The opinion of the court was delivered by: Charles P. Sifton, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Rosetta Simmons ("Simmons") commenced this action on March 13, 2002 against her employer, defendant New York City Transit Authority ("the Transit Authority") claiming that the Transit Authority discriminated against her on the basis of her disability in violation of: (1) the American with Disabilities Act; (2) the Rehabilitation Act of 1973; (3) New York State Human Rights Law; and (4) New York City Human Rights Law. A jury trial took place between December 3, 2007 and December 10, 2007. The jury returned a verdict in favor of plaintiff and awarded her $150,000 in compensatory damages. Presently before this Court is defendant's motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 or in the alternative, a new trial pursuant to Federal Rule of Civil Procedure 59. For the reasons set forth below, defendant's motion is denied.
Familiarity with the facts of the case is presumed based on the prior proceedings before the undersigned. What follows is a recent procedural history of the parties' post-trial motions.
A jury trial was conducted from April 30, 2007 to May 11, 2007, resulting in a mistrial when the jury failed to reach a verdict.
A re-trial of this case commenced on December 3, 2007. At the close of plaintiff's case in chief, defendant moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. Transcript of December 2007 Trial ("Tr.") 468-74. Decision was reserved on the motion. Defendant renewed its motion at the close of its case, Tr. 691-92, as well as at the end of plaintiff's rebuttal case. Tr. 695-96.
On December 10, 2007, the jury reached a verdict in favor of plaintiff on all of her claims. The jury awarded plaintiff $150,000 in compensatory damages.
After the jury reached a verdict in favor of plaintiff, the parties entered into a stipulation in connection with the pensionable gross lost wages for the period January 16, 2001 through March 22, 2003, which I "so ordered" on March 3, 2008. Pursuant to the stipulation, gross wages in the amount of $97,099 are due to Simmons. Pension benefits are to be calculated by the New York City Employee Retirement System (NYCERS) and pension contributions are to be deducted from the gross lost wages of $97,099. The gross wages are to be reduced by the $28,350 in unemployment compensation that Simmons received resulting in a net back pay loss of $68,749. The net back pay loss is subject to payroll deductions. Prejudgment interest in the amount of $12,202 was calculated based on the net back pay loss.
The parties disputed whether plaintiff was entitled to compensation for lost fringe benefit time, including sick days, personal days, holidays, and vacation days. This Court reached a decision on this issue in a memorandum opinion and order denying plaintiff an award of such benefits. See Simmons v. New York City Transit Authority, 2008 WL 630056 (E.D.N.Y. March 4, 2008).
On March 4, 2008, this Court awarded plaintiff $194,447.95 in attorneys' fees and $4,175 in costs. Simmons v. New York City Transit Authority, 2008 WL 630060 (E.D.N.Y. March 4, 2008).
Under Federal Rule of Civil Procedure 50, if a party files a motion for judgment as a matter of law after an adversary has been fully heard on an issue during trial, and the court does not grant the motion, the party may renew the motion no later than 10 days after the entry of judgment. Fed. R. Civ. P. 50(a)-(b). Once a motion has been renewed, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b). "In assessing whether judgment as a matter of law is proper, the court must view all of the evidence and draw all inferences in the light most favorable to the non-moving party." Norville v. Staten Island University Hospital, 196 F.3d 89, 95 (2d Cir. 1999). However, "[t]he court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Jarvis v. Ford Motor Co., 283 F.3d 33, 43 (2d Cir. 2002)(internal quotation marks and citation omitted). Judgment as a matter of law should be granted "only when . . . there can be but one conclusion as to the verdict that reasonable [people] could have reached." Weldy v. Piedmont Airlines, 985 F.2d 57, 59-60 (2d Cir. 1993)(internal quotation marks and citation omitted).
Defendant argues that plaintiff failed to establish as a matter of law the essential elements of a disability discrimination claim under federal, state, or local law.*fn1
The failure to provide a reasonable accommodation for a disability constitutes discrimination. See 42 U.S.C. § 12112(b)(5)(A); Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997), cert. denied, 522 U.S. 1172 (1998).*fn2 In order to prove disability discrimination under this theory, the plaintiff bears the burden of establishing that (1) she is disabled within the meaning of the statute; (2) the employer had notice of her disability; (3) she could perform the essential functions of the job with reasonable accommodation; and (4) the employer refused to make the accommodation. Parker, 204 F.3d at 332 (citing Stone, 118 F.3d at 96-97); see also Graves v. Finch Pruyn & Co. Inc., 457 F.3d 181, 184 (2d Cir. 2006)(citing Rodal v. Anesthesia Group of Onondaga PC, 369 F.3d 113, 118 (2d Cir. 2004)).
(1) Disability Within the Meaning of the Federal Statutes
Defendant argues that plaintiff failed to prove that the Transit Authority regarded her as disabled within the meaning of the federal statutes.
Under the ADA,*fn3 a disability is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The Second Circuit has held that
"the mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action." Kelly v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996). Plaintiff must show that defendants perceived his [or her] impairment as substantially limiting the exercise of a major life activity.
Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 153 (2d Cir. 1998).
The EEOC defines "substantial limitation" as "[u]nable to perform a major life activity that the average person in the general population can perform" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same life activity." 29 C.F.R. § 1630.2(j)(1). The regulations advise that the following factors should be considered in determining whether an individual is viewed as substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected or long term impact of or ...