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Thorsen v. County of Nassau

June 30, 2010

GEORGE THORSEN, PLAINTIFF,
v.
COUNTY OF NASSAU, ET AL., DEFENDANT.



The opinion of the court was delivered by: Lindsay, Magistrate Judge

MEMORANDUM AND ORDER

The plaintiff George Thorsen ("Thorsen") brought this action in February 2003 against the County of Nassau, Nassau County Civil Service Commission, and John Carway ("Carway") alleging: (1) violation of the First Amendment and the New York State Constitution pursuant to 42 U.S.C. § 1983; (2) constructive discharge; and (3) common-law defamation. On July 10, 2009, the parties consented to the undersigned's jurisdiction. (Docket Entry 51.) A jury trial was held from October 27, 2009, to November 6, 2009, during which the court dismissed Thorsen's defamation claim. On November 9, 2009, the jury found in favor of Thorsen on two of his Section 1983 political affiliation claims and awarded him emotional distress damages in the amount of $1,500,000, and awarded punitive damages against the defendant Carway individually in the amount of $500,000. The jury found against Thorsen on his constructive discharge claim. At a post-trial hearing, the court dismissed one of the plaintiff's two Section 1983 claims under the so-called "policymaker" exception to First Amendment political affiliation law. See Branti v. Finkel, 445 U.S. 507, 517 (1980); Elrod v. Burns, 427 U.S. 347 (1976); Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994).

Before the court is the defendants' motion under Federal Rules of Civil Procedure 50(b) and 59(a) for judgment as a matter of law or, in the alternative, for a new trial. The defendants argue that relief is warranted because: (1) the verdict sheet constituted plain error by permitting the jury to erroneously consider damages; (2) the damages award was excessive; (3) the verdict was inconsistent; and (4) the verdict was against the weight of the evidence. For the foregoing reasons, the defendants' motions are granted in part and denied in part.

BACKGROUND

I. Pretrial Proceedings

Thorsen commenced this action in February 2003. Thereafter, this matter was stayed pending resolution of related state court proceedings. In August 2006, Thorsen filed an amended complaint alleging a First Amendment violation resulting from his affiliation with a faction of the Nassau County Republican Party. (See Second Am. Compl. ¶¶ 52-64.) In particular, Thorsen claimed he was passed over for Director of Probation because of his political associations. Thorsen also claimed that he was stripped of all job responsibilities and subjected to a campaign of harassment and retaliation, including having an untrue story about him planted in the New York Times because of his political associations. (Id. ¶¶ 68-70.) Thorsen claimed that as a result of the defendants' actions, he suffered severe emotional distress and was forced to retire from Nassau County in July 2002. (Id. ¶¶ 75-84.)

II. Trial

In brief summary, the testimony at trial revealed that Thorsen began working for the Nassau County Probation Department in the 1970s. (10/26 Tr. at 51-52.) In 1996, Thorsen was promoted to the position of Assistant to Director. (10/26 Tr. at 55-56, 66; 10/28 Tr. at 357-62, 382.) As part of his duties, Thorsen developed and managed a highly regarded crime-prevention program called Operation Nightwatch. (10/26 Tr. at 59-64; 10/27 Tr. at 134-37.) This program teamed probation officers with police officers in pursuing law enforcement objectives. Thorsen's job duties also included managing department personnel, acting as a liaison with other County departments, teaching at the police academy, running a student internship program, and writing grants. (10/26 Tr. at 58, 64, 68; 10/28 Tr. at 384-86.)

Thorsen was active within the Nassau Republican Party during the years that he worked at the Probation Department. He was known to be a supporter of Joseph Mondello ("Mondello"), the Nassau Republican Party Chairman. (10/26 Tr. at 70-73, 75, 80-81, 103.) Sometime in the 1990s, a rift developed within the Republican Party which pitted Mondello against Thomas Gulotta ("Gulotta"), then the Nassau County Executive. (10/26 Tr. at 90-97, 106-07; 10/27 Tr. at 130-31; 10/28 Tr. at 274-78, 442-44; 11/2 Tr. at 559-60, 616-18, 620-31.) That rift essentially divided party members into either the Gulotta or the Mondello camp.

In 1999, while the Gulotta/Mondello rift was ongoing, the position of Director of Probation became available. Thorsen was encouraged by the outgoing Director to apply for the position. (10/26 Tr. at 111-12.) As was the practice in Nassau County, Thorsen first applied for this position by going to the Republican Party and seeking Mondello's political support for his application. (10/26 Tr. at 111-14; 10/28 Tr. at 269-70.) Mondello agreed to support Thorsen's application and appointment. (10/26 Tr. at 114-15.) At about the same time, the defendant John Carway ("Carway"), who was the Deputy Director of Probation and aligned with the Gulotta camp, informed Gulotta of his interest in the Director position. (11/4 Tr. at 924.)

In addition to obtaining political support, a candidate for the Director's position had to be found qualified for the position by the Nassau County Civil Service Commission (the "Commission"). In June 2000, the Commission found Thorsen unqualified for the Director's position. This determination was apparently based on Thorsen's alleged lack of managerial experience. (10/27 Tr. at 179-81.) Thorsen clearly possessed management experience within the Probation Department. (10/26 Tr. at 64, 68.) Thorsen concluded that he was deemed unqualified because of his alignment with the Mondello faction of the Republican Party. In this regard, Thorsen presented evidence that the director of the Commission was aligned with Gulotta camp. (11/6 Tr. at 1216-17, 1246-48, 1262-64.) Thorsen also proved that John Carway, who was appointed Director over Thorsen, was also aligned with the Gulotta camp. (11/4 Tr. at 905-08.) Thorsen thereafter challenged the Commission's decision in an Article 78 proceeding, which resulted in a determination that the Commission's decision was arbitrary and capricious. (Pl.'s Exs. 120-21.)

On approximately January 31, 2001, while Thorsen was pursuing his Article 78 remedies, Carway was appointed Director of Probation. (10/27 Tr. at 196; 11/4 Tr. at 842, 930.) Thorsen testified that his life within the Probation Department took a dramatic turn for the worse after Carway took charge. On February 2, 2001, Carway issued his first departmental memo as the Director. The memo announced that the successful program Operation Nightwatch would be reorganized. (10/27 Tr. at 197-200; Pl.'s Ex. 45.) Carway was well aware that Operation Nightwatch was Thorsen's "baby." (11/4 Tr. at 934-35.) On February 6, 2001, Carway reorganized Operation Nightwatch by removing Thorsen from the program and assigning him to another division within the Probation Department. Thorsen was instead given the mundane task of rewriting the department's peace officer manual. (10/27 Tr. at 200-04.) Thorsen was never told why he was removed from Operation Nightwatch or why he was reassigned. (Id. at 204.) Prior to Carway's appointment, Thorsen attended and participated in executive department meetings. After Carway's appointment, despite the fact that Thorsen retained the title Assistant to Director, he was not permitted to attend executive meetings and was no longer allowed to participate in executive decisions. (Id. at 206, 212.)

Thorsen testified that he was thrown into a deep depression by these developments. (Id. at 205; 10/30 Tr. at 494.) With respect to his work and everyday activities, Thorsen testified that he was essentially just going through the motions. (10/30 Tr. at 495-96.) Whereas he had enjoyed working in the Probation Department, he was now relegated to boring and mundane work. (10/27 Tr. at 208.) As for his symptoms, Thorsen suffered from "nausea, headaches, sleepless nights, a terrible feeling of worthlessness, and of victimization." (Id. at 205.)

Notwithstanding his depressed state of mind, Thorsen formed a committee to rewrite the peace officer's manual as directed by Carway. (Id. at 207.) Despite Carway's assurance that this was an important assignment, Carway never responded to any of Thorsen's memos on the subject, nor did Carway ask about the project. (Id. at 207-08.) Thorsen had little contact with Carway and was never given another assignment to do. (10/28 Tr. at 409-10.) After Carway's appointment, Thorsen no longer enjoyed any of the prestige or responsibility previously associated with his position within the department. (10/27 Tr. at 208-09.)

As further proof of what Thorsen alleged was an effort by Carway to punish him for his affiliation with the Mondello camp, Thorsen produced a New York Times interview of Carway. (Pl.'s Ex. 65.)*fn1 In it, Carway was highly complimentary of the success of Operation Nightwatch. However, the article also indicated that Thorsen was removed as head of the program amidst allegations in a lawsuit of racial and sex discrimination as well as political favoritism. In fact, that lawsuit did not name Thorsen, nor did the allegations pertain specifically to Operation Nightwatch. (10/27 Tr. at 220.) Carway was well aware of the specific allegations of that lawsuit when he gave the Times interview, because he was a named defendant and had already been deposed. (11/2 Tr. at 687-88.) Thorsen felt that the article branded him as a racist and a sexist. (10/27 Tr. at 220.) When Thorsen tried to question Carway about the article, Carway offered no explanation for his reported comments. (Id. at 223-25.)

By 2002, Thorsen testified that he was in great emotional distress. (See, e.g., 11/2 Tr. at 568.) Thorsen believed he was no longer an active member of the Probation Department. (Id.) As a result, in the summer of 2002, Thorsen retired because he "couldn't take it anymore" and because he felt his "career as a probation official . . . was over." (10/27 Tr. at 212.) After retiring from the Probation Department, Thorsen continued to teach as an adjunct professor at two local colleges. (10/26 Tr. at 65-66.) He also formed a consulting company called Justice Strategies. (10/30 Tr. at 503.)

Thorsen sought treatment with a psychologist, Dr. Christopher Bayer, starting in September 2000. (10/27 Tr. at 205.) He saw Dr. Bayer twice a week for six months, and then began seeing him once a week. (Id.) Thorsen was prescribed the antidepressants Celexa and Wellbutrin. (Id. at 206; 11/4 Tr. at 724.) Thorsen continued his treatment regularly with Dr. Bayer for four to five months and "maintained a relationship" with Bayer for at least a year and a half. (10/30 Tr. at 500.) Dr. Bayer testified that he began seeing Thorsen in the fall 2000. (11/4 Tr. at 721.) Dr. Bayer determined that Thorsen "obviously needed treatment. He had work-related problems. He appeared to be undermined by the management of his organization." (Id. at 723.) Dr. Bayer stated that Thorsen was "anxious, agitated, very unhappy, tearful on occasion. He was having an existential crisis and I thought that he would need medication." (Id.) Dr. Bayer testified that Thorsen became more distant with his family. (Id. at 725-26.)

As for Thorsen's emotional distress, Dr. Bayer stated that being removed from Operation Nightwatch "hurt him deeply," "drove him further into depression," "was devastating," and was "emotionally painful." (11/4 Tr. at 727, 743.) In particular, Dr. Bayer testified that Thorsen "started to avoid his colleagues. His sleep became impaired. He was visibly anxious. Tearful." (Id. at 727.) Dr. Bayer observed that Thorsen suffered a "major stress attack" in February 2001 that required hospitalization. (Id. at 726, 735-36.) Dr. Bayer further testified that Thorsen "was devastated" by the New York Times article, and that "it ripped him apart." (Id. at 770.)

Dr. Bayer observed that as of 2001, Thorsen "was crushed" and "[h]e had a very hard time functioning. He drifted away from his colleagues. He didn't have the same self respect."

(Id. at 729-30.) In sum, Dr. Bayer testified that Thorsen had expressed that "his life had been stolen from him, that what he worked for for [sic] decades had been undermined, that he had been betrayed by a system that he loved and cherished and had performed exceptionally well in. He was well respected by his colleagues. He won awards. In essence, he felt the rug had been pulled from out from under him." (11/4 Tr. at 745.) Dr. Bayer stated that Thorsen's work environment was "emotionally-toxic" and eventually caused ...


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