The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
A jury trial was held in this matter on November 30, and December 1, 2, and 7, 2009. The jury rendered a verdict of no cause of action in favor of the defendants against plaintiff, and a judgment was entered accordingly.
Plaintiff Norman P. Deep, Jr. ("plaintiff" or "Deep") timely filed a motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50, or, in the alternative, a new trial pursuant to Fed. R. Civ. P. 59(a), (e). Defendants opposed and plaintiff replied in further support. Plaintiff's motion was taken on submission without oral argument.
A. Rule 50(b) Motion for Judgment as a Matter of Law
In considering a motion for judgment as a matter of law, the evidence must be considered in the light most favorable to the non-movant, and all inferences must also be drawn in the non-movant's favor. Nimely v. City of New York, 414 F.3d 381, 390 (2d. Cir. 2005). Conflicting evidence cannot be weighed and the witnesses' credibility cannot be judged. Id. The judgment of the jury cannot be supplanted. Id. The motion may be granted only where there was "no legally sufficient evidentiary basis for a reasonable jury to find" in the non-movant's favor. Fed. R. Civ. P. 50(a); Nimely, 414 F.3d at 390. That is, the motion may not properly granted unless "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 such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [the moving party].'" LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995) (alteration in original) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)).
B. Rule 59(a), (e) Motion for a New Trial
On a motion for a new trial, "the trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978). However, the mere fact that the trial judge may not agree with the jury's verdict is no reason alone to grant a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983). Grant of a new trial is warranted only where the court "'is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Sorlucco v. New York City Police Dep't, 971 F.2d 864, 875 (2d Cir. 1992)(quoting Smith v. Lightning Bolt Produc., Inc., 861 F.2d 363, 370 (2d Cir. 1988)).
Plaintiff argues that he is entitled to judgment as a matter of law of in the alternative for a new trial on five grounds: (1) the verdict was inconsistent; (2) the evidence was improperly restricted; (3) defendants tainted the jury with testimony about events outside the date restrictions set by the court; (4) defendants' failed to sufficiently support their affirmative defense; and (5) the jury charge was incorrect. Each argument is addressed in turn.
Plaintiff contends that because the second question on the verdict forms did not include the members of the Board of Education, the "yes" answer to the first question*fn1 amounted to a finding of liability against the Board members. However, the verdict forms precluded the jury from answering the damages question because the jury found defendants' proved their affirmative defense, that is, that defendant Jeffrey Roudebush ("Roudebush") would not have recommended plaintiff for the positions even in the absence of the earlier lawsuit.*fn2 Plaintiff argues that there was no evidence that the Board would have made the same decision in the absence of the 2006 lawsuit. According to plaintiff, this purported inconsistency requires entering a judgment of liability in plaintiff's favor against the Board member defendants.
The verdicts are not inconsistent. The only manner in which the Board members could have chosen plaintiff for the Interim and Permanent Athletic Director positions was if Roudebush put his name before the Board and recommended him. When the jury found that Roudebush would not have recommended plaintiff even without the protected activity (filing a lawsuit in 2006), it necessarily follows that the Board could not appoint him. It is irrelevant whether there was or was not evidence that the Board members knew of the 2006 lawsuit. Further, any evidence that the Board would have made the same decision regardless of plaintiff's 2006 lawsuit was unnecessary given ...