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August 4, 2003


The opinion of the court was delivered by: Edward Korman, Chief Judge, District


Plaintiff Charles Munafo brought an action against his former employer, Staten Island Rapid Transit Operating Authority ("SIRTOA"), and various individual defendants acting as its agents, under 42 U.S.C. § 1983, alleging that SIRTOA terminated him in retaliation for exercising his First Amendment right to free speech. The facts of this action are detailed fully in my Memorandum and Order dated January 22, 2003. After a week-long trial, the jury returned a verdict which resulted in a judgment for the defendants. Although the jury found that Munafo's rights had been violated by several of SIRTOA's employees, it also found that the actions of these employees would have been taken independent of Munafo's exercise of First Amendment rights. Munafo now moves to alter the verdict or order a new trial with respect to the defendants found to have violated Mr. Munafo's constitutional rights, arguing that the jurors actually intended to rule for Munafo and only mistakenly answered the special verdict form in a manner inconsistent with a verdict for the plaintiff. For the reasons set forth below, plaintiff's motion is denied. [ Page 2]


The trial of plaintiff Charles Munafo's lawsuit against defendants Alphonso Sorrentino, Peter Argenziano, John McCabe, Owen Swords and David Filimon began on February 24, 2003. During the course of the five-day trial, Owen Swords was dismissed as a defendant. At the conclusion of the evidence, I instructed the jury as to the required threshold inquiry in a First Amendment case: whether the constitutionally protected speech was a "substantial" or "motivating" factor in the defendants' decision to terminate Mr. Munafo. I then instructed the jury regarding the "dual motive" defense as articulated in Mount Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87 (1977). Plaintiff did not object to either of these instructions. The jury deliberated for approximately twenty-four hours before announcing its verdict on March 5, 2003.

The jury was given a special verdict form containing four questions; the form was reviewed and approved by both parties (Tr. 1699). The first question required the jury to determine whether Mr. Munafo "engaged in the constitutionally protected speech that the Court described." (Verdict Sheet, attached as Exhibit A to Declaration of Scott Korenbaum dated March 18, 2003), The jury answered this question in the affirmative. The second question required the jury to determine, with respect to each defendant, whether "plaintiff's constitutionally protected speech was at least a `substantial' or `motivating' factor" in Munafo's dismissal. (Id). The jury found that defendants Sorrentino, Argenziano, and McCabe were motivated by Munafo's protected speech. However, the jury found that defendant Filimon, who actually made the decision to terminate plaintiff, was not motivated by plaintiff's constitutionally protected speech. Question 3 requested that the jury determine whether the defendants "would have taken the same action even if plaintiff had not engaged in any of the constitutionally protected speech." (Id.). The jury answered this question [ Page 3]

"Yes" for defendants Sorrentino, Argenziano, and McCabe, and answered "No" for defendant Filimon. The final question contained on the special verdict form required the jury to determine whether "plaintiff unreasonably chose not to participate in the disciplinary process provided for by the collective bargaining agreement and that his participation could have led the Standing Board of Arbitration or any other hearing officer in the process to decide not to terminate Mr. Munafo?" (Id.). The jury answered the fourth question "No."

Under the dual-motive defense of Mount Healthy, the jury's findings resulted in a verdict for the defendants. After the jury announced its verdict, I polled each individual juror and verified that the answers marked on the special verdict sheet reflected the true verdict of each juror (Tr. 1683-84). A short time after the jury was dismissed however, I was informed by my law clerk that one of the jurors had expressed shock at the ultimate conclusion and maintained that the jury had in fact intended to rule for the plaintiff (Tr. 1686). I then reconvened the jury and confirmed, once again, that the jury's answer to Question 3 was "Yes" as to defendants Sorrentino, Argenziano and McCabe (Tr. 1688-89). The foreperson expressed that, "We thought it would be a different outcome" (Tr. 1688), at which point I briefly explained why their findings of material fact resulted under the law in a verdict for the defendants. The jury was then dismissed again.

After consultation with counsel, I reconvened the jury for a third and final time. Although all seven jurors reiterated that the verdict sheet accurately reflected their answers to the special verdict questions, two of the jurors expressed objections to the result. Juror No. 1, Saverio Calvacca, and Juror No. 7, Victor Strammiello, indicated that they believed the verdict did not reflect the jury's true intent (Tr. 1703; 1708; 1710). Although there was some initial indication by Jurors 1 and 7 that they misunderstood the questions on the verdict sheet, (Tr. 1705; 1708-10), further discussion [ Page 4]

illustrated that their confusion stemmed from a misconception about the outcome or legal consequence of their answers:

Juror No. 1:" [W]e didn't understand it . . . you told us the law after we picked it." (Tr. 1703). ***
Juror No. 7: "How does the laymen (sic) come up with knowledge that even some lawyer friends of mine don't — can't even talk about and we're supposed to come up with a verdict . . . I mean, I have a sour taste in my mouth. And because we misinterpreted part of the law that we didn't understand and here we are with a verdict that is really not . . . our intent." (Tr. 1714).
Juror No. 7: "We made a mistake; yes, I guarantee. But we made a mistake because we don't know the law and we're not expert at the law. We're laymen." (Tr. 1715).
I carefully explained to the jurors that their sole job was to determine the facts, not the legal consequences of those factual findings (Tr. 1718). Thus, I noted that the jury's understanding of the law was unnecessary to their determination of the factual issues contained on the special verdict form (Tr. 1715-17). Nevertheless, the legal consequences of the jury's answers to the special interrogatory questions were described in detail in the jury charge:
[I]f you find that there was more than one motive you may find for a defendant if that defendant has proven, by a preponderance of the evidence, that he would have taken the same action even if the plaintiff had not engaged in any of the protected speech. If you find that the defendants would have taken the same action against Mr. Munafo even if he had not engaged in such speech, then you must find for the defendants.
In other words, if you find that a defendant took adverse action against the plaintiff for both proper and improper reasons, and you find that the defendant would have taken the same actions based on the proper reasons alone, that defendant is not liable for retaliation. [ Page 5]
(Jury Charge p.13, attached as Exhibit B to Declaration of Dorothea Regal dated April 4, 2003).

Following this extensive colloquy with the jurors, I determined that the two jurors who had voiced objections to the verdict were dissatisfied not with their answers to Question 3, but with the outcome of the case. Indeed, the jurors clearly expressed their sympathy for the plaintiff and even suggested that, if given the chance, they would change their answers to the special verdict questions in order to ensure a victory for the plaintiff:

Juror No. 1: "[Y]ou told us the law after we picked it. Now, knowing the law, no, we would have went the other way." (Tr. 1703).
Juror No. 1: "Even if we again misunderstood, we are for the plaintiff on this. That's why we would say no to — that's my point. We are for the plaintiff to begin with . . . We didn't — we never changed that." (Tr. 1705).
Juror No. 1: "In all honestly (sic), you know what we agreed to, that was for the plaintiff. So, we made a mistake the wrong way but in our hearts, we were for the plaintiff. I know we agreed to the question not realizing —
The Court: "Yes, not realizing that it would — but that's my point. You answered the question — "
Juror No. 1: "Not realizing what it meant to the stuff."
The Court: "It's too bad because we don't go in — juries are not permitted to go in and decide cases based on who they think should win or lose without regard to what their judgment is about critical issues that go into the verdict.

What you would like to do is make up your mind and that's exactly what you told me, that you want to rule for the plaintiff, so you'll just answer any question that you have to answer in order to achieve that result. That's not the way the system works." (Tr. 1710-11).

Because the result of the jury's fact-finding cannot be result-oriented, I found ...

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