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September 17, 2005.


The opinion of the court was delivered by: ARTHUR SPATT, District Judge


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, corroborating witnesses.
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, ...

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