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April 15, 2003


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


During the trial of this matter, after plaintiff Donna Parrish ("Parrish") completed presentation of her case in chief, defendants, Louis Sollecito ("Sollecito"), James Gallagher ("Gallagher"), Mount Kisco Honda ("Honda") and Acura of Bedford Hills ("Acura") (collectively, "Defendants"), moved this Court for an order pursuant to Rule 50(a) of the Federal Rules of Civil Procedure for judgment as a matter of law. The Court heard arguments from the parties on April 8, 2003 and reserved judgment on the motion until after Defendants presented their case, indicating that it would set forth its findings, conclusions and reasoning following the jury's verdict. On April 11, 2003, the jury returned a verdict of liability against Sollecito, Gallagher and Acura on Parrish' s retaliation claim, but found for Defendants on Parrish's sexual harassment hostile work environment claim. The jury awarded Parrish $15,000 in compensatory damages and $500,000 in punitive damages.

At this time, the Court will address the Defendants' Rule 50(a) motion on the issue of whether sufficient evidence was presented by Parrish to support the jury's verdict of liability against Acura, Sollectio and Gallagher for retaliation in violation of Title VII of the Civil Rights Act of 1964 and under section 296 of the New York State Human Rights Law ("NYHRL").*fn1



Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move for judgment as a matter of law at any time before the case has been submitted to the jury. See Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999) A motion filed pursuant to Rule 50(a) may be granted if a legally sufficient evidentiary basis to support the non-moving party's claim or defense is absent from the record. See Fed. R. Civ. P. 50(a); Wimmer, 176 F.3d at 134; Piesco v. Koch, 12 F.3d 332, 340 (2d Cir. 1993); Sanders v. The City of New York, 200 F. Supp.2d 404, 406 (S.D.N.Y. 2002). In assessing the merits of a Rule 50(a) motion, courts must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Wimmer, 176 F.3d at 134; Piesco, 12 F.3d at 340; Sanders, 200 F. Supp.2d at 406.


Under Title VII and the NYHRL, it is unlawful for an employer to discriminate against any individual because such individual has opposed any act or practice made an unlawful employment practice or because such individual participated in opposing an unlawful employment practice. 42 U.S.C. § 12203(a); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002); Carter v. Rosenberg & Estis, No. 95 Civ. 10439, 1998 WL 150491, at *5 (S.D.N.Y. March 31, 1998). To prevail on a claim of retaliation under Title VII, a plaintiff must provide sufficient evidence to establish a prima facie case comprised of the following elements: (1) participation in a protected activity; (2) knowledge by the employer of the employee's protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. See Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 134 (2d Cir. 1999); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1988). As the jury in this case found, a plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not found to be unlawful, so long as plaintiff demonstrates that she possessed a good faith, reasonable belief that the underlying conduct was unlawful. See Sarno v. Douglas Elliman — Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)

In the instant Rule 50(a) motion, Defendants attack the sufficiency of the evidence presented by Parrish with regard to the fourth element of the retaliation claim she alleges. Specifically, Defendants argue that there is no evidence in the record indicating that following the incident that allegedly occurred at the funeral reception for Sollecito's father in July 2000, either Parrish or Tom Murray ("Murray"), the general manager of Mount Kisco Honda at that time, spoke to Sollecito or anyone else at the two dealerships about the incident. According to Defendants, the only complaint to Sollecito that is alleged occurred in March of 2000. Since Parrish's termination from Acura occurred in April 2001, approximately thirteen months from the date of the only alleged complaint, Defendants argue that the time lag between the complaint and the termination is too long to support the causal connection necessary for a claim of retaliation.

Defendants motion must be denied because their argument does not accurately reflect the entire testimony in the record relating to this issue and because it does not consider all the possible retaliatory acts Parrish alleged that the jury may reasonably consider to be adverse employment actions.

In order to establish the causal connection between an adverse employment action and a protected activity, Parrish must demonstrate at trial that the allegedly adverse actions occurred in circumstances from which a reasonable jury could infer retaliatory intent. A plaintiff may prove that retaliation was a motivating factor behind an adverse employment action either "(1) indirectly, by showing that the protected activity was followed closely be discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). A close temporal relationship between a plaintiff's participation in a protected activity and an employer's adverse action is alone sufficient to establish causation, without direct evidence in support. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001). In this regard, the Supreme Court has determined that if temporal proximity alone is the basis for determining a causal connection, it must be very close. Clark County School Dist. v. Breeden, 532 U.S. 268, 273-274 (2001). However, where there is direct evidence concerning the causal relationship, the standard concerning proximity is relaxed. Under some circumstances, retaliatory intent may also be shown in conjunction with the plaintiff's prima facie case, by sufficient proof to rebut the employer's proffered reason for the termination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143-149 (2000).

In this case, Parrish testified that Sollecito visited Acura the Wednesday after the July incident and that she purposely came to the dealership after having surgery to speak with him about Gallagher. When Sollecito asked her how she was doing, she testified that she replied, "Well it's not good . . . I'm still having a very big problem with Mr. Gallagher." (Trial Transcript ("Tr. Trans.") at 42.) In response, Sollecito told her not to worry about it, that he would talk to Gallagher. Parrish testified that when she tried to further elaborate, Sollecito refused to listen and changed the subject. (Id.)

While there is some ambiguity as to Parrish's intention when she indicated there was a "problem" with Gallagher, a reasonable juror could infer from the timing of the alleged conversation just days following the July harassment incident Parrish described, that since Parrish testified that she had previously complained to Sollecito about Gallagher's inappropriate behavior in March, that Sollecito understood that Parrish was referring to harassing behavior and not to regular workplace problems.

Furthermore, additional circumstantial evidence concerning the causal relationship between this complaint in July and Parrish's termination was elicited at trial. Sollecito testified that he began to consider terminating Parrish from her job at Acura six to eight months prior to April 2001. (Tr. Trans. at 247.) Since Sollecito testified that he may have begun discussing Parrish's termination as much as eight months prior to April 2001, around July 2000, there is sufficient evidence in the record concerning temporal proximity to support a causal connection between the complaint alleged in July 2000 and Parrish's termination in April 2001. See Quinn, 159 F.3d at 769 (two months between protected activity and allegedly adverse action sufficient to establish causation); Richardson v. New York State Dept. of Correctional Serv., 180 F.3d 426, 446-447 (2d Cir. 1999). Although the actual termination occurred nine months later, a time-period ...

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