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July 17, 2002


The opinion of the court was delivered by: Block, District Judge.


Plaintiffs, Kevin Hill ("Hill"), Breck Harrison ("Harrison"), Mark McCord ("McCord"), Duval Tyson ("Tyson") and Damian Alvarez ("Alvarez") (collectively "plaintiffs"), who are each African-American, brought this action alleging that Airborne Freight Corporation ("Airborne") discriminated against them on the basis of their race by subjecting them to more severe discipline than similarly situated white employees. In addition, Hill asserted a retaliation claim against Airborne.*fn1 The case was tried before a jury, which returned a verdict in favor of plaintiffs on all their claims.

On the discrimination claims, the jury awarded the following compensatory damages: Hill — $200,000, Harrison — $125,000, McCord — $80,000, Tyson — $125,000, Alvarez — $150,000. Hill was awarded $100,000 in compensatory damages on his retaliation claim. The jury also awarded each plaintiff $300,000 in punitive damages on his discrimination claim, and awarded Hill $300,000 in punitive damages on his retaliation claim.

Airborne is a major private mail service. Plaintiffs were all delivery drivers who were employed at the Airborne Brooklyn Station. Regarding the discrimination claims, plaintiffs asserted that Airborne began to engage in discriminatory discipline against them after Airborne installed a new Station Manager, Richard Scarola ("Scarola") — a Caucasian — to manage the Brooklyn Station. In regard to the retaliation claim, Hill asserted that Airborne retaliated against him for filing an Equal Employment Opportunity Commission ("EEOC") complaint, and for writing a letter to the president of Airborne protesting the "harassment and discrimination" he and other employees had been subjected to by Scarola. Ex.*fn2 4 (letter to Airborne president); see Ex. 3 (EEOC Complaint).*fn3

Pending before the Court are various post-verdict motions pursuant to Fed.R.Civ.P. 50(b) ("Rule 50(b)") and Fed.R.Civ.P. 59 ("Rule 59"). In respect to liability, Airborne moves for judgment as a matter of law pursuant to Rule 50(b) or, alternatively, for a new trial pursuant to Rule 59. Regarding damages, Airborne moves for judgment as a matter of law pursuant to Rule 50(b) or, alternatively, for a new trial or remittitur pursuant to Rule 59. As to liability, Airborne's Rule 50(b) motion is granted with respect to McCord and denied as to all other plaintiffs. In regard to the prevailing plaintiffs, Airborne's Rule 50(b) motion on damages is denied; Airborne's Rule 59 motion seeking a new trial on damages is denied on condition that the prevailing plaintiffs accept remittiturs to their compensatory and punitive damage awards in the various sums set forth below.

I. RULE 50(b) & 59 STANDARDS

Action taken by a court under Rule 50 "is a performance of the court's duty to assure enforcement of the controlling law and is not an intrusion on any responsibility for factual determinations conferred on the jury." Fed.R.Civ.P. 50 Advisory Committee Note (1991). The same standard applies to a Rule 50(b) renewed motion for judgment as a matter of law and a Rule 50(a) motion for judgment as a matter of law. See Raspente v. National R.R. Passenger Corp., 111 F.3d 239, 241 n. 3 (2d Cir. 1997). Rule 50(a) authorizes the court "to enter judgment as a matter of law at any time during the trial, as soon as it is apparent that either party is unable to carry a burden of proof that is essential to that party's case." Id. Regarding the sufficiency of the evidence, a motion under either section may be granted only if "the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor." Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Vermont Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 277 (2d Cir. 1996). This means that "there is such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture, or . . . the evidence is so overwhelming that reasonable and fair-minded persons could only have reached the opposite result." Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d Cir. 1993) (citation and internal quotation marks omitted). "[T]he court must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-Ambrosini, 136 F.3d at 289 (citations omitted). While the Court must "review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 150-51, 120 S.Ct. 2097; see Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001) (reversing district court's decision granting Rule 50 motion because the district court "did not view the evidence as a whole, or take it in the light most favorable to [the nonmovant], or disregard evidence favorable to the defense that the jury was not required to believe.").

Unlike a motion for judgment as a matter of law under Rule 50(b), in considering a motion for a new trial under Rule 59 "a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124 (2d Cir. 1998). However, since a jury's verdict should "rarely be disturbed," a new trial will only be granted if the court determines that the verdict was "`seriously erroneous' or a `miscarriage of justice[.]'" Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002) (internal quotation marks omitted). Excessive monetary awards come under the umbrella of Rule 59. "`If a district court finds that a verdict is excessive, it may order a new trial, a new trial limited to damages, or, under the practice of remittitur, may condition a denial of a motion for a new trial on the plaintiffs accepting damages in a reduced amount.'" Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996) (quoting Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir. 1995)).


A. Intentional Discrimination Claims

The Court charged the jury, without objection, under the theory of disparate treatment. As the Supreme Court long ago explained: "`Disparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

Echoing plaintiffs' claims, the Court told the jury that "[e]ach of the five plaintiffs contend that Airborne Express intentionally discriminated against him by subjecting him to harsher discipline than [his] white co-workers because of his race," and instructed the jury to "evaluate each of the plaintiffs claims individually." Jury Charge at 6.*fn4 Regarding the issue of dissimilar discipline, the Court explained that the jury "should consider whether the white co-workers were similarly situated in all material respects to the plaintiff," meaning that "[t]heir circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances." Id. at 6; see also Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001). Regarding the requisite intent to discriminate, the Court charged that "the plaintiff you are considering must prove that racial discrimination was a `motivating factor' behind the disciplinary action," meaning that the plaintiff "must demonstrate that it is more likely than not that the disciplinary decision was made in substantial part because of the plaintiffs race." Jury Charge at 6; see Reeves, 530 U.S. at 153, 120 S.Ct. 2097; Grillo v. New York City Transit Authority, 291 F.3d 231, 234 (2d Cir. 2002); Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100, 108 (2d Cir. 2001); Raskin v. Wyatt Co., 125 F.3d 55, 60-61 (2d Cir. 1997); see also Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims.").

1. Hill, Harrison, Tyson and Alvarez

The terms and conditions of plaintiffs' employment were governed by the provisions of a collective bargaining agreement. The agreement set forth a discipline structure dividing offenses into four categories, A, B, C and D, and prescribing maximum punishments applicable to each. See Ex. 44 ("Collective Bargaining Agreement"). Category A violations, for which "summary discharge" could be imposed, were the most serious; category D violations were the least.

It was common practice at the Brooklyn Station to terminate an employee who engaged in a serious disciplinary violation and then reduce the termination to a suspension. The Court uses the term "fully terminated" to refer to instances where Airborne refused to reduce a termination to a suspension and the employee was compelled to proceed to arbitration to seek reinstatement — a right provided by the collective bargaining agreement. Between 1996 and 1998, plaintiffs Hill, Harrison, Tyson and Alvarez were all fully terminated for allegedly engaging in actions proscribed by the disciplinary scheme of the collective bargaining agreement.

Hill was fully terminated twice. First, in 1996, he was fully terminated for "theft of company services." Ex. 2. The charge, a category A offense, arose from an incident where Airborne alleged that Hill attempted to send a car door via Airborne Express without paying the appropriate fee. Hill was reinstated after successfully invoking arbitration. See Tr. at 229. In 1998, Hill was again fully terminated when he accrued his third category B violation. See Ex. 26, 44. The third violation arose from an incident where Hill admitted he had lost a walkie-talkie. See Tr. at 273. Hill again challenged the full termination; however, this time Airborne prevailed before the arbitrator. See Tr. at 347, 273.

Harrison was fully terminated in 1996 for "theft," a category A violation. See Tr. at 347, 413; Ex. H. He unsuccessfully invoked arbitration-marking the end of his employment at Airborne. See Tr. at 347, 419.

Tyson's full termination resulted from accruing three category B violations. The first was for his involvement in a minor car accident while making deliveries in June 1998. See Tr. at 156-57. The second resulted from an accusation of theft in August 1998. The final category B violation was issued for insubordination. See Tr. at 158-59. Tyson also unsuccessfully sought reinstatement through the arbitration process. See Tr. at 884, 979, 980.

Alvarez was fully terminated in 1997 for a category A violation relating to an accusation of theft; however, he successfully challenged the full termination and was reinstated by the arbitrator seven months later. See Tr. at 90, 97-98, 116, 347, 97879.

During the period in which Hill, Harrison, Tyson and Alvarez were each fully terminated — 1996 through 1998 — not one white driver from the Brooklyn Station was fully terminated. Tr. at 347-48. During that period, there were at least five white employees who were disciplined for category A violations, and thus subject to full termination; however, none of the white employees were fully terminated — meaning, in each instance the white employee was either not terminated or the termination was later reduced to a suspension without the need to resort to arbitration. See, e.g., Tr. at 347-48, 982-85, 990; Ex. 5, 30, 46, 47, 49, 50, 55, AAA. There was, however, one white employee who was fully terminated for a category A offense in 1999. See Tr. at 985.

The jury could have reasonably determined that the white drivers from the Brooklyn Station who were charged with category A violations between 1996 and 1998, but were not fully terminated, were sufficiently similar to plaintiffs Hill, Harrison and Alvarez, who were each fully terminated for category A offenses. That employees of Airborne who engaged in violations of the same degree were similarly situated is supported by the fact that Airborne itself agreed to create the four hierarchical degrees for discipline violations and to prescribe the same range of punishment for the offenses within each degree. As for Tyson, his claim is even more compelling since he was fully terminated for accruing only category B violations; hence, he was treated more harshly than the five white employees who engaged in more serious violations.

These multiple incidents of disparate treatment were of sufficient evidentiary magnitude to support the jury's determination that the differential treatment meted out against these four plaintiffs by Airborne's management was the product of intentional racial discrimination. In addition, there was significant evidence of abject racial animus that the jury was entitled to add to the evidentiary mix. This evidence consisted of numerous instances where managers made disparaging remarks about African Americans, and evidence that Airborne assigned delivery routes to drivers on the basis of their race.*fn5 See Tr. at 79, 101, 110, 113-14, 321-22, 404; Ex. 68. As for the disparaging remarks, they consisted, by way of example, of a manager telling an African-American employee who was singing a gospel song that he "didn't want to hear none of those slave songs," another manager stating that he didn't like the fact that a "fucking black guy" was in a white neighborhood because he didn't believe in "mixing" between the races, and Scarola referring to McCord as "boy." Tr. at 113, 321-22; see Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 468 (2d Cir. 2001) ("While . . . ...

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