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ZERILLI v. NEW YORK CITY TRANSIT AUTH.

August 1, 1997

TERESA ZERILLI, Plaintiff,
v.
NEW YORK CITY TRANSIT AUTHORITY, Defendant.



The opinion of the court was delivered by: GERSHON

OPINION AND ORDER

 GERSHON, United States District Judge:

 The defendant now moves on several grounds for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 or, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59. For the reasons stated below, the defendant's motions are denied in their entirety and the jury's verdict is sustained.

 THE CLAIMS AND THE VERDICT

 The defendant New York City Transit Authority ("the TA") hired Ms. Zerilli in 1988 for the position of staff analyst and promoted her to the position of Associate Staff Analyst in 1990. In January 1991, Ms. Zerilli was appointed Acting Manager of Budget and Personnel in the Staten Island Division of the Surface Transit Department. One year later, in January 1992, Ms. Zerilli was removed from this position and replaced by a male TA employee, prompting her to file an internal EEO complaint in April 1992.

 In May 1992, Ms. Zerilli was involuntarily transferred to a TA facility called the Castleton Depot. In July 1992, Ms. Zerilli applied, and was interviewed, for the position of Director of Administrative Support and Analytic Services (formerly known as Manager of Budget and Personnel), a position that was awarded to a male TA employee the following month. In February 1993, Ms. Zerilli applied, and was interviewed for, one of two positions for Manager of Surface Transit Business Planning. Both positions were later awarded to male TA employees. In April 1993, Ms. Zerilli filed a charge of unlawful gender discrimination with the EEOC. The following month she received an unfavorable and, according to her, unscheduled and unwarranted, performance evaluation that resulted in a written reprimand. In May 1994, Ms. Zerilli declined to apply for promotion to the position of Superintendent of Transportation, Administration after, she asserts, being told by TA management that she was ineligible for the position. This position was also awarded to a male TA employee.

 In September 1994, Ms. Zerilli received a right to sue letter from the EEOC. She filed this action on November 30, 1994, asserting claims under Title VII of the Civil Rights Act of 1964, §§ 701 et seq., 42 U.S.C. §§ 2000e et seq., and New York Executive Law, §§ 290 et seq.

 The jury found that Ms. Zerilli had been the victim of unlawful gender discrimination with respect to her removal from the position of Acting Manager of Budget and Personnel and with respect to the denial of promotion to Director of Administrative Support and Analytic Services. The jury found no discrimination with respect to Ms. Zerilli's failure to obtain the positions of Manager of Surface Transit Business Planning and Superintendent of Transportation, Administration, but did find that the TA retaliated against her in failing to award her these positions. The jury also found that Ms. Zerilli had been subjected to illegal retaliatory conduct when she was transferred to the Castleton Depot in May 1992 and when she was given a negative performance evaluation in May 1993.

 The jury awarded Ms. Zerilli $ 95,000.00 in compensatory damages for pain and suffering. Subsequently, in an Opinion and Order dated May 30, 1997, she was awarded equitable relief, including backpay and a promotion to a managerial position.

 DISCUSSION

 The TA faces heavy burdens on this post-trial motion. "Judgment as a matter of law [pursuant to Rule 50] may only be granted if there exists such a complete absence of evidence supporting the verdict that the jury's findings can only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded persons could not arrive at a verdict against it." Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir. 1997) (quotation omitted). Under Rule 59, a new trial is warranted only if the trial judge is convinced that "the jury reached a seriously erroneous result or that the verdict is against the weight of the evidence, making its enforcement a miscarriage of justice." Minetos v. City Univ. of New York, 925 F. Supp. 177, 185-86 (S.D.N.Y. 1996) (citing Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988)); see also Binder v. Long Island Lighting Co., 57 F.3d 193, 202 (2d Cir. 1995) (reversing district court's grant of new trial in age discrimination in employment case because "the verdict, while not inexorable, was clearly not seriously erroneous"). Although the TA proffers multiple bases upon which it contends that it is entitled either to judgment as a matter of law or a new trial, none is meritorious.

 A. Timeliness of Filing With EEOC and Exhaustion of Administrative Remedies.

 The timely filing of a charge with the EEOC is a prerequisite to the maintenance of a Title VII action. Butts v. City of N.Y. Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). The TA offers no basis for applying a period shorter than 300 days in this case. See Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994); Humphrey v. Council of Jewish Feds., 901 F. Supp. 703, 708 (S.D.N.Y. 1995).

 Ms. Zerilli filed a charge with the EEOC on April 8, 1993. The TA contends that three of Ms. Zerilli's claims -- specifically, those arising from her removal from the position of Acting Manager of Budget and Personnel, her transfer to the Castleton Depot, and the failure of the TA to promote her to Manager of Budget and Personnel -- were time barred as of this date.

 The time constraints of filing Title VII claims are not as strict and unyielding as the TA contends. The Second Circuit has repeatedly recognized a "continuing violation" doctrine with respect to Title VII claims that allows the maintenance of certain charges that would otherwise be time barred. The doctrine has recently been reiterated as follows:

 
The continuing violation exception applies when there is evidence of an ongoing discriminatory policy or practice, such as use of discriminatory seniority lists or employment tests. Although discrete incidents of discrimination that are not the result of a discriminatory policy or practice will not ordinarily amount to a continuing violation, where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice, a continuing violation may be found. If a continuing violation is shown, a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time barred.

 Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996) (citations and quotations omitted).

 There is no question that the failure of Ms. Zerilli to obtain promotion to the position of Manager of Budget and Personnel in August 1992 occurred within 300 days of the filing of her EEOC charge in April 1993. In addition, I find that the two earlier claims challenged by the TA as being untimely are sufficiently related to the denial of this promotion to constitute part of a continuing violation.

 Ms. Zerilli's removal in January 1992 from the position of Acting Manager of Budget and Personnel was the result of a decision by George Governale and George Herman, who were, respectively, General Manager and Assistant General Manager of Ms. Zerilli's division within the TA. Ms. Zerilli was replaced by Carmine Corebello, a male TA employee who was a fellow staff analyst with Ms. Zerilli prior to her promotion to Acting Manager. The evidence adduced at trial showed that Mr. Corebello greatly resented Ms. Zerilli's promotion and that, for months before her removal, he engaged in continual and minute observation of Ms. Zerilli's workplace activities, made notes based upon such observations and passed these notes to George Herman. Ms. Zerilli filed an internal EEO charge in April 1992, which TA management personnel testified to having been aware of at the time. Shortly after the filing of the internal charge, Mr. Governale and Mr. Herman directed Ms. ...


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