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April 30, 1998


The opinion of the court was delivered by: MCAVOY


 Plaintiff Paula L. Coffey brought this action in June of 1996 for hostile work environment and quid pro quo sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York Human Rights Law, Executive Law § 290, et seq. Plaintiff also brought common law negligence claims. The Complaint was amended in November of 1997 to include a claim for retaliatory discharge. Defendants are plaintiff's former employer, Dobbs International Services, Inc. ("Dobbs") and her former supervisor, John Bryson.

 The case was tried to a jury in Albany, New York in December of 1997. On December 16, 1997, the jury returned a verdict for plaintiff on the retaliation claim, and for defendant on the harassment claims. *fn1" The jury found plaintiff was entitled to a back pay award and punitive damages against Dobbs on the retaliation claim.

 On December 18, 1997, the Court held a hearing on the issue of punitive damages. The same day, the jury returned a punitive damage award of $ 75,000 against Dobbs. The parties stipulated to a back pay figure of $ 4,341.58, and the Clerk entered judgment in plaintiff's favor for $ 79,341.58 on January 28, 1998.

 Defendants now move, pursuant to Fed.R.Civ.P. 50(b), for judgment as a matter of law on the retaliation claim. Plaintiff moves for an award of attorneys' fees and costs.

 I. Background

 The Court recounts the facts of this case only to the extent they are relevant to the pending motions. Plaintiff was employed at Dobbs' Albany Flight Kitchen from October of 1991 until her resignation in January of 1995. Her resignation stemmed from allegations of sexual harassment by Bryson, who was then the Albany Flight Kitchen's General Manager. *fn2" In May of 1997, while this lawsuit was pending, plaintiff accepted an offer of re-employment at the Albany Flight Kitchen. The acting General Manager of the Albany Flight Kitchen at the time plaintiff returned was James Russo, a friend of Bryson's. During the same period, Dobbs was considering the sale of the Albany Flight Kitchen to Russo.

 During the summer of 1997, Russo re-hired Bryson to do consulting work in connection with Russo's pending purchase of the Albany Flight Kitchen. Upset at this turn of events, plaintiff told Russo she could not work at Dobbs with Bryson there. Plaintiff thus took an approved vacation until Bryson's consulting work was complete. Upon returning from the vacation near the end of the summer, she gave a deposition in connection with this lawsuit on August 28, 1997. Bryson was present during the deposition, during which plaintiff, in her testimony, made reference to both Bryson and Russo. Plaintiff also presented evidence at trial that Bryson and Russo communicated after the deposition.

 On September 1, 1997, plaintiff was discharged. Dobbs sold the Albany Flight Kitchen to Russo on September 3, 1997. In response to this turn of events, plaintiff's attorney contacted Magistrate Judge Ralph W. Smith, Jr. by letter dated October 27, 1997 to request permission to amend the Complaint to include a claim for retaliatory discharge. Judge Smith granted the request in an order signed November 18, 1997.

 II. Discussion

 A. Defendants' Motion for Judgment as a Matter of Law

 The Second Circuit has established the standard for granting a judgment as a matter of law. The court in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir. 1980), stated that:

the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n. o. v. only when (1) 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 (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

 Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983). *fn3" Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires pursuant to Rule 50(a), or ...

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