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.
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.
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.
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
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.
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
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 ...