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March 31, 1999


The opinion of the court was delivered by: Stein, District Judge.


Sandra Ortiz-Del Valle brought this action alleging that the National Basketball Association ("NBA") improperly failed to hire her as an NBA referee in violation of Title VII, 42 U.S.C. § 2000e et seq.; the New York State Executive Law, Human Rights Law, § 296; and the Administrative Code of the City of New York, § 8107[1](a). At the conclusion of a six-day jury trial, the NBA was found liable for intentionally discriminating against Ms. Ortiz-Del Valle due to her gender. The jury awarded her $100,000 in damages for lost wages, $750,000 for emotional distress, and $7,000,000 in punitive damages. Defendant subsequently 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. That motion is denied as to liability because there was adequate evidence to support the jury's finding; as to damages, the motion is denied on the condition that plaintiff accept a remittitur of the punitive damages award to $250,000, of the award of lost wages to $76,926.20, and of the emotional distress award to $20,000.

I. Liability

With respect to the jury's verdict on liability, the NBA's motion for judgment as a matter of law, or in the alternative a new trial, is denied. The burden that must be met in order to justify a court entering judgment in place and stead of the judgment dictated by a jury's verdict is a high one. In this case, there was adequate record evidence — including that enumerated below — to sustain the jury's finding of liability. 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" nor is there "such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]," either of which would warrant granting judgment as a matter of law to the NBA pursuant to Fed.R.Civ.P. 50(b). Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998). Similarly, this Court is not convinced that the jury has reached a "seriously erroneous result," or that its verdict on liability is a "miscarriage of justice" that warrants a new trial. Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998) (quoting Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d Cir. 1996)).

A. Continuing Violation

The NBA's principal argument in support of its motion concerns the application of the continuing violation doctrine to this action. The NBA contends that Ms. Ortiz-Del Valle is unable to establish a prima facie case of discriminatory failure to hire during the period required by the applicable statute of limitations, and that she cannot establish a continuing violation that would "`extend[] the limitations period for all claims of discriminatory acts committed under [an ongoing policy of discrimination] even if those acts, standing alone, would have been barred by the statute of limitations.'" Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997)).

A continuing violation "`may be found where there is proof of specific ongoing discriminatory policies or practices, or 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,' but not where a plaintiff has merely alleged `discrete incidents of discrimination that are not related to discriminatory policies or mechanisms.'" Nasr v. Daiwa Bank, 1998 WL 142133, at *2 (S.D.N.Y. Mar.25, 1998) (quoting Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)).

Here, a reasonable jury could have found a continuous policy barring women from employment as NBA referees based on such circumstantial and direct evidence adduced at this trial such as: (1) evidence that no women were ever hired as NBA referees or invited to the NBA referee training camp until sometime in 1995;*fn1 (2) plaintiff's testimony that she was told that she was "more qualified than some of the men" working for the NBA or the NBA-affiliated CBA, but that Darrell Garretson, Chief of Staff of Officials, "had a problem with my being female" (Tr. at 178; see also Tr. at 200-02); (3) conflicting testimony on when the NBA and its scouts began "looking at" women referees (Tr. at 334, 459, 481);*fn2 and (4) testimony that an employment form which potential NBA referees filled out had a space to indicate the name of the applicant's wife, but not the name of the applicant's husband. (Tr. at 424). A reasonable jury could have found that a policy barring women was in effect through sometime in January 1995.

Defendant further contends that a continuing violation cannot be established because the plaintiff did not establish a prima facie case during the limitations period because (1) the only evidence of any application by plaintiff during the 300-day limitations period (from July 9, 1994, to May, 1995)*fn3 was an April 1995 written application, and (2) she did not establish that she was qualified for the position during that 300-day period.*fn4 However, the jury could have found that plaintiff had a pending application during and prior to January 1995 based on a January 15, 1995 memo from Darrell Garretson and Aaron Wade, Manager of Referee Development and Chief Scout, to Rod Thom, Senior Vice President for Basketball Operations, entitled "Female Official Prospects," which states that "conversations with [Ms. Ortiz-Del Valle] have been ongoing," (Jt.Exh. 27), and on testimony that there was no formal application process for becoming an NBA referee (Tr. at 347; see also Tr. at 427-29; 927-33; 961-64). The jury could have found that the application that was pending and evidenced in the January 15, 1995 memo was rejected pursuant to a continuing policy of discriminating against women for the position of NBA referee.*fn5

As for the qualifications prong, the jury could have found that Ms. Ortiz-Del Valle was qualified and that the NBA's stated requirements were a pretext for discrimination. See Thornley v. Penton Publishing, Inc., 104 F.3d 26, 29 (2d Cir. 1997). Among the qualification requirements which the NBA asserts Ms. Ortiz-Del Valle did not satisfy during the limitations period were: observation and evaluation by the NBA; upgrading her officiating schedule; providing the NBA with a current officiating schedule; and physical condition. The jury could have found the observation and evaluation requirement, the current officiating schedule requirement, and the upgraded officiating schedule requirement pretextual based upon evidence including testimony that: (1) plaintiff was told to "upgrade her schedule" and get a NCAA Division I schedule, but she was unable to obtain an NCAA Division I Mens' schedule (Tr. at 125), the NBA was aware that she could not obtain an NCAA Division I Mens' schedule (Tr. at 130), and Aaron Wade never prepared an observer's report of an NCAA women's basketball game before February, 1995 (Tr. at 335 (Garretson Testimony)); (2) various male NBA referees were invited into the NBA training program with less experience than plaintiff and without an NCAA Division I Mens' schedule (Tr. at 400-418; 738-40); (3) Violet Palmer was invited to the NBA training camp without ever having been observed in person by Aaron Wade, despite her having sent in the schedule of games in which she was going to referee at his request. (Tr. at 927, 933). Similarly, the jury could have found that the NBA's assertion that plaintiff did not meet the physical condition qualification because she was overweight was pretextual, based on Darrell Garretson's testimony that he gave referees, including a current NBA referee, an opportunity to lose weight rather than removing them from consideration. (Tr. at 443).

In sum, plaintiff proffered sufficient evidence to establish a prima facie case during the 300 day period to establish a continuing violation.

B. Cabrera Charge

The NBA also asserts that a new trial must be granted because of prejudicial error in the Court's instructions to the jury. Specifically, it contends that the Court erred in instructing the jury that if it found that plaintiff had satisfied the elements of a prima facie case and found that defendant's asserted reasons for failure to hire plaintiff were "not worthy of belief," they were entitled — but need not — infer that plaintiff was intentionally discriminated against on the basis of her gender. (Tr. at 1131-32). Defendant contends that this instruction does not reflect the state of the law on this issue following the en banc opinion of the Second Circuit in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). The court in Fisher wrote that "evidence sufficient to satisfy the scaled-down requirements of the prima facie case under McDonnell Douglas does not necessarily tell much about whether discrimination played a role in the employment decision." Id. at 1337. While "recogniz[ing] . . . that in the direct case, the evidence adduced to satisfy the prima facie standard may also amount to a powerful showing of discrimination [and that] plaintiff's evidence of discrimination may also be powerfully strengthened by what the defendant puts forth in its case," the Second Circuit wrote that "[t]he fact that a plaintiff is judged to have satisfied these minimal requirements is no indication that, at the end of the case, plaintiff will have enough evidence of discrimination to support a verdict in [her] favor." Id.

This Court believes that these principles were implicit, to some extent, in the so-called Cabrera charge given to the jury, (see Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994)), which, by informing the jury that it was entitled — but need not — infer intentional discrimination if it found certain elements had been satisfied, had the effect of reminding the jury that the ultimate issue is whether defendant intentionally discriminated against plaintiff. By informing the jury that it need not infer intentional discrimination if it found the five specified elements, the Court reflected Fisher's caution that the prima facie case plus a finding that the defendant's reasons were false is not necessarily sufficient to support a finding of intentional discrimination.*fn6 As Fisher acknowledges, the evidence adduced in support of the prima facie case and by defendant on its case "may . . . amount to a powerful showing of discrimination." Fisher, 114 F.3d at 1337.*fn7

In addition, the "Cabrera Charge" was immediately preceded by an instruction to the jury in this case that

  [i]f the NBA has offered evidence tending to show a
  nondiscriminatory reason for the challenged action,
  the plaintiff, in order to prevail, must persuade you
  by a preponderance of the evidence that the reasons
  stated or articulated by the NBA are but a mere
  pretext for discrimination.
    Miss Ortiz-Del Valle may persuade you by proving by
  a preponderance of the evidence that the reasons
  given by the defendant are not true and
  discrimination is the real reason that the NBA did
  not hire Miss Ortiz-Del Valle.

(Tr. at 1130-31). Finally, the charge at issue was immediately followed by an instruction reminding the jury that "the ultimate issue for you to determine is whether Miss Ortiz-Del Valle has proven, by a preponderance of the evidence that the NBA intentionally discriminated against her because of her gender — that Miss Ortiz Del-Valle's gender was a motivating factor in defendant's failure to hire plaintiff." (Tr. at 1132). In these circumstances, this Court cannot conclude that the instructions "as a whole . . . [gave] the jury a misleading impression or inadequate understanding of the law."*fn8 Carvel Corp. v. Diversified Management Group, 930 F.2d 228, 232 (2d Cir. 1991) (citing Plagianos v. American Airlines, 912 F.2d 57,59 (2d Cir. 1990)). See also Bick v. City of New York, 1998 WL 190283, at *17 (S.D.N.Y. Apr.21, 1998) ("For an erroneous ...

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