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June 13, 2001


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


This case involves related actions brought by plaintiff Gloria Gonzalez ("Gonzalez") under Title VII of the Civil Rights Act, 42 U.S.C. § 2000, et seq., and the New York State and City Human Rights Laws ("HRLs"). After a three week trial in late September and October 2000, a jury returned a verdict in favor of Gonzalez and against the City of New York on claims of retaliation and constructive discharge. The jury also found individual defendants Anthony Kissik ("Kissik") and Stanley Edelman ("Edelman") liable both for retaliation and constructive discharge under the HRLs and for common law intentional infliction of emotional distress. In addition, the jury found defendant Nicholas Witkowich ("Witkowich") liable for retaliation under the HRLs; unlawful search and seizure in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983; false imprisonment under state law; and intentional infliction of emotional distress.

The jury awarded Gonzalez compensatory damages of $1,250,000.00 against the defendants collectively (the "City Defendants"). This amount comprised $200,000.00 for lost past earnings; $800,000.00 for lost future earnings; and $250,000.00 for emotional distress and related pain and suffering. Finally, the jury found that punitive damages, in amounts to be determined by the Court, were warranted against Witkowich, Kissik and Edelman.

City Defendants now move for alternative forms of relief: for judgment as a matter of law pursuant to Rule 50, or a new trial pursuant to Rule 59, of the Federal Rules of Civil Procedure; remittitur of damages; or a new trial on damages. For the reasons described below, the Court denies the motions. The Court also rules herein on the imposition of punitive damages against Kissik, Edelman and Witkowich and on Gonzalez's request for pretrial interest, attorney's fees and costs.


A judgment as a matter of law pursuant to Fed. Rule Civ. P. 50 may be granted only where the evidence produced at a trial demonstrates (1) such a complete absence of support for a verdict that a jury's factual findings could only have been the result of sheer surmise and conjecture; or (2) such an overwhelming showing of facts favoring the movant that reasonable and fair-minded persons could not arrive at a verdict against that party. See Ryduchowski v. Port Auth., 203 F.3d 135, 142 (2d Cir.), cert. denied, 530 U.S. 1275 (2000). In reviewing the motion, the Court does not substitute its own judgment for that of the jury, but must consider the evidence in a light most favorable to the prevailing party. See id.

The standard governing a motion for a new trial under Fed. Rule Civ. P. 59 involves more judicial discretion than does a motion for judgment as a matter of law. The Court may grant relief if it determines that the jury's verdict is seriously erroneous or against the weight of the evidence, such that its enforcement would constitute a miscarriage of justice. See United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998). Thus,

[u]nlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner. A court considering a Rule 59 motion for a new trial must bear in mind, however, that the court should only grant such a motion when the jury's verdict is "egregious." Accordingly, a court should rarely disturb a jury's evaluation of a witness's credibility.

DLC Mgt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998) (citations omitted).


The background and material facts relevant to this case are set forth in the Court's earlier opinion granting in part and denying in part the motions for summary judgment brought by City Defendants in this matter. See Gonzalez v. Bratton, Nos. 96 Civ. 6330, 97 Civ. 2264, 2000 WL 1191558 (S.D.N Y Aug. 22, 2000).*fn1 For the purposes of the Rule 50 motion, the Court will review, in the light most favorable to Gonzalez as the party opposing the motion for judgment as a matter of law, the evidence placed by Gonzalez in the trial record.

Gonzalez's case was supported primarily by her testimony and that of Adam Alvarez ("Alvarez"), a former employee of the New York City Police Department's ("NYPD" or the "Department") Advocate's Office who had been given the charge of reviewing various disciplinary charges brought against Gonzalez that are at issue here. Kissik served as commander of the 50th Precinct where Gonzalez was assigned during times relevant to this case. According to Gonzalez's case theory and testimony — as corroborated by Alvarez — Kissik engaged in a purposeful campaign to oust Gonzalez from her employment at the NYPD. Gonzalez asserted that Kissik, motivated by a desire to remove Gonzalez from the NYPD, subjected her to particularly heavy-handed supervision. Kissik's purpose allegedly stemmed in part from a sexual harassment complaint Gonzalez had filed internally with the NYPD against John Powell ("Powell")*fn2, her former supervisor at the 45th Precinct, from which Gonzalez was transferred to the 50th Precinct.

In August 1995, Sergeant Praskash, Gonzalez's immediate supervisor at the 50th Precinct, issued a disciplinary charge against Gonzalez allegedly acting pursuant to Kissik's orders to "ride her". The action claimed insubordination for an incident that commenced with Gonzalez expressing that she would not be able to perform an assignment that conflicted with another work-related court appointment. The resulting conflict with Praskash escalated to the point where Gonzalez was threatened with arrest if she did not turn over her gun and accept a suspension.

Although Kissik was not present when this incident occurred, Gonzalez indicated and the record supports a reasonable jury finding that the event was actually the culmination of the harassment campaign that Kissik had instituted the previous year in retaliation for Gonzalez's discrimination complaint against Powell, a campaign which had resumed immediately upon Gonzalez's return to the 50th Precinct from the Bronx Court Section in June 1995. In July 1995, Gonzalez filed a charge with the federal Equal Employment Opportunity Commission ("EEOC") and the State Division of Human Rights alleging sexual discrimination based on the events she had experienced during her assignments at the 45th and 50th Precincts and the Bronx Court Section. This charge was amended and supplemented in September 1995.

According to Gonzalez's testimony, the treatment she suffered on account of Edelman, who was in charge of the NYPD's medical services, followed the same general pattern as Kissik's conduct towards her. In particular, Gonzalez claimed that Edelman also brought baseless disciplinary charges against her that caused her to be suspended without pay multiple times and created a misleading record to make her appear insubordinate. See Tr. at 298-337.

In the months between Gonzalez's filing of her EEOC complaint in July 1995 and her departure from the NYPD in April 1996, Edelman was responsible for several disciplinary charges against Gonzalez that resulted in repeated 30-day suspensions without pay based on allegations that Gonzalez contended were unmerited and retaliatory. These charges included failure to submit for a medical examination; failure to report for a medical appointment at a particular time Gonzalez stated was different from the time she previously had been told; and lying about her means of transportation to an appointment at the NYPD medical services facilities in Queens. See Tr. at 303; 321; 323-34.

Gonzalez also challenged the reasonableness of Edelman's charge that she had lied to him about how she had arrived at a medical appointment, although he did not inquire further about what he perceived as an inconsistency in her story. Gonzalez claimed that Edelman ordered her to return for specific duty shifts that were different from what was reported to the NYPD, so that disciplinary charges of absences were filed against her when she appeared for the wrong shifts.

Gonzalez's departure from the NYPD was ultimately triggered by a drug test (the "Dole Test") she was ordered to undergo. In this connection, police officers from the Department's Internal Affairs Bureau appeared at Gonzalez's home to conduct the test or escort her to a facility where it would be performed. See Tr. at 337-40. Gonzalez testified that she feared for her safety in accompanying the officers; was concerned that the results of the test could be altered; and felt that the test was an aspect of the NYPD's harassment campaign to oust her. Accordingly, she refused to undergo the Dole Test or accompany the officers. See Tr. at 340-41; 345.

Further charges were then brought against Gonzalez as a result of which, when brought to an NYPD trial on them, she was led to believe that she would be fired if she did not resign. See Tr. at 357. On the day the department trial was to take place in April 1996, Gonzalez, rather than proceeding to an adjudication, executed a resignation to resolve the disciplinary charges. The trial record on the matter before the Court produced substantial dispute as to whether there was sufficient reasonable suspicion for the NYPD to order Gonzalez's Dole Test and whether in doing so the Department properly followed applicable internal procedures.

Finally, Gonzalez claimed that Witkowich, motivated by retaliatory animus toward Gonzalez that had reached other NYPD officers, sought to humiliate her and prolong her detention after she was arrested, two months after she had left the force, for a traffic violation. In this connection, Gonzalez was brought to the 40th Precinct, where Witkowich was commander, when she did not produce identification to the officers who stopped her vehicle. Gonzalez described having been detained for 27 hours after being brought to the 40th Precinct under Witkowich's orders. She testified that at the station house she recognized an officer with whom she had worked at the 50th Precinct under Kissik; that this officer went to talk to Witkowich when she was brought into the Precinct; and that Witkowich himself later said to Gonzalez: "I don't need commotion by a woman like you." See Tr. at 373.

Gonzalez claimed at trial that Witkowich then ordered that she be subjected to an invasive search for which there was no sufficient cause, including a strip search, as well as a breathalyzer test administered at another precinct. Gonzalez introduced evidence suggesting that Mark Nell, the officer who stopped her for the traffic violation, did not believe she was then under the influence of alcohol and that the charge he wrote up at the time of the initial detention related to failing to stop at a traffic light and not possessing a driver's license or vehicle registration. Subsequently, however, under Witkowich's direction when Gonzalez was in the 40th Precinct being processed in connection with the traffic offenses, meritless charges were added, including possession of marijuana allegedly found during a search of her car and criminal impersonation of a police officer.

The marijuana count was later dropped, and a jury found Gonzalez not guilty of the impersonation charge. Evidence in the record supports Gonzalez's allegation that the basis for the charge of criminal impersonation was Gonzalez's having shown an expired police parking permit to Nell, although Nell gave ambiguous or conflicting accounts as to whether he believed Gonzalez had told him she was a current police officer. See Tr. at 1653-54. Cruz Gonzalez, a friend of Gonzalez traveling with her as a passenger at the time of the incident, corroborated Gonzalez's testimony that Gonzalez identified herself to Nell as a former police officer.

In September 1996, Gonzalez filed another charge with the EEOC alleging additional acts of retaliation by City Defendants that encompassed the events related to her June 1996 arrest and imprisonment.

Most, if not all, of the material facts supported by Gonzalez's evidence were sharply contested by the City Defendants and their witnesses. The evidence as a whole may be taken into account in the Court's ruling on the motions for judgment as a matter of law or for a new trial. Given the fundamental conflicts in the parties' accounts of many critical facts, a resolution of which side's version comes closer to the truth necessarily rests on matters of credibility of witnesses; what testimony or documents are credited; and the weight accorded to particular evidence. These are all matters uniquely within the province of the trier of facts.

The Court finds that reasonable and fair-minded persons according credibility to Gonzalez and her witnesses could arrive at the verdict reached by the jury here. The Court is further of the view that the verdict was not seriously erroneous or against the weight of the evidence, in light of the substantial conflicting testimony and other contrasting evidence presented by the parties during the trial. Accordingly, the Court concludes that, assigning credibility to witnesses and giving appropriate weight to the evidence Gonzalez adduced, the jury's verdict here can be sustained as a matter of law.



City Defendants challenge the jury's verdict with regard to each of Gonzalez's claims, contending that it must be set aside, as a matter of law, because the evidence does not support the elements necessary to state a claim for intentional infliction of emotional distress; retaliation; constructive discharge; unreasonable detention or unlawful search; or the forms and the extent of the corresponding damages the jury awarded. These arguments are considered in turn below.


1. Notice

In connection with Gonzalez's claim of intentional infliction of emotion distress, the City Defendants contend that the action is barred by the one-year statute of limitations because the Notices of Claim Gonzalez filed against Kissik and Edelman contained no allegation of intentional infliction of emotional distress. Moreover, Witkowich argues that Gonzalez's charges against him do not satisfy the standard for such a claim. As Gonzalez points out, the notice-defect defense City Defendants now assert was not raised as part of their Rule 50 motion or in answers to the pleadings, although the Joint Pretrial Order includes a description of the claimed defect.

The City Defendants alluded to a defense of inadequate notice at a conference regarding the jury instructions. The Court then stated that further information would be required to address the issue. City Defendants, however, did not again raise the issue or respond to the Court's request for more discussion of the nature of the notices themselves. There was thus no factual support for the affirmative defense that notice was inadequate, and the Court considers the City Defendants to have waived the opportunity to argue it.

Even if the defense was not waived by the City Defendants' failure to pursue it, the Court disagrees that the notice was inadequate here. The notice-of-claim provision of New York law is intended to enable a prompt investigation and presentation of evidence of the facts and circumstances out of which claims arise. See Ismail v. Cohen, 706 F. Supp. 243, 250 (S.D.N.Y. 1989), aff'd, 889 F.2d 183 (2d Cir. 1990). Thus, not every claim need be set forth in haec verba, as long as the details pertaining to such a claim are described sufficiently with respect to time, place and manner "to enable the city to investigate the claims." Id.

Although intentional infliction of emotional distress may not have been specified initially by Gonzalez as a claim, the City Defendants learned of the events underlying the claims through notice of Gonzalez's various retaliation and discrimination charges. City Defendants were given the opportunity to make a prompt investigation of the underlying basis for the federal and state law claims and thus had sufficient notice to fulfill New York's notice requirement.

2. Timeliness

With respect to the timeliness of Gonzalez's intentional infliction of emotional distress claim, City Defendants argue that the charges against Kissik and Edelman are time-barred by New York's one-year statute of limitations for such actions. See N.Y. Civ. Prac. L. & R. § 215(3) (McKinney 2001) ("CPLR"). Here, however, the Court finds that the claims were timely filed against Kissik and Edelman within the one-year and ninety-day limitations period established by New York General Municipal Law § 50-i. See N.Y. Gen. Mun. Law § 50i (McKinney 1999).

Although some courts have applied the CPLR limitation period in claims against municipal defendants, those courts which have specifically addressed the conflict between the provisions of CPLR § 215(3) and General Municipal Law § 50-i have generally found that, in light of specific language in § 50-i(3), the statute is intended to override inconsistent provisions of law, and the longer one-year and ninety-day limitations period applies to claims against City Defendants for intentional infliction of emotional distress. See, e.g., Lieber v. Village of Spring Valley, 40 F. Supp.2d 525, 532-34 (S.D.N.Y. 1999); Douglas v. County of Tompkins, No. 90 Civ. 841, 1995 WL 105993, *5 (N.D.N.Y. Mar. 2, 1995); Jones v. City of New York, 555 N.Y.S.2d 788 (N.Y. App. Div. 1st Dep't 1990). The Court agrees with this line of reasoning and finds that sufficient evidence was presented here of actions by Kissik, Edelman and Witkowich within the longer limitations period that could constitute intentional infliction of emotional distress.

Additionally, with respect particularly to Gonzalez's claims against Kissik involving actions that occurred prior to May 21, 1995 — a date corresponding to the beginning of the one-year and ninety-day period preceding her August 21, 1996 complaint — Gonzalez may "invoke the continuing tort doctrine to provide an exemption from the statute of limitations where the `last actionable act' of the alleged course of conduct falls within the statute of limitations." See Bonner v. Guccione, 916 F. Supp. 271 (S.D.N.Y. 1996); Neufeld v. Neufeld, 910 F. Supp. 977, 982-83 (S.D.N.Y. 1996)

3. Sufficiency of Claims

The City next argues that, as a matter of law, an intentional infliction of emotional distress claim may not lie against any of the City Defendants based on the facts presented in this case. As the Court instructed the jury, a person may be liable for intentional infliction of emotional distress when he "intentionally and for the purpose of causing severe emotional distress conducts himself towards another person in a manner so shocking and outrageous that it exceeds all reasonable bounds of decency." See Tr. at 3306.

The tort has four elements: (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y. 1993). New York sets a high threshold on conduct that is "extreme and outrageous" enough to constitute intentional infliction of emotional distress. See Murphy v. American Home Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983).

Nonetheless, in the Second Circuit's assessment of New York law, conduct that included acts such as those Gonzalez asserted here might well be considered sufficiently outrageous to satisfy the conduct element of the emotional distress tort. See Bender v. City of New York, 78 F.3d 787, 791 (2d Cir. 1996) (fact that police officer struck plaintiff and then filed false charge that plaintiff assaulted him, resulting in 24 hours of imprisonment without reasonable cause, held sufficiently outrageous to satisfy the conduct element of the emotional distress tort); Hughes v. Patrolmen's Benevolent Ass'n of City of New York, 850 F.2d 876, 883 (2d Cir. 1988) (campaign of police harassment held sufficient to constitute intentional infliction of emotional distress); Mejia v. City of New York, 119 F. Supp.2d 232, 285 (E.D.N Y 2000) (evidence that a police officer was involved in a scheme to fabricate charges against plaintiffs and ordered one of them to be strip-searched, held sufficient to defeat summary judgment on claim of intentional infliction of emotional distress); Levine v. Gurney, 539 N.Y.S.2d 967, 968 (N.Y. App. Div. 2d Dep't 1989) (false complaint filed by police officer against plaintiff where the officer may have had personal motives for making the charges held sufficient to withstand summary judgment on a claim of intentional infliction of emotional distress).

The Court concludes that, under this strict standard, and based on the evidence in the trial record, a reasonable, fairminded jury could find that Kissik, Witkowich and Edelman intentionally inflicted emotional distress upon Gonzalez. The Court further finds that the jury could reasonably have determined that Gonzalez's injuries and causation were sufficiently established by the evidence, including the testimony of Gonzalez's psychiatric expert.

Kissik's misconduct did not entail a mere isolated incident, but was sustained over a period of months spanning Gonzalez's two tours of duty at the 50th Precinct, assignments separated by approximately the one year that Gonzalez spent at the Bronx Court Section following her transfer there at Kissik's direction. Moreover, the distress Gonzalez claimed she suffered entailed not just the mortifications of unrelenting petty harassment, but on at least one occasion having been ordered out of the Precinct on patrol without proper equipment, which Gonzalez stated made her feel that her personal safety and that of the public were placed in danger. See Tr. at 231; 979. The jury's finding is further supported by Alvarez's testimony that Kissik not only ordered officers working under him to "ride Gonzalez" but also coordinated his efforts to oust her with high-ranking officials in the NYPD's top echelons.

Gonzalez's claim that Edelman was guilty of intentional infliction of emotional distress is similarly sustainable. According to Gonzalez's trial testimony which the jury could reasonably have credited, Edelman, like Kissik, took numerous actions that caused Gonzalez to be suspended multiple times and created a distorted record to make her appear insubordinate and irresponsible, all the while treating her disdainfully and ignoring her legitimate medical complaints. The record also contains evidence that Edelman, who did not appear at the trial, acted under orders to return Gonzalez promptly to work even when she complained of illness she felt rendered her unprepared to perform her police duties.

Such conduct, attributed to a physician who served as head of the NYPD's medical services, can impact an individual with particular emotional severity. If, as the jury may have believed, Edelman, whether on his own or influenced by higher commands, returned Gonzalez to work when she may not have been medically fit, his conduct could have placed Gonzalez's health or safety at greater risk. On this record, it is conceivable that a reasonable jury could have understood that such intimidating and negative treatment from Gonzalez's assigned medical officer at the NYPD would be intended to cause Gonzalez severe emotional distress as defined by law.

Finally, Gonzalez produced evidence supporting her claim that Witkowich, aware of who Gonzalez was when she was brought to his Precinct, and motivated by specific retaliatory animus toward Gonzalez, detained her unreasonably; prolonged her detention by forcing her to undergo unnecessary and humiliating examinations; and caused unwarranted criminal charges to be brought against her. On this trial record, a reasonable jury could find that such conduct could sufficiently support a claim for ...

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