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Sonia Dotson v. the City of Syracuse

March 2, 2011


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff Sonia Dotson brought this employment action against defendants pursuant to 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. §§ 1981 and 1983; and the N.Y. Exec. Law § 296 ("New York Human Rights Law" or "NYHRL"). After a five-day trial, a jury found that defendants retaliated against plaintiff by requisitioning and listening to recordings of plaintiff's telephone conversations after plaintiff made complaints about pornography in the workplace. The jury awarded plaintiff $175,000.00 in compensatory damages against the City of Syracuse; $125,000.00 in compensatory damages against defendant Timothy Gay; and $150,000.00 in compensatory damages against Mark McArdle. On March 2, 2010, plaintiff filed a motion for attorneys' fees and costs. (Dkt. No. 118). Defendants oppose the motion and cross move for the following relief: (1) judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure; or (2) a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure; or(3) an Order amending or altering the judgment and jury verdict for compensatory damages; and (4) a stay of enforcement of the judgment pursuant to Fed. R. Civ. P. 62(d). (Dkt. No. 122). BACKGROUND AND TRIAL TESTIMONY

Familiarity with the facts of this case is assumed based on this Court's previous Memorandum-Decision and Order. Dotson v. The City of Syracuse, et. al., 04-CV-1388, Dkt. No. 61 (July 21, 2009). Prior to trial, defendants filed a motion for summary judgment seeking dismissal of all plaintiff's claims. The only causes of action to survive summary judgment were plaintiff's Title VII retaliation claims against the City based upon the act of eavesdropping on plaintiff's telephone conversations; plaintiff's NYHRL retaliation claims against the City, Gay and McArdle based upon the act of eavesdropping on plaintiff's telephone conversations; andplaintiff's § 1981 racial discrimination claim against McArdle and Gay. The Court dismissed all causes of action against Duval, Harrington and Rathbun.

The evidence at trial established as follows: On August 30, 2000, plaintiff began working for the Syracuse City Police Department as a Civil Service Officer ("CSO"). On two occasions, between March 2003 and June 2003, plaintiff observed CSO Patrick Harrington viewing pornographic movies on a laptop computer in the front desk area.*fn2 At the time of the incidents, plaintiff did not complain to anyone within the Department, other than her husband, about the pornography.

On September 11, 2003, plaintiff was involved in a work-related automobile accident. On September 12, 2003, plaintiff sought medical treatment for back pain. Plaintiff's physician completed a "sick slip" that excused plaintiff from work for one day and recommended light duty for two weeks. Plaintiff testified that she attempted to return to work on September 13, 2003, but she was "still sore". Plaintiff called into work and asked another CSO to complete a "sick slip" for human resources. Plaintiff was not scheduled to work on September 14th and 15th.*fn3

On September 16, 2003, plaintiff returned to work on "light duty" and was assigned to the front information desk with Sergeant Timothy Gay. While working at the front desk, plaintiff received a telephone call from Lieutenant Thomas Serrao. Lt. Serrao questioned plaintiffregarding her absence from work on September 13, 2003. Plaintiff testified that Lt. Serrao "asked" her to provide another note from her physician. Sgt. Gay testified that he overheard plaintiff's portion of the conversation and believed that plaintiff was insubordinate to Lt. Serrao.

Shortly after plaintiff spoke with Lt. Serrao, plaintiff placed a telephone call to her husband, Lonnie Dotson, from the front desk. Plaintiff testified that she told her husband that she, "didn't understand what Lt. Serrao wanted from [her]" and that "these guys kept messing with me". Plaintiff stated that she was resentful because, "these guys were watching pornography and bringing in [] magazines and they were worried about a sick day. I didn't get that []."

Plaintiff also telephoned Sergeant Rutha DeJesus from the front desk telephone. Plaintiff told Sgt. DeJesus about her conversation with Lt. Serrao and complained about pornographic movies and magazines in the workplace. Sgt. DeJesus told plaintiff to file a complaint with the Equal Opportunity Officer, Lieutenant Rebecca Thompson.

Sgt. Gay admitted that he overheard plaintiff on the telephone with her husband and Sgt. DeJesus and described plaintiff as "very upset". Sgt. Gay testified that he did not hear plaintiff complain "at all" about pornography and stated that there were portions of the conversations that were quiet and confined to the phone calls.

Shortly thereafter, Captain Mark McArdle called Sgt. Gay to his office. Lt. Serrao was in Capt. McArdle's office when Sgt. Gay arrived. Accordingly to Capt. McArdle, Sgt. Gay described plaintiff as "having a meltdown" at the front desk. Capt. McArdle asked Sgt. Gay to obtain a memorandum from plaintiff documenting her medical absence. Sgt. Gay testified that he attempted to obtain the memorandum from plaintiff but she refused to comply. Capt. McArdle asked Sgt. Gay to bring plaintiff to his office to resolve the issue. Capt. McArdle stated that he "counseled" plaintiff and told her she needed to follow departmental procedure.

Plaintiff and Sgt. Gay returned to the front desk area. Sgt. Gay testified that plaintiff threw a memorandum over his shoulder. Sgt. Gay returned to Capt. McArdle's office with the memorandum and "strongly recommended" that plaintiff be disciplined. Capt. McArdle testified that he decided to investigate the issue to determine whether disciplinary action was appropriate. Therefore, Capt. McArdle asked Sgt. Gay to secure the recordings of plaintiff's telephone conversations with Lt. Serrao and any subsequent conversations "where plaintiff was upset". Capt. McArdle testified that when he gave Sgt. Gay that directive, he was not aware that plaintiff made any complaints regarding pornography in the workplace. Capt. McArdle testified that Sgt. Gay did not tell him that he overheard plaintiff saying she was going to make an EEOC complaint. On September 16, 2003, Sgt. Gay left a message for Detective Rick Rioux in the "telecommunications management" department in an attempt to obtain the recordings. On September 22, 2003, Det. Rioux contacted Sgt. Gay and asked him to complete an interdepartmental memorandum to memorialize his request.

At the relevant time, Deputy Chief Rebecca Thompson was a lieutenant in charge of the family services division and the EEOC Officer for the Department. Dep. Chief Thompson

testified that she received a complaint from plaintiff on September 23, 2003 regarding pornographic material in the workplace between March and June 2003. Plaintiff complained that another CSO brought pornographic material to the front desk area and that it made her feel uncomfortable.

On September 24, 2003, Dep. Chief Thompson attempted to discuss plaintiff's complaintwith Sgt. Gay and CSO Harrington but she was advised that they were both off duty until September 26, 2003.

On September 25, 2003, Sgt. Gay completed a memorandum as a "back up" to his oral request for his recordings and slid it under Detective Rioux's door. On September 26, 2003, Sgt. Gay and Capt. McArdle obtained and listened to the tapes. On September 26, 2003, Dep. ChiefThompson spoke with Capt. McArdle and Sgt. Gay about plaintiff's complaint. Dep. Chief Thompson testified that she did not notify McArdle and Gay of plaintiff's complaint prior to that date. Capt. McArdle and Sgt. Gay both testified that they were not aware that plaintiff filed a complaint with the EEOC until they spoke with Lt. Thompson on September 26, 2003.

On September 27, 2003, Capt. McArdle prepared a memorandum regarding plaintiff and suggested disciplinary action due to insubordination. Capt. McArdle stated, "CSO Dotson engaged in insubordinate behavior as a direct result of being questioned in regards to an unauthorized absence from duty on Sat 13 Sep '03."

In "September 2003", Sgt. DeJesus told plaintiff that defendants requisitioned and listened to her telephone conversations.

On October 16, 2003, plaintiff filed another EEOC complaint with Dep. Chief Thompson alleging she was being retaliated against as a result of filing her September 2003 complaint. Plaintiff did not provide any specific information or identify any incidents of retaliation. Plaintiffdid not claim that the retaliation involved eavesdropping and plaintiff never told Lt. Thompson that defendants requisitioned and listened to her telephone calls. Plaintiff could not recall making any complaints regarding defendants actions involving her telephone calls.

At the conclusion of the trial, defendants moved for judgment as a matter of law seeking dismissal of plaintiff's remaining claims. The Court held that plaintiff failed to establish that she was discriminated against on the basis of race and dismissed plaintiff's § 1981 claims.The Court denied defendants' motion relating to plaintiff's retaliation claims as there were questions of fact for the jury.



The standard governing a Rule 50 motion for judgment as a matter of law is well settled: Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence.

Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (internalcitations omitted). Consequently, a court should not enter judgment as a matter of law unless:

(1) 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 (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].

Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir. 1994) (quoting Bauer v. Raymark Indus., Inc., 849 F.2d 790, 792 (2d Cir. 1988) (internal quotation marks omitted)).

On a post-trial motion for judgment as a matter of law, the moving party must fulfill theprocedural prerequisite of moving for judgment as a matter of law before the case was submitted to jury. See Fed. R. Civ. P. 50(a)(2); Slade v. Whiteco Corp., 811 F. Supp. 71, 73 (N.D.N.Y. 1993).A party may only make a post-judgment Rule 50(b) motion based on grounds specifically raised at the close of evidence. Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d Cir.1993).If the movant does not meet the Rule 50 specificity requirement, the Court may not grant judgmentas a matter of law unless the result is "required to prevent manifest injustice." See Kuper v. Empire Blue Cross & Blue Shield, 2003 WL 359462, at *4 (S.D.N.Y. 2003) (citing Russo v. State of New York, 672 F.2d 1014, 1022 (2d Cir. 1982)).

Here, at the close of the evidence, defendants moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50. Defendants argued, inter alia, that plaintiff did not establish a prima facie case of retaliation because: (1) plaintiff did not engage in any protected activity prior to filing her complaint with the Lt. Thompson on September 23, 2003; (2) plaintiff did not suffer from any adverse employment action; and (3) plaintiff could not establish a causal connection between the filing of her EEOC complaint and the requisitioning/listening of her tapes. Defendants also argued that the evidence established a legitimate, non-retaliatory motive for their actions. On the motion herein, defendants move for the same relief on the same grounds. Thus, the procedural requirements of Rule 50(b) have been satisfied.

A. Prima Facie Case

In order to establish a prima facie case of retaliation, a plaintiff must present evidence that would permit a rational trier of fact to find that: (1) she engaged in protected participation or opposition under Title VII; (2) the employer was aware of this activity; (3) the employer took adverse action against the plaintiff; and (4) a causal connection between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.

Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 205-206 (2d Cir. 2006) (internal citations omitted). In this context, an adverse action is one that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Ibok v. Secs. Indus. Automation Corp., 369 F.App'x 210, 213 (2d Cir. 2010) (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)). Adverse employment actions are not defined "solely in terms ofjob termination or reduced wages and benefits, . . . less flagrant reprisals by employers may indeed be adverse." Alston v. New York City Transit Auth., 14 F.Supp.2d 308, 311 (S.D.N.Y. 1998) (citing Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (adverse employment actions are not defined at all, but are left to the court's discretion to make determinations on a case by case basis)). Once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged employment action. See Treglia v. Town of Manlius, 313 F.3d 713, 721 (2d Cir. 2002). If a defendant meets this burden, the plaintiff must point to evidence that would be sufficient to permit a rational fact finder to conclude that the employer's explanation is merely a pretext for impermissible retaliation. See id. In this matter, the Court instructed the jury on the elements of retaliation. Defendants did not object to any portion of the Court's instructions.

Generally, trials involving claims of discrimination and retaliation require the jury to make assessments on the credibility of the witnesses. Tuszynski v. Innovative Servs., Inc., 2005 WL 221234, at *1 (W.D.N.Y. 2005). The jury is empowered and capable of evaluating a witness' credibility and this evaluation should rarely be disturbed. Dunlap-McCuller v. Riese Org., 980 F.2d 153, 158 (2d Cir. 1992). Whether this Court would have made the same decision as the jury is not the issue. Tuszynski, 2005 WL 221234, at *1 (citing Mallis v. Bankers TrustCo., 717 F.2d 683, 691 (2d Cir. 1983)).

1. Protected Activity and Knowledge

Defendants claim that plaintiff's September 16, 2003 telephone conversations with her husband and Sgt. DeJesus were not "protected activities". Specifically, defendants argue that plaintiff's complaints on September 16, 2003 were not made to any supervisor, manager oremployee whose job it was to investigate and resolve such complaints. Moreover, defendants claim that the evidence at trial did not establish that Capt. McArdle and Sgt. Gay were aware that plaintiff made any complaints on September 16, 2003.*fn4 Conversely, plaintiff contends that her telephone conversation with Sgt. DeJesus constituted "protected activity" because Sgt. DeJesus was a supervisor. Plaintiff cites to Sgt. Gay's testimony noting that he admitted that he overheardplaintiff on the telephone on September 16, 2003. Thus, plaintiff argues that the jury was entitled to believe that Sgt. Gay overheard plaintiff complaining about pornography at that time and that he also overheard plaintiff indicate her intention to file an EEOC complaint.

Title VII's prohibition of retaliation extends not just to formal charges of discrimination, but also to "informal protests, including making complaints to management . . ." Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Protected activities can include "informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges." Id. Congress sought to protect a wide range of activity, thus, an informal complaint to a supervisor can constitute a protected activity under Title VII. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir.1992). While a "mere question or comment does not rise to the level of being a protected activity", whether the "tone and manner of a question is sufficiently accusatory so as to put the defendants on notice that the plaintiff believed the defendants were discriminating against her, is a question for a jury to decide". DeAngelo v. Entenmann's, Inc., 2007 WL 4378159, at *3 (E.D.N.Y. 2007). Retaliation can be found where an individual denies knowledge of a plaintiff's protected activity, "so long as the jury finds that the circumstancesevidence knowledge of the protected activities." Cover v. Potter, 2008 WL 4093043, at *3 (S.D.N.Y. 2008) (citing Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (emphasis added)).

Here, drawing all reasonable inferences in plaintiff's favor and without weighing the credibility of the witnesses, the Court finds that the jury was presented with sufficient evidence to conclude that plaintiff engaged in a protected activity and that defendant was aware of that activity on September 16, 2003. Sgt. DeJesus testified that she was plaintiff's supervisor from 2001 to 2002. After plaintiff accepted a new assignment, Sgt. DeJesus continued to ask plaintiff to work overtime for her. Sgt. DeJesus testified that on September 16, 2003, she found plaintiff crying in the bathroom near the front desk area. Sgt. DeJesus testified that plaintiff complained that, "these guys watch porno movies". Sgt. DeJesus attempted to console plaintiff, left the bathroom and went to her office. Upon arriving at her office, she received a telephone call from plaintiff. Both plaintiff and Sgt. DeJesus testified that during that telephone conversation on September 16, 2003, they discussed pornography in the workplace and whether plaintiff should file an EEOC complaint with Lt. Thompson. Based upon Sgt. DeJesus' position within the Syracuse Police Department, the jury could reasonably find that the telephone conversation between plaintiff (a CSO) and DeJesus (a sergeant) was sufficient to constitute a complaint to management. See Kotcher, 957 F.2d 59, 65 (2d Cir. 1992) (holding that, "the evidence raise[d] strong suspicions about the circumstances surrounding [the plaintiff's] departure from the company and whether she was subjected to unlawful retaliation").

The evidence presented at trial also allowed the jury to reasonably conclude thatdefendants were aware, as early as September 16, 2003, of plaintiff's complaints about pornography to Sgt. DeJesus and further, that defendants were aware that plaintiff intended to file an EEOC complaint. At trial, Sgt. Gay testified:

Q. And you heard her phone calls that she made after she was speaking - - after she spoke to Lt. Serrao?

A. Yes, ma'am.

Q. And do you recall what you heard?

A. A lot of loud profane language, she was very upset, got to understand I'm continuing to work at the same time, now I'm down one person so the calls are still coming in, people are still showing up, but she was very, very loud, very profane, I could clearly tell that she's speaking about Lt. Serrao and Kelly French.

Q. Okay. Did she complain at all about pornography?

A. No, ma'am.

Upon cross examination, Sgt. Gay reiterated that he did not hear plaintiff complain about pornography on September 16, 2003:

A. . . . I didn't hear all of the conversations. When I heard the loud profane language, I heard enough of her side of the conversation to reasonably know that she was speaking about the lieutenant and CSO Kelly French and her dissatisfaction with each of those people, but I was not sitting there listening

to the entire conversation, I had business to attend to. I was down one employee at that time and it continues to be busy but it was loud enough to hear.

Based upon the verdict, the jury clearly discredited Sgt. Gay's testimony and found that he did, in fact, overhear plaintiff complain about pornography or state her intention to file an EEOC complaint during the course of her telephone conversations on September 16, 2003.

At trial, Capt. McArdle testified regarding his involvement:

Q. Now you recall that Sonia Dotson made a complaint about pornography being viewed on the job in September of 2003, don't you?

A. Subsequent to this, to the 16th, yes.

Plaintiff's counsel then referred Capt. McArdle to his deposition testimony:

Q. Do you recall being asked this question and giving this answer in May of 2007, "Do you remember an incident in 2003 in which Ms. Dotson made a complaint with respect to officers watching pornography on the job? "Answer: No." Do you recall that question and giving that answer?

A. Yes.

Q. And is it your testimony today that now you recall her giving, making a complaint about pornography on the job?

A. Yes, since reviewing my memo, yes.

Q. So that even though you had been sued and were a defendant in the action in 2007, you didn't remember that my client had made a complaint about pornography on the job, is that your testimony?

A. That's correct.

Q. So today you remember it, but back then you didn't. What about your memorandum, sir, your memorandum indicates that

she said she was going to file an EEO complaint and she said

that within earshot of the people around her?

A. Yes.

Q. How did you know that, sir?

A. Because I listened to the tapes on the 26th or 27th of September.

From the verdict, it is clear that the jury found Capt. McArdle to be less than credible.

The jury did not accept Capt. McArdle's explanation and testimony that he did not know that plaintiff complained about pornography before directing Sgt. Gay to acquire the tapes. Plaintiff's recorded telephone conversations were played for the jury. Thus, the jurors were able to draw their own conclusions regarding plaintiff's tone, volume and the substance of the telephone conversations. Whether Sgt. Gay and Capt. McArdle were believable or credible witnesses is notfor the Court to decide as it is solely the function of the jury to credit and resolve witness testimony. See Francis v. City of New York, 1999 WL 369955, at *3 (E.D.N.Y. 1999) (the court would not disturb jury's finding for the plaintiff when the plaintiff testified that he overheard the defendants making disparaging remarks and the defendants denied making such comments).

Considering the evidence and testimony from Sgt. DeJesus, Sgt. Gay and Capt. McArdle,the jury could reasonably conclude that plaintiff engaged in a protected activity on September 16, 2003 when she complaint to Sgt. DeJesus about pornography and the possibility of filing an EEOC complaint. Further, the jury reasonably concluded that defendants were aware of plaintiff's complaints on the same day.

2. Adverse Action

Defendants argue that plaintiff did not suffer any adverse employment action because the evidence did not demonstrate that the requisitioning and listening to recorded telephone calls would dissuade a reasonable worker from making a complaint about pornography in the workplace.

In "early" October 2003, Sgt. DeJesus told plaintiff that defendants requisitioned recordings of her conversation. As a result, plaintiff was "upset" and "embarrassed" and testified that she felt, "watched", "exposed" and "naked". In the prior Memorandum-Decision and Order,this Court addressed the issue of whether this instance could constitute an adverse action. This Court held:

Viewing the evidence in a light most favorable to plaintiff, a reasonable fact finder could conclude that the requisition and monitoring of plaintiff's telephone conversations was intrusive and could have dissuaded plaintiff from filing a claim. See Zakrzewska v. The New Sch., 2009 WL 252094, at *7 (S.D.N.Y. 2009) (holding thata jury would be entitled to conclude that monitoring of the plaintiff's computer usage would reasonably deter an employee from reporting harassment).

Defendants now attempt to distinguish the instant action from Zakrewska arguing that the monitoring in that case was done without the plaintiff's knowledge and only to the plaintiff. Here, defendants claim that plaintiff was not the only employee whose telephone conversations were monitored and moreover, plaintiff was aware that her calls were recorded. In support of that assertion, defendants cite to Det. Rioux's testimony. Det. Rioux testified that all telephone calls in the patrol front desk area were recorded and that he trained and advised the CSOs that all telephone calls are recorded for "conversations between yourself and citizens in the street". Plaintiff testified differently and stated that although she knew her telephone conversations were monitored for business purposes, she did not think that such monitoring extended to conversations between a husband and wife. The resolution of this issue involves an assessment of credibility. The jury was not compelled to believe Det. Rioux's testimony and clearly found

plaintiff's version of events to be more credible. The Court will not disturb the jury's determinations regarding credibility. There was sufficient evidence from which the jury could reasonably conclude that the requisitioning and listening of plaintiff's telephone conversations constituted an adverse action that would dissuade a reasonable employee from filing a complaint.

3. Causal Connection

Causation can be demonstrated "indirectly by showing that the protected activity was followed closely by discriminatory treatment, through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant". De Cintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987). Plaintiffs who resort solely to temporal proximity in provingcausation must demonstrate the existence of a time frame that is "very close". Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). There is no "bright line" to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship. Id.

Here, defendants argue that the element of causation has not been established because the "adverse activity" began before plaintiff engaged in protected activity. The Court disagrees. As previously discussed, the jury found that plaintiff engaged in protected activity on September 16, 2003 when she complained about pornography over the telephone to Sgt. DeJesus. Defendants admittedly decided to requisition plaintiff's recordings on the same day. Due to the temporal proximity of the adverse action, the jury reasonably found a causal connection.

Based upon the aforementioned, the evidence at trial was sufficient to permit a reasonable jury to conclude that plaintiff established a prima facie cause of action for retaliation.

B. Legitimate, Non-retaliatory Reasons

Even assuming plaintiff established a prima facie case for retaliation, defendants argue that plaintiff's calls were requisitioned as part of an investigation into whether plaintiff was insubordinate. Defendants claim that the investigation began on September 16, 2003, prior to plaintiff's EEOC complaint about pornography.

Title VII is violated when a retaliatory motive plays a part in adverse employment actions toward an employee, whether or not it was the sole cause. Cosgrove v. Sears, Roebuck & Co., 9F.3d 1033, 1039 (2d Cir. 1993). Despite the fact that a defendant may proffer nonretaliatory justifications for their actions, a jury is entitled to weigh the evidence, credit the plaintiff's evidence, and find that the defendant's explanations for the actions were pretextual. Fowler v. New York Transit Auth., 2001 WL 83228, at *7 (S.D.N.Y. 2001); see also Graham v. Mahmood, 2008 WL 1849167, at *7 (S.D.N.Y. 2008) (citing Johnson v. Shovah, 1998 WL 385972, at *2 (2d Cir. 1998) ("the question is whether defendants can show that the action[] would have been taken even in the absence of the improper reason")).

Here, Capt. McArdle testified that the investigation into whether plaintiff was insubordinate and should be disciplined commenced on September 16, 2003. On September 26, 2003, Capt. McArdle reviewed the audiotapes. On September 27, 2003, Capt. McArdle drafted proposed charges against plaintiff. Capt. McArdle admitted that he did not advise plaintiff that she was the target of potential disciplinary action. Capt. McArdle testified as follows:

Q. Am I correct, Captain, that the city has to inform a CSE employee who are [sic] facing a possible disciplinary action and advise that they have the right ...

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