendant's asserted neutral means for discharge were not only untrue but also, commencing as they did shortly after Greenway's return from disability and the acquisition by senior managers of the nature of Greenway's disability, taken together with the fact that other employees were not so severely disciplined on more significant or comparable work rule violations, that Greenway had sustained his ultimate burden of proof of discrimination.
While Defendant now objects to the phraseology of the jury questionnaire, it is important to note that Defendant made no objection to either the instructions, which clearly cast Plaintiff with the proper burden
or to the questionnaire until after the verdict was rendered. On this record, Defendant was not found liable based only on a finding that the Defendant's proffered reasons for discharge were false and therefore not legitimate. Rather, the jury found that such reasons, which it believed to be false, combined with Plaintiff's other evidence, constituted a preponderance of circumstantial evidence from which the jury could, and did, find discrimination based on Greenway's disability. There is therefore no basis to grant a new trial on Defendant's belated contention.
Finally, Defendant argues that, by interjecting the subject of homosexuality into the trial during his attorney's closing summation, Plaintiff prejudiced the jury, and that, as such, Defendant is entitled to a judgment as a matter of law or a new trial on the issue of liability, or, at a minimum, a judgment as a matter of law or new trial on the issue of punitive damages. Defendant contends that Plaintiff's attorney changed the focus of the jury from that of an alleged wrongful termination on account of a disability, to that of an alleged wrongful termination on account of Plaintiff's homosexuality, providing the jury with a reason "to react emotionally to the alleged hate and intolerance shown by the Defendant." Defendant's Memorandum of Law, dated November 4, 1996, at p. 12.
First, the court notes that Defendant did not object to Plaintiff's closing argument at the time of trial. At oral argument on these post-trial motions, Defendant's counsel conceded that he did not object during the summation as he did not wish to bring further attention to Plaintiff's counsel's allegedly inflammatory remarks. However, neither did defense counsel object after the jury left the courtroom which would have enabled the court to further instruct the jury about the issue. Plaintiff maintains that Defendant has therefore now waived any right to make an objection to his summation. The court agrees. "Neither trial tactics nor mere temerity will excuse counsel's failure to object to a remark made in closing argument." Carmel v. Clapp & Eisenberg, P.C., 960 F.2d 698, 704 (7th Cir. 1992). Any potentially improper statements should be called to the attention of the trial judge so that the judge may be given a timely opportunity to correct any prejudice that might result from such remarks. Doe v. Johnson, 52 F.3d 1448, 1465 (7th Cir. 1995). Defendant never raised the issue that Plaintiff's counsel made alleged improper remarks during his summation until Defendant filed its post-trial motions. As such, the court finds that Defendant has waived his right to object to such statements. See Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 848 F.2d 613, 619-20 (5th Cir. 1988) (plaintiff waived any objection to improper closing argument made by defense counsel when plaintiff failed to object to such tactics at time of argument, or at a sidebar conference immediately thereafter).
Secondly, even if Defendant did not waive his right to object to Plaintiff's summation, Defendant's argument must fail. The evidence presented at trial focused on Plaintiff's claim that he was discharged because of his disability, i.e., his HIV positive status. There was simply no allegation or evidence that Plaintiff believed that he was terminated from employment because of his sexual orientation. Indeed, there was no mention of whether or not Plaintiff was a homosexual at any time during the trial, including both summations. Therefore, the jury had no proof before it, and could not have found, that Plaintiff was discharged because he was homosexual. The only time homosexuality was mentioned was during Plaintiff's closing argument.
Plaintiff contends that homosexuality was only mentioned by his attorney as an example of discrimination that needs no motive for its existence, in response to defense counsel's suggestion during his closing argument that Defendant had no motive for discriminating against Plaintiff. In his closing argument, Plaintiff's counsel said:
Mr. Davison [defense counsel] raised this issue of motive. Why would they fire him, there's no motive. Now he acknowledges that we don't have to show motive. Nor do you have to show motive, I don't believe, in a criminal case either. Well they don't have to show motive, but they haven't shown any. Why would they fire him. What possible motive would there be in this case? They said well, maybe they thought he was a danger to others and we weren't concerned. We stipulate that he was not danger to others, that wasn't, that's not the motive in this case. What motive is there ever for discrimination and prejudice and bigotry? What motive is there ever, why are people out there on the streets and you hear about gay bashing. Why does someone take a baseball bat and whack somebody with it because he thinks somebody is a homosexual. Why is it that maybe 75 years ago you wouldn't see women in the courtroom practicing as lawyers or practicing as doctors. Why is it that this country has a history sometimes of not treating people equally and fairly and looking at people like they're different. What motive is there ever for prejudice and bigotry? There is no motive for it. It stems from hate, from ignorance, maybe from fear. There is no motive involved here when someone looks at Danny Greenway and sees some kind of monster. They don't have a motivation for that. It's what they feel, its what they believe inside of them.
Trial Transcript, October 18, 1996, at pp. 64-65.
Plaintiff's counsel then went on to state:
We're not going to stand for people treating the Danny Greenways of this world in the way he was treated. We are not going to accept what the Hilton Hotel did to Danny Greenway. Your decision, either way, will send a message, not just to this man here, not just in this courtroom, but will send a message everywhere that we must stop all the Seidlers out there, all the Seidlers that would choose to look at this man differently, merely because he has a disability.
Trial Transcript, October 18, 1996, at pp. 65-66.
In ruling on a motion for a judgment as a matter of law, or for a new trial based on attorney misconduct, the trial court must determine whether counsel's conduct created undue prejudice or passion which played upon the sympathy of the jury. Strobl v. New York Mercantile Exchange, 582 F. Supp. 770, 780 (S.D.N.Y. 1984), aff'd on other grounds, 768 F.2d 22 (2d Cir.), cert. denied, 474 U.S. 1006, 106 S. Ct. 527, 88 L. Ed. 2d 459 (1985). The court finds that the mention of homosexuality and "gay bashing" in the context of a summation addressing the issue of prejudice and bigotry as a "motive" for discrimination, was, at most, strong counter-argument against Defendant's "no motive" defense which, taken in the context of Plaintiff's entire summation, was not prejudicial. The fact that the jury heard "isolated comments" in the context of an otherwise proper summation does not warrant a new trial, especially where the jury had the benefit of the court's instructions which reminded the jury that statements of counsel do not constitute evidence. Anastasio v. Schering Corp., 838 F.2d 701, 706 (3d Cir. 1988). Despite Defendant's statement that Plaintiff's closing argument sought to change the reason for Plaintiff's discharge to Plaintiff's homosexuality, a careful reading of the disputed portions of Plaintiff's summation shows there was no such reference made.
Even assuming that the jury understood Plaintiff's counsel's rhetorical illustration as referring to Plaintiff's possible sexual orientation, when considered in light of the court's clear and repeated instruction that statements by the attorneys are not evidence and that the case must be decided only upon the evidence, such comments provide no reason for a new trial.
Further, the court finds, for the same reasons, no basis upon which to grant a judgment as a matter of law or a new trial on the issue of punitive damages based on the same remarks. The remarks made simply did not so exceed the bounds of propriety such that a new trial on these issues is mandated. Mileski v. Long Island RailRoad Company, 499 F.2d 1169, 1174 (2d Cir. 1974).
2. Motion to Amend the Judgment to Reduce Damages
At the conclusion of this case, the jury awarded Plaintiff $ 1,000,000 in punitive damages. Defendant asserts that this award must be reduced to $ 200,000 to conform with the ADA and with the New York Human Rights Law. Plaintiff does not dispute that the punitive damages must be reduced in accordance with the limits set by the ADA, but argues that the award should be limited to $ 300,000.
While an award of punitive damages is not permitted under the New York Human Rights Law, Thoreson v. Penthouse International, 80 N.Y.2d 490, 606 N.E.2d 1369, 591 N.Y.S.2d 978 (N.Y. 1992), the award of compensatory and punitive damages in cases of intentional discrimination in employment, including discrimination on account of a disability, are permitted under 42 U.S.C. § 1981a. The sum of the amount of compensatory and punitive damages is limited under the statute as follows:
. . . in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, [compensatory and punitive damages are limited to] $ 200,000.