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Tse v. UBS Financial Services

February 19, 2008

ROBERTA C. TSE, PLAINTIFF,
v.
UBS FINANCIAL SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Plaintiff Roberta C. Tse sued defendant UBS Financial Services, Inc. ("UBS"), alleging that UBS discriminated against her on the basis of her race and gender by placing her on a business development plan ("the Plan") -- a kind of probationary restrictive duty -- and eventually terminating her employment. After a nine-day trial, a jury returned a verdict for plaintiff on her gender discrimination claim insofar as it was predicated on her placement on the Plan, and rejected her remaining claims, including her claim of discriminatory termination. The jury awarded plaintiff $56,000 in emotional distress damages, $500,000 in economic damages, and $3,000,000 in punitive damages. Defendant now moves for judgment pursuant to Fed. R. Civ. P. 50(b), or, in the alternative, for a new trial or remittitur pursuant to Fed. R. Civ. P. 59. Defendant also moves for sanctions for plaintiff's alleged discovery abuses.

Defendant's motion for judgment as a matter of law will be denied in its entirety, and defendant's motion for a new trial will be granted in part; the Court will order a remittitur to $45,000 on the economic damages award, and to $300,000 on the punitive damages award. Defendant's motion for sanctions will be granted in part and denied in part.

BACKGROUND

A short recounting of the background facts and proceedings at trial will be provided here at the outset. Additional facts will be discussed in later portions of this opinion as they relate to the post-trial motions. To the extent relevant to defendant's motion for judgment as a matter of law, the primary factual narrative will describe events taking the evidence in the light most favorable to the plaintiff. Where relevant, however, in the interest of explaining the development of the record, or in connection with defendant's other motions, disputed issues of fact and conflicting evidence will be discussed.

In 1998, Roberta Tse, an Asian woman, was hired by UBS as a Financial Advisor ("FA") for UBS's Madison Avenue Branch. (Tr. 80, 85.) Tse was hired by David Zoll, the Branch Manager of the Madison Avenue Branch. Tse was moderately successful during her first few years at UBS, ranking neither at the top nor the bottom of the FAs on UBS's evaluation criteria. (Id. 121-23; see Pl. Ex. 47.) However, Tse's production took a downturn in 2001, due in part to the transfer of one of her largest accounts to a different UBS analyst and to the declining economy. (Tr. 696-97.) By early 2002, Tse was one of the lowest-producing FAs in the Madison Avenue Branch. (Pl. Ex. 47.)

In February 2002, Tse met with Jason Chandler, who had replaced Zoll in January 2001 as Branch Manager of the Madison Avenue Branch, to discuss the downward trend in Tse's production levels. (Tr. 137.) Also as a result of that downward trend, in March 2002, Chandler moved Tse from her office to a cubicle (id.), and in May 2002, Chandler placed Tse on a business development plan. (Id. 710.) According to Chandler, the general goal of a business development plan was to provide "coaching" to struggling FAs in order to "aid[] [an FA's] development with their own understanding of their business." (Id. 708.) In Tse's case, Chandler claimed that the Plan was specifically directed towards "increas[ing] [her] assets and therefore increas[ing] new clients." (Id. 837.) Although several other FAs had also experienced a recent decline in their production levels, none of the other low-producing FAs -- almost all of whom were male -- was also placed on a business development plan at that time.

Chandler revised the Plan twice to reflect certain concerns expressed by Tse about its duration and terms. (Id. 534-35; see Pl. Ex. 12.) Under the final terms of the Plan, Tse was required (1) to be in the office between 9 a.m. and 5 p.m. on weekdays; and (2) to increase her assets under management by $6 million over the following six months, equivalent to $1 million a month. (Pl. Ex. 13.) The Plan thereby mandated a 40% increase in her client asset base over six months. (Tr. 159, 730.) The Plan stated that Tse could be subject to disciplinary action, up to and including termination, if she failed to meet its requirements. (Pl. Ex. 13.) If Tse failed to meet the requirements the plan provided, Chandler would "then set new goals to be accomplished over the subsequent 120-day period." (Id.)

Chandler met with Tse twice during the term of the Plan to discuss her job performance, and revised the Plan twice more to reflect her new goals. (Tr. 712.) On December 2, 2002, Chandler again met with Tse and told her that she had failed to meet the requirements of the Plan. (See id. 177, 560-61, 566; see also id. 234 (describing Tse's production in 2002 as "[l]ousy").) At that meeting, Chandler and Tse also discussed the internal grievance Tse filed with UBS's Human Resources Department on November 8, 2002, regarding her placement on the Plan, as well as the discrimination claim she had filed against UBS with the New York State Division of Human Rights on November 13, 2002. (Id. 206-07.) The meeting was adjourned for a day to give Chandler the opportunity to "think about [the] things that [Tse and Chandler] discussed" at the meeting. (Id. 879.)

Tse and Chandler met again on December 3. (Id. 563.) At the December 3 meeting, Chandler and Tse again discussed her pending discrimination claim. (Id.) Chandler also asked Tse what her plan was with respect to her future at UBS. (Id. 880.) Tse replied that she still "wanted to be successful," and that she wanted to continue working at UBS and improve her performance, despite her failure to meet the Plan's goals. (Id. 882; see id. 887 (testifying that plaintiff told Chandler at the December 3 meeting that she "wanted to have a go at" her job); Pl. Ex. 68.) In response, Chandler told Tse to continue the job "as best as" she could and to continue to "serve [her] clients." (Tr. 219.) No disciplinary action was taken against Tse at that time, nor was Tse placed on another business development plan. (See id. 565 (testifying that Tse believed, and Chandler said, that Tse "could continue to do business as [she] had been doing" after the Plan expired).) However, on January 29, 2003, UBS sent Tse a termination letter. (Pl. Ex. 36.) The termination letter informed Tse that she had "been absent from work without excuse for 35 of the last 37 days," and stated the reason for her termination as job abandonment. (Id.)

On August 19, 2003, Tse initiated this action, contending that her placement on the Plan and her termination were motivated by a discriminatory animus on the basis of her race and gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("SHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("CHRL"). On June 16, 2005, defendant moved for summary judgment on Tse's gender and race discrimination claims insofar as they were predicated on her placement on the Plan, contending that the Plan did not constitute an adverse employment action as a matter of law. On December 13, 2005, the Court denied that motion, finding that whether the Plan created a "materially significant disadvantage" to plaintiff's employment was a genuine issue of fact. (12/13/05 Tr. 5-6.)

Trial was held from April 2-13, 2007. At trial, plaintiff did not attempt to dispute that her measurable job performance was weak in comparison to the full range of other FAs. Rather, she compared her treatment primarily to that of other low-performing FAs who were male, and adduced evidence showing that, although the performance of several male FAs was also declining in early 2002, none of them was placed on a business development plan, nor did any of them suffer any disciplinary measure for their low production (See, e.g., Tr. 714-27.) Indeed, one low-producing male FA, Neal Cooper, was promoted despite consistently being ranked in the lowest quartile. (See id. 701-02; Pl. Ex. 47.) Chandler testified, however, that plaintiff's alleged comparators were not similarly situated to her for various reasons, including that, out of all the low-producing FAs, plaintiff had exhibited the most "severe decline" in production during the period that Chandler was Branch Manager. (Tr. 827.)

Another matter disputed at trial was whether Tse had voluntarily abandoned her job, or whether UBS had terminated her, either for legitimate or for discriminatory reasons. Although Tse's termination letter charged that she had not shown up for work on 35 out of the 37 days prior to her termination, Tse vigorously disputed that she abandoned her job, claiming that she had been in the office several times during that period (id. 1358), that when not in the office she had been working from home and meeting clients (id. 236), and that Chandler had planned to terminate her since the end of November 2002 but had not done so due to her pending discrimination claims (see Beranbaum Decl. Ex. 2). In response, Chandler testified that he never saw Tse again in the office after their December 3 meeting (Tr. 883), and defendant submitted testimony and documentary evidence indicating that Tse had not used the UBS computer system nor responded to attempts by UBS employees to contact her since early December 2002. (See Def. Exs. 36-38, 45-46.)

Also hotly disputed at trial was Tse's post-employment economic damages calculation. In support of her claim for post-employment economic damages, Tse submitted a chart purporting to show that she had suffered a loss of approximately $1.65 million in pay due to her alleged discriminatory termination. (Pl. Ex. 110.) Defendant objected to admission of the chart, arguing that it was seriously misleading because of various omissions and miscalculations (Tr. 305), including the fact that it significantly overestimated Tse's yearly earnings at UBS (see id. 1274-78; Def. Ex. 77). Although the Court expressed serious doubts about the accuracy of the chart at that time, characterizing it as "remarkably misleading" (Tr. 1303), and noted that Tse's failure to disclose her calculation prior to trial might have prejudiced defendant (id. 1304-06), the Court nevertheless found that defendant could address the chart's inaccuracies and omissions during cross-examination, and that defendant's objections would be better addressed by post-trial motions, "where there [could] be a better analysis of prejudice." (Id. 319; see id. 1435 (noting that plaintiff's economic damages calculation had been "cross-examined to death").)

Accordingly, the Court admitted the chart into evidence.*fn1 (Id. 1304.) However, the Court also noted that "if there is a verdict for the plaintiff in any amount that looks like the amount on the chart, [the Court] would have to seriously consider any new trial motion that was made on the grounds that information was presented to the jury that is just plain inaccurate." (Id.)

After the close of plaintiff's case, defendant moved for a directed verdict on all of plaintiff's claims pursuant to Fed. R. Civ. P. 50(a), contending that plaintiff had not adduced sufficient evidence to permit a reasonable jury to find that either her placement on the Plan or her termination were motivated by a discriminatory animus. (Id. 1307.) The Court denied defendant's motion, finding that "there [was] adequate information on which a jury could reach a conclusion that there was different treatment, that among the poorly producing financial advisors at this branch . . . Ms. Tse was the one who was singled out to be put on a business development plan." (Id. 1308.) The Court noted that Tse's success would depend on the jury's "credibility determinations" as to whether "males who were arguably comparable were allowed to slide," while Tse was placed on the Plan. (Id.)

On April 12, 2007, the jury returned its verdict, finding that defendant had unlawfully placed Tse on the Plan because of her gender, but rejecting her other claims of race and gender discrimination, including her claims of discriminatory termination. The jury awarded Tse $56,000 in damages for emotional distress, $500,000 in economic damages, and $3,000,000 in punitive damages.

On May 14, 2007, defendant moved for judgment as a matter of law or a new trial, contending, inter alia, that (1) the Plan did not constitute an adverse employment action as a matter of law; (2) plaintiff was not similarly situated to low-producing male FAs who had not been placed on a business development plan; (3) plaintiff failed to establish any economic loss as a result of being placed on the Plan; and (4) the punitive damages award was unwarranted and grossly excessive. Defendant simultaneously moved for sanctions for plaintiff's alleged discovery abuses and for her failure to disclose the damages chart prior to trial. Plaintiff responded to both motions on June 13, 2007; the motions were fully briefed as of June 27, 2007.

DISCUSSION

Sufficient evidence was adduced at trial to support the jury's finding that plaintiff's placement on the Plan was discriminatory, and the Court will not disturb that finding. However, the jury's calculation of economic and punitive damages was erroneous; therefore, the Court will order a remittitur to $45,000 in economic damages and to $300,000 in punitive damages.*fn2 If plaintiff does not accept the remitted amount, defendant is entitled to a new trial on the issue of economic and punitive damages.

I. Legal Standards

Federal Rule of Civil Procedure 50(a) provides that where there is no "legally sufficient evidentiary basis" for a reasonable jury to find for a party on a particular issue, the court may resolve the issue against that party and may "grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue." Under Rule 50(b), if the court does not grant a motion for judgment as a matter of law at the close of all the evidence, "[t]he movant may renew its request . . . by filing a motion no later than 10 days after entry of judgment -- and may alternatively request a new trial or join a motion for a new trial under [Fed. R. Civ. P.] 59." Fed. R. Civ. P. 50(b).

A movant seeking to set aside a jury verdict faces a "high bar." Lavin-McEleney v. Marist Coll., 239 F.3d 476, 479 (2d Cir. 2001). A jury verdict should be set aside under Rule 50 only where there is "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture," or where there is "such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [jurors] could not arrive at a verdict against him." Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 79 (2d Cir. 2006) (citation and internal quotation marks omitted). In applying this standard, a court must not make credibility assessments and must view the evidence in the light most favorable to the non-moving party. See Gordon v. Matthew Bender & Co., 186 F.3d 183, 184 (2d Cir. 1999).

Pursuant to Federal Rule of Civil Procedure 59(a)(1), a new trial may be granted "for any reason for which a new trial has heretofore been granted in an action at law in federal court." The standard for granting a new trial differs in two ways from that governing Rule 50 motions:

(1) a new trial may be granted even if there is substantial evidence supporting the jury's verdict, and (2) 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. v. Town of Hyde Park, 163 F.3d 124, 133-34 (2d Cir. 1998) (citation omitted). Although a trial court is afforded considerable discretion under Rule 59(a), a motion for a new trial should be granted only when, in the opinion of the district court, "the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." Id. at 133, quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992) (alteration in original). Accordingly, a court should rarely disturb a jury's evaluation of witness credibility. Id. at 134. Moreover, the mere fact that the trial judge disagrees with the jury's verdict is not a sufficient basis to grant a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983).

In some cases, a remittitur provides an appropriate alternative to granting a new trial. "Remittitur is the process by which a court compels [the party that prevailed at trial] to choose between reduction of an excessive verdict and a new trial." Cross v. N.Y. City Transit Auth., 417 F.3d 241, 258 (2d Cir. 2005) (citation and internal quotation marks omitted). Depending on the grounds for the remittitur, the new trial may be either on the underlying claims generally or limited to the issue of damages only. See Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir. 1995). The court may require a choice between a new trial and reduction of a verdict "where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken," or "where the award is intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error." Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 337 (2d Cir. 1993) (citation and internal quotation marks omitted). Remittitur may also be warranted where it can be demonstrated that the jury awarded specific amounts of damages that were not supported by the record. Id. (explaining that "[i]f it could be demonstrated that the verdict included any of [plaintiff's] unsubstantiated damages claims, the award would be by definition excessive," and remittitur would be appropriate).

II. Gender Discrimination

Defendant's motion for judgment as a matter of law with respect to the jury's liability determination is unavailing. Based on the evidence adduced at trial, the jury reasonably found both that the Plan was an adverse employment action, and that plaintiff was treated less favorably than similarly situated male FAs. Therefore, the Court may not disturb the jury's liability determination in this case.

A. Adverse Employment Action

In order to establish liability for gender discrimination, plaintiff must show that she suffered a material adverse employment action because of her gender. "[M]aterially adverse change[s]" in the terms and conditions of employment include, but are not limited to, discharge, refusal to hire, denial of promotion, decrease in wages, salary or benefits, or significantly diminished responsibilities. See Galabaya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). Although "[a] 'materially adverse' change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities," id., an adverse employment action may be found where the action affects the employee's future employment "opportunities," Pimentel v. City of New York, No. 00 Civ. 326, 2002 WL 977535, at *4 (S.D.N.Y. May 14, 2002). See Bernheim v. Litt, 79 F.3d 318, 325 (2d Cir. 1996) (holding that a change that harms a plaintiff's reputation, opportunities for advancement, and earning potential may constitute adverse employment action); see, e.g., Casale v. Reo, No. 1:04-CV-1013, 2007 WL 3353217, at *6 (N.D.N.Y. Nov. 7, 2007) (holding that an adverse employment action has occurred even where it is "likely" that the action will have a "material impact" on the employee).

"[W]hether an undesirable employment action qualifies as being 'adverse' is a heavily fact-specific, contextual determination." Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir. 2006), quoting Hoyt v. Andreucci, 433 F.3d 320, 328 (2d Cir. 2006). "Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of 'adverse.'" Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997).

Defendant argues that, as a matter of law, plaintiff's placement on the Plan was not an adverse employment action. First, according to defendant, "[b]eing placed on a performance plan, standing alone, is not an adverse employment action." (Def. Mem. 6, citing Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 86 (2d Cir. 2001).) Specifically, defendant argues that "criticism of an employee" is not an adverse employment action, and cites case law in support of that argument. However, even assuming that "criticism of an employee" alone cannot constitute an adverse employment action as a matter of law, see Weeks, 273 F.3d at 86, the jury could easily have found that the performance plan at issue here was not simply a negative evaluation of plaintiff's job performance, but instead also imposed certain new requirements on the terms and conditions of her employment. Thus, the cases cited by defendant are inapposite, as they all involved situations in which the only undisputed employment action was a negative performance evaluation, without any attendant consequences or alterations in the terms of employment.*fn3

Next, defendant argues that to the extent that the Plan did impose new requirements on the terms and conditions of plaintiff's employment, the Plan still did not constitute an adverse employment action, because those new requirements could not reasonably be characterized as "adverse" to her employment. The Court has already rejected this same argument in ruling on defendant's motion for summary judgment, and nothing that transpired during trial undermines the correctness of that ruling.

First, under the Plan, plaintiff was required to be in the office between 9 a.m. and 5 p.m. each day. This requirement in itself restricted Tse's freedom of action, in contrast with her previous circumstances. Moreover, the jury was entitled to credit plaintiff's testimony that forcing her to be in the office during those hours negatively impacted her job performance, for example, because she did not have the necessary resources in the office to do her job efficiently, and/or because she could not meet clients without prior approval from Chandler. Although defendant correctly notes that "[s]howing up for work . . . is a basic requirement of employment" (Def. Mem. 8), such a general, conclusory assertion misses the point of plaintiff's unrebutted testimony, which the jury was entitled to accept, that the requirement of showing up during specific hours was explicitly imposed only on her, and not on any other FA in the Madison Avenue Branch. It is hardly unusual for professional employees to have discretion to allocate their time, including to meet with clients or business prospects outside the office during ordinary business hours, and the jury could reasonably have accepted Tse's testimony that this privilege was extended to UBS FAs, and that limiting this discretion not only reduced Tse's job status, but also harmed her productivity. Thus, the jury was entitled to find that, even if being in the office from 9 a.m. to 5 p.m. on weekdays is in many contexts an ordinary term of employment, its imposition on Tse was a materially adverse change of employment terms with respect to her job in particular.

Second, under the Plan, plaintiff was required to increase her assets under management by $6,000,000 in six months. The jury was entitled to credit plaintiff's testimony that increasing her assets by $6,000,000 in such a short period of time was an onerous burden which had materially adverse consequences on her employment. The Plan required plaintiff to increase her assets under management by $1 million a month, thus mandating a 40% increase in her assets in just six months. (Tr. 159, 730.) However, in 2001, only three of the FAs in the Madison Avenue Branch had increased their assets by $1 million a month (id. 944), and in 2002, only four out of forty FAs in the Madison Avenue Branch reached that goal (Pl. Ex. 47). Thus, 36 of the 40 FAs in the Madison Avenue Branch would not have reached the goal imposed on Tse under the Plan. Moreover, Chandler admitted that he placed Tse on the Plan in the midst of a severe market downturn, making compliance with the Plan even more difficult. (Tr. 731.) Although defendant argues that plaintiff "concede[d]" during trial that increasing her assets by $6,000,000 in six months was "difficult" but "doable" (id. 159), a change in the conditions of employment need not be intolerable or completely impractical in order to constitute an adverse employment action; it need only be materially adverse to the conditions of employment. The jury reasonably could have found that the imposition of such a high production goal, combined with the poor market conditions at the time of the Plan, created a materially adverse term of plaintiff's employment, by imposing a demand, unique to Tse, that would be extremely difficult to meet.*fn4

Third, defendant argues that "the fact that the Plan indicated that 'failure to follow' the Plan may potentially lead to" her termination "does not make the Plan itself an adverse action" because the jury found that she was not actually terminated due to her placement on the Plan, and thus, the threat to terminate her was merely inchoate. (Def. Mem. 10, citing Tr. 159, 534-35.) Even assuming arguendo that a threat of termination alone is not sufficient to constitute an adverse employment action, see Brightman v. Prison Health Serv., Inc., No. 05 Civ. 3820, 2007 WL 1029031, at *7 n.4 (S.D.N.Y. Mar. 30, 2007), the jury was entitled to find that the threat of termination combined with the Plan's imposition of new, burdensome conditions of employment was sufficient to constitute an adverse employment action. When an employer imposes new conditions of employment and combines those conditions with a threat of termination for non-compliance, such a combination may give rise to a constructive demotion, thereby creating an adverse employment action. See, e.g., Kelly v. Metro-North Commuter R.R., No. 87 Civ. 5817, 1989 WL 156298, at *8 (S.D.N.Y. Dec. 18, 1989) (finding that "forcing a choice" between discharge and a longer workday constituted a constructive demotion), citing Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561-62 (1st Cir. 1986). Here, when plaintiff was placed on the Plan, she was required to choose between complying with the terms of the Plan -- which themselves were adverse to plaintiff's employment -- or facing possible termination. (See Tr. 1047 (testimony of Zoll, agreeing that the Plan was a "disciplinary measure"); id. (Zoll: "[I]t's implicit that [a business development plan is] the first step towards . . . exiting the firm, at [UBS's] behest.").) That Tse ultimately was fired for other, non-discriminatory reasons and not because of the Plan does not retrospectively render the imposition of the Plan itself non-adverse. "[A]n employment decision need not result in discharge to fall within the Title VII protection" as long as there is "a cognizable or material impact on the terms or conditions of . . . employment" Sternbridge v. City of New York, 88 F. Supp. 2d 276, 283 (S.D.N.Y. 2000).

A comparison between the two business development plans submitted into evidence in this case further supports the reasonableness of the jury's finding that plaintiff's plan was an adverse employment action. The only other UBS employee who was subjected to a business development plan by either Zoll or Chandler was Michael Kosik, a male FA who was placed on a plan in 1999. Whereas plaintiff's plan threatened her with "disciplinary action, up to and including termination" for non-compliance, Kosik's plan included no comparable language. Instead, Kosik's plan informed Kosik that Zoll -- the Branch Manager at the time -- "look[ed] forward to many more prosperous years at [UBS] with you." (Beranbaum Decl. Ex. 5.) Moreover, whereas plaintiff's plan was copied to senior members of UBS's management and UBS's legal counsel (Tr. 836), Kosik's plan was not sent to anyone except Kosik himself (see id. 533 (perceiving the copying of the Plan to other members of UBS management as a sign that the Plan was a set-up to terminate plaintiff)). Finally, while Tse's plan absolutely required her to increase her assets under management by 40% in six months, Kosik's plan only gave him a general guideline for improvement. (Beranbaum Decl. Ex. 5 (advising Kosik to increase the number of his accounts by "20-40").) The jury could reasonably have found from a side-by-side analysis of the two plans that, while the intent and effect of Kosik's plan was to help him improve his performance, the intent and effect of Tse's plan was to constructively demote her, and place her under a direct threat of termination, and therefore constituted an adverse employment action.*fn5

Finally, defendant argues that, because the jury did not find that plaintiff's termination itself was discriminatory, the jury could not reasonably have found that her placement on the Plan was an adverse employment action. But the facts established during trial do not require that conclusion. Even if, during trial, plaintiff primarily focused on her termination as the principal adverse consequence resulting from her placement on the Plan, the jury was not constrained to base its findings solely on plaintiff's primary argument; instead, the jury was entitled to credit plaintiff's testimony that the terms of the Plan were a materially adverse change to her employment, while rejecting her testimony that she did not voluntarily abandon her job. The mixed nature of the verdict does not impugn the reasonableness of the jury's liability finding.

In sum, defendant's motion simply asks the Court to substitute its assessment of the evidence for that of the jury, something it is not permitted to do. The jury reasonably concluded that plaintiff's placement on the Plan was an adverse employment action.

B. Similarly Situated Male FAs

Defendant also argues that there was no evidence from which a reasonable jury could conclude that Chandler placed plaintiff on the Plan because of her gender. Defendant attacks the jury's finding piecemeal. First, defendant argues that plaintiff did not offer any evidence of gender-based derogatory comments by Chandler. (Def. Mem. 14 n.5.) But such direct evidence of discrimination is unnecessary to establish a discriminatory animus. Instead, it is well established that a discriminatory animus may be proven both by direct and by indirect evidence, for example, by showing that similarly-situated male FAs were treated more favorably than plaintiff. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000); see Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 384 (2d Cir. 2001) ("Demonstrating disparate treatment by comparing one's treatment to that of other similarly situated employees is one of the principal means of showing a Title VII violation."). Thus, the absence of direct evidence of bias does not establish the absence of a discriminatory animus.

Second, defendant claims that plaintiff did not show that Chandler generally treated other female FAs less favorably than male FAs. Specifically, defendant claims that the evidence established that Chandler "actively recruited female FAs," took them out to lunch, and promoted other high-performing female employees, and therefore, that the jury could not reasonably have found that Chandler was motivated by a discriminatory animus. (Def. Mem. 13.) Defendant's argument is unavailing. Even if Chandler treated high-performing females as well as high-performing males, the jury could reasonably have found that he treated low-performing females, and specifically plaintiff, differently than he treated low-performing males. For example, the jury could reasonably have found that Chandler provided all high-performing FAs with the same opportunities, but that when an FA's production declined, he assisted male FAs to improve their performance through informal discussions and coaching (see, e.g., Tr. 725-26 (testimony of Chandler, agreeing that he took one low-performing FA out to lunch "seven times" during 2001 and 2002 "on [Chandler's] expense account," to "suggest[] ways that [the FA] could improve his business")), while he subjected poorly-performing female FAs, and specifically plaintiff, to harsh and demanding production goals. Of course, the jury was entitled to consider evidence of Chandler's treatment of other women employees in assessing the reasons for his disciplining of Tse. But an employer cannot escape liability for discriminating against an employee on the basis of a protected status simply because it can show that it treated other members of the employee's group -- especially members who were not themselves appropriate comparators to the victim of discrimination*fn6 -- favorably. See Connecticut v. Teal, 457 U.S. 440, 453-55 (1982).

Third, defendant argues that the other low-producing male FAs to which plaintiff compared herself at trial were not situated similarly to plaintiff for a variety of reasons, including the fact that plaintiff "had the most negative trend" in production out of any of the low-producing FAs when she was placed on the Plan. (Def. Mem. 12.) Thus, defendant argues that a reasonable jury could not have found that the low-producing male FAs were treated more favorably than plaintiff because plaintiff had the worst performance of any of the FAs, and that Chandler's decision to place plaintiff on the Plan was therefore a legitimate business decision and not motivated by a discriminatory animus. (See Def. Mem. 16-17 ("Plaintiff's arguments amount to an impermissible request to have the jury substitute its judgment for Chandler's judgment as to how to manage the Branch."), citing Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001).)

This argument is unpersuasive. It is unnecessary to discuss in detail the alleged distinctions between plaintiff and the low-producing male FAs set forth by defendant. It is sufficient to note only that, notwithstanding any differences in the production trends between plaintiff and those male FAs to whom she compared herself at trial, there is sufficient evidence in the record from which a jury could reasonably find that plaintiff was similarly situated to those male FAs. It is undisputed that those male FAs were (before the imposition of the Plan) subject to the same workplace standards as Tse (Tr. 791-93), were all supervised by Chandler, and all had "negative trends" in their production and assets, as did Tse (id. 711-12). Moreover, at trial, plaintiff showed that at least one low-producing male FA had been ranked lower than Tse for each of the three years preceding Tse's placement on the Plan. (Id. 716-17; Pl. Ex. 47.) In addition, plaintiff submitted evidence at trial showing that three other low-producing male FAs had experienced a severe decline in production during the same time period, but Chandler never considered putting them on a business development plan. (See Tr. 722-27; Pl. Ex. 47.) Indeed, it is undisputed that, the very month that Chandler decided to place Tse on the Plan, another FA -- Neal Cooper -- was actually the lowest performer. (Tr. 701.)*fn7 Various performance factors could reasonably be taken into account, and weighed differently by different evaluators, to arrive at an overall ranking of employee performances. The jury was entitled to take the totality of the evidence into account, and to make its own assessment of Tse's and Chandler's respective self-serving claims about the comparability of the various male FAs, and of defendant's argument that Chandler had in good faith concluded that Tse was in fact the worst performer in the group.

Although defendant argues that there are material distinctions between Tse and those low-producing male FAs (Def. Mem. 14-17), the jury could reasonably have rejected those distinctions as irrelevant, especially considering the undisputed evidence that Tse's low ranking was due in large part to circumstances beyond her control, such as her loss of a major account to another UBS broker (Tr. 132-33, 696), and the declining market (id. 697). The reasonableness of the jury's finding is supported further by evidence submitted at trial showing that Chandler coached male low-performing male FAs more frequently than Tse (id. 1022-23), and that while Tse was placed in a cubicle as a result of her low ranking, low-performing male FAs were not. See Lane v. Collins & Aikman Floorcoverings, Inc., No. 00 Civ. 3241, 2002 WL 1870283 (S.D.N.Y. Aug. 14, 2002) (denying motion for judgment as a matter of law where defendant claimed that regional sales manager was fired because of poor sales performance but other regional sales managers also failed to meet their sales goals). Of course, the jury could reasonably have accepted defendant's arguments; however, it did not.

Thus, as the Court found when it initially denied defendant's Rule 50 motion at trial (Tr. 1308), there was ample evidence that Tse was subjected to disparate treatment on account of her gender in this case. See Graham, 230 F.3d at 39 (deeming the question whether employees are similarly situated to be a question of fact for the jury); Taylor v. Brentwood Union Free Sch. Dist., 143 F.3d 679, 684 (2d Cir. 1998) (explaining that jury was asked to decide whether the plaintiff was treated differently than similarly-situated white employees); Hargett v. Nat'l Westminster Bank, USA, 78 F.3d 836, 839-40 (2d Cir. 1996) (noting that jury was asked to decide "similarly situated" issue); cf. Tomka v. Seiler Corp., 66 F.3d 1295, 1312 n.11 (2d Cir. 1995) (whether two positions are "substantially equal" for Equal Pay Act claim is a question of fact). Accordingly, the jury's liability determination was reasonable, and defendant's motion for judgment as a matter of law on that basis is denied.

III. Economic Damages

Next, defendant challenges the $500,000 economic damages award. Defendant argues that plaintiff "failed to establish any economic loss as a result of the Plan" at trial. (Def. Mem. 18.) Specifically, defendant claims that "plaintiff did not present any evidence of economic damages [directly] arising from [her] placement on the Plan" (id. 19), and that plaintiff cannot receive economic damages for any harm incurred after her termination because the jury found her termination to be non-discriminatory. In fact, plaintiff provided sufficient evidence for the jury to find direct economic damage to her from being placed on the Plan, albeit in a lesser amount than the jury awarded, as plaintiff did not establish that economic damages suffered following her termination were fairly traceable to her placement on the Plan.

A. Jury Trial

As an initial matter, defendant argues that the issue of economic damages should not have been submitted to the jury at all. Specifically, defendant argues that economic damages constitute equitable relief, and therefore, that plaintiff was not entitled to a jury determination of back pay over defendant's pre-trial objection. Therefore, defendant claims that the entire economic damages award should be vacated by the Court and a new trial ordered on this issue.*fn8

Defendant's argument is unpersuasive.

Under Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir. 2001), parties in a Title VII employment discrimination case are not entitled to a jury trial on the issue of back pay, which has "historically been recognized as equitable relief under Title VII." Id. at 157. In Broadnax v. City of New Haven, 415 F.3d 265 (2d Cir. 2005), the Second Circuit considered whether "where one party requests a jury trial on the lost wages issue and the party's opponents fail to object, the court is permitted, because the opponents may be deemed to have consented, to submit the issue for a non-advisory jury determination." 415 F.3d at 271. The Broadnax court held that "when a party demands jury consideration of lost wages under Title VII and the party's opponent fails to object, . . . the district court [may] submit the lost wages issue for a non-advisory jury determination." Id. at 272. Thus, under Broadnax, where a party "d[oes] not object to the jury's consideration of front or back pay as outside the scope of [the court's] authority," the party "may be viewed as having consented to the jury trial on these issues." Howell v. New Haven Bd. of Educ., No. 3:02CV736, 2005 WL 2179582, at *6 (D. Conn. Sept. 8, 2005). Similarly, under Fed. R. Civ. P. 39(c), "[i]n an action not triable of right by a jury, the court . . . may, with the parties' consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right." Accordingly, the relevant inquiry here is whether defendant "may be viewed has having consented" to the jury determination of plaintiff's back pay claim.

Defendant claims that it objected to a jury determination of plaintiff's economic damages prior to trial. Defendant points to a motion in limine in which it argued that, because plaintiff's discrimination claim was asserted only under Title VII, "it is clear that the issues of back pay and front pay . . . should not be presented to the jury." (Def. Mem. of Law in Support of its Mot. in Limine Concerning Evidence of Back Pay and Front Pay Damages, at 2 (citations omitted).) Plaintiff did not dispute defendant's reading of Title VII. Rather, she proposed to cure defendant's objection by seeking leave to amend the pre-trial order to permit her to add causes of action for her discrimination claims under the SHRL and CHRL. (See Letter from Jason Rozger to the Court, Mar. 7, 2007.) Defendant objected to plaintiff's request, not on the ground that economic damages under the SHRL and CHRL are also to be determined by the Court without a jury, but rather on the ground that allowing plaintiff to amend her claims on the "eve of trial" would unfairly prejudice defendant. (Letter from Mary A. Gambardella to the Court, Mar. 8, 2007.) Because the state and city claims were substantially identical to the Title VII claims, however, defendant was unable to point to any way in which the presence or absence of such claims would alter defendant's trial preparation, or otherwise prejudice it. Both parties argued on the assumption that if plaintiff's application was granted, and the SHRL and CHRL claims were added, the problem would indeed be "cured" and plaintiff's right to a jury trial would be restored. Indeed, defendant's assertion of prejudice was apparently based in large part on the understanding that the amendment of the pretrial order would subject it to an unanticipated jury trial.

On March 23, 2007, the Court granted plaintiff's motion to amend over defendant's objection. Plaintiff immediately amended the pre-trial order to include causes of action under the SHRL and CHRL. Accordingly, the jury was permitted to determine economic damages on plaintiff's discrimination claims. Defendant did not register any further objection to the Court's ruling before trial, nor did defendant raise the issue again in its post-trial motions. Rather, the issue was first raised only by way of a letter to the Court, ...


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