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KATT v. CITY OF NEW YORK

June 21, 2001

ALLI KATT, PLAINTIFF,
v.
CITY OF NEW YORK AND ANTHONY DIPALMA, DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge.

      OPINION AND ORDER

Plaintiff Alli Katt, a former civilian employee of the New York City Police Department, sues the City of New York ("City") and Lieutenant Anthony DiPalma ("DiPalma") (together the "defendants"), claiming that they subjected her to a sexually hostile working environment in violation of 42 U.S.C. § 1985. the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. and the New York City Human Rights Law, N Y City Admin. Code § 8-101, et seq. ("NYCHRL".) Following a verdict in plaintiff's favor for $400,000 in compensatory damages against both defendants, plus $1 million in punitive damages against the City, defendants move for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure or, in the alternative, for a new trial under Rule 59. Defendants also move in the alternative for remittitur of the jury's damage award. In a matter of first impression, the City claims in its Rule 50(b) motion that the NYCHRL does not abrogate its common law sovereign immunity from punitive damages, and that the punitive damage portion of the jury's verdict must therefore be set aside. For the reasons that follow, the Court accepts the City's interpretation of the NYCHRL, and strikes the jury's punitive damage award as a matter of law, but rejects all of defendants' other claims in their entirety. Accordingly, defendants' motions are granted in part, and denied in part.

BACKGROUND

A. Procedural History

Because the procedural history of this civil rights case is lengthy and labyrinthine, only its most relevant portions are recounted here.

On July 27, 1995, the plaintiff Alli Katt ("plaintiff" or "Katt") filed a pro se complaint*fn1 in this Court asserting, among other things, that she had been subjected to a sexually hostile working environment while employed by the City as a civilian Police Administrative Aide ("PAA") in the New York Police City Department ("NYPD"), and wrongfully terminated from that position in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). The City of New York, the NYPD, and four individual police officers were named as defendants. That was the first step of an almost six-year journey in which this case has been transferred amongst four different federal judges, pruned of irrelevant or unsupportable claims, and withered through endless discovery and motion practice.

On September 28, 2000, the case was transferred to me. By then, discovery appeared to have been completed, with all of the necessary pretrial filings, including proposed verdict sheets, jury instructions, and a joint pretrial order, having been fully submitted as of August 1999. Yet from the record, it appeared that no action had been taken in the case since January 20, 2000, when Judge Richard A. Berman denied a defense motion for partial summary judgment. I immediately ordered the parties to appear for a case management conference to discuss the procedural posture of any pending motions, to determine what issues might be appropriate for trial, and to set a tentative trial date. At that conference the parties agreed that Judge Berman had intended, pursuant to his individual practice rules, to accept a second round of summary judgment papers before proceeding with trial. I accordingly permitted the defendants to renew their motions for summary judgment, and requested that they provide the Court with any prior submissions believed relevant I further requested that the defendants enlarge their motion with whatever material they thought necessary to make their papers fully dispositive of outstanding issues. In order to conserve the Court's and the parties' resources, and because plaintiff had already addressed some of the outstanding issues in prior submissions, I directed plaintiff not to submit an additional response until further order of the Court.

The Court received the defendants' papers one month later. The defendants argued, principally, that no triable issues supported the plaintiff's allegations of sexual harassment, that there was no evidence to support a claim against three of the individually named defendants, and that plaintiff's excessive absences barred her ADA claim as a matter of law. (Defs.' Mem. Supp. Summ J of 11/9/2000.) On December 13, 2000, the Court dismissed the claim against the NYPD pursuant to New York City Charter § 396, and directed the plaintiff to respond to the defendants' arguments with respect to the civil rights and ADA claims. See Katt v. City of New York, 95 Civ. 8383 (GEL) (S.D.N Y Dec, 13, 2000) (order granting partial summary judgment). On January 22, 2001, the Court granted defendants' motion for summary judgment as to three individual defendants, and dismissed plaintiff's state law disability claim, but denied the motion in all other respects, thereby allowing the plaintiff to proceed to trial against the City and Lieutenant DiPalma. See id. (Jan. 22, 2001) (second order granting partial summary judgment). Plaintiff withdrew her federal ADA claim on the eve of trial.

By the time the parties submitted their second joint pretrial order, the parties had enjoyed ample opportunities in the course of more than five years of litigation to raise whatever issues they had deemed dispositive or worthy of pretrial consideration. Accordingly, the joint pretrial order submitted to me on February 13, 2001, boiled down plaintiff's requested relief to:

An award of compensatory damages for the pain and suffering, humiliation, degradation. emotional distress, and physical ailments she has suffered, as well as punitive damages in the maximum amount allowed by law, for defendants' creation and fostering of a sexually hostile work environment in violation of the New State Human Rights Law, the New York City Human Rights Law, and 42 U.S.C. § 1983.

(Joint Pretrial Order ("JPTO") of 2/13/2001 at 1.)*fn2 In addition to denying plaintiff's allegations, the City proposed to assert an affirmative defense under Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ("Burlington-Faragher defense"), arguing that the NYPD exercised reasonable care to prevent and correct any sexually harassing behavior, and that plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities provided by the NYPD. (JPTO at 2.)

On February 16, 2001, the Court held its final pretrial conference, addressing a number of motions in limine, one of which will be discussed further below. Trial commenced on February 20, 2001; the jury returned its verdict on March 1, 2001.

B. The Trial

In setting forth the following salient facts, the Court views the evidence in the light most favorable to the plaintiff, and grants her every reasonable inference that the jury might have drawn in her favor. See, e.g., Hannex Corp. v. GMI, Inc., 140 F.3d 194, 203 (2d Cir. 1998) (in ruling on a post-trial motion for judgment as a matter of law "a court must view the evidence in a light most favorable to the nonmovant and grant that party every reasonable inference that the jury might have drawn in its favor") (internal quotation marks and citations omitted). In fairness, however, it must be emphasized that the defendants' lay and expert witnesses fervently disputed the plaintiff's contentions, and the Court will note, where relevant, the issues on which there was conflicting testimony. The trial essentially presented a question of credibility, pitting plaintiff's account of her relationship with her supervisor DiPalma against his sharply contrasting account of the same events, much of the remaining evidence was offered in an effort to corroborate one side or the other.

1. Katt's Career at the NYPD

All of the events relevant to this case occurred in the period beginning in December 1990, when Katt was hired to work in the NYPD, and ending in November 1992, when she was terminated from her employment there.

On December 10, 1990, Katt was hired by the City to work as a PAA in the NYPD. Following the completion of a civilian-employee training program at the City's Police Academy, Katt was assigned to the NYPD's Seventh Precinct, where, beginning on January 11, 1991, she regularly worked a weeknight "tour" from 4:00 p.m. to 12:00 a.m., until her termination on November 13, 1992, (Tr. 61.) At all times relevant to this case, Katt was under the direct supervision and management of defendant DiPalma, the Lieutenant who was generally in charge of all employees at the Seventh Precinct during Katt's shift. As a PAA, Katt's basic job responsibilities consisted of answering the precinct telephone, directing calls, fie1ding complaints, and providing general secretarial support services to police officers and ranking supervisors. (Id. 63-64.) The evidence demonstrated that Katt performed her job responsibilities at or above a satisfactory level.

Beginning in August of 1992, Katt missed numerous days of work. These absences were partially due to physical and emotional injuries Katt suffered following a violent assault at the hands of an ex-boyfriend (Id. 153-54.) Trial evidence permitted the conclusion that these absences were also in some part due to the symptoms and consequences of Katt's experiencing a continuous and pervasive sexually hostile working environment at the Seventh Precinct. (Id. 334-44.) On November 13, 1992, the City terminated her employment on grounds of excessive absenteeism (PX 3 & 4.)

2. Evidence of a Sexually Hostile Work Environment

Specific conduct that allegedly created a sexually hostile working environment at the Seventh Precinct will be considered in three categories: (1) gestures and comments of a sexual nature made by DiPalma and other male employees of the Seventh Precinct, some of which were directed to Katt personally, and some of which were directed to civilian female employees generally; (2) DiPalma's unwelcome and degrading physical touching of Katt in a lewd and sexually suggestive manner; and (3) physical evidence of harassment, including a photograph of the plaintiff taken by DiPalma and inscribed with a sexually offensive notation, a pornographic cartoon, and a lewd Christmas greeting card.

a. Sexually Hostile Gestutes and Comments

Katt testified that over the course of her employment at the Seventh Precinct she was continually subject to a sexually hostile work environment which grew worse as time wore on, (Tr. 73.) She testified that from "day one" at the Seventh Precinct, she experienced a "rowdy atmosphere" with "a lot of sexual innuendos, sexual comments, questions, [and] intrusive questions" regarding her personal life and personal sexual habits. (Id. 73.) Male employees at the precinct routinely touched her on the waist and referred to her as "sweetheart" or "honey." (Id. 73.) When it became known that Katt had recently divorced her husband, the sexual innuendos and inappropriate touching worsened. (Id. 76.)*fn3

Katt testified that DiPalma was the chief perpetrator of the precinct's sexually hostile environment. For example, DiPalma regularly asked Katt whether she was a "moaner or a screamer" (id. 85), whether she "had ever had toe sex" (id.), whether there had been sexual indiscretions in her marriage (id.), whether she was wearing "panties or a thong or nothing at all" (id.), and, on one occasion, whether he could put his "throbbing manroot" into the "wet recesses" of her "femininity" (id. 87). Katt further testified that DiPalma admonished her to "wear colors," instead of the black clothing she typically wore, since "black tends to hide the size of your breasts)." (Id. 94.) DiPalma continuously referred to Katt's body parts, asking, for example, whether her belly button was "an inny or outty" (id. 86), and that he liked the "little blond hairs" on Katt's shoulders (id. 87). Katt testified that these comments were typically made in the course of regular business conversations which DiPalma had a habit of "twist[ing] in a perverted way." (Id. 86.)

Further incidents of harassment included DiPalma's regularly gesturing to Katt in a degrading and sexually suggestive manner. Katt testified that DiPalma once stood over her desk, flipping through a Victoria's Secret lingerie catalog, pointing to the models, and asking Katt whether she would agree to model lingerie for him. (Id. 101.) On one occasion, DiPalma "licked his lips and rolled his tongue over his lips" while staring at Katt eating lunch. (Id. 91.) On at least two occasions DiPalma offered to drive Katt home at the end of her shift. (Id. 117.) DiPalma and Katt both lived on Staten Island, approximately twenty minutes by car from the Seventh Precinct, which was located on the lower east side of Manhattan. During one of these trips, DiPalma refused to turn down the air conditioner unless Katt "said the magic words" that her "nipples [were] getting hard." (Id. 119-20.) When Katt reached for her sweater instead, DiPalma put his arm across her chest to prevent her from covering herself. (Id. 120.) On another trip to Staten Island, DiPalma asked Katt if alcohol "made [her] horny." (Id.) When Katt admitted that it did, DiPalma asked whether they could "stop for a drink." (Id.) She said no, but DiPalma continued to ask for the remainder of the ride (Id.) On this same trip, DiPalma asked if Katt would "play a game" in which she would have to "lean over and kiss" DiPalma whenever they passed a "landmark" such as underpass. overpass or stoplight. Katt refused to play. (Id.) Other officers also drove Katt home and, on occasion, touched Katt's leg, or asked whether they could stay overnight at Katt's apartment. (Id. 118.)

Though Katt could not provide exact dates for these incidents, she testified that they occurred continuously, on "a regular basis" (id. 92), throughout her two years of employment at the Seventh Precinct, and that "generally speaking, [DiPalma] became raunchier and more vicious as time wore on." (Id. 93.) The harassment, in short, "was very, very regular." (Id. 96.)

b. Sexually Hostile Physical Contact

DiPalma also physically touched Katt in an unwelcome, degrading and sexually suggestive manner. Plaintiff testified that DiPalma sprayed her with a water pistol on a summer day when she was dressed in a white t-shirt, and announced to the precinct that he hoped to wet plaintiff's nipples to "have them show through." (Id. 111.) Although DiPalma flatly denied ever using a water gun at the station house, or even possessing one (unless perhaps confiscated street-vendor goods crossed his desk) (id. 623-27), this incident was corroborated by the testimony of Raymond Perez, a civilian employee who worked as a janitor at the Seventh Precinct on the same tour as Katt and DiPalma (id. 314). Perez testified that Katt was visibly shaken and "pissed off" after being squirted with the water pistol (Id. 315-16.)*fn4

DiPalma sat on a swivel chair, at a desk located near the Seventh Precinct's fax and copy machines, which Katt used to carry out the various secretarial duties of a PAA. Katt testified that whenever she had to stand near DiPalma's desk to copy documents, DiPalma would roll over to her in his chair and "rub his knees up against" her. (Id. 112.) This happened repeatedly. (Id. 114.) DiPalma also made it a habit to "rub up against" Katt, and impede her progress, whenever she walked along the precinct's narrow hallway which led from her desk to the precinct's copy and fax machines. Katt testified that during such hallway encounters, DiPalma would "rub up against" her, and ask "if he could touch [her] leg." (Id. 112.)

Katt further testified that DiPalma once forced himself onto her lap while she was seated in the precinct's clerical room. (Id. 112-113). DiPalma entered the clerical room, saw Katt, and said "come on, let me sit on your lap." (Id. 113.) Katt said nothing. DiPalma then approached Katt, and, before she could "pull away, . . . forced himself" onto her lap and "wouldn't get off." (Id.) DiPalma staved on Katt's lap for "few minutes," and did not stand up until Katt screamed that "he was going to break [her] legs." (Id. 115.) DiPalma is a large man, muscular and over six feet tall, and Katt, who is petite, testified that she was "really hurting" from the weight of DiPalma on her lap, and felt as if her legs were breaking. (Id.) Though the incident lasted only a few minutes, Katt testified "[i]t was so humiliating [that] to me it felt like forever." (Id.)

Another incident of physical touching occurred while Katt was seated in the precinct's civilian lounge during a meal break. Katt testified that as she was finishing a snack, DiPalma approached her from behind and touched the back of her neck with his tongue. (Id. 116.) Katt screamed, turned around and found DiPalma "sticking his tongue out and curling it, laughing." (Id.) Raymond Perez also corroborated this incident, though he could not confirm whether or not DiPalma had made "any contact" with the back of Katt's neck. (Id. 316.)

c. Physical Evidence of Sexual Harassment

Katt presented physical evidence to corroborate her testimony of a sexually hostile working environment at the Seventh Precinct. First, Katt testified that after she had worked at the precinct for "only a few months," DiPalma stood over her desk with a Polaroid camera and, with other officers "howling and cheering him on," photographed Katt against her wishes. (Id. 80-81.) A few weeks later, DiPalma presented Katt with the photograph of her seated at her desk. (Id. 81.) On the bottom of the photo was a handwritten inscription: "The Real Inner Workings of the 976 Love Line." (Id. 81) Katt understood the inscription to liken her to "a telephone porn operator." (Id. 83.)*fn5 The photograph was admitted into evidence. (PX 32.)

Though DiPalma testified that he could not recall whether he had inscribed the photograph (Tr. 631-33), plaintiff presented an expert forensic document examiner to demonstrate that he had. This expert witness, James M. Palladino, testified that upon comparing the inscription on the photograph with four separate samples of DiPalma's handwriting (PX 34 & 35), his "definite and conclusive" finding was "that the writing in the border of the photograph was in fact written by Anthony DiPalma." (Tr. 461.) Palladino painstakingly described to the jury the process by which he analyzes documents and handwriting samples. presenting the inscribed photograph alongside one of DiPalma's handwriting samples, he demonstrated, letter by letter, "that the two sets were in agreement or similar in all important details and contained no significant difference." (Id. 467.) Palladino concluded that "the only person who could have written [the inscription on the photograph] was the defendant, Anthony DiPalma." (Id. 483.)*fn6

Also admitted into evidence was a pornographic cartoon which Katt testified DiPalma gave her. This cartoon, on its face, depicted four fully-clothed dancing couples. (PX 60.) Katt testified that DiPalma called her to his desk, asked her to pick her favorite couple from the cartoon, and then to unfold the cartoon. (Tr. 102-103.) Katt initially refused, but DiPalma insisted, stating that the cartoon was a "personality test." (Id. 104-105.) Unfolding the cartoon caused it to transmogrify, revealing four half-naked couples, engaged in various sex acts. (Id.)*fn7

3. Effects of the Harassment on Katt

Katt testified that these regular incidents of degrading and sexually provocative conduct, as well as unwelcome sexual advances, caused her to suffer severe headaches, stomach ailments, diarrhea, increased upper respiratory allergies and infections. (Id. 150.) She testified that she felt continually run down, yet had trouble sleeping. (Id.) She once vomited during her commute to work, although, she claimed, she had a very' strong stomach and had rarely if ever vomited in the past. (Id. 152.) She testified that to the present day she suffers from insomnia, and that she suffers from frequent nightmares about her experiences at the Seventh Precinct. (Id. 162-63.) She further testified to frequent thoughts and flashbacks to those experiences during intimate moments with men — that she "make[s] an automatic connection between any sexual playfulness or affection, touching . . . . and being harassed." (Id.) Because of this "automatic connection," she testified that she "can't really have an intimate sexual relationship like [she] used to." (Id. 166.)

This testimony was corroborated by Dr. Marsha Jane Kleinman, a licensed clinical psychologist who performed three psychological evaluations of the plaintiff in late 1998 and early 1999. (Id. 326-441.) Kleinman concluded from these evaluations that the plaintiff was "suffering from post traumatic stress disorder as a result of being sexually harassed." (Id. 336.) She testified that Katt exhibits "hallmark" symptoms of post traumatic stress disorder ("PTSD"), such as reexperiencing the events of harassment from various "environmental triggers." (Id.) For example, seeing police cars or officers, or sensing sexual interest from a male acquaintance, have become sources of debilitating anxiety for Katt. (Id. 336-38.) Kleinman further testified that being fired from the police department was a "fatal blow" which has left Katt "unable to function." (Id. 338, 362.) Though Katt had other psychological problems before working for the NYPD, and experienced traumatic events in her personal life during her employment there — including a violent car accident and a physical assault — Kleinman testified, "with a reasonable degree of psychological certainty," that the harassment perpetrated by DiPalma and others at the Seventh Precinct triggered the condition that has caused her debilitated psychological state. (Id. 339.) Kleinman concluded, moreover, that Katt's "nonfunctional, barely functioning" state is probably "permanent," and that her psychological condition is unlikely to improve "to any great extent," even with professional counseling. (Id. 361-62.)*fn8

4. Failure to Complain

There was considerable evidence at the trial about whether the NYPD took effective steps to prevent sexual harassment, and whether Katt failed to take advantage of its programs by complaining to someone within the NYPD regarding the harassment at the Seventh Precinct. This evidence related to the plaintiff's federal civil rights claim against the City under § 1983, and also to the City's Burlington-Faragher affirmative defense, which would have shielded the City from all of plaintiff's claims. The City offered deposition testimony and documentary evidence reflecting that it had in place programs to train personnel regarding sexual harassment and equal employment opportunity issues, to receive and adjudicate complaints, and to inform employees about the existence of these programs and grievance mechanisms. (Id. 871-85; DX F, I, K.)

Katt testified that her failure to complain resulted from tacit and explicit cues from DiPalma and others at the NYPD never to report or complain about the official misconduct of police officers. She testified that during her police academy training women recruits were instructed that they "have to be tough" (id. 75); that they were entering a "male dominated field and [they] have adapt" (id.); and that if they "can't take it," then they should "get out" (id. 61). Katt further testified to experiencing implicit and explicit threats that she would suffer recriminations for reporting official wrongdoing at the Seventh Precinct. On one occasion Katt had taken a personal day, but refused "to" divulge the details of her personal life — and the specific reasons for her absence — to DiPalma and another officer. (Id. 99-102.) Katt testified that she was told by DiPalma ("in a taunting way") that unless she divulged "what was going on in her personal life" she could be "facing a termination." (Id. 101.) On a number of occasions, moreover, Katt advised DiPalma that his conduct offended her and privately asked him to stop. She testified that whenever she complained to him, he would "start mocking [her], licking his lips and saying more offensive things." (Id. 124.) Other times, Katt testified, DiPalma would mockingly offer her the number of the NYPD's Equal Employment Opportunity Board, telling her, "go ahead, call the EEO." (Id. 125.) Katt further testified to a precinct-wide understanding that such complaints were never made, and that she therefore "had no reason to believe that [complaints] would work" (id. 140), or that there was any way for her to "realistically" expect redress for the humiliating treatment perpetrated by Seventh Precinct officers (Id. 139-40).

Finally, Katt testified to an explicit threat from DiPalma, occurring early in her employment at the Seventh Precinct. Katt had been ordered by one of the precinct's officers to carry an industrial-sized broom and to clean up around the officer's desk. (Id. 140-41.) She complained that such duties were not part of her job description, but the officer ignored her and pointed to the broom. Katt testified that she felt humiliated, that she was wearing a "lacy feminine shirt and sandals" on account of a hot summertime day, and that men were standing around watching her sweep the floor. (Id. 142.) She tried to complain to DiPalma but he refused to listen. (Id. 142-43.) She, then told DiPalma that unless he provided her with some means of redress, she would "go over [his] head," to let his supervisors "know that [she] tried to complain" about an incident of sexual harassment, and that DiPalma "wouldn't do anything about it." (Id. 143.) DiPalma answered that were Katt ever to so "complain about any other officer," she "would be labeled a rat" within the precinct, and that she "would be ostracized," with a "reputation that would follow [her] wherever" she worked within the NYPD. (Id.) Katt concluded that DiPalma's comments "drove home . . . what [she] already knew that's it just not done, you don't tile a complaint against another member of the service." (Id. 143.)

The plaintiff further presented evidence of a general culture within the Seventh Precinct, and the NYPD generally, by which officers and civilian employees did not report a fellow employee's misdeeds or infractions to appropriate authorities. For example, Lula Williams, a co-worker of Katt's at the Seventh Precinct, testified that she was unaware of formal complaint procedures available for victims of sexual harassment, and that she personally would fear reporting any such incidents of harassment for fear of receiving a command discipline. (Id. 696.)

Another co-worker, Stella Morales Castillo ("Castillo"), indirectly corroborated this implicit understanding. Castillo worked at the Seventh Precinct with Katt, and continues to work there to this day. She is married to an New York City Police Officer. (Id. 738.) Katt had testified that the two were close friends (id. 121-24), and other evidence appeared to demonstrate as much. Castillo had invited Katt to her wedding (id. 122), and Castillo had sent Katt a postcard from Disney World depicting a smiling Mickey Mouse and Donald Duck, and stating in bold letters: "Best Friends are Only A Post Card away!" (PX 167.) The postcard was signed, "Love, Your Friend Stella." (Id.) Williams corroborated Katt's testimony that Castillo and Katt were friendly with one another. (Tr. 691-92.)

Despite this evidence, Castillo testified that Katt was "just a coworker," and that the two were not friends. (Id. 732-33.) She testified that she never had a personal conversation with Katt, and denied Katt's characterization of their relationship as one of "little sister or big sister," (Id. 723.) Cross-examination brought out that Castillo's testimony at trial contradicted her deposition testimony on a number of points. (Id. 730, 732, 737.) A reasonable juror could easily have concluded from the contradictions in Castillo's testimony, as well as from her manifestly uncomfortable demeanor, that her testimony was less than truthful, and represented an example of the closed culture Katt contended existed at the precinct.

Plaintiff also offered the testimony of Dr. Michelle Paludi, a professor of psychology and human resource management and an expert in workplace sexual harassment, and Dr. Stephen Leinen, a professor of criminology and former NYPD detective with an academic specialty in the study of police organizational culture. Paludi testified that in her expert opinion, based on her review of the programs, manuals, and training materials presented by the City, the NYPD's programs to combat workplace sexual harassment were inadequate. (Id. 494-99, 518-21, 523, 526.) For example, Paludi testified that victims of sexual harassment at the NYPD would be unsure how to file a complaint, and of what would be expected of them if they did file a complaint. (Id. 497-99.) Moreover, employees were not "instructed . . . in what the institution would do in terms of how they would investigate a complaint, the role of witnesses, how they would deal with issues of confidentiality." (Id. 496.) Paludi testified that such knowledge of how complaint mechanisms operated was a necessary component of any effective training and prescriptive workplace harassment program. (Id. 501.) The defendants offered no expert witnesses to rebut this testimony, relying on cross-examination and arguments to the jury that it should find from the documents themselves that the City's program was adequate. It was for the jury to determine the credibility of Paludi's testimony, and what weight, if any, to give her testimony in deciding whether the City had met its burden of proof in establishing its affirmative defense.

Leinen testified that based on his own experience as an officer in the NYPD, and his academic research into the culture of police organizations in general (and the NYPD in particular), that the paramilitary structure of police departments and the general stress of police work create a culture in which police officers so value loyalty and mutual support that complaints or truthful testimony about misconduct by officers is strongly disfavored and met with ostracism or other retaliation. According to Leinen, this culture is effectively communicated to new officers and civilian employees, such that it would be reasonable for police employees to feel discouraged from complaining about misconduct and to fear the repercussions of such complaints. (Id. 886-916.) Leinen's testimony will be discussed in further below; suffice to say for the present that evaluating his opinion was also a matter for the jury.

5. The Jury's Verdict

The jury received the Court's charge on February 28, 2001. (Id. 990-1026.) Because the special requirements for municipal liability under § 1983, see e.g., Monell v. New York City Dept of Soc. Servs., 436 U.S. 658, 694 (1978), would have required a confusing divergence between the instructions relating to the federal and state claims against the City, plaintiff withdrew that claim (Tr. 867), permitting a single set of instructions defining the identical elements of hostile-environment discrimination by an individual under § 1983 and the state and city statutes, and by the City as an employer under the state and city laws. On March 1, 2001, the jury returned a verdict in favor of the plaintiff and against DiPalma and the City for $400,000 in compensatory damages. (Id. 1030-32.) The jury further returned a verdict against the City for $1 million in punitive damages under Section 8-502 of the NYCHRL. (Id. 1057.) It did not award punitive damages against DiPalma.

The Court refrained from entering judgment on the jury's verdict. This was because, midway through the trial, the question of whether a party could be awarded punitive damages against the City pursuant to the NYCHRL had arisen. Though it was clear that such damages were not available under federal and state law, the issue under the City's own ordinance appeared to be one of first impression, which neither party had hilly briefed or researched. (Id. 931-35.) The Court therefore had chosen to allow the jury to determine whether such damages should be awarded in this case, and, if the jury so chose, to analyze the issue upon formal briefing. (Id. 935.)*fn9 In light of the jury's verdict, the Court reserved decision on the issue of punitive damages, pending submission of post-trial motions. (Id. 1059-61.)

D. Post-Trial Motions

On April 23, 2001, the City timely moved on a number of grounds for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure as to both compensatory and punitive damages. Defendant DiPalma moved for judgment as a matter of law as to compensaton damages. Additionally, both defendants moved on a number of grounds for a new trial under Rule 59 of the Federal Rules of Civil Procedure. In the alternative, both defendants moved for remittitur of the jury's compensatory damage award. The matter was fully submitted to the Court on June 8, 2001, without oral argument. This opinion addresses all issues raised in the defendants' motions.

DISCUSSION

"Where a party moves jointly under Rules 50(b) and 59(a), the court must rule separately on each motion." See e.g., In re Asbestos Litig., 986 F. Supp. 761, 765 (S.D.N.Y. 1997) (citing 9A Charles A Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure, § 2539, at 361 (2d ed. 1995)). Accordingly, the defendants' motions will be discussed separately, beginning with their Rule 50 motion for judgment as a matter of law.

1. Rule 50 Motion for Judgment as a Matter of Law

Rule 50 of the Federal Rules of Civil Procedure generally "governs motions for judgment as a matter of law in jury trials. It allows the trial court to remove cases or issues from the jury's consideration `when the facts are sufficiently clear that the law requires a particular result.'" Weisgram v. Marley Co., 528 U.S. 440, 445 (2000) (quoting 9A Wright, Miller & Kane, Federal Practice and Procedure, § 2521, at 240)). A post-trial motion for judgment as a matter of law made pursuant to Rule 50(b) will be denied "unless, viewed in the light most favorable to the nonmoving party, `the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.'" Cruz v. Local Union Number 3 of the Int'l Bhd. of Elec Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)); see also Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000)(same). The Court is "required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The Court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Smith v. Lighting Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988) (internal quotation marks and citations omitted).

Defendants move for judgment as a matter of law on three principal grounds.

A. Punitive Damages against the City of New York

The City first argues that punitive damages are generally unavailable against municipal corporations, and that a court should not construe a local statute to allow such damages absent a clear expression of contrary legislative intent. It contends that because no such expression of intent is found in the NYCHRL, it is entitled to judgment as a matter of law on that portion of the jury's verdict awarding punitive damages. (Defs.' Post-Trial Mot at 7-17.) The Court agrees. Though contrary interpretations of the statute are plausible, principles of New York law governing the construction of statutes enacted in derogation of the common law demand a clear statement of legislative intent before a court may conclude that a municipality has intentionally waived its centuries-old sovereign immunity from punitive liability. Accordingly, because the Court finds no such clear expression in the NYCHRL, the portion of the jury's verdict awarding $1 million in punitive damages against the City is set aside as a matter of law.*fn10

1. The Parties' Contentions

As stated above, the City moved for judgment as a matter of law on the issue of punitive damages at the close of all the evidence. The Court took the issue under advisement, and permitted the question of the City's liability in punitive damages to go to the jury in a "very provisional way." (Tr. 935.) After the jury returned a verdict for $1 million against the City, the Court requested post-trial briefing on whether the NYCHRL, as amended in 1991, abrogates the long-standing common-law principle that New York municipalities are immune from punitive damage awards. The plaintiff argues that it does. She contends that the NYCHRL is a remedial ordinance, and that its purpose of deterring discrimination would be thwarted if the Court were to find that municipal employers were shielded from the statute's punitive liability provision. (Pl.'s Post-Trial Mem. at 13.) The City counters that whatever the purpose of the NYCHRL, this Court is without authority to read an implicit waiver of municipal immunity into the statute without an explicit legislative instruction to do so. (Defs.' Post-Trial Mem. at 14-16.)

Although both parties rely on the text of the NYCHRL, that text hardly provides a clear-cut answer. There is no dispute that NYCHRL § 8-502(a) provides a private right of action for damages, including punitive damages, for persons subjected to discriminatory practices or harassment. See, e.g., Hazeldine v. Beverage Media, Ltd., No. 94 Civ. 3466 (CSH), 1997 WL 362229, at *2 (S.D.N.Y. June 27, 1997) ("Section 8-502(a) provides for punitive damages in any civil action under the [NYCHRL] by persons aggrieved by an unlawful discriminatory practice"). *fn11 Nor is there a dispute that § 8-107(a) generally deems it an unlawful discriminatory practice:

For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or discharge from employment such person or to discriminate against such person in competition or in terms, conditions or privileges of employment.

NYCHRL § 8-107(1)(a).

Plaintiff reads these definitions to provide aggrieved public employees with a private right of action against municipal employers for damages. including punitive damages in appropriate cases (Pl.'s Post-Trial Mem. at 14.) She argues that (a) since the definition of "person" includes "governmental bodies or agencies," (b) since the definition of "covered entities" includes any "person" required to comply with § 8-107, and (c) since the definition of an "employer" (one of the types of parties upon which duties are imposed by that section) does not exclude governmental bodies or agencies, then it follows that the City Council "necessarily and obviously" intended to waive whatever sovereign immunities might shield governmental employers from otherwise appropriate punitive liability for commission of discriminatory practices in violation of Section 8-107(a). (Id. 14-15.) The City counters that although the NYCHRL generally permits aggrieved individuals to receive punitive damages, nothing in the statute is sufficiently explicit to infer an intentional abrogation of the City's well-established common-law immunity from such damages, and that without such explicit authorization, this Court must not attribute to the City Council an intention to undo a principle that for over one hundred years has shielded New York City from the threat of paying punitive damages for the unlawful conduct of its officials. (Defs.' Post-Trial Mem. at 14-16.)

Both parties support their respective positions with a number of cases, though neither points to any authority (and the Court is aware of none) specifically addressing whether punitive damages are recoverable against New York City pursuant to the NYCHRL. It is somewhat surprising that this issue appears to be one of first impression in this or any other court.*fn12 Because the issue is purely one of state law, with ramifications for the allocation of scarce public (state and local) resources, it would surely best be resolved by the courts and legislative authorities of New York. See e.g., Henry J. Friendly, Federal Jurisdiction: A General View, 142 (1973) (noting the awkwardness of federal courts' having to decide important questions of state law). Without the luxury of definitive guidance from the state courts, however, federal courts construing state and local statutes as a matter of first impression must carefully review governing principles of state law and make their own independent prediction of how the state's highest court would resolve the particular issue before it. See, e.g., Sprint PCS L.P. v. Conn. Siting Council, 222 F.3d 113, 115-16 (2d Cir 2000) (when confronted with an unsettled interpretation of a state statute federal courts must "predict how the forum state's highest court would decide the issue") (citations and internal quotation marks omitted); Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994) (federal court must attempt to predict "[w]hat would be the decision of reasonable intelligent lawyers, sitting as judges of the highest New York court, and fully ...


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