The jury charge did not — as it need not — distinguish
between the Title VII and the HRL claims with respect to the standard of
proof. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d
Cir. 1996). I did, however, instruct the jury that the basic difference
between the two statutory schemes related to who may be held liable. See
id.; Bush v. Raymond Corp., Inc. 954 F. Supp. 490, 496 (N.D.N Y 1997).
Specifically, the jury was instructed that Aaron could not be held liable
under Title VII.*fn12 While defendants now appear to suggest that the
jury should have been required to apportion damages between the two
defendants and between the Title VII and HRL claims, this concern does
not appear to have been raised at trial. Bick v. City of New York, 1998
WL 190283, *21 (S.D.N.Y. Apr.21, 1998) ("The jury was not directed to
identify whether its award was under federal or state law since the
standards are the same, and neither party requested such an inquiry.")
(internal citations omitted); Luciano v. Olsten Corp., 912 F. Supp. 663,
675 (E.D.N.Y. 1996) ("[Defendants did not request the Court to direct the
jury to identify the particular law under which the damages were being
awarded.]"), aff'd, 110 F.3d 210 (2d Cir. 1997); see also Anderson v.
YARP Restaurant, Inc., 1997 WL 27043, *6-*7 (S.D.N.Y. Jan.23, 1997)
("Because the standard of proof for sexual harassment claims and for
damages is the same under Title VII as that under the HRL, the jury was
not asked to demarcate which portion of the damage award was based upon
Title VII and which portion was based upon the HRL.").
In any case, the jury plainly found Aaron liable under plaintiffs' HRL
and IIED claims, and F & K Supply liable under plaintiffs' Title VII and
HRL claims. As compensatory damages, the jury awarded as follows:
$885,000 to Funk, representing $850,000 for emotional pain and anguish
and $35,000 for lost wages and benefits; and $465,000 to Michetti,
representing $450,000 for emotional pain and anguish and $15,000 for lost
wages and benefits. Additionally, the jury concluded that both Funk and
Michetti were entitled to punitive damages against defendants Aaron and F
& K Supply. The jury awarded each plaintiff punitive damages of $50,000
and $1 against Aaron and F & K Supply, respectively.
The issue that frequently arises when a plaintiff brings claims under
both Title VII and the HRL, and the one that defendants apparently take
issue with here, is how to allocate damages when recovery can be
recognized under alternative theories. This issue is significant because
of two basic differences between Title VII and the HRL. The first is that
Tilte VII places a cap on the available sum total of compensatory and
punitive damages,*fn13 while the HRL does not limit compensatory
damage's. The second is that though Title VII permits recovery for
punitive damages, the HRL does not.
In determining allocation in such instances, courts have adopted the
sensible approach, consistent with Circuit preference, see Magee v.
United States Lines, Inc., 976 F.2d 821, 822 (2d Cir. 1992), that the
jury award be allocated under the liability theory that provides
plaintiff the most complete recovery. Bick, 1998 WL 190283, at *21.
Anderson, 1997 WL 27043, at *6-*7; Ginsberg v. Valhalla Anesthesia
Assocs., P.C., 1997 WL 669870, at *2 (S.D.N.Y. 1997); Luciano, 912 F.
Supp. at 675. Generally, to: avoid the limits, on
damages under Title VII, this approach will result in the allocation of
all the recovery to the HRL claim. See, e.g., Bick, 1998 WL 190283, at
*21; Ginsberg, 1997 WL 669870, at *2; Luciano, 912 F. Supp. at 675.
However, when punitive damages are interjected into the equation,
compensatory damages can be recoverable under the HRL claim, and punitive
damages under the Title VII claim to the extent consistent with the Title
VII statutory cap. See Anderson, 1997 WL 27043, at *6-*7.
Consistent with this view, then, I allocate Funk's and Michetti's
damages as follows: all compensatory damages in favor of plaintiffs and
against F & K Supply and Aaron to the HRL claims; all punitive damages in
favor of plaintiffs and against F & K Supply to the Title VII claims; and
all punitive damages in favor of plaintiffs and against Aaron to the IIED
claims.*fn14 See Bick, 1998 WL 190283, at *21; Anderson, 1997 WL 27043,
at *6-*7; Luciano, 912 F. Supp. at 675. "This interpretation permits
plaintiff to receive the full amount awarded by the jury without exceeding
the legal limits placed upon sexual harassment claims under Title VII and
the HRL." See Anderson, 1997 WL 27043, at *7.
Accordingly, defendants' motion for a new trial based on errors in
the verdict sheet is denied.
Lastly, defendants' move for remittitur, or, alternatively, a partial
new trial on damages, on the ground that the jury's compensatory awards
to Funk and Michetti for emotional anguish under the HRL of $850,000 and
$450,000 are excessive.
"If a district court finds that a verdict is excessive, it may order a
new trial, a new trial limited to damages, or, under the practice of
remittitur, may condition a denial of a motion for a new trial on the
plaintiffs accepting damages in a reduced amount" — which should be
the maximum award that would not be excessive. Tingley Sys., Inc. v.
Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir. 1995) (citing Phelan v. Local
305 of the United Ass'n of Journeymen and Apprentices of the Plumbing &
Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir. 1992), cert. denied;,
507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993)). Simply put,
remittitur is "the process by which a court compels a plaintiff to choose
between reduction of an excessive verdict and a new trial." Earl v.
Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990) (quoting Shu-Tao
Lin v. McDonnell Donglas Corp., 742 F.2d 45, 49 (2d Cir. 1984)).
Because plaintiffs' compensatory awards were made pursuant to the HRL,
I look to New York State law in determining whether the awards are
excessive. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415,
437-38, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (holding that federal
district court must apply New York state law in determining whether
damage awards on diversity claims are excessive); Consorti v. Armstrong
World Indus., Inc., 103 F.3d 2, 4 (2d Cir. 1995); Anderson, 1997 WL
190283, at *6-7. The relevant law is set forth in C.P.L.R. S 5501(c)
(McKinney 1995). That section provides in part as follows:
In reviewing a money judgment . . . in which it is
contended that the award is excessive or inadequate
and that a new trial should have been granted unless a
stipulation is entered to a different award, the
appellate division shall determine that an award is
excessive or inadequate if it deviates materially from
what would be reasonable compensation.
Id. Although directed at the appellate divisions, section 5501(c)
applies to trial courts
as well. See Gasperini, 518 U.S. at 431,
116 S.Ct. 2211.
In determining whether a jury award is excessive under this standard,
New York courts review the evidence adduced at trial in support of the
challenged damage award and compare it to the awards in similar cases.
Gasperini, 518 U.S. at 425, 116 S.Ct. 2211 (citing New York cases).
Here, the specific evidence adduced at trial of the damages suffered by
each plaintiff has already been discussed, See infra discussion at
II(A)(4)(ii). Upon review, I now note the paucity of evidence regarding
the magnitude, severity and duration of the emotional anguish suffered by
After canvassing comparable cases, I find that the jury's awards for
emotional damages to Funk and Michetti of $850,000 and $450,000,
respectively, are excessive. For example, in McIntosh v. Irving Trust
Co., 887 F. Supp. 662, 669 (S.D.N.Y. 1995),*fn15 Judge Koelti reduced a
$219,428.00 compensatory damage award under the HRL to $20,000. The
plaintiff in McIntosh testified that defendant's retaliatory acts made him
feel "humiliated," "shocked" and "angry." Id. at 664. The plaintiff also
testified to his humiliation and embarrassment, and that he suffered
physical symptoms such as weakness in his legs, stomach cramps and chest
pains, forcing him to visit a doctor on one occasion. Id. Plaintiff
further testified that upon being terminated, he "was devastated," angry
and depressed. Id. Judge Koelt concluded that "[b]ecause the plaintiff
introduced such sparse evidence with respect to the magnitude and
duration of any emotional injury or mental distress that he sustained,
the jury was forced to speculate in awarding him compensatory damages."
McIntosh, 887 F. Supp. at 665.
Similarly, in Quality Care v. Rosa, 194 A.D.2d 610, 599 N.Y.S.2d 65 (2d
Dep's 1993), plaintiff testified that she was "`shock[ed]' and
`devastated' by her termination that she was `in a real pickle,' and that
she felt bad." Id. at 66. The Second Department found that "in the
absence of any evidence of the duration of [complainant's] condition, its
severity or consequences, and in the absence of evidence of any medical
treatment[,]" a $10,000 award for emotional damages required remittitur
to $5,000. Id. This holding is consistent with a number of cases under
the HRL dealing with "garden variety emotional distress," see Luciano,
912 F. Supp. at 673, which generally span the 5,000 to $30,000 range.
See, e.g., Kim v. Dial Serv. Intern., 1997 WL 458783, at *12-*13
(S.D.N.Y. Aug. 11, 1997) (reducing award of $300,000 to $25,000 where
plaintiff testified that he felt "gloomy," had lost weight, drank more,
took sedatives and had trouble sleeping); Tanzini v. Marine Midland
Bank, 978 F. Supp. 70, 79 (N.D.N.Y. 1997) (reducing $200,000 award for
mental anguish to $30,000); Binder v. Long Island Lighting Co.,
847 F. Supp. 1007, 1028 (E.D.N.Y. 1994) (pain and suffering award of
$497,738 reduced to $5,000), rev'd in part on other ground's, 57 F.3d 193
(2d Cir. 1995); Borja-Fierro v. Girozentrale Vienna Bank, 1994 WL
240360, *3-*4 (S.D.N.Y. May 27, 1994) (reducing $185,000 mental anguish
award to $15,000 under shocks the conscience standard); New York State
Office of Mental Retardation and Developmental Disabilities v. State
Div. of Human Rights, 183 A.D.2d 943, 583 N.Y.S.2d 580 (N.Y.A.D. 1992)
(reducing award from $75,000 to $7,500); see also Tyler v. Bethlehem
Steel Corp., 958 F.2d 1176, 1190 (2d Cir. 1992) (upholding $18,000 award
under HRL where plaintiff testified that losing his job was "like a
divorce, your wife died or state of shock").
Moreover, cases upholding higher awards almost variably involved
circumstances in which the magnitude, duration, and severity of the harm
were greater than in the present case. The Second Department, in New York