United States District Court, E.D. New York
September 17, 2005.
JOSEPH L. RAINONE, Plaintiff,
JOHN E. POTTER, POSTMASTER GENERAL, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Pro Se plaintiff Joseph L. Rainone ("Rainone" or the
"Plaintiff") filed this discrimination action against his
employer, the Postmaster General of the United States Postal
Service ("USPS" or the "Defendant") claiming that he was not
promoted due to his gender and in retaliation for protected
activity. The matter was tried to a jury from July 18, 2005 to
July 29, 2005. At the conclusion of the trial, the jury rendered
a verdict in favor of the Defendant on the claim of gender
discrimination and in favor of the Plaintiff on the retaliation claim. The jury awarded the
Plaintiff the sum of $11,166, representing the five year
differential in salary between his original position and the
promotion that he was denied. In addition, the jury awarded the
Plaintiff the sum of $175,000 as damages for emotional distress
caused by the Defendant's failure to promote him.
The Defendant moved for a new trial pursuant to Fed.R.Civ.P.
59 on the ground that the award for the Plaintiff's emotional
distress was excessive. On his part, the Plaintiff has moved
pursuant to Fed.R.Civ.P. 54(d) for costs.
A. The Defendant's Motion for a New Trial on Damages
A district court may order a new trial in whole or limited to
damages, or grant remittitur by conditioning the denial of a
defendant's motion for a new trial on the plaintiff accepting the
reduction in damages, if the court finds that the damages awarded
by the jury are excessive. See Tingley Sys. v. Norse Sys.,
49 F.3d 93, 96 (2d Cir. 1995). Remittitur describes "the process by
which a court compels a plaintiff to choose between reduction of
an excessive verdict and a new trial." Earl v. Bouchard Transp.
Co., 917 F.2d 1320, 1328 (2d Cir. 1990) (quoting Shu-Tao Lin v.
McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984)).
The decision whether to grant a new trial following a jury
trial under Rule 59 is "committed to the sound discretion of the
trial judge." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992). "This discretion includes
overturning verdicts for excessiveness and ordering a new trial
without qualification, or conditioned on the verdict winner's
refusal to agree to a reduction (remittitur)." Textile
Deliveries, Inc. v. Stagno, 52 F.3d 46, 49 (2d Cir. 1995). Even
if substantial evidence exists to support the jury's verdict, a
court has the power to grant a new trial under Rule 59. See Song
v. Ives Laboratories, Inc., 957 F.2d 1040, 1047 (2d Cir. 1992).
In general, a motion for a new trial should not be granted
unless the court is "convinced that the jury has reached a
seriously erroneous result or that the verdict is a miscarriage
of justice." Hugo Boss Fashions, Inc. v. Fed. Ins. Co.,
252 F.3d 608, 623 (2d Cir. 2001). "A plaintiff is not permitted to
throw himself on the generosity of the jury. If he wants damages,
he must prove them." Douglass v. Hustler Magazine, Inc.,
769 F.2d 1128, 1144 (7th Cir. 1985). In determining whether the jury
reached a "seriously erroneous" result, the district court "is
free to weigh the evidence and `need not view [the evidence] in
the light most favorable to the verdict winner.'" Farrier v.
Waterford Bd. of Educ., 277 F.3d 633, 634 (2d Cir. 2002)
(quoting DCL Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124,
134 (2d Cir. 1998))
Under federal law, an award will not be disturbed unless it is
"so high as to shock the judicial conscience and constitute a
denial of justice." Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.
1990); accord Kirsch v. Fleet St., Ltd., 148 F.3d 149, 165 (2d
Cir. 1998). While no two cases are exactly alike, a comparison of
other employment discrimination cases is instructive so as to determine whether
the award of $175,000 to Rainone for emotional distress is so
high as to "shock the judicial conscience."
In the employment discrimination context, there appears to be a
"spectrum" or "continuum" of damage awards for emotional
distress. See Michelle Cucuzza, Evaluating Emotional Distress
Damage Awards to Promote Settlement of Employment Discrimination
Claims in the Second Circuit, 65 Brook. L. Rev. 393, 427-28
(1999). The spectrum of damage awards ranges from $5,000 to more
than $100,000, representing "garden-variety," "significant," and
"egregious" emotional distress claims.
At the low end of the continuum are what have become
known as "garden-variety" distress claims in which
district courts have awarded damages for emotional
distress ranging from $5,000 to $35,000.
"Garden-variety" remitted awards have typically been
rendered in cases where the evidence of harm was
presented primarily through the testimony of the
plaintiff, who describes his or her distress in vague
or conclusory terms and fails to describe the
severity or consequences of the injury. . . .
The middle of the spectrum consists of "significant"
($50,000 up to $100,000) and "substantial" emotional
distress claims ($100,000). These claims differ from
the garden-variety claims in that they are based on
more substantial harm or more offensive conduct, are
sometimes supported by medical testimony or evidence,
evidence of treatment by a healthcare professional
and/or medication, and testimony from other,
Finally, on the high end of the spectrum are
"egregious" emotional distress claims, where the
courts have upheld or remitted awards for distress to
a sum in excess of $100,000. These awards have only
been warranted where the discriminatory conduct was
outrageous and shocking or where the physical health
of plaintiff was significantly affected.
Id. at 429 (footnotes omitted). For example, in Norville v. Staten Island University Hosp.,
No. 96-5222, Mem. & Order at 5-13 (E.D.N.Y. Oct. 20, 2003),
aff'd, 112 Fed.Appx. 92 (2d Cir. 2004), the plaintiff nurse
sued her hospital employer alleging that it discharged her
because of her race, age, and disability. The jury found for the
plaintiff on her disability claim and awarded $575,000 for past
and future pain and suffering, mental anguish, and loss of
enjoyment of life. The evidence at trial showed that as a result
of her termination the plaintiff had difficulty sleeping,
experienced panic attacks, and spent most of her days crying or
watching television. She also suffered from a nervous stomach and
became socially reclusive and aggressive to her friends. The
plaintiff's story was corroborated by her sister, who testified
that she was "sad all the time." However, the plaintiff never
sought treatment from a psychiatrist. She only offered the
testimony of a licensed clinical social worker with a Ph.D., whom
she visited once. The doctor stated that the plaintiff suffered
from clinical depression and posttraumatic stress disorder. In
addition, the doctor concluded that the plaintiff's depression
was better than it was after the termination, but would require
one to three years of additional psychotherapy in order to fully
heal. The District Court remittitur order, which was affirmed by
the Second Circuit in 2004, reduced the jury's compensatory
damages award from $575,000 to $30,000. Id.
Another example of a "garden variety" award for emotional
distress includes this Court's decision in Luciano v. Olsten
Corp., 912 F. Supp. 663, 673-674 (E.D.N.Y. 1996). In that case the jury found that a successful female
executive was unlawfully terminated instead of being promoted to
Vice President as promised in writing by the then Chairman and
Chief Executive Officer. The jury awarded the plaintiff $11,400
for emotional distress. There was testimony that as a result of
the termination Luciano was hurt, shocked, upset, overcome with
sadness and depression, that she cried, worried about finances,
had trouble sleeping and eating and felt purposeless. There was
no testimony from a physician. This Court upheld the award of
$11,400, and the Second Circuit affirmed. See id., 110 F.3d 210
(2d Cir. 1997).
Also, in Reiter v. Metropolitan Transp. Authority, No.
01-2762, 2003 WL 22271223, at *1 (S.D.N.Y. Sept. 30, 2003), a
Deputy Vice President of Engineering Services successfully proved
that the defendants retaliated against him by unlawfully
reassigning him to the position of Deputy Vice President of
Technical Services. The jury returned a verdict awarding the
plaintiff $140,000 in compensatory damages for emotional
distress. The testimony revealed that the plaintiff felt
"`stressed,' `nervous,' `on edge,' and `clammy,' but he also
admitted that he never had trouble eating or sleeping and he
never sought medical or psychological help." Id. at *9. The
court reduced the award to $10,000, finding that "[t]he jury
award of $140,000 [was] plainly based on sympathy or speculation
rather than dispassionate common sense." Id. at * 11.
A relevant example of a "significant" emotional distress claim
is Leibovitz v. New York City Transit Authority,
4 F. Supp.2d 144, 146 (E.D.N.Y. 1998), rev'd on other grounds, 252 F.3d 179 (2d Cir. 2001). The Plaintiff was a
Deputy Superintendent for the defendant New York City Transit
Authority and claimed that she suffered emotional distress due to
the harassment of other women in the workplace. A jury awarded
her the sum of $60,000 in compensatory damages and the court
denied the defendant's motion for a remittitur. The Plaintiff
"testified about her depression, inability to sleep, weight gain,
anxiety and other symptoms of depression." Id. at 153. In
addition, a psychiatrist "confirmed the extent and substance of
her complaints." Id.
"Courts have awarded damages for emotional distress in the sum
of $100,000 only in cases where the employer's discriminatory
conduct has caused plaintiff stress which manifested itself in
the form of severe emotional or physical reactions." Cucuzza,
supra, at 445. For example, in Bick v. City of New York, No.
95-8781, 1998 WL 190283, at *20 (S.D.N.Y. Apr. 21, 1998), a
female sergeant succeeded against the New York City Police
Department on her claims of harassment, gender discrimination,
and retaliation. The jury awarded the plaintiff $750,000 in
compensatory damages. The evidence at trial included testimony
from the plaintiff, her therapist, and a supervising officer, who
all suggested that her distress was "far more than minimal
injury." Id. at *23. In fact, the corroborated testimony showed
that the plaintiff was "devastated" and at times "hysterical."
The Plaintiff also received treatment from a certified social
worker trained in psychotherapy and medication from a
psychiatrist. She was diagnosed as suffering from anxiety,
depression and feelings of powerlessness and "suicidal ideation." Id. at *24. In addition, at the time of trial the
plaintiff continued to receive treatment, although she was
described as improved. Based on this evidence, the court reduced
the jury award from $750,000.00 to $100,000.00.
At the high end of the spectrum are awards that are well in
excess of $100,000, in cases that generally contain evidence of
debilitating and permanent alterations in lifestyle. See, e.g.,
Ramirez v. Off Track Betting, 112 F.3d 38 (2d Cir. 1997) (award
of $500,000 appropriate where the plaintiff's psychiatric
difficulties had become so severe after his discharge that he was
unemployable); Shea v. Icelandair, 925 F. Supp. 1014, 1021
(S.D.N.Y. 1996) (awarding damages of $175,000 for mental anguish
exacerbated by Parkinson's disease and a heart condition); see
also Town of Hempstead v. State Div. of Human Rights,
233 A.D.2d 451, 649 N.Y.S.2d 942 (2d Dep't 1996) (awarding $500,000 for
"pervasive and relentless" sexual harassment of a former victim
of child sex abuse under New York state law under the "deviates
materially" standard). The New York "deviates materially"
standard is less deferential to a jury verdict than the federal
"shock the conscience" standard.
The cases cited above that have upheld awards for emotional
distress in excess of $100,000 illustrate the shocking nature of
the award in this case. Here, there was no evidence of
permanency, debilitation, or physical manifestations of distress.
At the trial Rainone, his wife, and Doctor Gary Springstubb, who
is a psychologist, testified as to the emotional distress the
Plaintiff suffered after not being selected for a promotion from his position as a supervisor to manager in the United States
Postal Service's Long Island Computer Forwarding Service ("CFS").
The sole testimony that the Plaintiff provided with regard to
his non-selection was that immediately thereafter his mind was
"swimming;" that his "future looked extremely grim;" and that he
had developed sleeping and "other manifestations." Trial Tr. at
1028. As a result, the Plaintiff requested sick leave for
approximately six months until he had used all of his leave.
Remarkably, the Plaintiff emphatically testified that he did not
consider himself incapacitated in "any way, shape, or form." Tr.
at 1041. Further, the Plaintiff commented that he was enjoying a
"productive life," had published two books, and sold collectibles
such as comic books on the internet auction website known as
"Ebay." Tr. at 1036-37, 1041-42.
The Plaintiff's wife Anne Rainone testified that after learning
about the non-selection the Plaintiff was depressed, had
difficulty sleeping, was "completely distraught," "frustrated,"
and "completely shattered." Tr. at 815-16. However, the
Plaintiff's testimony indicates that he made a good recovery.
MR. RAINONE: I do not feel like I'm incapacitated in
any way, shape or form. I've actually published my
second book just a couple weeks ago in the hobby
itself. So I live a productive life. I enjoy what I'm
doing. I don't need to go out and look for another
job. I can create out of my collection enough income,
given my retirement check every month, what my wife
is doing to sustain myself.
. . . . MR. RAINONE: In any event, all the things I've done,
particularly after 2004 since I got my retirement
check, which goes on for as long as I live, I
probably bring in more now than I made in the postal
service. Most of it is not income, but it is working
off my annuity, which is my collection. And then I
also have my retirement.
Again, I want to reemphasize for the Court and the
jury, I'm not disabled. I'm not asking for
disability. However, I was incapacitated for a period
of time. It's this period of time that I'm asking my
[sic] damages. And obviously the only thing I can
request at this point in time is some monetary
settlement and for what I consider legitimate
reasons, which I'll go into on the damages.
I also need to let you know that I mentioned January
31, 2004. At this time I was 54 years old. I was
really only a little over almost exactly a year
away from what would have been my normal retirement
had I stayed within the postal service. So it wasn't
like there was a tremendous difference in time. It
was a one-year difference, and you do get reduction
off your retirement for that one-year difference.
. . . .
THE COURT: Okay.
Do you want to tell the jury anything about how you
are feeling emotionally at the present time? I don't
mean sitting in this witness box but with respect to
the conditions you complained about.
MR. RAINONE: Your Honor, I think my testimony has
been very clear on that. I said it at least three
times, and I said that I do not feel I'm disabled in
any regard. And I feel for the time period that is in
question, I was incapacitated.
Tr. at 1041-42, 1062.
The Plaintiff's primary evidence of emotional distress came
from Dr. Springstubb, who first met with the Plaintiff in June of
1999 shortly after he was not selected for the promotion. His
symptoms included depressed mood, difficulty concentrating,
insomnia, lethargy, indecisiveness, inability to take pleasure
from normal everyday activities, low self-esteem, and problems with
attention. Dr. Springstubb initially diagnosed the Plaintiff as
having major depression, recurrent, mild Rainone received
treatment from Dr. Springstubb approximately once or twice a
month from 1999 to 2003. At no time did the Plaintiff take any
medication or consult a medical doctor for his emotional
distress. At the end of his treatments in 2003, Dr. Springstubb
found that he had greatly improved and symptoms were only present
"to some mild degree." Tr. at 748. Also, in his opinion as to
present employment, he testified as follows
BY MR. RAINONE.
Q If Mr. Rainone were to attempt to go to another
employer, could you give your opinion as to what
A I could see the plaintiff functioning well in a
work environment that he found reasonable and fair
and that he enjoyed doing.
Tr. at 749, 750
BY MR. LIPARI.
Q How did it come about that he stopped seeing you in
A Symptoms decreased, and he was doing better.
Q And was it your recommendation to discontinue
A I concurred with him that he would call me if he
needed further treatment.
Q And he didn't call you until 2005?
A Correct. Q Until March 2005?
A I believe it was March.
Q When he called you, did he tell you that he had a
lawsuit ready to go to trial?
A Yeah, he came back to me partly because he was
preparing for it, and that brought on some of the
Tr. at 755, 756.
In these circumstances, it is appropriate that Rainone's
damages be reduced to an amount that does not materially deviate
from the sum that would be reasonable compensation for his
emotional injuries. In comparing the evidence presented on the
Plaintiff's emotional distress to similar cases, it is apparent
that this case falls squarely in the low end of the "significant"
range. The Plaintiff suffered from a level of emotional distress
after the non-selection to the supervisor position that was more
than mere "garden variety." The evidence of emotional distress
was corroborated by the testimony of his wife. Rainone also
received treatment from a psychologist for four years and was
diagnosed with major depression. However, there was no evidence
of physical manifestations of emotional distress or debilitating
alterations in lifestyle, and no evidence of permanency. A review
of comparable cases which address verdicts for emotional distress
damages show that, absent serious psychological injuries, such
awards generally result in less than $50,000. Accordingly, based on the testimony and the non-permanent
emotional distress sustained by the Plaintiff as a result of the
retaliation, the Court finds that the jury award for emotional
distress shocks the conscience of the Court. The award for
emotional distress should be reduced from $175,000 to $50,000.
There will be a new trial on damages, unless the plaintiff agrees
to the reduction to the sum of $50,000 for his emotional distress
damages. If this remittitur is accepted, the Plaintiff would be
entitled to the total sum of $50,000 in compensatory damages, and
the sum of $11,166 in back wages for a total sum of $61,166.
B. The Plaintiff's Motion for Costs
Title VII permits a court, in its discretion, to award the
prevailing party a reasonable attorney's fee, including expert
fees, as part of the costs. See 42 U.S.C. § 2000e-5. The
statute further provides that the United States shall be liable
for the foregoing the same as a private individual. Id.
However, pro se litigants such at the Plaintiff in this case are
not entitled to fee awards or litigation expenses authorized by
fee-shifting statutes. See Kay v. Ehrler, 499 U.S. 432, 435,
111 S. Ct. 1435; 113 L. Ed. 2d 486 (1991); Hensley v.
Eckerhart, 461 U.S. 424, 433 n. 7, 103 S. Ct. 1933,
76 L. Ed.2d 40 (1983); Hawkins v. 1115 Legal Service Care, 163 F.3d 684,
695 (2d Cir. 1998); Bridges v. Eastman Kodak Co., 102 F.3d 56,
58 n. 1 (2d Cir. 1996); see, e.g., Clarke v. Parkinson,
225 F. Supp. 2d 345, 355 (S.D.N.Y. 2002) ("Where an individual litigant
elects to undertake legal research, or factual research, or other
case-related tasks, even in order to save counsel fees, the litigant should not
expect to have the costs of his or her efforts included in any
determination of litigation expenses.").
However, the Plaintiff is entitled to costs, which may include
fees to the clerk of the court; fees of the court reporter for
all or any part of the stenographic transcript necessarily
obtained for use in the case; fees and disbursements for printing
and witnesses; and fees for exemplification and copies of papers
necessarily obtained for use in the case. 28 U.S.C. § 1920. The
Plaintiff lists as his costs filing fees, transcript costs,
printing fees, and an expert witness fee in the amount of
$5,302.59. Although the Plaintiff did not submit invoices for
these costs, the government does not question the reasonableness
of the amounts claimed in his bill of costs. Therefore, the Court
accepts the amounts requested as representing reasonable costs
necessarily incurred by the Plaintiff during this litigation.
Based on the foregoing, with regard to the remittitur of
damages, the Plaintiff may file with the Clerk of the Court on or
before October 19, 2005, an acceptance of remittitur damages for
emotional distress to the amount of $50,000. In the event that
the plaintiff does not file an acceptance of the remittitur on or
before October 19, 2005, a new trial solely on the issue of
damages for emotional distress will commence on a date to be set
by the Court. If there is a consent to the remittitur, the Clerk is directed
to enter judgment in favor of the Plaintiff Joseph L. Rainone
against the Defendant John E. Potter, Postmaster General for
damages in the total sum of $61,166, together with costs in the
sum of $5,302.59.
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