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(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
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
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
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.
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
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 ...