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Marchisotto v. City of New York

April 11, 2007

JOHN MARCHISOTTO, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge

MEMORANDUM OPINION & ORDER

I. INTRODUCTION

On March 29, 2005, plaintiff, John Marchisotto ("Marchisotto"), filed suit in the Southern District of New York, naming the New York Police Department*fn1 , the City of New York ("the City") and Carla Hollywood ("Hollywood") as defendants.Marchisotto claimedthat Hollywood, who was his supervisor at the time, had sexually harassed him, and that he had been retaliated against by Hollywood and the City when he complained about the harassment, both in violation of Title VII.*fn2 On July 25, 2006, the parties consented to jurisdiction by the undersigned. Trial commenced on January 22, 2007.At the close of plaintiff's evidence, the Court denied a motion by the City and Marchisotto for a directed verdict pursuant to Federal Rule of Civil Procedure ("FRCP") 50. The jury found for defendants on the harassment claim, but returned a verdict for Marchisotto of $300,000 in compensatory damages for the retaliation claim.

On February 1, 2007, the City and Hollywood renewed their motion for judgment as a matter of law pursuant to FRCP 50(b), seeking to set aside the verdict finding retaliation. They also seek a new trial on the retaliation charge, or on damages alone, under FRCP 59(a), or in the alternative, for remittitur pursuant to FRCP 59(e) to reduce the jury verdict. Defendants' Memorandum of Law in Support of their Motion for Dismissal of Plaintiff's Retaliation Claim, or for a New Trial on Plaintiff's Claim of Retaliation, and/or a New Trial on Damages, or in the Alternative to Reduce the Jury's Award ("Def. Mem."), at 3-4, 9.Marchisotto filed a response on February 8, 2007. Plaintiff's Memorandum of Law in Opposition to Defendants' February 1, 2007 Post-Trial Motions ("Pl. Mem."). For the following reasons, the City and Hollywood's motion is DENIED.

II. FACTS

Marchisotto, a retired member of the New York Police Department ("NYPD"), was previously a sergeant stationed at the Staten Island Housing Unit ("Housing Unit"). Trial Transcript ("Tr.") at 26-27.Hollywood is also retired from the NYPD, where she was previously a lieutenant. Id. at 270. In October 2003, she was assigned to the Housing Unit and became Marchisotto's immediate supervisor. Id. at 31.Marchisotto testified that Hollywood immediately began acting in a manner he found to be inappropriate, and which made him uncomfortable. Id. at 31-32. He claimed that Hollywood asked him if he was married and, when he replied in the affirmative, whether he was happily married. Id. Marchisotto alleged that Hollywood asked him what he did when he wasn't with his wife, and then brushed her breasts against his back. Id. at 32. Marchisotto testified that, over the next several months, Hollywood would call him up to six times a day, telling him that she just wanted to hear his voice and see if he was there. Id. at 33-34. According to Marchisotto's testimony, his rejection of Hollywood's actions led her to start criticizing him. Id. at 36-39. First, Hollywood challenged Marchisotto because he left his post at the Housing Unit during his tour of duty, which Marchisotto testified was standard practice. Id. at 36, 278.Second, in her performance review of Marchisotto, Hollywood rated his abilities as low in the areas of "evaluating personnel and . . . adaptability." Id. at 39-40, 289. In response to his evaluation by Hollywood, on February 5, 2004, Marchisotto wrote a letter to Chief Jaffe, the head of the housing bureau, complaining about abuse of authority and inappropriate behavior, but not specifically mentioning sexual harassment.*fn3 Id. at 41.

On February 12, Marchisotto alleged that Hollywood approached him at the Housing Unit and, after asking if he was there alone, started to massage his neck. Id. at 43. Marchisotto testified that Hollywood said that his evaluation "didn't have to go that way," and that she could "still make it right." Id. Marchisotto testified that Hollywood then took out a bottle of pink lotion, told him that she was "going to have a great time on Valentine's day," and asked if he would like to try some of the lotion. Id. at 44. According to Marchisotto, he declined, stating that he was "happily married," and Hollywood "stormed out . . . in a rage." Id.Marchisotto testified that on February 13, he gave Captain Gutch a videotape which showed Hollywood storming out in a fit of rage. Id. at 45.

On February 17, a lieutenant, a sergeant, and a detective from the local precinct came to Marchisotto's home, removed his firearms, and brought him to the precinct. Id. at 49-52. At the precinct, Marchisotto was informed that he was being ordered to report to the police department's psychological services unit the following day, which he did. Id. at 52-53. On February 25, Marchisotto sent a letter to Commissioner Ray Kelly complaining about "retaliation, misconduct, abuse of authority, sexual harassment, intimidating, hostile work environment, and false statements." Id. at 55.On March 2, Marchisotto was informed that he was being transferred out of the Housing Unit, and reassigned to the "81 Jersey Street record room." Id. at 57. Marchisotto was given a key to the record room, but not told what his assignment was, or what he should do in the record room. Id. at 60. In his testimony, he described the record room as looking like a "storage closet," with "filthy, disgusting" couches and police barriers in it. Id. There was no computer in the record room, but there was a blank, unlabeled command log. Id. at 64.On his first day in the record room, Marchisotto went to the hospital because he was experiencing claustrophobia, rapid heartbeat, and difficulty breathing. Id. at 65. On March 3, Marchisotto wrote another letter to Commissioner Kelly complaining about the transfer, and alleging that it was retaliation. Id. at 67-68. Marchisotto returned to work at the record room two weeks later, and worked in the record room until August 23, 2005, when he retired. Id. at 67, 69. During that time, Marchisotto was the only employee assigned to the record room. Id. at 70. He neither relieved any officer when he came to work, nor was he relieved by an officer when his shift was over. Id. When Marchisotto was out for approximately two to three months because of surgery, no other officer covered his assignment. Id. at 71. He was never given any responsibilities or job duties to perform, and eventually retired due to an injury unrelated to this lawsuit. Id. at 70-71.

Marchisotto described feeling depressed, demeaned, and humiliated as a result of his transfer. Id. at 78. In December 2004, Marchisotto started seeing a psychiatrist and a psychologist. Id. at 79-82. The psychiatrist prescribed Marchisotto medications to treat anxiety, depression, and an inability to sleep. Id. at 80. Marchisotto changed doctors, but was continuing to receive medical treatment at the time of his testimony at trial. Id. at 80-81.His treating psychiatrist, Dr. Robert Conciatori ("Dr. Conciatori"), testified that Marchisotto suffers from panic disorder, posttraumatic stress disorder, and major depressive disorder. Id. at 226. Marchisotto's symptoms include flashbacks, problems sleeping, anxiety, humiliation, difficulty performing sexually, and significant distress. Id. at 228-30. Dr. Conciatori described Marchisotto as too "shattered" to return to his job as a police officer, and still suffering the loss of his career. Id. at 230.

Marchisotto's treating psychologist, Dr. Claude Pompo ("Dr. Pompo"), testified that when he first started treating Marchisotto in December 2004, he was "under a lot of psychological distress" and appeared "very depressed." Id. at 247.Marchisotto was exhibiting symptoms such as sadness, apathy, lack of concentration, changes in appetite, and difficulty sleeping. Id. During the time he was assigned to the record room, Marchisotto had a "considerable amount of anxiety and distress," and Dr. Pompo testified that he had been concerned about Marchisotto "being in that place, isolated from others." Id. at 254.He believed that Marchisotto had been suffering from posttraumatic stress disorder as a result of his assignment to the record room, which led to a major depressive disorder. Id. at 257. While Marchisotto's depression has improved somewhat, "he still manifests considerable signs of posttraumatic stress [dis]order that is impeding his ability to move on with his life." Id.

Marchisotto ruminates over "the thoughts, feelings, sensations and images recorded and associated with the trauma," and needs guidance because "other parts of his life are taking somewhat of a secondary role" at the present time. Id. at 258.

At trial, Captain Richard Gutchclaimed that he first learned of Marchisotto's complaints about sexual harassment on March 30, subsequent to Marchisotto's transfer to the record room. Id. at 135, 190. However, he testified that Hollywood reported to him that Marchisotto tape recorded a conversation with her, and that "everyone knew" about this and it "became common knowledge in the command" through word-of-mouth. Id. at 167-69. Captain Gutch also testified that he was made aware of Marchisotto allegedly making threats and wearing a bullet proof vest inside the Housing Unit, even though he had no personal knowledge of any of these alleged events. Id. at 202. Hollywood also testified that the first time she heard that Marchisotto was alleging sexual harassment and retaliation was in late March 2004, and that she had not seen the letter written on February 25, 2004, which was sent to Commissioner Kelly and copied to four other people within the NYPD. Id. at 300. Yet, Hollywood admitted at least four instances in which she was informed by word-of-mouth that Marchisotto was going to make a complaint about her, even though he never made formal, written complaints. Id. at 300-02, 304-05. Hollywood testified that, prior to the removal of Marchisotto's firearms on February 17, she had been made aware that Marchisotto was allegedly making threats against her and acting "erratically," even though she did not personally witness either the threats or behavior. Id. at 295. In addition, Hollywood testified that she learned of statements Marchisotto had allegedly made, blaming her for a command discipline issued by another lieutenant. Id. at 298.

Captain Gutch testified that he assigned Marchisotto to the record room because Marchisotto "wasn't getting along with subordinates . . . [or] supervisors," and his options in terms of moving him were limited because Marchisotto was on restricted duty. Id. at 191, 195. Captain Gutch claimed that the position in the record room was a "supervisory assignment," and that Marchisotto's ...


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