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Vasquez v. New York City Department of Education

United States District Court, S.D. New York

June 10, 2015

Angel Vasquez, Plaintiff,
New York City Department of Education and Paula Cunningham, Defendants.


ALISON J. NATHAN, District Judge.

Following a two-day jury trial on Plaintiff Angel Vasquez's single claim for gender discrimination under the Equal Protection Clause of the Fourteenth Amendment, a jury awarded Mr. Vasquez $2, 700 in compensatory damages and $20, 000 in punitive damages. The Defendants, the New York City Department of Education and Paula Cunningham, then filed a post-trial motion pursuant to Federal Rules of Civil Procedure 50 and 59 seeking judgment as a matter oflaw or, alternatively, a new trial. Following review of the trial record and the arguments advanced in the parties' briefs, the Court finds no basis to disturb the jury's verdict. Therefore, and as discussed in greater detail below, Defendants' motion is DENIED.


Plaintiff Angel Vasquez initially filed this action in New York State Supreme Court for New York County, asserting that Defendants discriminated against him based on his race and gender in violation of the New York State Human Rights Law ("NYSHRL"), New York City Human Rights Law ("NYCHRL"), and the Equal Protection Clause of the Fourteenth Amendment. Defendants then removed the action to this Court and later moved for summary judgment. In a Memorandum & Order dated March 5, 2014, the Court granted the motion in substantial part, leaving only one claim for trial: Plaintiffs claim for gender discrimination based on Principal Cunningham's decision not to reappoint him to an after-school basketball program. Dkt. No. 32 at 36. The Court also denied summary judgment as to Defendants' qualified immunity defense and argument that Plaintiff cannot show municipal liability with respect to the remaining claim. Dkt. No. 32 at 36-37. The Court assumes familiarity with this material.

The following testimony was presented at a two-day jury trial held in December 2014. Mr. Vasquez testified that he began working for the New York City Department of Education in September 2007 as a sixth grade teacher at P.S. 117 in Queens, New York. Tr. 41:1-17. Principal Harvey Katz headed P.S. 117 from the time Mr. Vasquez was hired through the end of the 2008-2009 school year. Tr. 41:25-42:10. At some point in September 2008, Maya Gutierrez-Granados, the co-president of the school's Parent-Teacher Association, approached Mr. Vasquez to discuss starting a new physical fitness program at the school. Tr. 42: 14-43:7. The two then prepared and submitted to Principal Katz a proposal for an after-school program that would include calisthenics, stretching, and basketball, which Principal Katz later approved. Tr. 43:13-45:7. The after-school program started in November 2008 and ran until late May or early June 2009. Tr. 45:8-11, 46:8-10. Mr. Vasquez led the program from its inception, but halfway through the first year, another teacher, Mr. Raymond Miley, joined him in running the program. Tr. 45:23-13. Mr. Vasquez received compensation for his involvement with this after-school program, known as "per-session activity, " Tr. 64:17-19, in the amount of $135 per week, Tr. 48:18-49:3. Beyond such monetary compensation, Mr. Vasquez testified that he "loved" running the program during the first year: "It was something that I always wanted to bring to the school. You know, it was something that I felt like I was a part of. I helped create it." Tr. 49:4-8.

At the end of the 2008-2009 school year, Principal Katz retired and was replaced by Principal Paula Cunningham. Tr. 49: 14-18. Prior to restarting the after-school program in the 2009-2010 school year, Principal Cunningham informed the teachers at the school that they would need to submit a letter of interest if they wanted to participate in the program. Tr. 51:13-15. Sometime after submitting a note to Principal Cunningham indicating his desire to participate in the program, Mr. Vasquez was called to have a meeting with her. Tr. 51:4-11, 51:22-25. Mr. Vasquez testified that, during this meeting, Principal Cunningham told him "she wouldn't be allowing [him] to participate because she wanted a female teacher to run the program." Tr. 52:4-7. Mr. Vasquez "felt really surprised and devastated" by the news, stating: "I didn't know why it was being taken away from me for some reason. Besides what Ms. Cunningham stated of her wanting a female teacher to run it, I didn't think it was fair and I just felt really sad, just really depressed." Tr. 55:4-10. Only two other teachers, Mr. Miley and Ms. Kerry Sullivan, expressed an interest in the program and they were ultimately chosen to lead it. Tr. 59:1-7, 83:4-8.

When Principal Cunningham took the stand, she testified that she "selected the two senior staff members who had more seniority over [Mr.] Vasquez to coach the basketball program." Tr. 83:6-7. Principal Cunningham later elaborated that she took into consideration the letters of interest that the three teachers had submitted as well as number of years of experience within the school building. Tr. 86: 11-16. When pressed as to what factors, aside from seniority, she had considered, Principal Cunningham stated:

A. I considered individuals who had the ability to be able to watch a large group of students, engage a large group of students in physical activity.
Q. So that was one factor that you considered. And you believed that Ms. Sullivan would be able to do that?
A. Yes.
Q. Why did you think that?
A. She's a certified teacher with the Department of Education.
Q. So any teacher, you felt, would have been qualified to assume this position?
A. Any teacher that met the minimum requirements in terms of submitting me a letter of intent and meeting the requirements that were stated in the letter of intent and considering their number of years of experience as a Department of Education teacher within the school building, those are all factors that I had to consider in determining whether or not they would be appointed to the position.

Tr. 87:2-18. (Principal Cunningham earlier testified that she had not asked Ms. Sullivan if she had any background in running a fitness program or playing basketball. Tr. 79:17-25.)

On cross-examination, Principal Cunningham stated on at least three separate occasions that "seniority is a factor" in awarding per-session activity positions. Tr. 95:19-23, 96:22 (emphasis added). She further stated that she could not recall the meeting that Mr. Vasquez described in his testimony, Tr. 98:1-4, but that it was "absolutely not" true that that "the reason why [she] did not appoint [Mr. Vasquez] to the program was because [she] wanted a woman to run the program, " Tr. 97:14-19. When questioned on re-direct examination about what she meant by "seniority is a factor, " Principal Cunningham stated that "[i]f all candidates are equally qualified, the individuals who have the most seniority will be hired and appointed for the position." Tr. 100:14-17. And when asked if she "would agree that two candidates can meet the minimum qualifications for the posting, yet one candidate could be more qualified for that position, " she responded: "A candidate could have additional or more experience in a particular area." Tr. 101:23-102:3. During this same exchange with Plaintiff's counsel, he asked: "And my question is, if the candidate did not have equal qualification, seniority wouldn't necessarily trump, correct?" Tr. 101:4-5. She replied: "I imagine so." Tr. 101:6. On re-cross examination, she stated "[s]eniority is considered in this posting, as stated in the posting. And the two individuals, three individuals applied for the posting, and two individuals had seniority, more seniority than the probationary teacher, Mr. Angel Vasquez." Tr. 103:20-24 (emphasis added). (Although Principal Cunningham referred to a "posting" in her testimony, no exhibits were admitted at trial and neither Principal Cunningham nor Ruth Bowman, Mr. Vasquez's union representative and the only other witness who testified, could recall if a posting for this position had been made or what it said, only that such postings were usually created for such positions.)

Ms. Bowman, testifying as part of the Defendants' case, stated that when multiple teachers apply for a per-session activity with limited openings "you look at the qualifications. If they meet the qualifications then you go to school seniority. So if someone applied for an art position and it said must have some kind of background in art and 12 people applied and only one person had that background, regardless of seniority that person would get it." Tr. 123:2-7.

Following deliberations, the jury returned a verdict in favor of the Plaintiff, awarding him $2, 700 in compensatory damages and $20, 000 in punitive damages.


In light of the different legal standards applicable under Rule 50 and Rule 59, the Court discusses arguments under each rule separately. As revealed in the discussion that follows, Defendants' arguments for judgment as a matter of law or, alternatively, a new trial-to the extent not waived or abandoned-lack merit.

A. Rule 50

A court may grant a motion for judgment as a matter of law (or "JMOL") pursuant to Federal Rule of Civil Procedure 50 only if "the evidence, viewed in the light most favorable to the nonmoving party, is insufficient to permit a reasonable juror to find in his favor." Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007) (citing Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1988)). Stated differently, a court "will not set aside a judgment 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]." Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir. 2004) (quoting Galdieri-Ambrosini, 136 F.3d at 289) (internal quotation marks omitted). "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, 136 F.3d at 289 (citations omitted).

As a procedural matter, a party must move for judgment as a matter of law pursuant to Rule 50(a) prior to the submission of the case to the jury, and, in making the motion, the party must "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Id. at 286 (quoting Fed.R.Civ.P. 50(a)(2)) (internal quotation marks omitted). District courts generally reserve judgment and submit the case to the jury so that, in the event the court of appeals reverses the judgment as a matter of law, the "need for a second trial will be avoided." Id. at 282. Pursuant to Rule 50(b), a party may renew its motion following an unfavorable verdict, but the "[p]ost trial motion is limited to those grounds that were specifically raised in the prior motion for [JMOL].'" Id. at 286 (quoting McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997)). "[T]he purpose of requiring the moving party to articulate the ground on which JMOL is sought is to give the other party an opportunity to cure the defects in proof that might otherwise preclude him from taking the case to the jury.'" Id. (quoting Baskin v. Hawley, 807 F.2d 1120, 1134 (2d Cir. 1986)). "Accordingly, the JMOL motion must at least identify the specific element that the defendant contends is insufficiently supported, " but the court must also "view the motion in the context of the ensuing colloquy between counsel and the trial court, and if that colloquy fleshes out the motion, it may provide the opposing party with the requisite notice." Id. at 286-87 (citations omitted). "If specificity was lacking JMOL may neither be granted by the district court nor upheld on appeal unless that result is required to prevent manifest injustice.'" Id. at 287 (quoting Cruz v. Local Union No. 3, 34 F.3d 1148, 1155 (2d Cir. 1994)).

1. Gender Discrimination

Defendants first argue that Plaintiff failed to present sufficient evidence to establish even a prima facie case of gender discrimination under the Equal Protection Clause.[1] To establish a prima facie case for gender discrimination under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must show: "(1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of discrimination." Raspardo v. Carlone, 770 F.3d 97, 125 (2d Cir. 2014) (quoting Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006)) (internal quotation marks omitted). If "the plaintiff makes such a showing, the burden shifts to the defendant employer to provide a legitimate, non-discriminatory reason for the action. If the defendant is able to make such a showing, the burden shifts back to the plaintiff to prove discrimination, for example, by showing that the employer's proffered reason is pretextual.'" Id. Defendants do not dispute that Mr. Vasquez was a member of a protected class, performed his job in the after-school basketball program satisfactorily, and was not re-appointed to the position in the 2009-2010 school year. Instead, they argue that there was insufficient evidence for a jury to find that the action occurred under circumstances giving rise to an inference of discrimination. The Court disagrees.

First, Ms. Sullivan, a female, replaced Mr. Vasquez in the second year of the program, a fact that is generally understood to support an inference of discrimination. Gladwin v. Pozzi, 403 F.Appx. 603, 606 (2d Cir. 2010) (citing Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)). Defendants argue that the fact that Mr. Miley, "a man[, ] was also appointed to the program suggests gender was not a factor in the decision." Defs.' Br. 8 (citing Samuels v. N.Y. State Dep't of Corr. Servs., No. 94 Civ. 8645 (SAS), 1997 U.S. Dist. LEXIS 6739, at *18-19 (S.D.N.Y. May 14, 1997)). But it is undisputed that Mr. Miley held the same position in each year of the program; the only change was that a female replaced Mr. Vasquez, the program's creator and arguable leader.

Second, Mr. Vasquez testified that Principal Cunningham told him that the reason he was not being re-appointed to the position was because she wanted a woman in that role. Defendants argue that this "self-serving testimony" should not be credited. But Principal Cunningham's testimony that she could "not recall" whether she had a meeting with Mr. Vasquez at which she informed him that she wanted a woman to take his place was equally self-serving, and a rational jury could conclude that it was less convincing than a more straightforward denial of ever having made such a statement. And although Mr. Vasquez testified that Ms. Bowman attended this meeting, "at the back of the room, " Tr. 61:12, Ms. Bowman could not recall attending the meeting, nor could she recall every meeting she attended with a teacher, Tr. 135:8-10. Similarly, Defendants argue that Mr. Vasquez's self-serving testimony is undermined by the fact that the two selected teachers had tenure while Mr. Vasquez did not. But Principal Cunningham presented inconsistent statements as to whether seniority was the determinative factor in deciding who would get the position or merely one factor among others. Moreover, Defendants failed to produce any documentary evidence, such as school policies, showing that per-session activity positions must be awarded based on seniority alone. With only the testimony of the three witnesses available on this point, it was for the jury to decide whose testimony to credit.

To be sure, the evidence in the case consisted solely of trial testimony from three witnesses and boiled down to a contest of "he said, she said." But in such situations, "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, 136 F.3d at 289 (citations omitted). Therefore, because there is no serious dispute that Mr. Vasquez was replaced by a woman and because a jury could have credited Mr. Vasquez's testimony over ...

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