United States District Court, Northern District of New York
August 14, 2001
MADELINE FINN-VERBURG, PLAINTIFF, VS NEW YORK STATE DEPARTMENT OF LABOR, DEFENDANT.
The opinion of the court was delivered by: David N. Hurd, United States District Judge
MEMORANDUM — DECISION AND ORDER
On June 10, 1998, plaintiff Madeline Finn-Verburg ("Finn-Verburg" or
"plaintiff") commenced the instant action against defendant New York State
Department of Labor ("NYSDOL" or "defendant") pursuant to Title VII of
the Civil Rights Act of 1964, as amended, U.S.C. § 42 § 2000e.
Defendant answered the complaint on July 16, 1998. Following completion
of discovery, defendant moved for summary judgment on all claims against
it. This motion was granted in part and denied in part on November 8,
2000. Finn-Verburg v. New York State Department of Labor,
122 F. Supp.2d 329 (N.D.N Y 2000).
Trial of plaintiff's claims commenced on April 3, 2001, in Albany, New
York. At the conclusion of a five day trial, the jury returned a special
verdict in favor of the defendant. Judgment was entered accordingly.
Plaintiff now moves to set aside the jury verdict and seeks an order
entering judgment as a matter of law in her favor, pursuant to Federal
Rule of Civil Procedure 50, or in the alternative, for a new trial
pursuant to Federal Rule of Civil Procedure 59. Defendant opposes. Oral
argument was heard on May 25, 2001, in Albany, New York. Decision was
This action arises from plaintiff's claims of hostile work environment
sex discrimination by her supervisor, Roger Alley ("Alley"). Familiarity
with the underlying
facts of plaintiff's claims as set forth in the November 8, 2000,
Memorandum Decision and Order dismissing some of plaintiff's claims is
presumed. Finn-Verburg, 122 F. Supp.2d at 329-31. Additional facts
pertinent to the instant motion are briefly set forth below.
Finn-Verburg was, and is, an employee of NYSDOL. She claims that she
was harassed by Alley, and treated with hostility because of her gender.
Because of this harassment, she claimed to have had no choice but to
reduce her work schedule to limit contact with Alley. At the trial of
this matter, in addition to her own testimony, she proffered the
following in support of her claim.
First, plaintiff called Karen Martin ("Martin"), an equal opportunity
investigator for NYSDOL.*fn1 In June through August of 1997, Martin
investigated plaintiff's internal harassment complaint. Martin testified
that she was told by employees that Alley did have supervisory problems
with women, but that she found plaintiff's claim of gender-based
harassment to be unsubstantiated. While testifying as a witness for the
defense, Martin admitted on cross-examination that in 19 years as a
NYSDOL employee, she had never heard of an allegation of harassment being
substantiated by an internal investigation.
Plaintiff also called her immediate supervisor, John Dillon
("Dillon"). Dillon testified that he was aware of Alley's conduct toward
plaintiff and Deborah Atwell ("Atwell"), another auditor under Alley's
supervision. However, Dillon also admitted that he often told plaintiff
that much of what she perceived to be harassment was within the
"legitimate prerogatives" of a manager. (Def. Mem. at 4.)
Plaintiff called three female clerical employees — Virginia
Ford, Beth Schmidt ("Schmidt"), and Lucinda Kentris ("Kentris") —
who all testified to harassing conduct on the part of Alley. This
harassing conduct consisted of glaring, yelling, sarcasm, "stalking" in
the office, and at least one comment that was arguably sexual in nature.
Plaintiff also proffered the testimony of James Stewart ("Stewart"), a
co-worker of plaintiff's. Stewart acknowledged witnessing some of the
conduct alleged by plaintiff. He also testified that he witnessed Alley
yell at female employees, as well as one male employee; however, Stewart
testified that the male employee, Keith Austin ("Austin"), was not
treated with the same intensity as female employees. Alley subsequently
denied this characterization, but also testified that Austin actually
thanked him for being "hard" on him.
In addition, plaintiff introduced testimony that three women, including
plaintiff, resorted to extreme measures to get away from Alley because of
his treatment toward them. Atwell requested a transfer 75 miles away
from her home to a NYSDOL office in Poughkeepsie, New York. Kentris
resigned. As noted above, plaintiff requested a reduced work schedule.
*fn3 Plaintiff also demonstrated that no male subordinate of Alley had
ever resorted to similar steps to avoid him, and that Alley
supervised a relatively equal number of male and female employees.
In defense, NYSDOL introduced evidence through the testimony of Alley,
Martin, Wallace Brennan ("Brennan"), Julie Hickey ("Hickey"), and Marie
Wilson ("Wilson"). All testified that they had not observed Alley
display any gender-based animus toward women. Wilson also testified that
she was under Alley's supervision when he was a field supervisor, and
that he had never conducted himself in an inappropriate manner on any
site visits. All these witnesses testified, however, that they had
either experienced or heard of Alley having problems with his supervisory
Following its deliberations, the jury returned a special verdict form
making the following findings. First, the jury found that Finn-Verburg
was subjected to a hostile work environment by Alley. Second, the jury
found that this hostile work environment was not based upon her gender.
Upon the return of this verdict, judgment was entered on behalf of the
defendant. The instant motion followed.
A. Rule 50 Motion
On a motion pursuant to Rule 50(b), the trial court views the evidence
adduced at trial in the light most favorable to the nonmoving party,
without weighing the credibility of the witnesses or strength of the
evidence, to determine whether "there is such a complete absence of
evidence supporting the verdict that the jury's findings could only have
been the result of sheer surmise and conjecture, or . . . such an
overwhelming amount of evidence in favor of the movant that reasonable
and fair minded [jurors] could not arrive at a verdict against him."
Samuels v. Air Transport Local 504, 992 F.2d 12
, 14 (2d Cir. 1993)
(quoting Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163
168 (2d Cir. 1980) (alteration and omission in Samuels)).
Plaintiff's motion for judgment as a matter of law must be denied.
Viewing the evidence most favorable to the defendant, there was at least
some evidence in this case that Alley did treat both male and female
employees poorly. While plaintiff argues that the degree and quality of
the evidence offered on this point was such that the jury should have
concluded that Alley's conduct toward plaintiff was based on her gender,
it simply cannot be said that in light of the testimony supporting the
defendant's theory of the case, there was a "complete absence of evidence
supporting the verdict [and] that the jury's findings could only have
been the result of sheer surmise and conjecture." Samuels, 992 F.2d at
This is so because, as noted above, there was some evidence from which
the jury could have concluded that Alley's aggressive and hostile
treatment of employees was not motivated by gender. This conclusion
could have been based on the evidence that Alley treated at least one
male employee in the same manner as that in which he treated plaintiff as
well as other female employees. At least one female employee testified
that she had neither observed, nor been subjected to the type of hostile
conduct at issue in this case. In addition, the jury could have credited
the testimony of Martin, Alley, Brennan, Hickey, and Wilson to find that
plaintiff had failed to prove that Alley's conduct toward plaintiff was
based on her gender.
While an independent review of the aforementioned evidence might have
resulted in an equally persuasive case for the plaintiff, that is not the
standard to be applied on a Rule 50 motion. Where, as here, there was
some basis, however
slight, for the jury to return the verdict that it did, the Rule 50
motion must be denied.
B. Rule 59 Motion
Unlike the standard applicable to a Rule 50 motion for judgment as a
matter of law, the trial court may independently "weigh the evidence"
without favor to the non-movant on a Rule 59 motion. Song v. Ives
Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). A "trial judge
should be least inclined to disturb a jury's verdict, based entirely or
primarily upon witness credibility, where the conflicting accounts of the
witnesses are equally plausible (or implausible), and there is no
independent evidence in the trial record" requiring the court to credit
one version of events over another. Ricciuti v. New York City Transit
Authority, 70 F. Supp.2d 300, 308 (S.D.N.Y. 1999). Where the jury
resolved conflicting versions of events in favor of one party, a new
trial is appropriate only where one "conflicting account is so inherently
implausible as to tax credulity, or there is independent evidence in the
trial record" such that finding for one party, instead of another, would
"lead to a miscarriage of justice." Id. at 308.
However, a Rule 59 motion also permits the trial court to independently
weigh the evidence presented at trial to determine whether the jury's
verdict is "seriously erroneous" or resulted in a "miscarriage of
justice." Sorlucco v. New York City Police Department, 971 F.2d 864, 875
(2d Cir. 1992). In making this determination, the trial court is
afforded considerable discretion. On a Rule 59 motion, "the trial judge
is free to weigh the evidence himself and need not view it in the light
most favorable to the verdict winner." Beveino v. Saydjari, 574 F.2d 676,
684 (2d Cir. 1978).
While it is true that a trial judge is afforded substantial discretion
under Rule 59, the mere fact that the trial judge disagrees with the
jury's verdict is not a sufficient basis to grant a new trial. Mallis
v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983). Grant of a new
trial is warranted only where the court "is convinced that the jury has
reached a seriously erroneous result or that the verdict is a miscarriage
of justice." Sorlucco, 971 F.2d at 875 (quoting Smith v. Lightning Bolt
Produc., Inc., 861 F.2d 363, 370 (2d Cir. 1988)).
In the instant case, plaintiff was required to prove both that she was
subjected to a hostile work environment, and that this hostile work
environment was created because of her gender. See Galdieri-Ambrosini
v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (To
prevail on a claim of sex harassment, "the plaintiff is required to
establish that the harassment complained of was based on her gender")
(citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 63-66 (1986)).
The jury found that she had met her burden as to the existence of a
hostile work environment, but failed to prove that this environment was
based on her gender. In light of the overwhelming evidence supporting
plaintiff's claim that Alley's treatment of her was gender based, this
conclusion was seriously erroneous.
A review of the record in this case demonstrates that plaintiff's
credible evidence showed that Alley subjected her to harassment and a
hostile work environment through a pattern of verbal abuse, sarcasm,
stalking behavior, and angry, intense glaring. This was corroborated
through the testimony of a half dozen witnesses, including an
investigator for the NYSDOL, and male and female co-employees and
subordinates of Alley. Of the seven
witnesses called by the defense, only Wilson testified that she had never
seen or heard of Alley engaging in inappropriate behavior. Plaintiff's
evidence also showed that Alley subjected other female co-workers to a
hostile work environment and that several of them took action to escape
In light of its finding that Finn-Verburg was subjected to a hostile
work environment, it is clear that the jury credited the testimony of
plaintiff's witnesses, and discarded the testimony of defendant's sole
contradictory witness, in finding that plaintiff and numerous other
female employees had been subjected to a hostile work environment by
Alley. Moreover, there was scant evidence that Alley subjected male
employees to a similarly hostile work environment. Defendant has placed
great weight upon the fact that there is evidence in the record
demonstrating that Alley treated Austin harshly. However, this evidence
is insufficient to support the conclusion that Alley treated male and
female employees in an equally harsh manner.
As noted above, Alley himself testified that Austin thanked Alley for
his "hard" treatment. Several witnesses to Alley's treatment of Austin
testified that Alley's treatment of him was less hostile and that it
lacked the "fervor and intensity" of Alley's conduct toward his female
subordinates. (Pl. Mem. at 4.) There was little evidence adduced at
trial to support the jury's verdict that the hostile work environment
created by Alley was not gender based. Other than the limited and
somewhat superficial testimony concerning Austin (who was not called as a
witness by the defendant), there was no evidence presented that Mr. Alley
ever engaged in any harassing behavior toward male employees. This fact
is significant because it is undisputed that Alley supervised a
relatively equal number of male and female employees. Also, contrary to
the experiences reported by female employees, all three of the male
employees who testified in this case stated that they had not been
harassed by Mr. Alley.
In fact, almost all of the evidence and arguments at trial concentrated
on the issue of whether or not plaintiff and other women under Alley's
supervision were subjected to a work environment that was hostile. The
basic position of the defense throughout the trial was that although
Alley was a strict manager, there was no hostile work environment at
all.*fn4 The defense devoted little time, resources, or argument to the
proposition that there was, or may have been, a hostile work environment,
but that it was not gender based. Alley himself emphatically denied that
a hostile work environment of any type existed. While evidence of a
gender-neutral basis for the harassment could have provided an effective
defense for NYSDOL, see Brown v. Henderson, No. 00-6347, 2001 WL 827855
(2d Cir. July 24, 2001), there was scant evidence proffered in this
In view of the evidence introduced at trial, the jury's determination
that plaintiff's hostile work environment was not gender based was
against the weight of the credible evidence. The record in this case
clearly shows both that Alley repeatedly subjected female employees to
abusive and hostile treatment, and that
male employees were not subjected to the same sort of systemic abuse.
Therefore, the jury reached a seriously erroneous result in its verdict
that the work environment was hostile but not gender based.*fn5
The plaintiff is entitled to a new trial. Therefore, it is ORDERED
1. Plaintiff's motion for judgment as a matter of law is DENIED;
2. Plaintiff's motion for a new trial is GRANTED; and
3. The judgment dismissing the complaint is VACATED.
IT IS SO ORDERED.