The opinion of the court was delivered by: Lindsay, Magistrate Judge
After a twelve-day trial, a jury returned a verdict in favor of the plaintiff on her disability discrimination claim under the New York State Human Rights Law (the "NYSHRL"), N.Y. Executive Law § 296 and awarded $100,000 for emotional distress damages. Defendant, Newsday, Inc., now moves for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), or in the alternative for a new trial pursuant to Federal Rule of Civil Procedure 59(a). In addition, the defendant moves pursuant to Federal Rule of Civil Procedure 59(e) to amend the judgment. For the reasons set forth below, the defendant's motion is denied in part and granted in part.*fn1
The underlying facts of this case are set out in detail in this court's January 3, 2007 decision on the defendant's summary judgment motion and need not be repeated here. The following is a brief recitation of only those facts pertinent to the instant motion.
Ruhling was employed by Newsday as an Assistant Editor from 1984 until she resigned on May 9, 2005. (Tr. at 109-10, 407; Pl. Ex. 86). Plaintiff testified that following her refusal to take a buyout in February 2002, her relationship with Newsday took a turn for the worse. By late November 2002, Ruhling was experiencing what she described as a recurrence of a repetitive stress injury (RSI), a condition caused by repetitive keystroking and stress and which produced shooting pain in her arms, neck and back. (Tr. 203-204, 213-14).
On December 30, 2002, Liane Guenther, one of Ruhling's supervisors, assigned her an editing job which required repetitive keystrokes. (Tr. 219, 1072-74). Guenther had asked plaintiff to edit all the straight quotation marks in a story and convert them to curly quotation marks. (Tr. 219-20). Ruhling informed Guenther that she was suffering a recurrence of RSI, that she was trying to get a doctor's appointment, and that this type of assignment would be particularly painful for her to undertake. (Tr. 220-21, 240). Ruhling offered to perform a different type of assignment but Guenther simply indicated it was not a problem and that someone else could do this work. (Tr. 220-21). On January 6, 2003, Ruhling scheduled a visit for January 30th with Dr. Craig Rosenberg, an RSI expert used by Newsday employees. (Tr. 233, 241, 828).
On January 17th, before she could see Dr. Rosenberg, Ruhling was asked by another supervisor, Judy Bernstein, to edit quotation marks. (Tr. 233-34, 1074-75). Ruhling informed Bernstein that she was suffering from RSI, that she had scheduled an appointment to see Dr. Rosenberg for this condition, and that the repetitive nature of this assignment made it painful for her to do. ( Tr. 233-34, 237-38). Ruhling again asked to be assigned work that would not require repetitive keystroking. (Tr. 234, 237-38). Like Guenther, Bernstein simply indicated that it was okay and did not insist that plaintiff complete the assignment. (Tr. 233-234).
On January 20th, notwithstanding the seeming accommodation given by both Guenther and Bernstein, Ruhling was issued a formal written reprimand for insubordination by Maryann Skinner. (Def. Ex. U-1; Tr. 235, 1916). Referring to Ruhling's alleged refusal to do the editing assignments for Guenther and Bernstein, the reprimand noted "we do not have any documentation from your physician that restricts your hours of work or your duties." (Def. Ex. U-1). It further noted that "[a]ny further instance of unacceptable behavior will result in additional disciplinary action, up to and including termination of your employment." (Def. Ex. U-1). Ruhling first learned that Newsday required supporting documentation of her RSI when she read the reprimand. (Tr. 240). Neither Guenther or Bernstein had ever asked her to produce a doctor's note. (Tr. 240; Ex. 31). Plaintiff submitted a note dated January 21, 2003 confirming her appointment with Dr. Rosenberg and later submitted his report confirming her partial disability. (Tr. 242-43, 255; Exs. 23, 28). Notwithstanding this documentation, the reprimand was never rescinded. (Tr. 242-43, 255, 262-63; Exs. 23, 28-29).
Newsday's disciplinary policy in place at the time was described as "progressive discipline." (Tr. at 2158-59). This policy provided that discipline of employee conduct be meted out in stages with each stage progressively more severe. (Tr. 2158-59). Consistent with this policy, in February and April 2003, when Newsday determined that plaintiff had violated office rules with respect to cell phone use and personal leave, she was subjected to progressive punishment in the form of a suspension without pay. (Tr. 277, 291, 330, 1677-78, 1683, 2043, 2045, 2080-81; Exs. 38, 41, 56).
On January 30th Dr. Rosenberg evaluated Ruhling and determined that she was indeed suffering a mild partial disability related to her RSI which could impair her ability to perform her full work activities. (Tr. 809-10). Ruhling's disability, described as myofascial syndrome, was evidenced by painful tightening of the muscles in her bilateral forearms and upper back region. (Tr. 801-806, 809, 811). Dr. Rosenberg determined that this syndrome was produced by repetitive keyboarding and stress and prescribed physical therapy and antidepressants. (Tr. 801, 803, 806, 812-13). Plaintiff was cleared to continue working with the proviso that she continue to take regular hourly breaks to rest her hands and spread the work out in order to reduce the intensity of any keyboarding activities. (Tr. 810; Ex. 28). Plaintiff was then referred to a physical therapist, Stuart Scharfman, for treatment. (Tr. 806-07, 811-12; Ex. 29). Eventually in 2005, because plaintiff's condition worsened, Dr. Rosenberg recommended that her keyboarding be limited to no more than 4 hours each day. (Tr. 383, 813).
Plaintiff first saw Scharfman on February 3, 2003 for an evaluation and returned for her first treatment session on February 6, 2003. (Tr. 268, 700). Plaintiff testified that beginning in February 2003, she felt "incredibly stressed" every single day and was worried, among other things, that she would be suspended or forced out. (Tr. 324). Plaintiff described her stress to Scharfman who noted severe spasms to plaintiff's upper rhomboid and trapezius which he described as common trigger points for stress. (Tr. 710, 713, 717, Ex. 91B). Ruhling did not see Scharfman again until 2005 when she reported that she was not sleeping well and felt ready to explode from stress. (Tr. at 726, 736-37).*fn2 Scharfman noted that Ruhling's neck and trapezius area were in spasm during this visit. (Tr. 730-737; Ex. 91E).
Plaintiff testified that since 2002 she has lost weight and has been very depressed. (Tr. 425-28). She described that it was "extremely stressful" going to work each day and that she could not sleep at night. (Tr. 323-24, 433). Although plaintiff's primary care physician also prescribed antianxiety and antidepressant medication, she did not take them. (Tr. 425, 820, 946). Plaintiff recounted feeling like she was "being beaten up every single day" at work and that she was constantly worried about what was going to happen next. (Tr. 432). She recalled spending her breaks crying in the ladies' room and that she felt a "constant pounding" because she did not know when the next disciplinary action was coming or how to prevent it. (Tr. 432-33).
Several of plaintiff's co-workers also testified concerning the plaintiff's physical and emotional state. Martin Hollander testified that during the period 2002-2004 he observed that the plaintiff "seemed increasingly stressed" and was "losing weight." (Tr. 1222-23). Sylvia King-Cohen testified that during the period 2002-2005 the plaintiff "looked strained. She looked pinched, very tense, downtrodden." (Tr. 1285). King-Cohen also testified that the plaintiff was losing weight and that her hair was getting greyer. (Tr. 1285). Spencer Rumsey testified that in 2005 plaintiff "had kind of like a death camp survivor look" and that she looked like she was "being eaten up." (Tr. 1187).
The jury returned a verdict in favor of the plaintiff on her New York State Human Rights Law disability discrimination claim and awarded $100,000 to the plaintiff for emotional distress damages. The jury found that the January 2003 reprimand amounted to an adverse employment action and that the defendant was motivated, at least in part, by the plaintiff's disability when it issued that reprimand. See Verdict Sheet, Dkt. Entry No. 144.
Defendant now moves pursuant to Federal Rule of Civil Procedure 50(b) for judgment to be entered as a matter of law in its favor for three reasons. First, the defendant asserts that the plaintiff failed to prove that the January 2003 reprimand was an adverse employment action. Next, defendant contends that there was no "competent evidence" from which the jury could have found that Newsday issued the January 2003 reprimand because of her RSI. Third, defendant urges that the court set aside the jury's $100,000 emotional distress damages award because there was no evidence presented at trial that plaintiff suffered her claimed emotional distress as a direct result of disability discrimination suffered as a result of the 2003 reprimand. Alternatively, the defendant moves pursuant to Federal Rule of Civil Procedure ...