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June 26, 1997


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 Plaintiffs Robert Colwell ("Colwell"), Charles Ellinger ("Ellinger") and Richard Abrams ("Abrams"), employees of defendant Suffolk County Police Department (together with defendant County of Suffolk referred to collectively as "County"), brought suit against the County because each was denied a promotion within the Police Department. Colwell was denied promotion from Lieutenant to Captain; Abrams and Ellinger were denied promotions from Sergeant to Lieutenant. Plaintiffs alleged that they were denied these promotions on the basis of their physical disabilities in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 (1995). Plaintiffs' claims were tried before a jury, commencing on March 10, 1997. On March 18, 1997, the jury returned verdicts in favor of each plaintiff. The jury awarded Colwell $ 70,636, and Abrams and Ellinger $ 65,683 each, for compensatory damages from the time they were denied their respective promotions to the date of the verdict. The jury further awarded each of the three plaintiffs $ 150,000 for future compensatory damages. The Court now determines that the record contains sufficient evidence to support the verdicts, and fashions appropriate remedial relief.


 At the close of plaintiffs' case, the County moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, and submitted a memorandum of law contending that: (1) all three plaintiffs failed to support their claims of disability with sufficient medical testimony, and that testimony by the plaintiffs themselves could not form the basis of a finding of disability under the ADA; (2) all three plaintiffs were not "qualified" for the promotions they sought, with or without reasonable accommodation, for purposes of the ADA; and (3) all three plaintiffs failed to prove that the County intentionally discriminated against them on the basis of their disabilities. *fn1" Memorandum of Law in Support of Defendants' Motion for Judgment as a Matter of Law ("Def. Mem."). The Court reserved decision. At the close of all of the evidence, the County again asked the Court for judgment as a matter of law. The Court stated that it would continue to reserve. After the jury returned its verdict, the Court withheld decision on the 50(a) motion, and gave the parties twenty days to submit additional memoranda of law on the motion, and to address remedial issues.

 The County's Rule 50(a) motion should be denied. In so ruling, the Court has analyzed the sufficiency of the evidence in relation to the jury's findings. Although this mode of analysis normally applies to Rule 50(b) motions, the standard for determination is exactly the same for 50(a) and 50(b) motions. See Raspente v. National Railroad Passenger Corp., 111 F.3d 239, 241 n.3 (2d Cir. 1997) ("the same standard applies under either subsection [of Rule 50]"). Furthermore, should the County make a 50(b) motion, it will be limited to the grounds raised in its 50(a) motion. *fn2" See Holmes v. United States, 85 F.3d 956, 962 (2d Cir. 1996) ("Together, Rules 50(a) and (b) 'limit the grounds for judgment n.o.v. to those specifically raised in the prior motion for a directed verdict.'") (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 54 (2d Cir. 1993)). The Court will therefore proceed to adjudicate the reserved 50(a) motion, *fn3" bearing in mind that the Court's analysis will likewise apply to the County's Rule 50(b) motion, should that motion be made.

 A. The Applicable Legal Standard for Ruling on a Motion for Judgment as a Matter of Law

 In order to prevail on a motion for judgment as a matter of law, the County must convince the Court that "when 'drawing all reasonable inferences regarding the weight of the evidence and the credibility of witnesses in favor of [Colwell, Ellinger and Abrams], a reasonable jury could only have found for the [County].'" Vermont Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 277 (2d Cir. 1996) (quoting In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1131 (2d Cir. 1995)). It is well settled that the Court may only grant the motion if "there is such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture, or if the evidence is so overwhelming that reasonable and fair minded persons could only have reached the opposite result." Lambert, 10 F.3d at 56 (2d Cir. 1993). In making this determination, the Court "may not weigh evidence, assess credibility, or substitute its opinion of the facts for that of the jury." Vermont Plastics, Inc., 79 F.3d at 277.

 In order to establish a claim under the ADA, a plaintiff must prove that: (1) he is a qualified person with a disability; (2) the defendant intentionally discriminated against the plaintiff -- that is, the fact that plaintiff was a qualified individual with a disability was a motivating factor in the defendant's decision not to promote him; and (3) as a direct result of the defendant's intentional discrimination, the plaintiff sustained damages. 42 U.S.C. § 12112; see also Wernick v. Federal Reserve Bank, 91 F.3d 379, 383 (2d Cir. 1996) (citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995)).

 C. Mixed Motive

 The Second Circuit recently reiterated that employment discrimination cases can be presented to the jury as either a "single issue motivation" or "dual issue motivation" scenario. See Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 1997 U.S. App. LEXIS 11970 at *10, 1997 WL 272346 *3 (2d Cir. May 23, 1997); see also Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir. 1992) (noting that employment discrimination cases generally fall into one of those two categories). These two scenarios are often referred to as "pretext" and "mixed motive" cases, respectively. In the mixed motive scenario, the Court asks the jury not only to determine whether the impermissible reason -- in the present case, disability -- was a motivating factor in the employment decision, but also "whether the defendant has established that it would have taken the same adverse action in the absence of an impermissible reason." Fields, at *9 n.4. The Second Circuit in Tyler explained the respective burdens of proof in the mixed motive case:

If the plaintiff convinces the factfinder that the illegitimate factor played such a role, the employee has proved that the decision was made at least in part because of the illegitimate factor. At this point the employee is entitled to succeed subject only to the employer's opportunity to prove its "affirmative defense," . . . that is, that it would have reached the same decision as to [the employee's employment] even in the absence of the impermissible factor.

 Id. at 1181 (internal quotations omitted) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775, (1989); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)).

 Despite the perplexities often facing the trial court in determining the application and fashioning of mixed motive and pretextual jury charges, both parties agreed with the Court that the present case should be presented to the jury as a mixed motive case, Tr. at 910-11, 918-20, 954-56, 1046-48, since "the available evidence supported a reasonable inference that 'permissible and forbidden motives coexisted.'" Fields, at *7 n.2 (quoting Ostrowski v. Atlantic Mut. Insur. Cos., 968 F.2d 171, 185 (2d Cir. 1992)) (noting further that the mixed motive charge is inappropriate where "there was either unlawful motivation or lawful motivation, but not both"). The Court therefore asked the jury two questions on the issue of intentional discrimination: (1) whether plaintiff's disability was a motivating factor in the decision not to promote him, and (2) whether plaintiff would still not have promoted plaintiff for reasons having nothing to do with his disability. It was therefore possible for the jury to reach the conclusion that although the County took plaintiff's disability into account, any or all of them would not have received the promotion for legitimate reasons. The remedial scheme incorporated by the ADA specifically contemplates this possibility, and provides for a limited set of remedies in that instance. See 42 U.S.C. §§ 12117(a), 1981a(a)(2), 2000e-5(g)(2). *fn4"

 The jury found in respect to each plaintiff that he was a qualified individual with a disability, and that his disability was a motivating factor in the County's decision not to promote him. The jury further found as to each plaintiff that the County did not prove that it would not have promoted him for other, nondiscriminatory reasons. *fn5" The trial record offers ample support for each of these jury findings.

 1. Disability

 The ADA defines "disability" as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of impairment that substantially limits one or more of the major life activities of the individual; or (3) being regarded as having an impairment that substantially limits one or more of the major life activities of the individual. 42 U.S.C. § 12102(2). Equal Employment Opportunity Commission regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).

 Drawing all reasonable inferences in favor of the plaintiffs, as the Court must, the record is replete with evidence supporting the jury's factual finding that all three plaintiffs were disabled at the time they were passed over for promotion.

 (a) Plaintiff Colwell

 Testimony from both Dr. Robert Reiss ("Dr. Reiss") and Colwell was sufficient to support a jury finding that Colwell's chronic lower back injuries rendered him disabled for purposes of the ADA at the time he was denied promotion. Dr. Reiss characterized Colwell's condition as "chronic low back syndrome with left leg sciatica with increasing symptomatology." Tr. at 403. Colwell injured his lower back in 1979, while pushing a disabled vehicle off the road, id. at 199, and reinjured his back in 1984 when he fell on some icy steps. Id. at 201. Contrary to the County's assertion that Colwell's injury only limited his ability to stand in one place for an extended period of time, Def. Mem. at 6, Colwell testified that "I have excruciating pain in the lower back that travels down my left leg and the bottom of my left foot has pins and needles and it's numb," Tr. at 203, which impaired his ability to sit, stand and walk. Id. at 203, 209, 270. Colwell's injury also prevented him from lifting heavy objects. Id. at 205.

 Despite the County's contention that disability cannot be established solely by testimony from the plaintiff, Def. Mem. at 7, nothing in the ADA compels that legal conclusion. The County relies on Robinson v. Global Marine Drilling Co., 101 F.3d 35 (5th Cir. 1996), in which the Fifth Circuit held that plaintiff's asbestosis was insufficient to establish a substantial limitation on plaintiff's major life functions. But the Robinson court did not hold that the failure to present medical testimony compelled reversal; rather, plaintiff's "several instances of shortness of breath when climbing stairs," without more, was insufficient to meet the definition of disability under the ADA. Id. at 37. None of the other cases cited by the County stand for the proposition that medical testimony is an absolute prerequisite to a jury finding of disability; instead, they merely require that the plaintiff make some concrete showing of disability. In any event, Dr. Reiss' medical testimony, based on conversations with Colwell and his review of findings by the workers' compensation board, Tr. at 413, corroborates Colwell's testimony, and supports the jury's conclusion that Colwell was disabled at the time he was not promoted.

 (b) Plaintiff Ellinger

 In 1983, Ellinger suffered a cerebral hemorrhage as the result of a car accident. This resulted in a subarachnoid hemorrhage and hypertension. The continuing effects of this injury have restricted Ellinger's ability to work. Specifically, Ellinger's treating doctor, Dr. Friedling, imposed the following restrictions: "To [only] work days. . . . Eight to four, nine to five only, indoors, avoiding stress and confrontation. Overtime should be restricted to between the hours of eight a.m. and eight p.m. At no time should this patient work late tours or rotating shifts." Tr. at 325 (testimony of Ellinger, referring to letter from Dr. Friedling).

 Although Ellinger returned from limited duty to full duty status with the Police Department in December 1992, Tr. at 289, this does not compel a finding of no disability as a matter of law for three reasons. First, despite Ellinger's return to full duty status, Ellinger testified that he continued to follow the physical restrictions recommended by his doctor. Tr. at 330. Second, Ellinger could alternatively have been considered to have a "record of impairment" for purposes of the ADA, which is an independently sufficient basis for a finding of disability. See 42 U.S.C. § 12102(2)(B). Finally, the jury could have reasonably concluded that Ellinger was "regarded" as having an impairment. See 42 U.S.C. § 12102(2)(C). In fact, former Police Commissioner Peter Cosgrove ("Cosgrove"), who personally made the promotional decisions at issue in this case, testified that despite Ellinger's return to full duty status, "I assumed [Ellinger] was light duty." Tr. at 726. Any of these grounds could have formed the basis for the jury's conclusion that Ellinger was disabled under the ADA at the time he was passed over for promotion.

 (c) Plaintiff Abrams

 Abrams suffers from chronic degenerative disc disease. Dr. Donald Holzer ("Dr. Holzer"), Abrams' treating neurologist, described the condition as of the time he was passed over for promotion as an "injury to the cervical and lumbar spine consisting of disc disease with radiculopathy, meaning that he had damage to the nerve roots themselves. . . . Mr. Abrams was capable of performing some duties of his police work, but certainly not the majority of them." Tr. at 387. As a result of his injury, Abrams was unable to do heavy lifting, could not bend over for long periods, had some difficulty driving, and was unable to sit or stand for an extended period of time. Tr. at 485-87.

 The County concedes that Abrams' condition is supported by medical testimony, but argues that this testimony was "nothing more than a boilerplate diagnosis" and that the "A.D.A. standard [substantially limiting a major life activity] was not even mentioned during Dr. Holzer's testimony or during Abrams' testimony." Def. Mem. at 6. This argument is unpersuasive because the jury is charged with assessing the weight and credibility of testimony, and because nothing in the ADA requires testimony that recites the definition of disability word-for-word. Based on the testimony of Abrams and Dr. Holzer, the jury finding that Abrams was disabled is supported by sufficient evidence. *fn6"

 In order to sustain the jury's verdict, there must be evidence not only that each plaintiff was disabled at the time of the promotional decisions, but that he was a "qualified individual" with a disability. Under the ADA, a "qualified individual" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). *fn7" As with the disability requirement, the record supports the jury's findings that each plaintiff was a qualified individual.

 The County relies exclusively on Santos v. Port Authority, 1995 U.S. Dist. LEXIS 10168, 1995 WL 431336 (S.D.N.Y.), for the proposition that a plaintiff incapable of vigorous confrontational activities cannot be a qualified individual under the ADA for any position in a police department. In Santos, the plaintiff was terminated from his position as a Port Authority police officer. The Santos court stressed that a police officer would be required to perform many duties requiring physical exertion, such as patrolling by foot and apprehending violators. Id. at *6. By contrast, all three plaintiffs in the present case were seeking promotions to positions requiring far less physical activity. As Cosgrove conceded, police work becomes more sedentary and less physical as one moves up in rank. Tr. at 712. And in a colloquy with the Court at the time the 50(a) motion was initially made, the County conceded that extending the holding of Santos to all levels of police work would effectively prevent the application of the ADA to any member of a police force:

THE COURT: If you say that everybody who is on the force has to be able to be involved in confrontational scenarios and if they're not able to do that, then the ADA never can be applicable to them. . . . Is that what you're contending?
THE COUNTY: Yes, your Honor.
THE COUNTY: The way I read Santos is that all members of the police force have to be able to meet any kind of ...

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