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PERDUE v. CITY UNIV. OF NEW YORK

June 17, 1998

MOLLY PERDUE, Plaintiff, against CITY UNIVERSITY OF NEW YORK, W. ANN REYNOLDS, individually and in her capacity as Chancellor of City University of New York, BROOKLYN COLLEGE, and VERNON E. LATTIN, individually and in his capacity as President of Brooklyn College, Defendants.


The opinion of the court was delivered by: BLOCK

MEMORANDUM AND ORDER

 BLOCK, District Judge:

 Plaintiff, Molly Perdue (Perdue), the former women's basketball coach and women's sports administrator at Brooklyn College, brought suit against Brooklyn College, the City University of New York (collectively, except as otherwise indicated, referred to as CUNY), and the individually-named defendants, alleging violations of the Equal Pay Act (EPA), 29 U.S.C. § 206(d); Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. ; the Civil Rights Act of 1871, 42 U.S.C. § 1983; Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq. ; and the New York Human Rights Law, New York Executive Law § 296 et seq. Perdue alleged that the defendants discriminated against her on the basis of her gender during her employment. By order of the Court (Gershon, J.) dated July 11, 1997, the complaint was dismissed in its entirety as to the individually named defendants, and Perdue's § 1983 and New York State Human Rights Law claims against CUNY were dismissed.

 The following claims were tried before a jury, commencing on August 19, 1997: (1) EPA violations for the periods from September 8, 1986 through August 31, 1990, and September 1, 1990 through July 9, 1992; (2) Title VII intentional discrimination; (3) retaliation in violation of Title IX; and (4) hostile work environment sexual harassment in violation of Title VII. On August 28, 1997, the jury returned a verdict in favor of Perdue for willful violation of the EPA for the period from September 1, 1990 through July 9, 1992, and on her intentional discrimination claim. It rejected Perdue's remaining claims. The jury awarded Perdue $ 85,000 in compensatory damages for CUNY's intentional discrimination. The parties agreed that the Court should determine back pay.

 There are four post-verdict matters now before the Court: first, whether within the purview of pre-verdict Rule 50(a) and post-verdict Rule 50(b) motions, CUNY is entitled to judgment as a matter of law for insufficiency of the evidence regarding the EPA and Title VII intentional discrimination verdicts and/or excessiveness of the compensatory damages award; second, in the alternative, whether a new trial should be granted pursuant to Rule 59(a), or a remittitur pursuant to Rule 59(e); third, if the EPA verdict stands, the amount of back pay which the Court should award, and other relevant remedial issues; and fourth, the amount of attorneys' fees and expenses to be awarded pursuant to 42 U.S.C. § 2000e-5(k) and 29 U.S.C. § 216(b).

 For the reasons that follow, the Court: (1) denies CUNY's motions for judgment as a matter of law and for a new trial or remittitur; (2) awards Purdue $ 134,829 in back wages, $ 5,262 in unpaid retirement benefits, and $ 134,829 in liquidated damages, in addition to the $ 85,000 in compensatory damages, for a total of $ 359,920, plus prejudgment interest on the back pay and compensatory damages in the sum of $ 83,264.94 through May 31, 1998, and $ 43.25 per diem to the date that judgment is entered; and (3) awards Perdue attorneys' fees in the amount of $ 339,399.60 and expenses in the amount of $ 16,982.19, to be divided as set forth below between her former counsel, Marcus Montgomery P.C. (MM), and her current counsel, Freeman Forrest & Chenetz LLP (FFC).

 I. CUNY'S MOTION FOR JUDGMENT AS A MATTER OF LAW

 At the close of Perdue's case, CUNY moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, contending that: (1) there was insufficient evidence to support Perdue's hostile work environment claim; and (2) there was insufficient evidence to support Perdue's EPA claim because the individuals whom Perdue contended held comparable positions, Mark Reiner (Reiner) and Ron Kestenbaum (Kestenbaum), (had significantly more experience than Perdue. *fn1" The Court denied CUNY's motion. At the close of all of the evidence, CUNY again moved for judgment as a matter of law on the same grounds. The Court reserved decision. After the jury returned its verdicts, the Court continued to reserve decision on that branch of the 50(a) motion pertaining to the EPA claim.

 Notwithstanding the pendency of its 50(a) motion, CUNY addresses the sufficiency of the evidence in regard to the EPA claim in its 50(b) post-verdict motion, contending that: (a) the evidence did not establish that Perdue was performing the same job duties performed by both Kestenbaum and Reiner from September 1, 1990 through July 9, 1992, under similar working conditions; and (b) the evidence was insufficient to support a finding of willfulness. In respect to the compensatory damages award, CUNY argues in its 50(b) motion that: (a) Perdue failed to present any evidence that she suffered any pain or mental anguish; and (b) the causal relationship between the conditions of Perdue's employment and her gender was not supported by the evidence.

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

 The same standard applies to a Rule 50(a) motion for judgment as a matter of law and a Rule 50(b) renewed motion for judgment as a matter of law. See Raspente v. National R.R. Passenger Corp., 111 F.3d 239, 241 n.3 (2d Cir. 1997); Colwell v. Suffolk County Police Dep't, 967 F. Supp. 1419, 1423 (E.D.N.Y. 1997). However, a Rule 50(b) motion "'is limited to those grounds that were specifically raised in the prior [Rule 50(a) motion].'" Galdieri-Ambrosini v. National Realty and Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998) (quoting McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997) (other internal quotations omitted)); see Fed. R. Civ. P. 50(b); see also Holmes v. United States, 85 F.3d 956, 962 (2d Cir. 1996); Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d Cir. 1993). Pursuant to this specificity requirement, the Rule 50(a) motion "must at least identify the specific element that the defendant contends is insufficiently supported." Galdieri-Ambrosini, 136 F.3d at 286. The purpose of the specificity requirement is "'so that the responding party may seek to correct any overlooked deficiencies in the proof.'" Id. (quoting Fed. R. Civ. P. 50 Advisory Committee Note (1991)).

 A Rule 50(a) or (b) motion may only be granted if "the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor." Galdieri-Ambrosini, 136 F.3d at 289; see Vermont Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 277 (2d Cir. 1996) ("Judgment as a matter of law . . . is appropriate when drawing all reasonable inferences regarding the weight of the evidence and the credibility of witnesses in favor of the [non-movant], a reasonable jury could only have found for the [movant].") (internal quotation omitted). This can materialize only 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 (internal quotations omitted); see Galdieri-Ambrosini, 136 F.3d at 289. In making its determination, the Court "must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-Ambrosini, 136 F.3d at 289 (citing Vasbinder v. Ambach, 926 F.2d 1333, 1339-40 (2d Cir. 1991)).

 B. Equal Pay Act Claim

 1. Elements of an Equal Pay Act Claim

 Pursuant to 29 U.S.C. § 206(d), the EPA is violated if an employer of a covered employee, such as Perdue, pays wages to that employee

 
[(1)] a rate less than the rate at which he pays wages to employees of the opposite sex . . . [(2)] for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and [(3)] which are performed under similar working conditions . . . .

 In other words, "[a] violation occurs when an employer pays lower wages to an employee of one gender than to substantially equivalent employees of the opposite gender in similar circumstances." Pollis v. The New Sch. for Social Research, 132 F.3d 115, 118 (2d Cir. 1997). To show a violation of the EPA, a plaintiff need not prove that an intention to discriminate on the basis of gender motivated the pay disparity. See id.; Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995).

 Where there is a willful violation of the EPA, the resulting compensatory award should be doubled as liquidated damages. See 29 U.S.C. §§ 216, 260; see also Pollis, 132 F.3d at 120; Bonner v. Guccione, 1997 U.S. Dist. LEXIS 9275, *45, 1997 WL 362311, *15 (S.D.N.Y. July 1, 1997). A violation of the EPA is willful if "'the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'" Pollis, 132 F.3d at 119 (quoting Reich v. Waldbaum, 52 F.3d 35, 39 (2d Cir. 1995)). It is not necessary for a plaintiff to show that an employer acted with intent to discriminate or in bad faith. Id.; see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 n.19, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985).

 2. The Verdict and Supporting Evidence

 In its jury charge, the Court instructed that:

 
in order to sustain her burden of proof in this case that she was discriminated against on the basis of sex in her pay, Perdue must prove each of the following by a preponderance of the evidence. One, that CUNY paid different wages to Perdue's claimed male counterparts. Two, that Perdue and her claimed male counterpart performed equal work on jobs requiring equal skill, effort, and responsibility. And three, that the jobs were performed under similar working conditions.

 Tr. 8/28/97 at 19. The Court further instructed the jury that it was "to compare Perdue to both Reiner and Kestenbaum for the period of September 1, 1990 to July 9, 1992." Tr. 8/28/97 at 19. Included in the interrogatories presented to the jury on the Court's special verdict form were the following questions:

 
Question 3: For the time period from September 1, 1990 to July 9, 1992, do you find that Perdue proved by a preponderance of the evidence all three elements of her claim under the Equal Pay Act?
 
Question 4: Do you find that CUNY proved by a preponderance of the evidence its affirmative defense that the differential was based on a factor other than sex and therefore, there was a legitimate basis for the wage disparity?
 
Question 5: Do you find that CUNY's conduct was in willful violation of the EPA during the time period from September 1, 1990 to July 9, 1992?

 The jury answered "YES" to Questions 3 and 5, and "NO" to Question 4, thereby finding that: (1) Perdue proved all three elements of her EPA claim; (2) CUNY did not prove its affirmative defense; and (3) CUNY's conduct was in willful violation of the EPA. Drawing all reasonable inferences in favor of Perdue, as the Court must, the record is replete ...


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