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Equal Employment Opportunity Commission v. Everdry Marketing and Management

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


February 19, 2008

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
EVERDRY MARKETING AND MANAGEMENT, INC., EVERDRY MANAGEMENT SERVICES, INC. A/K/A EVERDRY WATERPROOFING AND EVERDRY OF ROCHESTER, DEFENDANTS.

The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge

PRELIMINARY STATEMENT

Pending before this Court are three motions for post-trial relief. (Docket ## 196, 198, 203). This decision addresses defendants' motion to amend or correct the judgment on the grounds that the damages awarded to four claimants exceed the statutory maximum under 42 U.S.C. § 1981a(b)(3). (Docket # 196). The EEOC opposes the motion. (Docket # 208).

Rule 59 of the Federal Rules of Civil Procedure permits a party to move to alter or amend a judgment entered pursuant to a finding by a jury. See Fed. R. Civ. P. 59(e). The decision whether to grant such a motion rests in the sound discretion of the district court.

McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983). Relief is available under Rule 59 only if the movant can demonstrate "manifest errors of law or fact or newly discovered evidence that was not previously available." Sugrue v. Derwinski, 1993 WL 742742, *1 (E.D.N.Y. 1993) (citing Wallace v. Brown, 485 F. Supp. 77, 78 (S.D.N.Y. 1979)).

Similarly, Rule 60 permits the court to relieve a party from a final judgment in the event of, among other things, mistake, inadvertence, excusable neglect, newly discovered evidence or fraud. Fed. R. Civ. P. 60(b); see House v. Sec'y of Health and Human Servs. 688 F.2d 7, 9 (2d Cir. 982). According to the Second Circuit, however, relief under Rule 60(b) is "extraordinary" and may be granted "only upon a showing of exceptional circumstances."

Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations omitted). As with Rule 59, motions seeking relief under Rule 60 are "addressed to the sound discretion of the district court." Id.

DISCUSSION

Following a three-week trial in this matter, the jury rendered a verdict against defendants, finding that they had subjected the thirteen claimants on behalf of whom the action was brought to a hostile work environment based on gender. (Docket # 189). The jury awarded compensatory and punitive damages in excess of $50,000 to four of the claimants: Stephanie DiStasio ($51,500), Lorraine Backus ($70,000), Anna Stevenson ($79,500) and Jennifer Zazzaro ($51,500). (Docket # 189). Defendants assert that the maximum amount recoverable by each individual claimant is $50,000, and they thus move to reduce to that amount the judgment for each of the four identified claimants*fn1 -- a reduction that would reduce the overall judgment by a total of $52,500. (Docket # 196). The EEOC opposes the motion and argues that the applicable statutory maximum for each of the four claimants is $100,000. (Docket # 208).

42 U.S.C. § 1981a limits the amount of damages that may be recovered in a Title VII case based upon the number of people employed by the defendant. Specifically, the statute provides:

The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party --

(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;

(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and

(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and

(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.

42 U.S.C. § 1981a(b)(3).

The EEOC maintains that the judgment does not exceed the statutory cap because defendants in fact employed over 100 employees during 20 or more weeks in the calendar year 1999.*fn2 That assertion is based entirely upon two employee lists produced by defendants during discovery -- the first entitled "1999 Employee Master List Everdry Management Services," and the second entitled "1999 Employee Master List Everdry Marketing and Management" (together, "the Employee Lists"). From these lists, the EEOC has compiled a chart listing the total number of employees of both defendant Everdry Management Services ("EMS") and defendant Everdry Marketing and Management, Inc. ("EMM") during each of 47*fn3 consecutive weeks in 1999. The chart prepared by EEOC reveals the number to range from a low of 143 (January 4-10) to a high of 197 (November 1-7).

Defendants strenuously object to the Court's reliance on the Employee Lists as an accurate measure of the number of employees of either EMS or EMM. Rather, they ask the Court to rely upon the post-trial hearing testimony of Carl Moore, who was employed as an Operations Manager at EMM. According to Moore's testimony, during 1999 EMS had between 50 and 65 employees and EMM had approximately 12. Defendants further maintain that the number of employees at EMM should not be counted toward the statutory cap notwithstanding the jury's finding that EMS and EMM were integrated enterprises.

Of course, I need not reach defendants' challenges unless the Employee Lists, upon which the EEOC relies, identify more than 100 employees during at least 20 of the 52 weeks of 1999. Based upon my careful review of those lists, I have serious doubts that they do.

First, I note that the chart prepared by the EEOC is grossly inaccurate and must be rejected as unreliable. The first column of that chart purports to list 143 employees of EMS and

EMM who worked during the week January 4 through January 10, 1999. Again, that chart was prepared based upon the Employee Lists provided by defendants during discovery. Of the 143 employees listed on the EEOC's chart, however, I find only 87 who worked during that week examine for all four claimants in order to determine whether their awards of damages according to the Employee Lists (53 at EMS and 34 at EMM). (Attached as Exhibits A and B are the lists of EMS employees and EMM employees, respectively, who the Court has identified were employed by defendants during that week). To illustrate the various errors, of the first 20 employees listed in the first column of the EEOC's chart, seven began employment in the year 2000 (Alexander, Ange, Brack, Burtner, Burton, Bush and Cacioppo), two began later in the year 1999 (Beach and Bryant), three are names that do not appear on either of the Employee Lists (Bardne, Bayne, Becker) and one may or may not have worked during the January 4-10, 1999 week (Brimacomb was hired on August 28, 1998 and rehired on April 18, 2000; the EMS Employee List does not reflect whether his first tenure of employment ended before or after January 10, 1999). Discounting these individuals, the first 20 names include only six whose employment during the January 4-10, 1999 week can be verified by the EMS and EMM Employee Lists.

These errors are not limited to the first week; they permeate the chart. For example, taking the week beginning November 1, 1999 -- which reflects the greatest number of employees on the EEOC's chart -- that number is also substantially overstated. The EEOC's chart lists 197 employees; the Court's calculations reveal a total of 94 (56 at EMS and 38 at EMM).

Finding the EEOC's chart unreliable, I turn to a review of the Employee Lists themselves. A spot check of four weeks during different seasons of 1999 reveals fewer than 100 employees in each of those weeks. Specifically, the Court's review has identified the following:

January 4-10 "Week 1" 53 EMS 34 EMM 87 TOTAL

June 21-27 "Week 25" 55 EMS 32 EMM 87 TOTAL

September 6-12 "Week 36" 48 EMS 35 EMM 83 TOTAL

November 1-7 "Week 44" 56 EMS 38 EMM 94 TOTAL

Based upon this review, it appears unlikely that the EEOC will be able to demonstrate that defendants employed more than 100 employees in at least 20 weeks of the year 1999, even if the Court were to accept the Employee Lists as reliable records of the number of employees who worked for defendants during 1999. These doubts are premised upon the facts that for each of the four weeks examined, the total was less than 100, and that the total was less than 100 even for the week that the EEOC identified as having the greatest number of employees (Week 44).

Having examined only four of the 52 weeks in 1999, this Court will permit the EEOC to review the Employee Lists one final time to determine whether it persists in its belief that the lists do reveal 20 weeks in which more than 100 employees worked. If so, the EEOC may file a post-hearing submission identifying for each week in 1999 in which it contends that more than 100 employees worked, the names of the employees, the page and line where each employee is identified on the Employee Lists and the employment dates for all employees identified. Such a submission, if any, shall be filed by March 4, 2008. If no such submission is filed by that deadline, this Court will grant defendants' motion and reduce to $50,000 the compensatory and punitive damages awards for claimants DiStasio, Backus, Zazzaro and Stevenson.

IT IS SO ORDERED.

EXHIBIT A

WEEK 1: JANUARY 4 - 10, 1999

EMPLOYEES ON EMS EMPLOYEE LIST*fn4

1. Stacy Boehm

2. David Bowers

3. Anna Pampaukidis

4. John Sharpe

5. Pren Vulaj

6. David Barone

7. Sherri Clark

8. Joe Timmons

9. Gene Ake

10. Kevin Casey

11. Ronald Deffenbaush

12. Charles Gray

13. Chester Marianetti

14. Steed Reynolds

15. Scott Smith

16. Jeffrey Williams

17. Lorraine Backus

18. Lill Cocilova

19. Mark Dade

20. Beverly DiPaola

21. Danielle Doty

22. Karianne Hoak

23. Lisa Laucht

24. Julie Calzaretta

25. Stephanie DiStasio

26. Jennifer Goodrell

27. Amy Jaus (cannot read her hire date)

28. Jim Javcevski (cannot read his hire date)

29. Jeremy Lang

30. Joelle Loiacano

31. Alana Marrapese

32. Nina Stanoevski

33. Scott VanBortel

34. Edward Catlin

35. Douglas Chamberlain

36. Douglas Donovan

37. Richard Foster, Jr.

38. Richard Jacobs

39. Leslie Liese, Jr.

40. Todd Lotempio

41. Anthony McQueen, Jr.

42. Clarence Reed

43. Michael Sero

44. Kenneth Sneed

45. Bernard Steele

46. Terrance Sweet, II

47. Paul Thomas

48. Anthony Thomas

49. Jeremy Thompson

50. Ralph Whitman

51. Brian Johnson

52. James Lombardo

53. Cheryl Schojan

EXHIBIT B

WEEK 1: JANUARY 4 - 10, 1999

EMPLOYEES ON EMM EMPLOYEE LIST*fn5

1. Judith Garvin

2. Mary Henry

3. Randall Hushour

4. Loretta Mrak

5. Nancy Sheaves

6. John Wesolowski

7. John Gooding

8. Dennis Iacco

9. Sandra Speare

10. Lisa Mozina

11. Caryn Thompson

12. Frank Bauck

13. Richard Capp

14. Raymond Ficere

15. Jack Jones

16. William Meyer, III

17. James Varholick

18. Gary Zenobi

19. Theresa Neitzel

20. Paul Trecarichi

21. Cindy Kozlik

22. Maxine Kozlik

23. Michelle Trick

24. Michael Dalton

25. Roy Hickman

26. Kenneth Barnette

27. Jason Glover

28. Sam Mazzo

29. Carl Moore

30. Michele Babb

31. Timothy Babb

32. Wilma Dover

33. David Garvin

34. Charles Spencer


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