In order to make that renewed motion for judgment as a
matter of law, Rule 50(b) requires that a motion for a directed
verdict be made at the close of all the evidence. See Hilord
Chemical Corp. v. Ricoh Electronics, Inc., 875 F.2d 32, 37 (2d
Cir. 1989). And the Second Circuit has been quite clear that
this "procedural requirement may not be waived as a mere
technicality." See Cruz, 34 F.3d at 1154 (quoting Redd v.
City of Phenix City, Ala., 934 F.2d 1211, 1214 (11th Cir.
1991)). Moreover, even when a pre-verdict motion for judgment as
a matter of law has been made, the movant may not add new
grounds after trial. The post-trial motion is limited to those
grounds that were "specifically raised in the prior [Rule 50(a)]
motion." Samuels v. Air Transport Local 504, 992 F.2d 12, 14
(2d Cir. 1993); see Cruz, 34 F.3d at 1155; Lambert v. Genesee
Hospital, 10 F.3d 46, 53-54 (2d Cir. 1993) ("the specificity
requirement is obligatory"), cert. denied, 511 U.S. 1052, 114
S.Ct. 1612, 128 L.Ed.2d 339 (1994); Smith v. Lightning Bolt
Productions, Inc., 861 F.2d 363, 368 (2d Cir. 1988). In sum, a
post-trial Rule 50(b) motion for judgment as a matter of law can
properly be made only if, and to the extent that, such a motion
specifying the same grounds was made prior to the submission of
the case to the jury.
2. Defendants' Refiled Motion
Defendants' timely refiling of their J.N.O.V. on 15 November
1999 is supported by the required citations to the record. The
record shows that their attempts to make a Rule 50(a) motion
were postponed by this Court until after the verdict was
returned. A meeting was held on 11 March 1999 for the purpose of
allowing both parties to make not only post-trial motions, but
to record certain pre-verdict motions that were not made during
the trial. Thus, this Court will treat Defendants' postponed
motions as a waiver, and will proceed to evaluate this motion on
3. Merits of Defendants' J.N.O.V. Motion
As a preliminary matter, this Court will treat Defendants'
refiled Rule 50(b) motion papers as separate from the original
motion filed on 30 March 1998, as the refiled motion includes
references to, and a reproduction of, the original motion in its
Defendants' basis of their J.N.O.V. motion is that Plaintiff
failed to state a valid 42 U.S.C. § 1983 claim. To establish a
valid retaliation claim under § 1983, Plaintiff must show that
1) her conduct is protected by the First Amendment and 2)
Defendants' conduct was motivated by her exercise of such
constitutionally-protected conduct. Bernheim v. Litt,
79 F.3d 318, 324 (2d Cir. 1996) (citations omitted). Public employees,
such as the Plaintiff in this case, do not have an absolute
right of free speech; courts must also recognize the
government's interest in providing efficient and effective
public service, and balance this interest against the
plaintiff's rights. Id., see also Lieberman v. Reisman,
857 F.2d 896, 899 (2d Cir. 1988) ("First Amendment rights [are]
balanced against the need for governmental efficiency,
especially the need to insure that electorate-sanctioned
policies are effectively implemented."). If the subject matter
of a public employee's speech is on a "matter of public
concern," as opposed to matters of "personal interest," such
speech is protected by the First Amendment. Id.
On a motion for J.N.O.V., this Court's only function is to
determine if the jury's verdict is completely unsupported by the
evidence in the record, against the standard set forth in
Bernheim. The record contains considerable evidence of alleged
acts of retaliation, certainly enough to enable a reasonable
jury to find a verdict for Plaintiff. The key incidents appear
to be Defendants' failure to issue a bulletproof vest for
Plaintiff, and when the vest was delivered, it was supplied
without an outside carrier; Defendants' refusal to
provide guidance during transfer of a suspect to a different
county; and ordering her withdrawal from a case, in addition to
general harassment in the workplace.
Defendants' reliance on the principles outlined in
Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209 (1st Cir.
1989) is misplaced, as First Circuit decisions are not binding
on this Court. In addition, this Court's use of Agosto `s
standard of "unreasonably inferior workplace" during the trial
was merely a descriptive phrase to assist the jury, and not with
the intention to adopt the Agosto decision. However, even if
the Agosto standard was used, the evidence of this case also
supports a jury finding for the Plaintiff.
B. Motion for a New Trial
Defendants also move for a Rule 59 motion, for a new trial.
They assert four separate grounds for their motion, which are
discussed separately below.
1. Jury Charge as to Burden of Proof
Defendants argue that it was error to charge the jury that
Plaintiff must establish her claim by the preponderance of the
evidence standard, and not the clear and convincing standard.
Here again, Defendants rely on Agosto, which, as discussed
previously, is not binding on this Court, and was not endorsed
by this Court during the trial. In any event, a clear and
convincing standard is required only if the legislature creates
it for this type of claim; otherwise, civil cases adhere to the
preponderance of the evidence standard.
2. Jury Charge as to Substantive Law
Defendants next argue that the jury should have been provided
with examples of the "unreasonably inferior" standard, as were
provided by the court to the jury in Agosto. They assert that
because this Court used the Agosto standard, it should use the
examples from that case as well. The Agosto court listed seven
hypotheticals to illustrate just what they had in mind for the
phrase "unreasonably inferior workplace." Agosto, at 1219.
Again, Agosto is not binding on this Court. In addition, the
Agosto court cautioned against taking these hypotheticals too
We are well aware of the impossibility of devising
detailed prescriptions that would cover future cases.
We therefore caution that the suggested results in
the following illustrations might well be altered by
even slight factual variations. Id.
3. Admission of Irrelevant and Prejudicial Evidence
Defendants also argue that admitting the testimony of Sandra
Ganesevoort was prejudicial and irrelevant, as she testified as
to sexual harassment she experienced at Plaintiffs workplace.
Plaintiff had two claims in her action: a § 1983 retaliation
claim, and a sexual discrimination claim. Ganesevoort's
testimony was certainly relevant to Plaintiffs sexual
discrimination claim (which the jury found for Defendants). In
addition, Defendants fail to state a specific connection between
Ganesevoort's testimony and the jury's finding for Plaintiff on
the § 1983 claim.
4. Jury Award is Excessive
Finally, Defendants assert that the jury's total award of
$400,000 is excessive. This amount is compensation only for
emotional damages, because the jury did not find Plaintiff had
suffered economically, and did not award any punitive damages.
This Court will not overturn a jury award unless it meets an
extraordinarily high standard: the award must be "so high as to
shock the judicial conscience and constitute a denial of
justice." Portee v. Hastava, 104 F.3d 349, quoting Zarcone v.
Perry, 572 F.2d 52, 56 (2d Cir. 1978). In addition, the
Portee court noted that emotional distress is difficult to
This Court cannot say that the award shocks the judicial
Furthermore, the award is amply supported by evidence in the
Accordingly, it is hereby
ORDERED that Defendants' renewed motion for judgment as a
matter of law is DENIED; and it is
ORDERED that Defendants' motion for a new trial is DENIED; and
FURTHER ORDERED that the Clerk serve a copy of this order on
all parties by regular mail.
IT IS SO ORDERED.
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