The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Judith Beyar filed the instant action against defendant the City of New York ("the City") alleging violations of her rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq., and 42 U.S.C. §§ 1981 and 1983, as well as under New York State Executive Law § 296, that allegedly occurred during her employment at the New York City Fire Department ("FDNY").*fn1 The matter was tried before a jury from April 23, 2007 through May 2, 2007. The jury was presented with three claims under Title VII and New York State law: (1) gender based hostile work environment; (2) retaliation; and (3) constructive discharge. The jury returned a unanimous verdict for defendant on each of plaintiff's claims. On May 17, 2007, plaintiff timely filed the instant motion pursuant to Fed. R. Civ. P. 59(a) to set aside the verdict and for a new trial. Plaintiff requests relief on the following three grounds: (1) the verdict was against the weight of the evidence on plaintiff's hostile work environment claim; (2) defense counsel's conduct during closing argument tainted the jury with improper innuendo and improper remarks outside the scope of any evidence presented at trial; and (3) the charge to the jury was "too complex and complicated for the jury's understanding of the law." (Pl.'s Mem. at 4-5.) For the reasons that follow, plaintiff's motion to set aside the verdict and for a new trial is denied.
Rule 59(a) provides that a court may grant a new trial in a jury case for any of the reasons "for which new trials have heretofore been granted in the courts of the United States." Fed. R. Civ. P. 59(a). "A new trial may be granted, therefore, when the jury's verdict is against the weight of the evidence." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (citations omitted). "Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." DLC Mgmt. Corp., 163 F.3d at 134 (citing Song v. Ives Labs., 957 F.2d 1041, 1047 (2d Cir. 1992)). However, "[a] court considering a Rule 59 motion for a new trial must bear in mind . . . that the court should only grant such a motion when the jury's verdict is `egregious.'" DLC Mgmt. Corp., 163 F.3d at 134 (citation and quotations omitted). Thus, "[a] motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004) (quoting Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998) (internal citation omitted)). Furthermore, "[w]here the resolution of the issues depended on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992); see also DLC Mgmt. Corp., 163 F.3d at 134 ("[A] court should rarely disturb a jury's evaluation of a witness's credibility.").
A. The Verdict Was Not Against the Weight of the Evidence
Plaintiff's entire argument in support of her motion to set aside the verdict on the grounds that it was against the weight of the evidence requires an evaluation of witness testimony. In support of her motion, plaintiff refers the Court to trial testimony on the following alleged evidence in support of her claims: (1) denial of the 24-hour position, and the selection of a male firefighter over plaintiff for that position; (2) plaintiff's "dwindling" job duties; (3) a photograph with an inappropriate picture drawn on or below it that was hanging in the firehouse kitchen; (4) Chief Mosier's failure to attend the Women of Achievement Ceremony; (5) the erasure of plaintiff's name on scheduling sheets; (6) the testimony of Carol Schreiber, the only other female in the office, regarding her treatment by Chief Mosier; (7) the failure of the EEO process; (8) comments to plaintiff by Chief Pritchard; (9) the offering of the 24-hour position to plaintiff by Chief Mosier; and (10) the Treglia incident, whereby Mrs. Treglia and her daughter were asked to leave the firehouse. To find that all of these alleged incidents occurred, the jury would necessarily have credited plaintiff's testimony. Plaintiff acknowledges as much when she asserts in support of her motion that plaintiff "credibly testified to the following as evidence of a hostile work environment." (Pl.'s Mem. at 7 (emphasis added).) However, Chief Mosier, the source of most of the allegedly hostile conduct, also testified and provided his explanations for and versions of the various incidents. Therefore, to set aside the verdict, this Court would need to find that the jury improperly discredited plaintiff's testimony and/or improperly credited Chief Mosier's testimony. That there was some testimony by other witnesses to corroborate certain of plaintiff's allegations of unlawful conduct does not change the analysis. As the Supreme Court has explained,
It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.
Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 35 (1944); see also Sorlucco v. New York City Police Dep't, 971 F.2d 864, 875 (2d Cir. 1992) (reversing the district court's order granting a new trial on grounds that "the trial court overstepped its bounds and usurped the jury's function of judging credibility"). The re-weighing of the credibility of testimony is not the function of the Court, and the Court declines to find that Chief Mosier was so lacking in credibility as a witness that a new trial is warranted. See id., 971 F.2d at 875 ("[The jurors] were free to settle upon which witness they believed.").
Furthermore, in support of plaintiff's motion to set aside the verdict on plaintiff's claim of hostile work environment, plaintiff recognizes that, in the context of racial discrimination, under which the same standard is applied, "[a] plaintiff does not make a showing of pervasively hostile work environment `by demonstrating a few isolated incidents of racial enmity or sporadic racial slurs. Instead, there must be a steady barrage of opprobrious racial comments.'"*fn2 (Pl.'s Mem. at 6 (quoting Herrera v. Lufkin Indus., 474 F.3d 675, 680 (10th Cir. 2007) (quoting Chavez v. New Mexico, 397 F.3d 826, 831 (10th Cir. 2005)). "A hostile work environment claim requires a showing  that the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and  that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). "As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. . . . Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Alfano, 294 F.3d at 374 (internal quotations and citations omitted). Thus, the jury reasonably could have found plaintiff's testimony credible as to one or several of the described incidents, but based upon those incidents, concluded that the alleged conduct was not sufficiently severe to create a hostile work environment. In any event, it is not this Court's duty to speculate as to which portions of plaintiff's testimony and which portions of Chief Mosier's testimony were credited by the jury. In addition, to the extent that plaintiff argues that defendant could have called certain other witnesses, plaintiff appears to overlook the fact that the burden of proof is on the plaintiff. In sum, having carefully considered plaintiff's arguments in light of the trial record, the Court concludes that the jury's verdict was not against the weight of the evidence and a new trial is not warranted on this ground. The Court does not conclude that the jury returned a seriously erroneous result or that the verdict is a miscarriage of justice.
B. Defense Counsel's Closing Statement
Plaintiff also asserts that "[c]ounsel's conduct during his closing argument tainted the jury with improper innuendo and improper remarks totally outside the scope of any evidence within the trial," including "new allegations that a conspiracy existed, which Plaintiff's counsel and a witness, Chief Thomas Haring were part of, to fabricate claims solely to get money from the jury." (Pl.'s Mem. at 4-5.) "[A] party seeking a new trial on the basis of opposing counsel's improper statements to the jury faces a heavy burden, as `rarely will an attorney's conduct so infect a trial with undue prejudice or passion as to require reversal.'" Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005) (quoting Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 271 (2d Cir. 1999)). Furthermore, "`[a] district court is entitled to give attorneys wide latitude in formulating their arguments.'" Marcic, 397 F.3d at 126 (quoting Reilly, 181 F.3d at 271). More specifically, the Second Circuit has instructed that
Trial courts possess broad discretion to determine when the conduct of counsel is so improper as to warrant a new trial. Not every improper or poorly supported remark made in summation irreparably taints the proceedings; only if counsel's conduct created undue prejudice or passion which played upon the sympathy of the jury, should a new trial be granted.
Matthews v. CTI Container Trans. Int'l, Inc., 871 F.2d 270, 278 (2d Cir. 1989) (finding that "counsel's reference to [defendant's] ability to pay the judgment; remarks concerning defendants and defendants' counsel; inflammatory remarks including a statement that defense experts were `bought and paid for'; and an oblique reference to the amount of damages in contravention of a court admonition not to mention amounts. . . [did] not . . . `irreparably taint' [the] proceeding").
Upon the instant motion, plaintiff does not cite to specific portions or statements made in defense counsel's summation, nor does plaintiff accuse defense counsel of referring to facts not in evidence; rather, plaintiff appears to object to defendant's theory of the case in its entirety as presented to the jury during closing arguments. In other words, plaintiff asserts that defense counsel's references in his closing argument to money and to an alleged conspiracy to defraud the City improperly deterred the jury from finding for the City. Plaintiff argues that her counsel objected to defense counsel's inquiry into plaintiff's comments to her therapist and that, because those objections were overruled, the door was opened to defense counsel to introduce the theory regarding the alleged scheme.*fn3 (Pl.'s Mem. at 18.) Plaintiff also asserts that a new trial is ...