Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FERNANDEZ v. NORTH SHORE ORTHO. SURG.

January 27, 2000

FRANK FERNANDEZ, PLAINTIFF,
V.
NORTH SHORE ORTHOPEDIC SURGERY & SPORTS MEDICINE, P.C., DEFENDANT.



The opinion of the court was delivered by: Carman, Judge.[fn1] [fn1] The Honorable Gregory W. Carman, Chief Judge of the United States Court of International Trade, sitting by designation.
  MEMORANDUM AND ORDER

Defendant, North Shore Orthopedic Surgery & Sports Medicine, P.C. (North Shore), moves pursuant to Rule 50*fn2 of the Federal Rules of Civil Procedure (FRCP) for judgment as a matter of law in favor of defendant for the two causes of action sounding in retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1994)*fn3, and moves pursuant to Rule59*fn4 of the FRCP for a new trial of the said causes of action sounding in retaliation or for damages. North Shore claims that the evidence of retaliation was legally insufficient to sustain the jury's verdict or, alternatively, the verdict finding North Shore liable for retaliation was against the weight of the evidence. Defendant also moves to vacate or reduce the jury's award of back pay, front pay, and punitive damages as being against the weight of the evidence and excessive, moves to cap the jury's award of front pay in accordance with 42 U.S.C. § 1981a(b)(3)(A) (1994)*fn5, and moves for the Court to grant such other and further relief as the Court may deem to be just and proper.

The jury awarded $100,000 in back pay, including $7,067 stipulated to by the parties in offsetting compensation for money actually earned and $15,799.66 in mitigation of damages for compensation plaintiff could have earned through reasonable diligence to find suitable employment. The jury awarded $160,000 in front pay without adjustments for mitigation of damages for compensation plaintiff could earn in the future using reasonable diligence to find suitable employment. The jury additionally awarded plaintiff $100,000 in punitive damages.

Plaintiff, Frank Fernandez (Fernandez), opposes these motions as improper, without basis, inapplicable, and not against the weight of the evidence nor excessive, respectively.

BACKGROUND

Fernandez, a male of Hispanic national origin, was employed by defendant, North Shore, in February 1981 as a part-time x-ray technician. He worked in that capacity until November 30, 1994 when defendant discharged plaintiff. On or about May 31, 1994, plaintiff filed a complaint of unlawful discrimination with the New York State Division of Human Rights (Division of Human Rights) alleging defendant had discriminated against him based on his national origin by denying plaintiff his annual salary increment and reducing his annual bonus. On or about August 9, 1994, the parties entered into a formal conciliation agreement. In October of the same year, defendant adjusted plaintiff's employment schedule, and in November, defendant terminated plaintiff.*fn6 The reasons underlying the termination and the incidents leading up to the termination form the basis of Fernandez's law suit under Title VII of the Civil Rights Act of 1964.

Shortly after he was discharged, Fernandez commenced an action of discrimination first with the Division of Human Rights and later before this Court pursuant to, among other things, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, for employment discrimination on the basis of national origin. Trial began in Brooklyn, New York on October 18, 1999 and ended on October 29, 1999. North Shore defended the suit by arguing that it had discharged Fernandez because his performance and attitude at the workplace were unacceptable. The jury, however, found North Shore terminated Fernandez's employment and singled him out in retaliation for his accusations of national origin discrimination. The jury awarded Fernandez $100,000 in back pay, $160,000 in front pay, and $100,000 in punitive damages.

The court notes significant questions have been raised concerning the timeliness and service of plaintiffs opposition to defendant's post-trial motions.*fn7 The Court notes defendant's objections and expresses its own concern over plaintiffs counsel's less than vigilant adherence to the Court's post-trial schedule. Although the Court is concerned about the filing and service procedures used by plaintiffs counsel, the Court, in exercising its discretion, has determined to consider plaintiffs opposition brief outright.

DISCUSSION

A claim of retaliatory discharge is determined under the three part burden shifting analysis prescribed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). In order to establish a prima facie case, the plaintiff must show by a preponderance of the evidence that (1) participation of the protected activity is known to the defendant; (2) an employment action disadvantaging the plaintiff was taken; and (3) a causal connection between the protected activity and the adverse employment action exists. See Tomka, 66 F.3d at 1308. If the plaintiff meets this burden, the defendant must then articulate a legitimate, non-discriminatory reason for its action. See id. If the defendant articulates a legitimate, non-discriminatory reason for its action, the plaintiff must then prove that the proffered reason was merely a pretext for retaliation and that an impermissible motive was a motivating factor in defendant's actions. See id.

A. Motion for Judgment as a Matter of Law

In support of its motion for judgment as a matter of law, North Shore points to evidence which supports the company's assertion that Fernandez was terminated due to legitimate complaints about his performance and not in retaliation for assertion of his rights. Defendant argues there was evidence at trial of plaintiffs insubordination, unsatisfactory performance, and uncivil conduct in dealing with his supervisors and fellow employees which ultimately lead to his termination. Further, defendant argues, the documented evidence of plaintiffs shortcomings at work occurred both prior and subsequent to his May 1994 complaint to the Division of Human Rights, sufficient to rebut any inference of retaliatory intent. Moreover, defendant asserts the evidence adduced at trial established that plaintiff filed his initial complaint with the Division of Human Rights in May 1994 and that his employment was not terminated until November 1994, over six months later. According to defendant, although a causal connection may be established in part by showing the protected activity was closely followed by adverse action, temporal proximity alone is insufficient to find a causal connection evidencing retaliatory motive. Moreover, defendant argues, a wealth of case law establishes that a lapse of more than six months between the protected activity and the adverse action precludes a finding of a causal link as a matter of law. Thus, no reasonable jury could, as a matter of law, infer retaliation because there was no evidence of a causal connection between the protected activity and the adverse action.

In arguing that Fernandez made no showing that North Shore's firing of plaintiff was causally connected to plaintiff's engaging in protected activity, North Shore overlooks important facts introduced by Fernandez. For instance, plaintiff was fired not only a few months after filing his claim with the Division of Human Rights, but he was fired approximately four months after he signed the conciliation agreement which was the product of that claim. Plaintiff testified at trial that in November 1994, four months after he signed the conciliation agreement, he was asked to resign, and when he did not, he was terminated. See Trial Transcript (Trial Tr.), October 19, 1999, at 122-23. Further, plaintiff testified at trial that after he signed the conciliation agreement with the defendant, the attitude towards plaintiff worsened and became hostile. See id. at 118-22.

The jury could have accepted North Shore's version of the facts, but the jury choose not to do so. This Court finds no reason to disturb the jury's verdict.

B. Motion for New Trial

The Court also finds defendant's alternative motion for a new trial to be without merit. According to the Second Circuit, the Court may grant a new trial pursuant to Rule 59 of the FRCP where the Court is convinced that the jury's verdict was a seriously erroneous result or a miscarriage of justice. See, e.g., United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998). A motion for a new trial, unlike a motion for judgment as a matter of law, may be granted even if there is substantive evidence to support the jury's verdict. See Bevevino v. Saydjari, 574 F.2d 676, 683 (2d Cir. 1978). After reviewing the evidence introduced at trial and based on substantially the same evidence cited above to support the Court's denial of defendant's motion for judgment as a matter of law, this Court is not convinced that the jury reached a seriously erroneous verdict or that the verdict was a miscarriage of justice.

C. Motion to Cap Jury's Award of Front Pay in Accordance with Section 1981a(b)(3)(A)

Also at issue is whether the award of front pay is a legal remedy to be determined by a jury and subject to the statutory cap introduced by the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3), or an equitable remedy to be determined by the judge and not subject to the cap. At trial the Court permitted the jury to determine the amount, if any, of front pay to be awarded to the plaintiff, preserving the decision on the propriety of such action until after the proceedings.*fn8 The jury awarded plaintiff $160,000 in front pay, making no reduction for mitigation.

Section 1981a(b)(3) of Title 42 of the U.S.Code states, in pertinent part, "[t]he sum of the amount of compensatory damages awarded under this section for future pecuniary losses . . . shall not exceed . . . (A) in the case of a respondent who has more than 14 and fewer than 101 employees . . . $50,000." 42 U.S.C. § 1981a(b)(3)(A) (emphasis added). Amounts specifically excluded from the compensatory damages award under this section include "backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g)]." 42 U.S.C. § 1981a(b)(2) (1994). "[O]ther type[s] of relief authorized" under section 706(g) of the Civil Rights Act of 1964 include "reinstatement . . . or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g)(1) (1994) (emphasis added). The parties do not dispute that North Shore had more than 14 and less ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.