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Cunningham v. Town of Ellicott

June 18, 2007


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court is plaintiff's motion, pursuant to Fed. R. Civ. P. 59(a) and (e), for a new trial of her retaliation claims under Title VII, the First Amendment, and New York State Human Rights Law (Docket No. 134*fn1 ). She is not seeking a new trial as to the other claims alleged in this action (such as her sexual harassment claims). The parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 28, May 2, 2005) and trial of this matter was held on April 3, 2007 (Docket Nos. 108, 117-31), with a jury verdict (Docket No. 132) and judgment entered against plaintiff (Docket No. 133).

The briefing schedule for this motion had responses due on May 18, 2007, and any reply was due by June 1, 2007, with the motion deemed submitted (without oral argument) on June 1, 2007 (Docket No. 137).


This is a Title VII sexual harassment and retaliation action by plaintiff, a former patrol officer for defendant Town of Ellicott, New York, against the Town, the Town's Police Department, Police Chief William Ohnmeiss, and Town Supervisor Patrick Tyler. Plaintiff was in the middle of her probationary period as a full-time officer in the Town of Ellicott Police Department when Chief Ohnmeiss, on March 5, 2004, told her that she was terminated, effective March 19, 2004. Plaintiff requested an interview with the Town of Ellicott Board on March 8, 2004, and then filed a charge with the Equal Employment Opportunity Commission ("EEOC") on March 10, 2004 (see Pl. Tr. Ex. 14A). At the next regular Town Board meeting, on March 15, 2004, plaintiff was not given the interview with the Board. The Town Board met in executive session to discuss plaintiff's termination and, in regular session, confirmed Ohnmeiss's action in terminating her (see Pl. Tr. Ex. 41, Town Board minutes, Res. No. 55-04, Mar. 15, 2004) and rejected a resolution to reinstate plaintiff (id., Res. No. 56-04, Mar. 15, 2004).

Plaintiff amended her Complaint in 2004 (Docket Nos. 10 (motion for leave to amend), 17 (Amended Complaint)). In her Amended Complaint, plaintiff alleged five causes of action, namely claims under Title VII, 42 U.S.C. § 2000e, and the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq., for sexual harassment by defendant Chief Ohnmeiss, for a pattern of unlawful sexual harassment and creation of a hostile work environment. Plaintiff alleged that defendants retaliated against her for exercising her First Amendment rights in two instances that led to her termination. Also, she claimed that authorization of her termination by the Town of Ellicott Board was given despite her pending charge before the EEOC. She also alleged retaliation by the defendants under Title VII and under the New York State Human Rights Law and violation of plaintiff's First Amendment and Equal Protection Clause (sexual harassment) rights. She also alleged employment discrimination under both Title VII and the state's Human Rights Law (see generally Docket No. 17, Am. Compl.).

In her Amended Complaint, she alleged facts about Daryl Brautigam's investigation of her termination (Docket No. 17, Am. Compl. ¶¶ 78-79, 70), noting that defendants published Brautigam's report (hereinafter the "Brautigam report") in several newspapers (id. ¶ 79). She noted that the March 15, 2004, Town Board meeting was televised (id. ¶ 73), but that meeting (in addition to confirming plaintiff's termination) authorized appointing Brautigam to conduct the investigation (see Pl. Tr. Ex. 41, Town Board minutes, Res. No. 57-04, Mar. 15, 2004). Plaintiff did not allege in her pleadings a separate claim for intentional infliction of emotional harm from the public dissemination of the Brautigam report (cf. Docket No. 17, Am. Compl. ¶ 79), although for each of her claims plaintiff alleged generally emotional anguish and emotional distress (see id. ¶¶ 86, 91, 101, 108, 111). For her fifth cause of action for retaliation under § 1983, plaintiff claims that, as a result of the misuse of authority and power by defendants, plaintiff underwent "the humiliation and indignities resulting from the sexually hostile environment she suffered, her public retaliatory termination from the Ellicott Police Department as the only female full time police officer after she filed her charge of discrimination with the EEOC in retaliation for the exercise of free speech . . . , and was caused and will continue to undergo and endure severe mental anguish, humiliation and economic hardship as a consequence thereof" (id. ¶ 116; see also id. ¶ 122).

After a ten-day trial, the jury returned a verdict of no cause of action for all of plaintiff's claims. Judgment was entered on April 19, 2007 (Docket No. 133).

Plaintiff's Motion for New Trial

Plaintiff now timely moves for a new trial (Docket No. 134, motion of April 24, 2007). Plaintiff contends that the jury's verdict was inconsistent, that the jurors inaccurately answered one question in the negative and then avoided the subsequent question (Docket No. 135, Pl. Atty. Decl. ¶ 6). The jurors were asked in the special verdict regarding the Title VII retaliation claim:


"17. Was the plaintiff, who engaged in conduct protected by Title VII in filing her EEOC charge, subjected to an adverse employment act at the time, or after, the protected conduct took place?

"Answer 'yes' or 'no' "Answer:

"If your answer to question no. 17 is 'yes,' answer question no. 18. If your answer to question no. 17 is 'no,' go on to Part IV and do not answer any further questions in this Part III." (Docket No. 132; see Docket No. 136, Pl. Atty. Decl. ΒΆ 6). The jurors answered this question "no" and did not proceed to answer ...

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