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May 19, 2003


The opinion of the court was delivered by: Randolph F. Treece, United States Magistrate Judge


Plaintiff, Adrienne Gatti ("Gatti"), brought this action pursuant to the Federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and New York State Human Rights Law ("NYHRL") N.Y. EXEC. LAW § 296, alleging that the Defendants, Community Action Agency of Greene County, Inc. ("Community Action") and Edward Daly ("Daly"), Executive Director, unlawfully terminated her and subjected her to a hostile working environment because of her age. The case was tried before a jury, commencing on October 25, 2002. On November 1, 2002, the jury returned a verdict in favor of Gatti, awarding her $181,761.00, as compensation for lost wages, both back and front pay, as well as emotional distress or mental anguish caused by the unlawful termination.*fn1 A judgment was entered by this Court on the verdict on November 4, 2002. Dkt. No. 68.

Both parties have made post-trial motions. Defendants now move, pursuant to FED. R. CIV. P. 50(b) for a judgment as a matter of law directing a verdict in their favor or, in the alternative, for a new trial pursuant to FED. R. CIV. P. 50(b), 50(c), and 59(a). Dkt. No. 69. Defendants further request, pursuant to FED. R. CIV. P. 59(e), the Court alter or amend the judgment to strike the award of costs to Plaintiff or, in the alternative, apportion the award of costs between Plaintiff and Defendants. Id. Plaintiff opposes the motions and has also moved, pursuant to the ADEA, for attorney fees, and for both pre-judgment and post-judgment interest. Dkt Nos. 73-75. Similarly, the Defendants oppose Plaintiff's motion for attorney fees. Dkt. No. 82. For the reasons set forth below (1) Defendants' motion for judgment as a matter of law is denied; (2) Defendants' motion for a new trial is denied; (3) Defendants' motion to alter or amend the jury's apportionment of costs is denied; (4) Gatti's motion for attorneys' fees and costs is granted as modified; and (5) Gatti's motion for pre-judgment and post-judgment interest is granted as modified.


1. Factual Summary

Community Action Agency of Greene County, Inc. located in Catskill, New York administered several programs, one of which was a federally funded Head Start Program. Another program administered by Community Action was the Day Care Center, which was independent of the Head Start Program. Adrienne Gatti, who was born on January 13, 1938, was first hired by Community Action on September 18, 1978. From this date until her termination in July 1998, Gatti held various positions. She was initially hired as an Executive Secretary but over the next twenty years she served as Personnel Director, Day Care Director, and Head Start Administrative Coordinator.

For most of her employment with Community Action, Gatti's primary supervisor was Iva Woodford, who was the director of the Head Start Program. Because Head Start is federally funded, this program had to be conducted in accordance with federal guidelines. Although Community Action was the grantee and received the money to operate this program, these applicable federal requirements directed that a parent community-based policy council work with Community Action to implement the major decisions affecting the Head Start Program. Those major decisions included hiring, firing, promotions, and preparing job descriptions and yearly budgets.

In 1996, Community Action hired Edward Daly as Executive Director of Community Action and empowered him with the mandate to revamp the agency's infrastructure and bring the Head Start Program into compliance with the federal guidelines. It is not certain when they occurred, but significant rifts developed between: the Policy Council and Community Action; members within the Policy Council; and Community Action and the Head Start Program's employees. There existed a huge divide among all with each pointing the finger at the other for the problems. Eventually all of these conflicts festered and became inextricably and irretrievably intertwined. The disturbing chasm between management and employees engulfed the Policy Council which exhibited fragmented loyalty to both. Some members of the Policy Council refused to vote on various issues. There were work stoppages and charges of a "lock out." The imbroglio became so caustic that at one juncture there were two independent Policy Councils attempting to manage this Head Start Program. Matters became so grave that the Department of Health and Human Services had to intervene into this fray. The funding for this Head Start Program was imperiled and ultimately, in 1998, federal funds were transferred from Community Action to a Warren-Washington County Agency to oversee the operations of this program. All of the Head Start employees were terminated but eventually most, if not all, were re-hired in 1999, except Gatti, once Warren-Washington County was prepared to operate the program. Gatti was offered a position within another Community Action program but for a reduction in her salary. Her employment with Community Action terminated in July 1998.

2. Procedural History

The Plaintiff brought this action on October 13, 1998, against Community Action and Edward Daly for violation of ADEA and NYHRL. Dkt. No. 1. Gatti complained that once Daly became Executive Director in 1996 until she was terminated in 1998, he conducted a severe and pervasive discriminatory campaign against her by, inter alia: (1) decreasing her salary as Administrative Coordinator; (2) attempting, then eventually, eliminating her position due to her age; (3) creating a hostile working environment due to her age; (4) frequently demeaning her, at times in the presence of others, about her age; (5) continually withdrawing, compromising or minimizing her duties and responsibilities as Administrator Coordinator; and (6) reducing her salary when others' salaries were not similarly reduced. Her theories of liability were discrimination premised upon age, retaliation, and a hostile working environment.*fn2 A Motion to Dismiss the Complaint was granted by District Judge Lawrence E. Kahn on February 7, 2000. Dkt. Nos. 11 & 12. However, on March 14, 2001, the Circuit Court of Appeals for the Second Circuit vacated the dismissal order and remanded in accordance with its order. Dkt. No. 16, slip op. dated Feb. 16, 2001. Within its order, the Second Circuit found that Gatti's Complaint was sufficient enough to overcome a FED. R. CIV. P. 12(b)(6) motion. Id. On October 2, 2002, District Judge Lawrence E. Kahn signed an order referring the case on consent to this Magistrate Judge. Dkt. No. 35.

A jury trial commenced on October 25, 2002. Approximately a week later, on November 1, 2002, the jury returned a verdict in favor of Gatti in the amount of $181,761.00. The jury found against both Defendants on all of her causes of action and awarded her back and front pay in the amounts of $57,453.00 and $44,308.00 respectively, and further awarded her for past emotional distress and mental anguish in the amount of $80,000.00. Dkt. No. 57, Special Verdict Form.


Defendants assert six separate grounds in support of their motion to set aside the verdict or for a new trial: 1) An improper age-based hostile work environment charge was given to the jury; 2) Plaintiff's expert was improperly allowed to testify about opinions not contained within the disclosed report; 3) Plaintiff's expert generated a second report that was not disclosed prior to trial thereby prejudicing Defendants; 4) Plaintiff's expert's initial report should have been excluded as it was unrealistic and ignored pertinent facts; 5) the jury's pain and suffering award was unreasonably high; and 6) there was no legally sufficient evidentiary basis for the jury's verdict. Dkt. Nos. 69, 70, 72.

1. Standard of Law To Be Applied

(a) Judgment as a Matter of Law

A court may render a judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. . . ." FED. R. CIV. P. 50(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000). The Second Circuit has established the standard for granting judgment as a matter of law wherein

the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgement n.o.v. only when (1) 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 (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167-68 (2d Cir. 1980) (cited in Dewing v. Orkin Exterminating Co., Inc., 897 F. Supp. 44, 46 (N.D.N.Y. 1995);*fn3 see also Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983). Thus, in ruling on such a motion, the essential steps for the trial court is 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." Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001) (cited in Shannon v. Fireman's Fund Ins. Co, 156 F. Supp.2d 279, 287 (S.D.N.Y. 2001).

(b) Motion for a New Trial

A less stringent standard applies to motions for a new trial pursuant to Rule 59(a). "A trial court should grant such a motion when convinced that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice." Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987) (cited in Dewing v. Orkin Exterminating Co., Inc., 897 F. Supp. at 47). A trial judge's disagreement with the jury verdict is an insufficient basis for granting a new trial. Mallis v. Bankers Trust Co., 717 F.2d at 688-89. The Second Circuit has articulated the standard as follows:

The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not.

Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978) (quoting 6A J. Moore, Moore's Federal Practice, ¶¶ 59.08[5], at 59-160 through 59-161 (1973)). Unlike a judgment as a matter of law, a judge may grant a new trial even if there is "substantial evidence to support the jury's verdict." Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). However, where the resolution of the issues turns on the credibility of the witnesses, "it is proper for the court to refrain from setting aside the verdict and granting a new trial." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992).

2. Defendants' Motions and Objections

(a) Age-based Hostile Working Environment Charge

The jury considered a cause of action premised upon an age-based hostile working environment and found that the Plaintiff had proven by a preponderance of the evidence that Community Action and Daly created such a hostile working environment. Dkt. No. 57, p. 6 (question 5). Defendants contend that the Plaintiff's Complaint did not include a cause of action for age-based hostile working environment and that such a cause of action was interjected into this lawsuit for the first time when the Plaintiff presented to the Court proposed instructions of law days prior to the trial. Dkt. No. 70. They further contend there was no discovery on this claim, that Plaintiff's counsel represented at a deposition that this claim was not present within this lawsuit, and there was no mention of this cause of action during voir dire. Id. If Plaintiff wanted to present this cause of action to the jury, she should have made a motion to amend pursuant to FED. R. CIV. P. 15(a). Id. With no such motion being made or considered by the Court, presenting such a cause of action to the jury was prejudicial. Id.

When the Defendants first raised this issue just prior to the commencement of the trial, Plaintiff's counsel vigorously denied they represented to the Defendants that this cause of action was not included in this claim and further asserted that the cause of action is clearly set forth in the Complaint.

It is established black letter law that the cause of action of hostile working environment in a Title VII claim, 42 U.S.C. § 2000e et seq., is viable. Brennan v. Metropolitan Opera Assn., 192 F.3d 310, 318 (2d Cir. 1999) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Alfano v. Costello et al, 294 F.3d 365 (2d Cir. 2002). So too is this true with regard to ADEA types of actions and they as well are subjected to same analysis as Title VII. Brennan v. Metropolitan Opera, 192 F.3d at 318 (citing Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996)).

! "I have been continually harassed by Mr. Daly including in June 1, 1998. . . . As a result of the age discrimination and retaliation . . ." Compl. at ¶ 13;
! ". . . Mr. Daly was extremely hostile, making condescending comments like `I don't care what you have to say'. . . ." Aff. at ¶ 9;
! "That I met formally with Mr. Daly and he was again extremely condescending and hostile making numerous comments as to my evaluations and work habits. . . . He indicated that I was in jeopardy of being fired due to my age." Aff. at ¶ 10;
! ". . . In addition, he screamed at me and told me to take the cotton out of my ears and understand what he was telling me." Aff. at ¶ 11;
! "That because of his demeaning comments about my age and abilities, about my being in the agency too long, I filed a complaint in Greene County Supreme Court. . . . That after filing suit and continually up through present, I have been harassed by Mr. Daly by and through persons working at his requests. . . ." Aff. at ¶¶ 14 & 20.

A prima facie cause of action of hostile working environment is clearly evident and sufficiently detailed in the Complaint even though it is not independently stated from Gatti's other causes of action. Additionally, the Defendants' challenge to this cause of action being submitted to the jury is without merit. In a companion case, these litigators were confronted with this identical issue. The Second Circuit analysis of this issue is instructive if not controlling.

Theresa Gregory ("Gregory") brought an action against our Defendant, Edward Daly, for Title VII violations that included quid pro quo, retaliation, and hostile working environment almost simultaneously with this lawsuit. Gregory appealed an order of dismissal granted by District Judge Lawrence E. Kahn to the Second Circuit. Gregory v. Daly, 243 F.3d 687, 698-700 (2d Cir. 2001). The facts and allegations against Daly are eerily similar to our litigation with the exception of sex and gender substituted for age, and the complaint therein was plead in a similar fashion as done in this case. The Second Circuit found that Gregory had adequately stated a cause of action for hostile working environment.

Addressing whether such a cause of action must be stated separately, the Second Circuit noted

that traditional categories of "hostile work environment" and "quid pro quo" harassment do not reflect statutory proscriptions that separate "harassment" from other forms of discrimination. Rather, the high Court has indicated that these labels, to the extent that they are useful at all, are so merely as descriptions of varying workplace conditions that violate Title VII's basic prohibition on sex discrimination in terms or conditions of employment. See Burlington Indus., 524 U.S. at 751-52, 118 S.Ct. 2257; Oncale, 523 U.S. at 78-81, 118 S.Ct. 998. Indeed, in Burlington Industries, the Court gave primary importance only to one distinction, namely that between employer conduct that leads to tangible employment actions and the more informal imposition of adverse terms or conditions of employment that result in a hostile or abusive workplace. See Burlington Indus., 524 U.S. at 751-53, 118 S.Ct. 2257; see also Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 666 (7th Cir. 2001).

Id. at 698.

To reiterate this very point, the Second Circuit ...

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