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, ...