The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Pending before the Court are several post-trial motions that the parties filed after a jury returned a verdict for plaintiff on September 1, 2010 for his claims of unlawful termination, a hostile work environment, and a federal civil-rights violation. Defendants, who consist of plaintiff's former employer and several of his former supervisors and co-workers, have filed motions for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure ("FRCP") and for a correction of the final judgment filed on September 7, 2010, should that judgment survive the FRCP 50(b) motion. Meanwhile, plaintiff has filed motions for pre- and post-judgment interest, a bill of costs, and attorney fees.
The parties appeared before the Court on February 1, 2011 for oral argument on all of the pending motions. On that day, defense counsel appeared and attempted to proceed with oral argument but was hampered by severe laryngitis. After initially asking whether counsel would be interested in rescheduling oral argument, the Court concluded that it was sufficiently familiar with the issues raised and the papers filed that it would deem all of the motions submitted on papers pursuant to FRCP 78(b). For the reasons below, the Court denies defendants' FRCP 50(b) motion; grants defendants' motion for correction of the judgment; and awards plaintiff interest, partial attorney fees, and partial costs.
For the sake of clarity and organization, the Court will address the arguments behind each pending motion separately. The Court also will presume familiarity with the factual details that the parties have litigated extensively so far. In general, however, this case and the pending motions concerned plaintiff's allegations that defendants harassed him, retaliated against him, and ultimately fired him because they did not like that his then-girlfriend (now wife) was black.
Plaintiff, who is white, began working for defendant the Erie County Water Authority ("ECWA") as a junior customer service representative in 1992. After some time spent in that position, plaintiff became a customer service representative and later a bill collector. Within a few years, plaintiff was working at ECWA as a dispatcher, the position that he held until his termination on April 7, 2006. Around May 2004, plaintiff started dating Anita Starks ("Anita") and formed a relationship with her and her two children. Plaintiff alleged that Anita and her children would come to his place of employment from time to time, and that his supervisors and co-workers thus had an opportunity to know that he had started an interracial relationship. Not long after he began his relationship with Anita, plaintiff allegedly became a regular target of racial slurs and racially derogatory remarks that referred to him, Anita, and Anita's children. The remarks repeatedly referred to plaintiff as a "nigger lover" who associated with a "nigger bitch" and her "niglettes." Plaintiff's experiences with racial harassment allegedly included a physical assault from co-worker Gary Bluman on July 2, 2004. Plaintiff alleged that when he complained to supervisors about the harassment, the supervisors refused to take appropriate action to address his complaints, and at least once suggested that his complaints were a disruptive influence in the ECWA work environment. Additionally, the harassment allegedly continued partly in retaliation for plaintiff's decision to complain in the first place.
A critical part of plaintiff's allegations was that the racial hostility that defendants demonstrated against him motivated them to push through a disciplinary hearing process in the fall of 2005 in a way that they had not pursued for other employees. Plaintiff himself has acknowledged that he had a disciplinary history when he worked for ECWA. Among other incidents, plaintiff was disciplined in April 2005 for blocking the view of a camera installed in the dispatch office to enhance security but also used to ensure that dispatchers did not sleep on the job. In October 2005, plaintiff was observed sleeping on duty once and allegedly mishandled two telephone calls reporting water line breaks. The October 2005 incidents led to a formal hearing under Section 75 of New York's Civil Service Law, which in turn led to a recommendation that plaintiff be terminated. Plaintiff was formally terminated on April 24, 2006. When addressing his disciplinary history in his allegations, plaintiff did not necessarily challenge each incident. Rather, plaintiff alleged that co-workers who engaged in similar conduct never faced Section 75 hearings, and that any discipline handed to him for the October 2005 incidents would have been less severe but for the ongoing racial hostility against him.
The racial harassment that plaintiff allegedly experienced prompted him to commence this case in state court on June 26, 2007. The complaint originally contained six claims. The first claim was for common-law assault against Gary Bluman for the alleged incident of July 2, 2004. The second claim was against all defendants for a hostile work environment in violation of New York's Human Rights Law, found at N.Y. Executive Law § 296. The third claim was against all defendants for disparate treatment in violation of the Human Rights Law. The fourth claim was against all defendants for retaliation in violation of the Human Rights Law. The fifth claim was against all defendants for unlawful infringement of plaintiff's First Amendment right to intimate association, in violation of 42 U.S.C. § 1983. The sixth claim was against all defendants for common-law intentional infliction of emotional distress. Defendants filed a notice of removal to this Court on July 27, 2007. After discovery, defendants filed a motion for summary judgment on May 11, 2009. By order dated June 11, 2010, this Court granted defendants' motion with respect to plaintiff's first and sixth claims but otherwise denied the motion.*fn2 On August 11, 2010, defendants filed a motion for reconsideration of the Court's summary judgment decision, claiming that the decision did not address their legal argument in favor of qualified immunity. Defendants' argument for qualified immunity as a matter of law was that the First Amendment right to intimate association was not clearly established for dating, as opposed to married, relationships when their alleged acts occurred. The Court denied the motion for reconsideration from the bench on August 18, 2010.
Plaintiff's allegations proceeded to trial in late August 2010. At the close of proof, defendants made their initial motion for judgment as a matter of law under FRCP 50. The Court granted that motion with respect to individual defendants Jaros, Thomas, Szvoren, Baudo, and Guggemos, and with respect to a few of the claims against defendants Mendez and Bluman; but denied the motion with respect to ECWA, the remaining claims against defendants Mendez and Bluman, and all of the claims against defendants Kuryak and Lisinski. On September 1, 2010, the jury returned a verdict finding defendants ECWA, Kuryak, and Lisinski liable on plaintiff's claim of unlawful termination; finding defendants ECWA, Bluman, Kuryak, and Lisinski liable on plaintiff's claim of a hostile work environment; finding no cause of action on plaintiff's claim of unlawful retaliation; and finding defendants ECWA, Mendez, Bluman, Kuryak, and Lisinski liable on plaintiff's claim of a Section 1983 violation. With respect to damages, the jury declined to award compensatory damages for non-economic losses but awarded $304,775 in back pay. The jury declined to award any damages for lost future earnings. The jury also assessed $5,000 of punitive damages against each of the individual defendants for plaintiff's Section 1983 claim.
A. Defendants' Motion Under FRCP 50(b)
Defendants have renewed their motion for judgment as a matter of law with respect to plaintiff's claims for unlawful termination and a Section 1983 violation, the two claims for which the jury awarded damages. FRCP 50(b) permits parties to "file a renewed motion for judgment as a matter of law" after entry of judgment. Generally, the standard of review under FRCP 50 is highly deferential to the non-moving party and limits the scope of the reviewing court's analysis. "In ruling on a motion for judgment as a matter of law, trial courts are required to consider the evidence in the light most favorable to the non-movant and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The Court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. In making its evaluation, the Court should review all of the evidence in the record, but it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the Court should give credence to the evidence favoring the non-movant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Obabueki v. Choicepoint, Inc., 236 F. Supp. 2d 278, 282 (S.D.N.Y. 2002) (internal quotation marks and citations omitted). The Court will assess below how this deferential standard applies to each argument that defendants have advanced.
1. Plaintiff's Unlawful Termination Claim
Defendants contend that the jury's verdict in favor of plaintiff on his unlawful-termination claim cannot stand as to either ECWA or any individual defendant. In support of their contention, defendants assert that plaintiff cannot compare himself to other employees because his disciplinary history was different and because he declined an invitation to settle the charges that led to his Section 75 hearing. Defendants assert also that the race of plaintiff's then-girlfriend was not a motivating factor behind plaintiff's termination because the weight of the evidence indicates that no one in a position to make or to contribute to the decision to terminate knew about the relationship. Defendants assert further that the principle of collateral estoppel applies to the recommendation by the Section 75 hearing officer to terminate plaintiff, thus precluding plaintiff from what defendants consider to have been the re-litigation of plaintiff's termination at trial. Alternatively, defendants assert that the findings from that hearing are entitled to controlling weight. Finally, defendants assert that no evidence emerged at trial indicating that any individual defendant aided and abetted an unlawful termination, conduct that would have been required to find individual liability under the Human Rights Law.
In opposition to defendants' argument, plaintiff generally points to the evidence elicited at trial indicating that plaintiff did receive more severe discipline for the same conduct than similarly situated co-workers. Further, plaintiff notes that evidence emerged at trial indicating that a conscious racial animus permeated his relationship with his employer and unavoidably altered any decisions that his employer made about him. Finally, plaintiff contends, as he did in opposition to nearly identical arguments made during motions in limine, that the recommendations of the hearing officer who conducted plaintiff's Section 75 hearing are not entitled to controlling weight and did not implicate principles of collateral estoppel.
"Under New York law, a state agency determination is given preclusive effect in a subsequent state court proceedings only when, inter alia, the identical issue has been decided in the prior action." Leventhal v. Knapek, 266 F.3d 64, 72 (2d Cir. 2001) (internal quotation marks and citations omitted). Here, plaintiff's Section 75 hearing led only to non-binding recommendations regarding plaintiff's termination. The hearing officer himself had no authority to terminate plaintiff. No matter how detailed or how "strong" the recommendations were, the ultimate decision to terminate plaintiff rested entirely and exclusively with ECWA and its officials. Cf. id. ("In this case, the hearing officer's conclusion that [plaintiff's] Fourth Amendment rights were violated does not have preclusive effect because the issue was not 'decided' in the agency proceeding . . . . Even if the hearing officer were to have completed taking the evidence and had offered recommendations, only the DOT Commissioner can make the agency determination.") (citation omitted). Under these circumstances, there is no reason to overlook evidence that race was a motivating factor behind plaintiff's termination simply because plaintiff's supervisors chose voluntarily to endorse recommendations that suggested otherwise.
As for plaintiff's evidence that race was a motivating factor behind his termination, the Court is concerned that defendants' remaining arguments are simply an invitation to disbelieve plaintiff and to believe other witnesses. (See, e.g., Dkt. No. 189-1 at 18 (introducing nine bullet points about trial testimony by contending that "the undisputed evidence shows that the race of the plaintiff's girlfriend played absolutely no role in the ECWA's decision to terminate his employment").) As the Court noted above, the type of crediting and discrediting of evidence that defendants seek is not appropriate in the context of a motion under FRCP 50(b). Cf., e.g., Veerman v. Deep Blue Group LLC, No. 08 Civ. 5042, 2010 WL 4449067, at *5 (S.D.N.Y. Nov. 3, 2010) ("Defendants then cite evidence in an effort to show that the jury couldn't reasonably have found [defendants] committed harassing acts with malice. But as with their other evidence-based arguments, these fail. The jury is not required to accept [defendants'], and could reasonably have believed [plaintiffs'] testimony that they were the recipients of repeated [unlawful conduct]."). Viewing the evidence in the light most favorable to plaintiff, plaintiff submitted evidence acceptable to a reasonable jury that defendants-directly or by aiding and abetting-terminated plaintiff and disciplined him more harshly than they would have otherwise because of animosity toward his interracial relationship. Cf. Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir. 2010) ("In proving a case under Title VII, following the defendant's proffer of a justification, a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus . . . . A plaintiff has no obligation to prove that the employer's innocent explanation is dishonest, in the sense of intentionally furnishing a justification known to be false. The crucial element of a claim under Title VII is discrimination, not dishonesty.") (citations omitted). Defendants' motion thus fails with respect to plaintiff's claim of unlawful termination.
2. Plaintiff's Section 1983 Claim Generally
Defendants contend that the jury's verdict in favor of plaintiff on his Section 1983 claim cannot stand as to either ECWA or any of the individual defendants found liable. Defendants assert that plaintiff failed to establish that any alleged conduct occurred under color of state law. In an argument made for the first time, defendants assert further that plaintiff failed to establish that any the individual defendants affirmatively acted in a way to establish Section 1983 liability. To the extent that plaintiff offered any evidence of any action or failure to act, defendants assert that such evidence is legally insufficient to sustain a Section 1983 claim. Because none of the individual defendants can be found liable, according to defendants, ECWA cannot be found liable under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
Plaintiff offers several arguments in opposition to defendants' arguments about Section 1983 liability. Plaintiff notes that evidence presented at trial indicated that ECWA, through its officials, consciously chose to ignore plaintiff's complaints and instead labeled him as the disruptive force in the ECWA work environment. Plaintiff counters further that at least one of his supervisors personally participated in the use of racial slurs. Finally, plaintiff contends that the decision to commence termination proceedings less than two weeks after he complained about a hostile work environment constitutes "direct action" that supports the jury's finding of Section 1983 liability.
In reviewing defendants' arguments against any finding of Section 1983 liability, the Court is concerned that defendants have overlooked the evidence that emerged at trial in pursuit of a technical and unsettled legal point. "In a § 1983 suit or a Bivens action-where masters do not answer for the torts of their servants-the term 'supervisory liability' is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009); see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) ("It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (internal quotation marks and citations omitted); Kleehammer v. Monroe County, No. 09-CV-6177, 2010 WL 4053943, at *8 (W.D.N.Y. Sept. 8, 2010) (Siragusa, J.) ("Thus, in order to plausibly plead a claim against the County and Sheriff O'Flynn, Plaintiff must allege either that O'Flynn, the Monroe County Sheriff, had a hand in the alleged constitutional violation, or created a policy or custom under which the unconstitutional practices occurred."). Here, a reasonable jury could have credited the evidence that the individual defendants actively participated in racial slurs and actively cast plaintiff, and not themselves, as a disruptive member of the ECWA workforce because he complained about racial harassment. Further, a reasonable jury could have credited the evidence that the individual defendants actively declined to respect plaintiff's complaints, thereby creating the type of custom and practice within ECWA that supports liability under Monell. See City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988) ("It would be a different matter if a particular decision by a subordinate was cast in the form of a policy statement and expressly approved by the supervising policymaker. It would also be a different matter if a ...