and Analytic Services in light of a claim of gender discrimination alone.
It is not at all clear why a rational jury could not consider each instance of failure to promote in the particular manner directed by the Court. Certainly, the TA was not prejudiced by the charge. In any event, the TA did not raise this objection to the jury charge at the charge conference, or at any other time before the jury began its deliberations. At least in the absence of plain error, I cannot grant a new trial on the basis of a supposedly erroneous jury charge "when a party might have obtained the correct jury charge by specifically bringing the matter to the attention of the Court at the proper time." Metromedia Co. v. Fugazy, 753 F. Supp. 93, 98 (S.D.N.Y. 1990), aff'd. as amended, 983 F.2d 350 (2d. Cir. 1992), cert. denied, 508 U.S. 952 (1993). Here, I find no error and, if there were error, it is certainly not plain.
C. Evidence of Retaliation.
The TA argues that there was insufficient evidence for the jury to have found that Ms. Zerilli's failure to be promoted to the positions of Manager, Surface Transit Business Planning and Superintendent of Transportation, Administration were the result of retaliation. With regard to both of these claims, the TA asserts that 1) there was no evidence that the individual making either of these promotion decisions knew of Ms. Zerilli's protected activity and 2) both of the decisions took place at times too far removed from Ms. Zerilli's raising claims of discrimination to have been motivated by retaliatory intent. Both of these arguments are without merit.
The TA does not deny that there was testimony at trial that TA management personnel were aware of both Ms. Zerilli's internal EEO complaint and the complaint she filed with the EEOC. Rather, the TA asserts that there was no evidence that the individuals responsible for the promotion decisions at issue here had knowledge of these complaints. The problem with this argument is that the record does not establish that the individuals named by the TA were the sole, or even the primary, decision makers.
The TA declares that David Shapiro, who was deceased at the time of trial, made the decision to promote someone other than Ms. Zerilli to the position of Manager, Surface Transit Business Planning. However, the record discloses that, while Ms. Zerilli was interviewed by Mr. Shapiro for the position, other candidates were interviewed by other TA officials. There was no testimony from any TA official that the promotion decision was Mr. Shapiro's alone.
The TA further asserts that Anderson Barnes made the decision with respect to filling the position of Superintendent of Transportation, Administration. The record does not establish this. On the contrary, Mr. Barnes testified that the decision was not his to make but, rather, that he requested the approval of his superiors to place an employee other than Ms. Zerilli in the position.
The TA's argument that the employment decisions at issue here took place too long after Ms. Zerilli's filing of discrimination complaints to be the product of retaliation is similarly at odds with the record. The TA correctly notes that Ms. Zerilli was turned down for the position of Manager, Surface Transit Business Planning in March 1993, eleven months after the filing of her internal EEO complaint. The TA neglects to mention, however, that the EEO complaint was pending until November 30, 1992, when a determination was issued after the conduct of an investigation of Ms. Zerilli's claims. Similarly, while the position of Superintendent of Transportation, Administration was filled in June 1994, fourteen months after the filing of Ms. Zerilli's EEOC complaint in April 1993, that complaint was pending until September 1994, when she received a right to sue letter.
The mere passage of time in no way precludes a finding of retaliation. On the contrary, "a causal connection between the adverse action and the protected activity can be established indirectly by showing that the protected activity was followed closely by adverse treatment, or directly through evidence of retaliatory animus directed against the plaintiff." Dortz v. City of New York, 904 F. Supp. 127, 157 (S.D.N.Y. 1995) (emphasis supplied). Here, the evidence of retaliatory animus was clearly sufficient to support a reasonable jury conclusion that the causative element of a retaliation claim was proved.
D. Award of Compensatory Damages.
The jury awarded Ms. Zerilli $ 95,000 in compensation for various physical ailments and mental stress caused by the TA's discriminatory and retaliatory conduct. The TA now argues that this award was unwarranted and that, as a matter of law, the jury should not have been allowed to consider awarding compensatory damages at ail.
The evidence in support of the award consisted of the testimony of Ms. Zerilli and her co-workers. There was no expert medical testimony offered as to Ms. Zerilli's physical and mental condition. From this, the TA concludes that, being based upon lay testimony alone, the award of compensatory damages was the product of the jury's "sheer speculation" and, as such, cannot stand. Deft.'s Mem. at 32.
This argument is without merit. An award of compensatory damages may be based upon lay testimony alone. Miner v. City of Glens Falls, 999 F.2d 655, 662-63 (2d Cir. 1993); Portee v. Hastava, 853 F. Supp. 597, 613 (E.D.N.Y. 1994), aff'd., 104 F.3d 349 (2d Cir. 1996). Ms. Zerilli testified at length about the effects on her physical and mental condition of her treatment by the TA. Deft.'s Mem. at 30-31. Ms. Zerilli's co-workers provided corroborative testimony. The TA does not argue that it lacked the opportunity either to rebut this testimony through lay or expert witnesses or through argument on summation. It simply failed to exercise this opportunity. In sum, I find that the issue of compensatory damages was correctly submitted to the jury and that it rendered a reasonable award.
The TA also asserts that I erred in rejecting a proposed charge to the effect that the jury could find that Ms. Zerilli failed to mitigate her damages relating to physical and mental disorders because she declined the TA's suggestion that she attend a psychological counseling program at the TA. I find no reason to reverse my ruling that, even assuming a duty on the part of a plaintiff to mitigate such damages -- a duty for whose existence the TA provides no authority -- there was insufficient evidence to support the charge requested and that it would have been an invitation to sheer speculation to have allowed the jury to consider, without any testimony on the question, the extent to which the psychological counseling would have alleviated Ms. Zerilli's condition had she agreed to engage in it. Transcript at 1147-1148; see Miner v. City of Glens Falls, 999 F.2d at 663 (trial court had no reason to find that "counseling could dispel the trauma" of physical and emotional distress had plaintiff sought such a course of treatment).
E. Adverse Employment Actions.
The TA argues that three particular incidents of Ms. Zerilli's employment -- her removal from the position of Acting Manager of Budget and Personnel, her transfer to the Castleton Depot and her negative performance evaluation -- were not properly considered by the jury because they did not constitute adverse employment actions. The TA bases this argument upon the undisputed fact that none of these actions resulted in any loss of wages or benefits.
Here, once again, the TA resorts to an improperly narrow application of the discrimination laws. It has long been recognized in our Circuit that since "job discrimination may take many forms, Congress cast the prohibitions of Title VII broadly to include subtle distinctions in the terms and conditions of employment as well as gross salary differentials based on forbidden classifications." Rodriguez v. Bd. of Ed. of Eastchester, 620 F.2d 362, 364 (2d Cir. 1980). Or, as recently reiterated, the discrimination laws "[do] not define adverse employment action solely in terms of job termination or reduced wages and benefits. . . . Because there are no bright line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of 'adverse.'" Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (citing Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)); see also Medwid v. Baker, 752 F. Supp. 125, 137-38 (S.D.N.Y. 1990) (defining adverse employment decision "as a decision which has an attendant negative result, a deprivation of a position or an opportunity") (citation omitted).
There can be no doubt that there was sufficient evidence for the jury to have found that all three of the actions at issue were adverse, even though they entailed no loss of wages or benefits. The removal from the position of Acting Manager of Budget and Personnel reduced Ms. Zerilli from a supervisory, managerial position to that of a staff person. Ms. Zerilli herself testified to the humiliating effect of her removal from the position, testimony that was graphically supported by the fact that when she was removed, she became subject to a campaign of intense and intrusive observation of her work performance by Mr. Corebello, the employee who replaced her. There was also ample testimony that Castleton Depot, to which she was involuntarily transferred, was a location that was lacking in amenities and that there was a greatly reduced opportunity for Ms. Zerilli to perform work there that comported with her qualifications. Finally, the negative surprise performance evaluation was placed in Ms. Zerilli's personnel file, thereby prejudicing her efforts to advance within the TA.
F. Jury Charges.
The TA asserts that three of its proposed jury instructions were erroneously rejected. As a threshold matter, flawed jury instructions can serve as a basis upon which to grant a new trial only when " taken as a whole, the jury instructions gave a misleading impression or inadequate understanding of the law." Luciano v. Olsten Corp., 110 F.3d at 218 (emphasis supplied; quotation omitted). While objecting to the exclusion of specific charges, the TA does not attempt to demonstrate that the jury instructions as delivered met this standard.
The TA requested that charges be given reflecting the following three propositions: 1) that if a particular TA official approved Ms. Zerilli for a promotion, then an inference could be drawn that the same official's later decision to deny her a promotion was in good faith; 2) that if the TA "honestly believed" that Ms. Zerilli was a poor employee, its decision regarding promoting her could not have been motivated by discriminatory intent; and 3) that if the TA's decisions regarding Ms. Zerilli were merely "high-handed," "mistaken" or "sloppy," then discriminatory intent could not be found.
I declined to include these charges in the jury instructions because all three ask the jury to draw certain inferences concerning the non-discriminatory nature of the TA's intent toward Ms. Zerilli. Transcript at 1132-1135. Given the myriad inferences that the jury could have permissibly drawn based upon the evidence, I considered it unwise to draw the jury's attention to particular inferences. Rather, the jury instructions contained a general instruction regarding the practice of drawing inferences from evidence, Transcript at 1263-1264, and counsel were left free in their summations to posit particular inferences for the jury's consideration.
The jury was repeatedly reminded that the burden of proof remained with Ms. Zerilli to prove discriminatory intent by a preponderance of the evidence. Transcript at 1264-1265, 1267-1270. In light of our Court of Appeals' strong preference for simplicity injury instructions in employment discrimination cases, Cabrera v. Jakabovitz, 24 F.3d 372, 380-83 (2d Cir.), cert. denied, 513 U.S. 876, 130 L. Ed. 2d 135, 115 S. Ct. 205 (1994), the TA's requests to add glosses to the issue of discriminatory intent were properly denied.
G. Evidentiary Rulings.
The TA reiterates objections it made at trial to rulings barring certain testimony of TA officials. Specifically, after extensive discussions with counsel in each instance, I refused to admit testimony from Donna Simonie, who became Director of Labor Relation's in Ms. Zerilli's division in 1994, regarding conditions at the Castleton Depot after June of 1994, Transcript at 765-783, and the testimony of Dennis Kearney, Ms. Zerilli's direct supervisor at the Castleton Depot from June 1994 until August 1995, concerning Ms. Zerilli's work performance during this period. Transcript at 815-17. Since testimony on these matters concerned events occurring after the last date of discrimination alleged in the complaint, I held it to be irrelevant and thus inadmissible.
These rulings were plainly correct. Ms. Zerilli's transfer to the Castleton Depot took place in May 1992. The transfer was alleged to be retaliatory because of conditions prevailing at the depot at that time. The conditions prevailing more than two years later are clearly not relevant to the retaliatory nature of the transfer. Transcript at 771. For the same reason, I ordered the redaction of references in Ms. Zerilli's EEOC complaint to the allegedly undesirable condition of the depot after 1992. Transcript at 780-781.
Similarly, exclusion of evidence regarding Ms. Zerilli's work performance after the last alleged act of discriminatory conduct was proper, as it was not relevant either to the TA's intent or Ms. Zerilli's qualifications at the time the alleged adverse employment actions took place. Transcript at 815. See, e.g., Gonzales v. Police Dept. of San Jose, 901 F.2d 758, 761-62 (9th Cir. 1990) (evidence of promotions of Hispanic police officers taking place after filing of complaint was irrelevant to the issue of whether Hispanic plaintiff himself suffered discrimination).
H. Satisfaction of Burden of Proof.
In a purely conclusory argument, the TA asserts that Ms. Zerilli failed to carry her burden of demonstrating the pretextual nature of the legitimate, non-discriminatory explanations proffered by the TA for its employment decisions regarding her. The problem with this argument is that it considers only the testimony of TA witnesses putting forth these explanations and fails to address a single instance of the considerable testimony of numerous witnesses not only as to Ms. Zerilli's qualifications and abilities, but also of discriminatory animus toward Ms. Zerilli by the TA. Clearly, Ms. Zerilli met not only the burden of demonstrating the pretextual nature of the TA's explanations, but also her "ultimate burden" of proving discriminatory intent. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Scaria v. Rubin, 117 F.3d 652, 1997 WL 353288 (2d Cir. 1997).
I. Notice of Claim.
New York Public Authorities Law § 1212 mandates that in certain actions brought against the TA, the complaint shall contain an allegation that at least thirty days have elapsed since a notice of claim was served upon the TA in accordance with the procedures set forth in General Municipal Law § 50-e. The TA argues that, since it is undisputed that the complaint in this action does not contain such an allegation, at least Ms. Zerilli's state law claims are fatally defective.
The notice requirement of section 1212 does not apply to this employment discrimination case. Cervenka v. New York City Transit Auth., 216 A.D.2d 511, 628 N.Y.S.2d 405 (2d Dept. 1995); see also Katt v. New York City Police Dept., 1996 U.S. Dist. LEXIS 19400, 1996 WL 744870 at *2 (S.D.N.Y. Dec. 31, 1996). Therefore, I find that Ms. Zerilli need not have a filed a notice of claim with the TA prior to commencing this action.
The TA asserts, without evidentiary support, that Ms. Zerilli is an employee of The Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA") and not the TA. Thus, the TA argues that MABSTOA, which has not been sued here, is a necessary party to this action. The TA relies on the fact that the New York legislature created MABSTOA as a subsidiary of the TA. Public Authorities Law § 1203-a. However, the TA offers no basis for concluding that it is not Ms. Zerilli's employer for the purposes of both Title VII and New York law.
Federal Rule of Civil Procedure 12(b)(7) provides for the dismissal of an action for failure to join a necessary party under Rule 19. Rule 19(a) provides, in relevant part, that a person "shall" be joined to an action when "in the person's absence complete relief cannot be accorded among those already parties" to the action. Thus, a party is not necessary to an action, and joinder is not required, when "there can be complete relief for those already parties to [the] action without joinder." Arkwright-Boston Mfrs. Mut. v. City of New York, 762 F.2d 205, 209 (2d Cir. 1985); see also Rule 19 Advisory Committee Note to the 1966 Amendments (Rule 19 is a means for "joining those persons in whose absence the court would be obliged to grant partial or 'hollow' rather than complete relief to the parties before the court"); 4 Moore's Federal Practice, § 19.03[d] at 19-44 (3d ed. 1997) ("Joinder should not be compelled when meaningful relief can be granted without the absentee").
The TA has made no showing that it is incapable of providing any item of the relief awarded to Ms. Zerilli. On the contrary, it has vigorously argued as to the amount of backpay to which Ms. Zerilli is entitled and, in order to avoid a front pay award, proffered a managerial position which Ms. Zerilli could be awarded; indeed, it now represents that it has in fact offered Ms. Zerilli promotion to an appropriate managerial position in accord with my directions. It is therefore absurd to suggest either that a necessary party is lacking or that the TA is not Ms. Zerilli's employer for the purposes of both Title VII and New York law. See Dortz v. City of New York, 904 F. Supp. at 147 ("the term 'employer' under Title VII is construed by reference to the realities rather than the formalities of an employment relationship"); Alie v. Nynex Corp., 158 F.R.D. 239, 246 (E.D.N.Y. 1996) (outlining multifactor factual enquiry for determining existence of employer-employee relationship under New York employment discrimination law).
The defendant's motion for judgment as a matter of law or for a new trial is DENIED in its entirety.
United States District Judge
Dated: August 1, 1997
Brooklyn, New York