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FERNANDEZ v. CITY OF NEW YORK

September 28, 1998

JAMES COURTNEY AND EDWARD FERNANDEZ, Plaintiffs, against THE CITY OF NEW YORK, Defendant.

SIDNEY H. STEIN, U.S. District Judge.


The opinion of the court was delivered by: STEIN

SIDNEY H. STEIN, U.S. District Judge.

An Inspector and a Deputy Inspector in the New York City Police Department brought this action alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, and the New York State Human Rights Law ("HRL"), codified at N.Y. Exec. L. §§ 290-301. Inspector James Courtney and Deputy Inspector Edward Fernandez allege that they were assigned to work as full-time Duty Inspectors of the New York City Police Department because of their ages and that after assuming their new positions as Duty Inspectors they were constructively discharged. The position of full-time Duty Inspector, they allege, entailed performing duties normally carried out by lower ranking officers, such as filling out reports on precinct conditions, and traveling in a marked police car for long periods of time.

 The action was tried before a jury during an eight day period in May of this year. At its conclusion, the jury found that age was not a motivating factor in the City's decision to assign Inspector Courtney to the full-time Duty Inspector position but that it was a motivating factor with respect to Deputy Inspector Fernandez. The jury also found that age was not a motivating factor in the City's failure to promote plaintiffs. Finally, the jury found that neither plaintiff was constructively discharged. Based on those findings, the jury awarded Fernandez $ 139,000 in compensatory damages.

 The City has now moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50, or in the alternative, for a new trial pursuant to Fed. R. Civ. P. 59 on the grounds that (1) the jury's findings were contrary to the weight of the evidence, (2) the Court erroneously charged the jury that plaintiffs need only prove that age was a "motivating," not a "determinative," factor in the challenged decisions, and (3) the admission of rebuttal testimony from one witness constituted reversible error. The City has also requested a new trial on damages, or a substantial remittitur, on the grounds that the compensatory damages award was excessive and not supported by the evidence.

 Plaintiffs cross move for declaratory and injunctive relief pursuant to 29 U.S.C. § 626(b). Specifically, plaintiffs seek judgment (1) declaring that the City's assignment of Fernandez to the Duty Inspector position constituted age discrimination pursuant to the ADEA and HRL, (2) directing the City to cease implementing the Duty Inspector assignment in a manner that violates the ADEA or HRL, and (3) directing the City to post the judgment in this action for one year in all precincts of the NYPD. For the reasons that follow, the City's motion is denied in all respects except that its request for a remittitur is granted and plaintiff Fernandez must elect either to accept a remitted award of $ 100,000 or to conduct a new trial on damages; plaintiff's motion for injunctive relief is granted to the extent described below.

 A. Motion for Judgment as a Matter of Law

 Judgment as a matter of law pursuant to Fed. R. Civ. P. 50 should be entered only when 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.'" Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (quoting Mattivi v. South African Marine Corp., 618 F.2d 163, 168 (2d Cir. 1980)). The City contends that Deputy Inspector Fernandez failed to establish a prima facie case of age discrimination. In order to establish age discrimination pursuant to the ADEA and the HRL, plaintiff must prove 1) that he was in the protected age group; 2) that he was qualified for the position; 3) that he suffered an adverse employment decision, and 4) that the adverse employment decision occurred under circumstances giving rise to an inference of discrimination. Norton v. Sam's Club, 145 F.3d 114, 118 (2nd Cir. 1998). Plaintiff's burden is not an onerous one and Fernandez has most decidedly met it.

 First, Fernandez was 60 years old when he was transferred to the full-time Duty Inspector position; he therefore falls within the protected class.

 Second, there was ample evidence that Fernandez was qualified to be the Commanding Officer of the 83rd precinct, the position he held just prior to his transfer to the full-time Duty Inspector position (after he had declined a transfer to the 62nd precinct). (Tr. 768, 780-81, 831, 979-80). The City places much reliance on Chief of Department Louis Anemone's testimony that Fernandez's qualifications were best suited for the 62nd precinct. That testimony is not dispositive. The jury was entitled to discount Chief Anemone's testimony in light of the evidence regarding Fernandez's qualifications and performance as Commanding Officer of the 83rd precinct.

 Third, there was proof that Fernandez suffered an adverse employment decision. The testimony elicited at trial demonstrated that a transfer from an "A" precinct, such as the 83rd, to a "C" precinct, such as the 62nd, was a demotion in the sense that it was generally understood that a "C" precinct was the least difficult precinct to command. (Tr. 718, 772). In addition, there was evidence that the position of full-time Duty Inspector was looked upon within the NYPD as a career ending assignment. (Tr. 248-50).

 Fourth, there was an abundance of evidence that Fernandez's assignment to the position of Duty Inspector occurred under circumstances giving rise to an inference of discrimination. At the inception of the Duty position as a full-time position, then Commissioner William Bratton communicated his intention to replace the "old dead wood" with "young" and "aggressive" commanders. (Tr. 527). He then selected younger persons to replace officers in the highest ranks. (Tr. 716-17). Indeed, Fernandez was replaced in the 83rd precinct by an officer who was 43 years old. (Tr. 780-81). In light of the trial evidence that Fernandez was well-respected as the Commanding Officer of the 83rd precinct, the jury may reasonably have decided not to credit the testimony of Chief Anemone that the decision to transfer Fernandez was based solely on an assessment that his skills would be better utilized in the 62nd precinct.

 Since there is not "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," the City's motion for judgment as a matter of law is denied. Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (internal quotations omitted).

 B. Motion for a New Trial

 1. Insufficiency of ...


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