Case Information
*1 USDC SDNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC#: - - - - . . . . , , , . .+ - - - - -1 -~ - - SOUTHERN DISTRICT OF NEW YORK 1/11 }t£ DATE FILED: RUTH ROJAS DUARTE,
Plaintiff,
MEMORANDUM - against - OPINION & ORDER ST. BARNABAS HOSPITAL, 15 Civ. 6824 (PGG)
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
Plаintiff Ruth Duarte alleges that her former employer, St. Barnabas Hospital (the "Hospital"), discriminated against her on the basis of her hearing disability, in violation of the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code§ 8-101 et seg. The Complaint includes claims for (1) hostile work environment and discrimination on the basis of Plaintiffs gender, race, national origin, and disability, in violation of Title VII, the _Americans with Disabilities Act ("ADA"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"); (2) unpaid wages and overtime, in violation of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"); (3) retaliation, in violation ofNYLL §§ 740-41 and the NYSHRL; (4) Family Medical Leave Act ("FMLA") interference and retaliation; and (5) failure to provide a reasonable accommodation, in violation of the NYSHRL and the NYCHRL. (Cmplt. (Dkt. No. 5) ,r,r 63-110) On October 20, 2016, Plaintiff voluntarily withdrew her failure to accommodate claims (Oct. 20, 2016 Ltr. (Dkt. No. 42) at 4), and the Court dismissed the claims on November 21, 2016. (Nov. 21, 2016 Order (Dkt. No. 45))
On January 30, 2017, the Hospital moved for summary judgment on Plaintiffs remaining claims. (Def. Mot. (Dkt. No. 48)) On September 13, 2017, the Court granted the Hospital's motion for summary judgment in part and denied it in part. (Sept. 13, 2017 Order (Dkt. No. 57)) The Hospital was granted summary judgment on Plaintiffs (1) disparate treatment discrimination claims under Title VII, the ADA, the NYSHRI,, and the NYCHRL; (2) hostile work environment claims under Title VII, the NYSHRI,, and the NYCHRL, to the extent those claims were premised on gender or race discrimination; (3) NYSHRL retaliation claim; and (4) FMLA interference and retaliation claims. (See id. at 50) The Court also dismissed Plaintiffs claims for utt.~~id WMM Md 6V~rtifii~ Mfii~~fiMti6fi ufidM th~ FLSA ~tt.d th~ NYLL b~Md 6fi PlMfitiff ~ *2 Following a five-day trial, the jury returned a verdict in Plaintiffs favor, awarding her $624,000 in compensatory damages for emotional distress, and $750,000 in punitive damаges. (Verdict (Dkt. No. 144))
The Hospital has moved l111;der Fed. R. Civ. P. 59 for a new trial and/or a remittitur concerning the damage awards. (Def. Mot. (Dkt. No. 163)) For the reasons stated below, the Hospital's motion for a new trial will be granted with respect to the compensatory and punitive damage awards unless Plaintiff accepts a remittitur reducing the amount of compensatory damages to $125,000, and the amount of punitive damages to $125,000.
BACKGROUND
I. HARASSMENT SUFFERED BY PLAINTIFF
Plaintiff Duarte was born and raised in Ecuador, and has suffered from a hearing disability since childhood. (Trial Tr. ("Tr.") at 727, 768) Iri the late 1970s, at the age of 19, Plaintiff immigrated to the United States and settled in the Bronx. (Id. at 727-29) Plaintiff learned English, and she obtained a bachelor's degree in public administration in 1994, and a master's degree in social work in 2007. (Id. at 731-3 7)
On July 9, 2007, immediately after receiving her master's degree, Plaintiff began work as a bilingual clinician at St. Barnabas Hospital's David Casella Children's Services status as an opt-in plaintiff in a separate collective action brought under the FLSA against the Hospital. (Id.)
On January 17, 2018, the Court so ordered a stipulation dismissing Plaintiffs claims for retaliation under NYLL §§ 740-41 and the NYSHRL. (Dkt. No. 119) On January 25, 2018 - the fourth day of trial - Plaintiff voluntarily withdrew her hostile work environment claims under Title VII, the ADA, and the NYSHRL to the extent these claims were based on disability discrimination, as well as her national origin discrimination claim under the NYCHRL. (See Dkt. No. 140) Only Plaintiffs disability discrimination claim under the NVCI-IRL went to the jury.
program ("DCCS") in the Bronx. (Id. at 194, 741-43) DCCS is a clinic that provides mental health services to children. (Id. at 223) While employed at DCCS, Plaintiff provided psychotherapy services for children and adolescents through individual, family, and group therapies. (Id. at 743) Plaintiff was employed at DCCS until August 7, 2014. (Id. at 746)
Edgardo Quinones was the.divisional director for children's services throughout Plaintiffs employment at DCCS. (Id. at 204) In that role, Quinones supervised more than thirty-five employees, including four clinical supervisors, who in tum directly supervised clinicians such as Duarte. (Id.) Milagros Arce-Tomala was Plaintiffs clinical supervisor. (Id. at 535) When Arce-Tomala was on vacation, Quinones served as Plaintiffs direct supervisor. (Id. at 785)
As a clinician at DCCS, Plaintiff was required to attend two types of staff meetings, both of which occurred on Wednesdays and were conducted in a large conference room at DCCS. (Id. at 342-43, 348, 567) At administrative meetings - which took place every other Wednesday - DCCS managers discussed, inter alia, new policies, "work performance and quality and levels of service," [2] and the timely completion of paperwork. (Id. at 342, 346-4 7, 353, 755-56, 765) Attendees at administrative meetings included Quinones, Arce-Tomala, an intake worker, a family support worker, an administrative assistant, seven to ten clinicians (including Plaintiff), and - on some occasions - a registration clerk and a child psychiatrist. (Id. at340-41, 755)
Clinical team meetings took place on alternate Wednesdays. (Id. at 347) Quinones, Arce-Tomala, half of the clinicians, a clinical supervisor, and psychiatrists attended "Levels of service" refers to the number of "face-to-face contacts" that clinicians had with clients each week, whether in individual, group, or family therapy. (Tr. at 221)
3 *4 the clinical team meetings. (Id. at 198-99, 350) Becausе only half the clinicians attended clinical team meetings at a time, Plaintiff was present at clinical team meetings only once a month. (Id. at 348)
Quinones presided at both the administrative and clinical team meetings (together, "staff meetings") unless he was unavailable, in which case Arce-Tomala presided. (Id. at 578, 756) When Quinones was present, he sat at the head of the table, and Arce-Tomala usually sat next to him. (Id. at 571-72) Plaintiff's hearing disability made it difficult for her to hear what was said at these meetings. (Id. at 760) Accordingly, ·Plaintiff generally sat next to Quinones, or Arce-Tomala, depending on who was leading the meeting, to ensure that she could hear the primary speaker. (Id. at 571, 577, 579-80, 757)
In 2007, notwithstanding her proximity to Quinones at the staff meetings, Plaintiff sometimes could not hear what he was saying, and she would ask him to repeat his remarks. (Id. at 760-61) Quinones would then call Plaintiff"deaf," or ask her if she was deaf. (Id. at 761)
In 2008, Duarte began bringing a hearing aid device to the staff meetings. (Id. at 559, 594, 762) The device was a "little rectangular box" - about two by three inches in size - with ear-bud headphones that Duarte wore during staff meetings. (Id. at 200,389) Rosa Torres - another DCCS clinician (id. at 558, 562) - testified that, at these meetings, Plaintiff "would take out her" hearing aid device and "set it up." 3 (Id. at 560) Plaintiff "would always comment [that she] ha[d] to put [the hearing device] on, ... so [she could] hear the speaker," and she Arce-Tomala testified that Plaintiff did not begin using this device at staff meetings until "[a]fter [] years of working [at DCCS]." (Tr. at 355) Plaintiff and fellow clinician Rosa Torres both testified, however, that Plaintiff began using the hearing aid at all staff meetings in 2008. (Id. аt 594-95, 762-64) The Court finds the testimony of Plaintiff and Torres on this point more credible than that of Arce-Tomala.
openly adjusted the device at staff meetings. (Id. at 560,562) Once Plaintiff started using the device, she brought it to every staff meeting. (Id. at 357) [4]
Even with her hearing aid, however, Plaintiff still had difficulty hearing at staff meetings, and she sometimes asked Quinones to repeat himself. (Id. at 763-65) Plaintiff testified that, when she made these requests, Quinones "started to make such comments as ... you are deaf? You don't listen? Put your thing on. I want you to hear what I said. I don't want to hear later on that you say that you didn't hear me." (Id. at 766) Quinones would "sometimes add things like, I want you to hear what I'm going to say. I don't want to hear later that you didn't hear. You hear when it's convenien[t] to you." (l_QJ After making these remarks, Quinones would slap the conference room table with his hands. (Id. at 766-67)
According to Duarte, Quinones's hand-slapping on the table triggered painful memories for Plaintiff, and caused her to cry and remain silent. (Id. at 766-67) During Plaintiffs childhood, her father verbally and physically abused her when she could not hear him. (Id. at 768) Plaintiff testified that her father often asked her, "are you deaf?" and hit her, because he believed she "was not obeying him." (Id.) Plaintiff told Quinones about her father's abuse. (See id. at 768-69, 784-85)
During 2009, Plaintiff continued to experience difficulty hearing during staff meetings, and continued to ask Quinones to repeat himself. (Id. at 769-70) According to Plaintiff, Quinones responded in the same fashion. (Id. at 770) Quinones made comments about Duarte's hearing at staff meetings "[t]wo or three times" in 2009 before Plaintiff took medical Quinones testified that he "didn't know" that Plaintiff suffered from а hearing disability. (Tr. at 199) Given Duarte's testimony about her interactions with Quinones, and Arce-Tomala and Torres's testimony that it was apparent from Duarte's hearing aid device that she had a hearing disability, the Court finds Quinones's testimony on this point not credible. (See id. at 195-95, 354-SS)
5
leave in the fall. (Id. at 790-91) Plaintiff was on medical leave from October 16, 2009, until August 16, 2010. (Id. at 877)
When Plaintiff returned to work in 2010, she resumed attending staff meetings, and again sat next to Quinones. (Id. at 770-71) Plaintiff continued to experience difficulty hearing during staff meetings, and asked Quinones to repeat himself. (Id. at 771, 773) When Duarte asked Quinones to repeat himself, he would call her "deaf' and say, "[p ]ut your things on your ear." (Id. at 773) Quinones continued to slap the conference room table at these moments, again triggering memories of Plaintiff's childhood and making her feel "guilty [for] having [her] impairment." (Id. at 774) Duarte testified that Quinones made comments about her hearing impairment on two or thfee occasions in 2010. (Id. at 791-92)
Plaintiff spoke with Quinones in 2010 about his remarks concerning her hearing impairment. (Id. at 783-84) According to Duarte, these conversations took place in her office when Quinones was reviewing her progress notes for patients. (Id. at 786) Plaintiff told Quinones, "I don't like when you say this. It is very hurtful to me. It hurts me. Can you please stop." (Id. at 784) Duarte reminded Quinones of the abuse she had suffered as a child, and told Quinones, "I don't like it when [you] say that I'm deaf or when [you] ma[k]e remarks to remind me of my childhood, my adolescent days." (Id.) Duarte addressed these concerns with Quinones on two or three occasions in 2010, but there was no change in his behavior. (Id. at 784-86)
Quinones's remarks concerning Duarte's disability continued through 2011. (Id. at 774) When Plaintiff told Quinones during staff meetings that she could not hear him, he ridiculed her disability. (Id.) This occurred on approximately three occasions in 2011. (Id. at 792) During 2011, Duarte had "[t]wo or three" more conversations with Quinones about his *7 remarks concerning her disability. (Id. at 787) According to Duarte, Quinones referred to her as "dumb" or "stupid" during one of these conversations, which left her in tears. (Id. at 788)
Plaintiff complained to Arce-Tomala about Quinones' s remarks on two or three occasions in 2011. (Id. at 793-95) According to Duarte, she pleaded with Arce-Tomala not to "go on vacation. When you go on vacation, and [Quinones] reviews my [progress] notes, he tells me things that I feel bad about, such as remarks about my hearing disability." (Id. at 795) Arce Tomala told Duarte, "You've got to speak to him, you've got to deal with him." iliL at 796)
At staff meetings between 2011 and 2014, Quinones continued to ask Plaintiff if she was deaf. (Id. at 585, 846, 849) Plaintiff again complained to Quinones about his behavior. (Id. at 787-88) During a 2012 conversation, Duarte told Quinones that his remarks about her hearing disability upset her; that her hearing disability was "not a joke"; and that he "need[ ed] to stop." (Id. at 789) Quinones's only response was to "step[] out of [P]laintiff's office." (lg_J Plaintiff eventually stopped confronting Quinones about his remarks concerning her hearing disability, because her complaints appeared to have no effect. (Id. at 796)
Plaintiff's hearing worsened during the period between 2007 and 2014. (Id. at 849) She continued to ask Quinones to repeat himself in 2014, and he would respond: "I know you're deaf. I forgot you're deaf. You had your thing on. Make sure you have your thing on .... I don't want you to say that you didn't hear me because you only hear when it is convenient to you." (Id. at 848)
Marcie Van Hoven-Hernandez- a union representative -testified about Quinones' s treatment of Duarte at a 2014 disciplinary hearing. (Id. at 180-81) At that hearing, Quinones and Arce-Tomala criticized Plaintiffs job performance, stating, inter alia, that she was not meeting numerical targets for therapy sessions with patients. (Id. at 187) According to Hoven-Hernandez, when Duarte tried to defend herself, Quinones raised his voice and banged *8 his hand on the table (id. at 188), which caused Plaintiff to "shak[e] and cry[] uncontrollably" and to adjust her earpiece. (Id. at 189) Quinones then said, "What are you, deaf?" (id. at 190), and Arce-Tomala laughed at Quinones' s question. (Id. at 192) Hoven-Hernandez told Quinones and Arce-Tomala that they were being "inappropriate, [and] disrespectful," but neither responded to her admonition. (Id.)
II. PLAINTIFF'S EMOTIONAL DISTRESS
Plaintiff testified that between 2009 and August 7, 2014 - when her employment at DCCS ended - she experienced anxiety "every week" from Tuesday night through Th.ursday morning. (Id. at 865-66) Plaintiff explained that Wednesdays - the day on which staff meetings were conducted- "were the days where [she] was mo[st] anxious at work." (Id. at 865) Duarte was "worried and unable to sleep [ on Tuesday nights], thinking that Mr. Quinones come[ s] on Wednesday[s] to the unit." (Id.)
Duarte also testified that - beginning in 2011 - Quinones's remarks about her hearing lowered her self-esteem, made her cry, and caused her to suffer from headaches, stomach aches, and "panic attacks." (Id. at 775) Plaintiff described her panic attacks as follows: "I started[] feeling anxious, shaking .... I couldn't sleep the night before, scared of what is going to happen or what is going to transpire in that particular staff meeting." (Id. at 775-76) Duarte's anxiety "increased" in 2014: "Tuesday, Wednesday, and sometimes Thursday the whole day I was anxious." (Id. at 866)
Duarte testified that she still feels "[a]nxious, scared, [and] angry," and that she "blam[ es] herself for not doing what [she] should have done" - that is, "speak up to a ... higher person." (Id. at 782) Duarte still experiences "depressing time[s], anxiety, [and] panic attacks" w:l at 870); has trouble sleeping; has "lower self ... esteem"; and "feel[s] less or [i]ncapable [of *9 doing] what [she] did before coming to [DCCS]." (Id. at 871) Plaintiff has not sought therapy, but has "been trying to implement coping skills that [she] encourage[s] [her] patients to implement." (Id.)
Plaintiff testified that - during her employment at DCCS - she discussed her emotional distress with her children and with four fellow DCCS clinicians - Torres, Carmen Lopez, Silva Dolman, and Janet Santa Cruz. (Id. at 775-76, 781) Plaintiffs' children were not called as witnesses at trial, however, and- other than Torres - the clinicians mentioned by Duarte were not called to testify. Torres testified as follows regarding Duarte's emotional distress:
Before the meetings, Ms. Duarte ... would call me to say please don't leave me alone. So I would go to her office and get her and already she was appearing, she was appearing nervous, and she would just grab my hand and say well, hopefully everything goes well.
I said let's pray, let's pray that everything goes well and that there will be a mirаcle, Edgardo will cancel the meeting, you know, that he doesn't say any remark ....
. . . As we were walking, we were basically reiterating everything will be okay, you'll get through it. Then we [ would] go into the staff meetings ....
(Id. at 613-14) Torres added that she and Plaintiff would "pray[] for a miracle that Edgardo wouldn't show up, that he wouldn't come out and say those horrible things," such as "are you deaf, are you deaf." (Id. at 615)
According to Torres, when Quinones made remarks about Plaintiffs hearing disability at staff meetings, Duarte would "sigh, 'Edgardo,"' "shake her head, bring it down[,] ... [and] shut down [for] the rest of the staff meeting." (Id. at 589) "[I]fthe meeting went bad, meaning that Edgardo ... humiliated her in front ofus, the co-workers, then [Duarte] would leave crying." (Id. at 616) Plaintiff would later cry in front of Torres and say, "I don't understand why he does this." (Id. at 617) According to Torres, Plaintiff eventually stopped speaking up at meetings out of "fear that it would trigger Mr. Quinones." (Id. at 618) *10 III. THE NOVEMBER 2013 WRITTEN WARNING AND PLAINTIFF'S REBUTTAL
In November 2013, Plaintiff received a written warning for insubordination. [5] In connection with a dispute with Arce-Tomala about whether Duarte could use a sick day for purposes of a doctor's appointment, Duarte allegedly warned Arce-Tomala, "[o]ne day you will lose your power." (Id. at 797-98; see also PX 14 (Dkt. No. 73-4)) On November 20, 2013, Plaintiff and her union representative - K wame Shaw - met with Arce-Tomala and Quinones to discuss the warning. (Tr. at 539, 918-19, 921-22) During the meeting, Quinones said, "it is not my fault that you are deaf, [or] something [along] those lines." (Id. at 919-20) Plaintiff broke into tears during the meeting. (Id. at 920)
After the meeting, Duarte told Shaw that Quinones's remarks about her hearing disability were "very painful" and that she "want[ed] him to stop." (Id.) Shaw suggested that Duarte prepаre a "rebuttal" to the written warning. (Id.) In her November 25, 2013 rebuttal, Plaintiff denied making the "lose your power" statement to Arce-Tomala. (PX 15 (Dkt. No. 73- 5) at 1) Duarte also addressed Quinones's remarks about her hearing disability:
I would like to take this opportunity to express my feelings about how many times DCCS Administrators ha[ ve] continually harassed, retaliated and bullied me regarding my disability and my work ethic by making inappropriate comments about my hearing disability and calling me "Deaf' and/or embarrassing me during staff meetings.
(Id.) Although the warning was in writing, for purposes of the Hospital's progressive disciplinary
scheme, the warning was referred to as a "verbal warning" - the first step in the Hospital's employee discipline regime. (See PX 14 (Dkt. No. 73-4))
Plaintiff testified that she contemporaneously provided copies of her rebuttal to Arce-Tomala and union representatives Shaw and Hoven-Hernandez. ilih at 800) At trial, however, Arce-Tomala and Quinones denied seeing Plaintiffs November 25, 2013 rebuttal at *11 that time. 6 (Tr. at 211, 527) Moreover, it was undisputed at trial that no one from the Hospital's Human Resources Department ever investigated or addressed Plaintiffs complaint of disability discrimination. (See id. at 109-110, 331)
Arce-Tomala and Quinones acknowledged at trial that Hospital employees have the right to prepare written rebuttals to negative performance evaluations. (Id. at 209, 408-09) Such rebuttals must be read by the Hospital's human resources personnel and are maintained in the employee's personnel file. (Id. at 133,209) However, Wayne Webb- the Hospital's vice president of human resources - distinguished between rebuttals to performance evaluations and employee responses to disciplinary warnings. (See id. at 132 ("Q .... A rebuttal is an employee's written response to a supervisor's evaluation, correct? A. Yes. Q. It could also be an employee's written response to a disciplinary action, right? A. No, it is not."))
Plaintiff testified that she did not submit her complaint about Quinones directly to the Hospital's Human Resources Department because she believed that either Hoven-Hernandez or Arce-Tomala would deliver Duarte's November 25, 2013 rebuttal to the Human Resources Department. (Id. at 803-04) Duarte also testified that Shaw had told her that if Duarte gave the rebuttal to Arce-Tomala, Arce-Tomala would deliver it to Human Resources. (Id. at 805) Hoven-Hernandez also told Duarte that Hoven-Hernandez would deliver the rebuttal to Human Resources. (Id. at 804) Quinones testified that he did not become aware of Plaintiffs November 25, 2013 rebuttal
until 2016, during preparation for his deposition. (Tr. at 211)
At trial, defense counsel conceded that Duarte had provided her written rebuttal to Arce-Tomala, and that the Hospital had a copy of Plaintiffs November 25, 2013 rebuttal in its files. (Id. at 955-56)
IV. THE HOSPITAL'S ANTI-DISCRIMINATION POLICIES
Wayne Webb - the Hospital's vice president of human resources - testified that the Hospital is committed to creating an environment free of discrimination, and that it investigates every complaint of discrimination. (Id. at 97) The Hospital's Employee Handbook states that, "[the Hospital] is committed to creating a work environment free of discriminatiоn or harassment. Discrimination against and/or harassment of any employee based on ... disability . . . is illegal and strictly prohibited. Every employee is responsible for complying with this policy." (PX 7 (Dkt. No. 72-6) at 29) The Employee Handbook further provides:
If you believe that you have been subject to discrimination or harassment, we encourage you to promptly notify the offender, particularly if such individual is a co-worker, that his or her behavior is unwelcome and inappropriate and that you want the behavior to stop immediately. However, if you are uncomfortable confronting the alleged wrongdoer for any reason, such as because (i) he or she is a supervisor or high level member of management; (ii) the severity of the conduct or (iii) informal, direct communication was unsuccessful, [the Hospital] requires that you promptly report the conduct, either verbally or in writing to management, as follows: Keith Wolf, Ext. 6500 or Deborah Schneider, Ext. 5813; however, if you are uncomfortable discussing the matter with either of these individuals for any reason, including because either of them is believed to be involved in the conduct, you must instead report the matter to the individual who runs your specific department.
Any St. Barnabas supervisor or manager who receives a report or complaint of discrimination or harassment must report that alleged offense immediately to Keith Wolf, Ext. 6500 or Deborah Schneider, Ext. 5813, and await instruction. All complaints will be investigated promptly and thoroughly and, if appropriate, corrective actiоn will be taken ....
(Id. at 30 (emphasis in original))
According to Arce-Tomala, Hospital employees receive training concerning the Hospital's anti-discrimination policy each year, and Arce-Tomala received such training during each of her twenty years at the Hospital. (Tr. at 315-18) Quinones likewise testified that, during his time as director of DCCS, he received training concerning the Hospital's harassment policy *13 "[o]nce a year at least." (Id. at 272-73)
Arce-Tomala also testified that the annual training included sensitivity training videos that educated employees about working with people in various protected categories, including people with disabilities. (Id. at 435-38) Arce-Tomala testified that she organized the annual training for the clinicians at DCCS, and that she ensured that each clinician attended the training. (Id. at 538-539)
When Duarte began her employment at the Hospital, she read the Hospital's policy concerning discrimination and harassment, and she agreed to comply with it. (Id. at 890) Duarte acknowledged in writing at that time that she had received the Hospital's policy, confirmed that she had read and understood it, and agreed to comply with that policy. (Id. at 889-90) Plaintiff further testified that, throughout her employment at the Hospital, she was aware that if she experienced a problem in the workplace, she could seek assistance from Human Resources. (Id. at 897) Finally, Du<;lfte testified that she was "told that [she] needed to [view the training videos] on a yearly basis" (id. at 862), and that she certified annually that she had "completed the [] annual mandatory in-service training during the last 12 months." (Id. at 878- 881, 885-87)
DISCUSSION
I. LEGAL STANDARD
A. Rule 59(a) Motion for a New Trial
Under Fеd. R. Civ. P. 59(a)(l)(A), a court may grant a motion for a new trial
where "'the jury has reached a seriously erroneous result or the verdict is a miscarriage of
*14
justice, i.e., ... the jury's verdict [is] against the weight of the evidence."' Bouveng v. NYG
Capital LLC, 175 F. Supp. 3d 280, 311 (S.D.N.Y. 2016) (quoting Manley v. AmBase Corp .. 337
F.3d 237,245 (2d Cir. 2003)). In making this determination, "'a trial judge is free to weigh the
evidence himself, and need not view the evidence in the light most favorable to the verdict
winner."' Id. (quoting Manley.
B. Motion for Remittitur
"When a trial court finds a damage verdict to be excessive, it may order a new
trial on all issues or only on the question of damages. Alternatively, the court may grant
remittitur." MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d 546, 559 (S.D.N.Y.
2012) (internal quotation marks and citations omitted). "Remittitur is the process by which a
court compels a plaintiff to choose between a reduction of an excessive verdict and a new trial."
Id. (internal quotation marks and citations omitted). "Remittitur is appropriate to reduce verdicts
only in cases 'in which a properly instructed jury hearing properly admitted evidence
nevertheless makes an excessive award."' Webungs Und Commerz Union Austalt v. Collectors'
Guilt, Ltd., 930 F.2d 1021, 1027 (2d Cir. 1991) (quoting Shu-Tao Lin v. McDonnell Douglas
QQm,
"While it is properly within the province of the jury to calculate damages, there is an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable persons may differ, but a question oflaw." MacMillan, 873 F. Supp. 2d at 559 *15 (internal quotation marks and citations omitted). "A jury has broad discretion in measuring damages, but it may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket." Id. (internal quotation marks and citations omitted). "Importantly, in calculating the remittitur, the court must use the least intrusive - and most faithful to the jury's verdict- method of reducing the verdict only to the maximum that would be upheld by the trial court as not excessive." Id. at 559-60 (internal quotation marks and citations omitted).
Here, Plaintiffs claim is brought under the New York City Human Rights Law.
"' A federal court, in reviewing the amount of damages awarded on a state [ or city] law claim,
must apply New York law."' Emamian v. Rockefeller Univ., No. 07 CIV. 3919 (DAB), 2018
WL 2849700, at *15 (S.D.N.Y. June 8, 2018) (quoting Patterson v. Balsamico,
"In determining whether an award deviates materially from what would be reasonable compensation, district courts compare the jury's award to awards allowed in analogous cases involving similar types of injuries." Bouveng, 175 F. Supp. 3d at 327 (internal quotation marks and citations omitted). "While instructive, such earlier awards are not binding for [purposes of the district court's] review." Id. (internal quotation marks and citations omitted). Moreover, "[a] court should determine whether the award is within a reasonable range, *16 not just balance the number of high and low awards and reject the verdict in the instant case if the number oflower awards is greater." Id. at 328 (internal quotation marks and citations omitted).
II. COMPENSATORY DAMAGE AW ARD
The Hospital contends that Plaintiff suffered no more than "garden-variety" emotional distress, and that accordingly the jury's award of $624,000 in emotional distress damages is excessive. (Def. Br. (Dkt. No. 164) at 6) According to the Hospital, the compensatory damage award should be remitted to no more than $30,000. (Id. at 21)
A. Applicable Law
A plaintiff who prevails on a claim of discrimination under the NYCHRL may recover compensatory damages for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." Bouveng, 175 F. Supp. 3d at 328 (internal quotation marks and citations omitted). "The precise amount of compensatory damages in any given case depends on a unique set of facts and circumstances." Id. (internal quotation marks and citations omitted).
In this Circuit, '" [ e ]motional distress awards ... can generally be grouped into three categories of claims: garden-variety, significant, and egregious."' Vera v. Alstom Power, Inc., 189 F. Supp. 3d 360,376 (D. Conn. 2016) (quoting Graham v. City ofN.Y., 128 F. Supp. 3d 681, 714 (E.D.N.Y. 2015)). '"[For] "garden variety" emotional distress claims, the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, withоut relating either the severity or consequences of the injury."' Id. (quoting Olsen v. Cty. ofNassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009)). "Such claims typically lack extraordinary circumstances and are not supported by any medical corroboration." Id. (internal quotation marks and citation omitted).
"Garden variety emotional distress claims generally merit $30,000.00 to
$125,000.00 awards." Emamian,
"' [S]ignificant' emotional distress claims 'are based on more substantial harm or
more offensive conduct, are sometimes supported by medical testimony and evidence, evidence
of treatment by a healthcare professional and/or medication, and testimony from other,
corroborating witnesses."' Vera, 189 F. Supp. 3d at 376 (quoting Olsen, 615 F. Supp. 2d at 46-
47). For "significant" emotional distress damages, "courts in this Circuit ... have routinely
found that awards ranging from $100,000 to $500,000 are not excessive." Thorsen v. Cty. of
Nassau, 722 F. Supp. 2d 277,293 (E.D.N.Y. 2010); see also Emamian,
"Finally, 'egregious' emotional distress claims generally involve either
'outrageous or shocking' discriminatory conduct or a significant impact on the physical health of
*18
the plaintiff." MacMillan, 873 F. Supp. 2d at 560 (citations omitted). In "egregious" cases,
damage awards in excess of $500,000 have been upheld. See, ~ ' Turley v. ISG Lackawanna,
Inc.,
"A court is not required to remit a large non-economic damage award, even where evidence of emotional damage consists solely of plaintiffs testimony." Bouveng, 175 F. Supp. 3d at 328 (internal quotation marks and citations omitted). "However, when a court is convinced that the jury's award is entirely out of proportion to the Plaintiffs injury, and was motivated by sympathy rather than by evidence of harm, remittitur is the appropriate remedy." Id. (internal quotation marks and citations omitted).
B. Application
Plaintiff concedes that the evidence in this case does not establish an "egregious" emotional distress claim, but she argues that her emotional distress "falls within the 'significant' category." (Pltf. Opp. (Dkt. No. 170) at 21)
In this Circuit, "significant" emotional distress is generally found only where a
plaintiff has offered medical, psychological, or therapist evidence of substantial, long-term
psychological harm. See,~, Emamian,
Here, Plaintiff testified that, between 2009 and 2014, Quinones's comments about her hearing disability made her "worried and unable to sleep" on the night before Wednesday staff meetings; caused her to feel anxious the "whole day" on Wednesdays; and continued to cause her anxiety on Thursday momings. (Tr. at 865-66) Plaintiff also testified that - beginning in 2011 - she suffered feelings of lower self-esteem, headaches, stomach aches, and panic attacks. (Id. at 775) In 2014, Plaintiffs anxiety "increased," such that she would feel anxious all day on Thursdays. (Id. at 866-67) Duarte also testified that she currently experiences difficulty sleeping, "depressing time[s], anxiety, [and] panic attacks" (id. at 870), as well as decreased self-esteem. (Id. at 871)
Plaintiffs vague and subjective complaints of insomnia, lower self-esteem,
*20
depression, anxiety, and stomach aches and headaches - unsupported by medical corroboration
establish no more than "garden variety" emotional distress. See Bouveng, 175 F. Supp. 3d at
330; MacCluskey v. Univ. of Connecticut Health Ctr., No. 3:13-CV-1408 (MPS), 2017 WL
684440, at *15-16 (D. Conn. Feb. 21, 2017) (plaintiff-who had suffered "multiple incidents of
sexual harassment over a sustained period" - had established only "garden variety" emotional
distress where she testified that "she felt 'ashamed and e~barrassed,' was 'afraid to be home
alone,' 'afraid to go out in public,' and 'didn't sleep for weeks,"' and continued to suffer from
the past harassment, which caused her to "panic" when she felt "somebody behind [her]";
remitting jury's $200,000 emotional distress award to $125,000); Manswell v. Heavenly Miracle
Acad. Servs., Inc., No. 14 CV 7114 (MKB) (SMG),
20
(2) "as a result of the hostility she experienced at work, she felt pains in her chest, fatigue, and
sleeplessness," and "would cry at night because she was scared to return to [ work J in the
morning"), report and recommendation adopted, No. 14 CV 7114 (MKB) (SMG), 2017 WL
4075180 (E.D.N.Y. Sept. 14, 2017); Munson v. Diamond, No. 15 CV 00425 (DAB) (BCM),
Moreover, "[t]here was no evidence ... of an inability to apply for a new position or to enjoy life in general," and "Plaintiff's failure to seek mental health treatment ... is [8] Plaintiff's testimony that Quinones's remarks about her hearing disability triggered traumatic childhood memories (Tr. at 767) does not alter this conclusion. Although evidence of "a lifetime of struggling" with a disability "could persuade the jury" that a plaintiff was "particularly susceptible to emotional harm flowing from [disability] discrimination," a plaintiff must still show that the "discrimination did in fact cause [] great suffering:" Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157, 197-98 (E.D.N.Y. 2006) (remitting award of $2.5 million for emotional distress damages to $600,000 where plaintiff's parents testified that discrimination on the basis of plaintiff's cerebral palsy "adversely affected his relationship with the rest of his family," and that "their son lost interest in school, experienced a loss of appetite, cried for no apparent reason, [and] paced in his room unable to sleep at night"; plaintiff suffered what his parents called a "'total breakdown,' that prompted [them] to take their son to a hospital emergency room," after which plaintiff was treated by a psychiatrist for more than two years "with a combination of psychotherapy and [ an] anti-anxiety drug"). Here, although Plaintiff linked Quinones' s disparaging remarks to traumatic episodes from her childhood, Plaintiff's evidence of emotional distress does not meet the standard for "significant" emotional distress set forth in Brady and comparable, cases.
consistent with [the] finding that Plaintiff suffered no long-term emotional distress as a result of Defendant's conduct." Bouveng. 175 F. Supp. 3d at 330.
The Court concludes that Plaintiffs testimony establishes only "garden variety" emotional distress. See DeCurtis v. Upward Bound Int'L Inc., No. 09 CIV. 5378 (RJS), 2011 WL 4549412, at *4-5 (S.D.N.Y. Sept. 27, 2011) (plaintiff established only "garden variety" emotional distress where she claimed- without corroborating medical evidence - that (1) "she felt constantly stressed, nervous and unable to sleep, dreaded going to work, and felt sick each time [her supervisor] called her into his office"; (2) "she felt like she was going to have a nervous breakdown"; and (3) "she lost her self-esteem and self-confidence, [and] ... feared losing her job and felt humiliated") (internal citations omitted).
Although Plaintiffs fellow clinician - Rosa Torres - testified that Plaintiff
"appear[ ed] nervous" before staff meetings, and often cried during and after staff meetings (Tr.
at 614-16), Torres' s testimony is likewise insufficient to establish that Plaintiff suffered
"significant" emotional distress. See Abel v. Town Sports Int'L LLC,
environment created by Quinones" and argues that these conversations were "tantamount to treating with a mental health professional," because "these clinicians are trained to address mental health issues." (Pltf. Opp. (Dkt. No. 170) at 22) There is no evidence that Plaintiffs casual conversations with co-workers constituted therapy, however, much less that Plaintiffs co workers addressed her "mental health issues." Indeed, Plaintiff did not testify as to the substance of these conversations, but merely stated that she told her co-workers "[w]hat [she] was experiencing and what [she] was feeling at that time." (Tr. at 777)
Courts have, however, upheld significant awards for emotional distress "even
absent proof of long-term psychological damage," where the "harassment [] continued for
[several] years." Bouveng, 175 F. Supp. 2d at 332; see also McGrory v. City of New York, 2004
WL 2290898 (FM), at *15 (S.D.N.Y. May 7, 2004) ("[L]arge awards for emotional distress have
been sustained by the state and federal courts where the discriminatory conduct was egregious or
persisted for an extended period."). For example, in Quinn v. Nassau Cnty. Police Dep't, 53 F.
Supp. 2d 347 (E.D.N.Y. 1999), the court upheld a $250,000 emotional distress award on a sexual
harassment claim where the plaintiff testified that - for almost ten years - ''he was ridiculed,
humiliated, abused and singled-out because of his sexual orientation." Id. at 351. In upholding
the $250,000 award, the Quinn court noted that the plaintiffs "social worker [had] corroborated
*23
[plaintiffs testimony] as to the emotional distress he suffered from years of chronic, pervasive,
humiliating and severe sexual orientation harassment." Id. at 363. Similarly, in Phillips v.
Bowen,
The evidence here is not comparable to that in Quinn and Phillips. In Phillips, plaintiffs boyfriend fully corroborated plaintiffs testimony regarding the serious physical symptoms of emotional distress she suffered, including that she "was ill in the bathroom two or three hours every night." Id. at 108. Moreover, the testimony of plaintiff and her boyfriend was confirmed by plaintiffs co-workers, who testified that - as a consequence of the years of
23
harassment-plaintiff became "'basically a different person"' over time. Id. at 108, 111-12. Here, by contrast, significant components of Plaintiffs testimony regarding her symptoms of emotional distress are entirely uncorroborated.
Similarly, in Quinn, the plaintiff - unlike Duarte - sought "mental health counseling with a social worker," and Quinn's testimony concerning the emotional distress he suffered as the result of ten years of "chronic, pervasive, humiliating and severe sexual orientation harassment" was corroborated by testimony from his social worker. Quinn, 53 F. Supp. 2d at 363.
The Court concludes that the evidence does not establish "significant" emotional distress. Accordingly, the jury's compensatory award of $624,000 is excessive. The cases cited by Plaintiff (see Pltf. Opp. (Dkt. No. 170) at 23-25) are not to the contrary.
Most involve corroborating evidence from a physician, psychologist, or social worker
concerning plaintiff's emotional distress. See,~' Thorsen, 722 F. Supp. at 292 (remitting
emotional distress award from $1.5 million to $500,000 where plaintiff and "his treating
psychologist Dr. Bayer testified at length about [the plaintiffJ's depression and anxiety arising
from the reduction in his job duties"; plaintiff saw "Dr. Bayer twice a week for approximately
six months, and ... continued to receive therapy for around a year-and-a-half until his
retirement"; plaintiff was prescribed antidepressant and antianxiety medications; and Dr. Bayer
"testified that [the plaintiff] suffered from what he termed a 'major stress attack' ... that
required hospitalization"); Katt v. City of New York, 151 F. Supp. 2d 313,324, 370-71
(S.D.N.Y. 2001) (denying motion to remit an award of $400,000 for emotional distress damages
where "extreme and humiliating sexual harassment" caused the plaintiff to suffer "from
permanent mental disabilities," including an inability "to work," "to maintain sexual intimacy,"
and "even to perform household chores"; psychologist testified that plaintiff's "nonfunctional,
barely functioning" state was probably "permanent"); Olsen, 615 F. Supp. 2d at 47-48 (denying a
motion to remit an award of $400,000 for plaintiff, whose "physician recommended that she
consult with a mental health professional to discuss her stress and anxiety," after which plaintiff
saw "a clinical social worker and psychotherapist" on a "weekly basis" for almost three years;
treating psychotherapist testified that plaintiff suffered from generalized anxiety disorder). Other
cases cited by Plaintiff do not discuss the nature of the evidence of the plaintiff's emotional
distress, and therefore offer no guidance here. See,~, Hughes v. Patrolmen's Benevolent
Ass'n of New York, Inc.,
The Hospital's contention that only a $30,000 award is appropriate is not
persuasive, however. The Second Circuit has "affirmed awards of $125,000 [] to plaintiffs for
[garden variety] emotional distress resulting from [] discrimination where the evidence of
emotional distress consisted only of 'testimony establishing shock, nightmares, sleeplessness,
humiliation, and other subjective distress,"' without evidence of "secondary physical results or
consequenсes - 'or professional treatment."' Lore,
Given Plaintiffs testimony that (1) she suffered anxiety and sleeplessness much of the time between 2009 and August 2014; (2) she suffered headaches, stomach aches, and a loss of self-esteem during the period between 2011 and August 2014; and (3) some of these symptoms persist to the present; and given Torres's limited corroborating testimony, an award of $125,000 - the top of the "garden variety" range - does not "materially deviate" from reputational harm resulting from the retaliatory termination of a high-ranking employee who struggled to find new employment. Id. at * 1, 5 ("[P]laintiff testified at some length about the emotional distress and damage to reputation caused by the retaliation, including how defendants' retaliation caused her to feel depressed and anxious and to feel embarrassed in front of others in the industry, as well as causing her difficulty during subsequent job interviews and professional events and the like.").
compensatory awards in comparable cases. [11] N.Y. C.P.L.R. § 5501(c) ("[A]n award is excessive or inadequate if it deviatеs materially from what would be reasonable compensation.").
The Hospital's motion for a new trial concerning compensatory damages will be granted unless Plaintiff agrees to a remittitur reducing the compensatory damage award from $624,000 to $125,000.
III. PUNITIVE DAMAGES A WARD
The Hospital argues that the Court must vacate or remit the jury's $750,000 punitive damages award because (1) the evidence does not support a punitive damages award, and (2) the award is, in any event, constitutionally excessive. (Def. Br. (Dkt. No. 164) at 21-29) The cases cited by Defendant in support of its arguments concerning the compensatory damage award (see Def. Br. (Dkt. No. 164) at 17-21) are all distinguishable. In MacMillan *26 where this Court remitted an emotional distress award from $125,000 to $30,000- the evidence of emotional distress was far less substantial. MacMillan, 873 F. Supp. 2d at 561. There, plaintiff himself "did not off er any testimony concerning his emotional distress, testifying only that working ... in the Engineering Department had been 'horrible."' Id. Plaintiffs daughter offered testimony that was only "marginally more descriptive," asserting that plaintiff "was always sad," "wasn't as happy anymore," and "wasn't his same self." Id. Unlike here, there was no evidence that the plaintiff in MacMillan "had any difficulty sleeping, ... or that his alleged emotional distress ... disrupted other aspects of his daily life." Id.
Reiter v. Metro. Transp. Auth. ofNew York, No. 01 CIV. 2762 (JGK), 2003 WL 22271223 (S.D.N.Y. Sept. 30, 2003), in which the court remitted a $140,000 emotional distress award to $10,000, is likewise distinguishable. The plaintiff in that case "did not detail the ... duration ... of his mental suffering" and admitted that he never had trouble sleeping. Reiter, 2003 WL 22271223, at *9-11.
Similarly, in McIntosh v. Irving Tr. Co., 887 F. Supp. 662 (S.D.N.Y. 1995), in which the court remitted an emotional distress damage award from $219,428 to $20,000, there was no corroboration for plaintiffs "highly subjective feelings" of emotional distress. Id. at 664. Moreover, "McIntosh did not testify in any detail with respect to the magnitude or the duration of any mental distress." Id.
Here, Duarte testified at length about the "magnitude and duration" of her emotional distress, and Torres provided limited corroboration for Plaintiff's testimony. (Tr. at 614-15)
26
A.
Liability for Punitive Damages under the NYCHRL
Under the NYCHRL, "a plaintiff is entitled to punitive damages where the
wrongdoer's actions amount to willful or wanton negligence, or recklessness, or where there is a
conscious disregard of the rights of others or conduct so reckless as to amount to such
disregard." Chauca v. Abraham,
The NYCHRL also provides for "punitive damages ... against employers ...
found directly or vicariously liable for discrimination." Chauca,
(1) the employee or agent exercised managerial or supervisory responsibility; or (2) the employer knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deеmed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or
(3) the employer should have known of the employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.
N.Y.C. Admin. Code§ 8-107(13)(b)(l)-(3); see also Chauca v. Abraham, 841 F.3d 86, 90 (2d
Cir. 2016) ( certifying to the New York Court of Appeals question regarding the standard
governing punitive damages under the NYCHRL), certified question answered,
Pursuant to these authorities, the Court instructed the jury that Punitive damages may be awarded based on a violation of the City Human Rights Law where a plaintiff proves - by a preponderance of the еvidence - that the defendant has engaged in discrimination with willful or wanton negligence, with recklessness, or with a conscious disregard of the plaintiff's rights or conduct so reckless that it amounts to such disregard. Under this standard, a defendant need not know that he or she was violating the law, and the plaintiff is not required to prove intentional or malicious conduct.
Where an employee engages in discrimination with willful or wanton negligence, recklessness, or a conscious disregard of the plaintiff's rights under the City Human Rights Law, the employer may be held liable for punitive damages where: *28 (1) the offending employee exercised managerial or supervisory responsibility; (2) the employer knew of the offending employee's discriminatory conduct and acquiesced in it or failed to take immediate and appropriate corrective action; or (3) the employer should have known of the offending employee's unlawful discriminatory conduct yet failed to exercise reasonable diligence to prevent it. However, an employer is not liable for punitive damages based on an employee's wrongful conduct where the employer proves by a preponderance of the evidence that it has (1) put into place policies and procedures to educate employees about unlawful discrimination, to prevent and detect unlawful discrimination, and to investigate and effectively resolve complaints of such conduct; and (2) has made good faith efforts to implement аnd enforce these policies and procedures.
(Tr. at 994-95)
The Hospital does not challenge the Court's jury instruction concerning punitive damages, [12] but argues that "[t]he jury failed to apply this instruction properly." (Def. Br. (Dkt. No. 164) at 22) According to the Hospital, the jury "assessed punitive damages against the Hospital based solely on its liability for the acts of Quinones, while ignoring the substantial evidence that the Hospital ( 1) maintained policies and procedures to prevent and detect unlawful Plaintiff now argues that the "[t]he safe harbor from punitive damages only applies when management should have known that a non-supervisory employee discriminated against the plaintiff." (Pltf. Opp. (Dkt. No. 170) at 30) Plaintiff did not object to this instruction at trial (see Tr. at 836-41), but it appears that the Court's instruction on punitive damages may have been more favorable to the Hospital than was warranted under applicable law.
As discussed above, Section 8-107(13)(b)(l)-(3) outlines three circumstances in which an employer is vicariously liable for punitive damages based on an employee's conduct: (1) where the employee exercised managerial or supervisory responsibility; (2) where the employer knew of the employee's discriminatory conduct and either acquiesced in the conduct or failed to take immediate and appropriate corrective action; and (3) where the employer should have known of the employees' discriminatory conduct but failed to exercise reasonable diligence to prevent it. N.Y.C. Admin. Code§ 8-107(13)(b)(l)-(3). Section 8-107(13)(e) provides that proof ofan employer's anti-discrimination policies and procedures "shall be considered ... in mitigation of civil penalties or punitive damages which may be imposed ... and shall be among the facts *29 considered in determining an employer's liability under subparagraph three of paragraph b of this subdivision." N.Y.C. Admin. Code§ 8-107(13)(e) (emphasis added).
Accordingly, it appears that an employer's policies and procedures only shield against liability
for punitive damages for vicarious liability when "the employer should have known of the
employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to
prevent such discriminatory conduct." N.Y.C. Admin. Code§ 8-107(13)(b)(3). Where vicarious
liability arises under Section 8-107(13)(b)(l) or (2), an employer's policies and procedures only
mitigate the amount of punitive damages; such policies and procedures do not provide a defense
to liability for punitive damages. See Zakrzewska v. New Sch.,
Here, the offending employee - Quinones - clearly exercised managerial and supervisory responsibility (see Tr. at 204-05, 212-13, 226, 231-32), and the Hospital's policies and procedures were thus not a defense to Plaintiffs claim for punitive damages under Sectiоn 8- l 07 ( 13)(b )(1) and (2).
discrimination, (2) through frequent training, made a good faith effort to enforce these policies and procedures, and (3) was not given a chance to investigate and effectively resolve a complaint that such conduct was occurring." (Id.)
This Court will not disturb the jury's determination that punitive damages are warranted in this case. As an initial matter, the Hospital does not dispute that a reasonable jury could have found that Quinones' s conduct amounted to willful or wanton negligence, or recklessness, or demonstrated a conscious disregard of Duarte's rights or conduct so reckless as to amount to such disregard. Plaintiff testified that she complained about Quinones's discriminatory conduct on multiple occasions to both Quinones and Arce-Tomala, and that neither of these supervisors forwarded her complaints to Human Resources or acted upon them in any way. (Tr. at 787-89, 793-95) To the contrary, Plaintiff testified that Quinones ignored her complaints and that Arce-Tomala told Plaintiff that she had to "deal with" Quinones's discriminatory conduct on her own. (Id. at 795) The supervisors' failure to forward Plaintiffs complaints to Human Resources directly contravened the Hospital's written policies (see PX 7 (Dkt. No. 72-6) at 30 ("Any[] supervisor or manager who receives a report or complaint of *30 discrimination or harassment must report that alleged offense immediately.")) and raises questions about the adequacy of the Hospital's training. Arce-Tomala' s testimony that she did not know the Hospital's procedures for reporting discrimination (Tr. at 328-29) also suggests that the Hospital's anti-discrimination training programs were ineffective.
Moreover, as defense counsel conceded in closing argument, the Hospital received Plaintiffs November 25, 2013 rebuttal to her written warning ful at 955-56), in which she explicitly complained about Quinones's discriminatory conduct (PX 15 (Dkt. No. 73-5) at 1), but never investigated Duarte' s complaint. (Tr. at 211, 331) A reasonable jury could conclude from this evidence that the Hospital did not make good faith efforts to implement and enforce its anti-discrimination policies and procedures.
In sum, this Court will not disturb the jury's determination that a punitive damage award is appropriate in this case.
B. Excessiveness Inquiry
1.
Applicable Law
"Regarding the magnitude of punitive damage awards, due process requires that
they be '"reasonable in their amount and rational in light of their purpose to punish what has
occurred and to deter its repetition."'" Hill v. Airborne Freight Corp., 212 F. Supp. 2d 59, 75
(E.D.N.Y. 2002) (quoting Vasbinder v. Scott,
The Supreme Court has stated that "[p]erhaps the most important indicium of the
reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's
conduct." Gore,
the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved No evidence was offered at trial concerning the Hospital's net worth or assets.
31 repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
State Farm Mut. Auto. Ins. Co. v. Campbell,
In employment discrimination cases, "[ c ]ases upholding punitive damage awards
of $200,000 or more generally involve discriminatory or retaliatory termination resulting in
severe financial vulnerability to plaintiff, repeated incidents of misconduct over a significant
period of time, repeated failures to address complaints of discrimination, and/or deceit."
MacMillan, 873 F. Supp. 2d at 566 (collecting cases). Courts also consider whether the plaintiff
"establishe[ d] a 'pattern of discrimination' that extended to [] other employees in [her] protected
*32
group." Id. (quoting Greenbaum v. Handelsbanken,
With respect to the ratio of punitive damages to compensatory damages, the Supreme Court has "been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award." State Farm, 538 U.S. at 424 (citations omitted). However, the Court has noted that "[o]ur jurisprudence and the principles it has now established demonstrate ... that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." Id. at 425.
Separate and apart from constitutional concerns, "a federal court in a case governed by state law must apply the state law standard for appropriateness ofremittitur." Payne v. Jones, 711 F.3d 85, 97 n.8 (2d Cir. 2012) (citing Gasperini, 518 U.S. at 429-30). Accordingly, this Court must apply relevant New York precedents and N.Y. C.P.L.R. § 5501(c), which- as discussed above - "provides generally that damages awards are excessive or inadequate if they 'deviate[] materially from what would be reasonable compensation."' Id. ("While it is not clear from the language of the New York statute that it was intended to apply to punitive, as well аs compensatory, damages, it is hard to imagine that the New York legislature expected its courts to exercise this supervisory responsibility only as to compensatory damages, and not as to punitive damages.").
In determining whether a punitive damages award is excessive, a court must "keep in mind the purpose of punitive damages: 'to punish the defendant and to deter him and others from similar conduct in the future."' Lee, 101 F.3d at 809 (citation omitted). "The excessiveness inquiry for punitive damages, as with compensatory damages, 'requires comparison with awards approved in similar cases."' Bouveng, 175 F. Supp. 3d at 346 (quoting *33 Mathie v. Fries, 121 F .3d 808, 817 (2d Cir. 1997)).
2. Analysis
The Hospital argues that "virtually all of the factors in the reprehensibility analysis [are] not present here":
[t]here was no violence or threat of violence; no physical injury; no termination of employment resulting in financial vulnerability; no deceit; no repeated failures to address claims of discrimination; no evidence of indifference or reckless disregard for the health or safety of others; and no evidence of an established "pattern of discrimination" that extended to other employees with any type of disability.
(Def. Br. (Dkt. No. 164) at 26 ( emphasis in original)) Plaintiff contends, however, that she suffered "egregious ... continued harassment," as "Quinones cruelly attacked Plaintiff's hearing disability over the course of eight years in the presence of her colleagues at staff meetings, causing Plaintiff to shut down during the meetings to avoid further public humiliation." (Pltf. Opp. (Dkt. No. 170) at 35) Plaintiff also argues that the Hospital's failure to investigate her complaints about Quinones's misconduct is reprehensible. [14] (Id.)
There is evidence that at staff meetings between 2007 and August 2014 Quinones
repeatedly referred to Plaintiff as "deaf," and that he did so in a manner that was calculated to be
demeaning and humiliating to her. (Tr. at 585, 761, 848-49) Quinones also suggested at staff
meetings that Plaintiff was exaggerating her hearing disability, stating repeatedly that Plaintiff
Plaintiff further contends that Quinones' s and Arce-Tomala' s "efforts to mislead the jury
about what they knew about Plaintiff's disability and Quinones' s harassment" demonstrate that
the discriminatory conduct was reprehensible. (Pltf. Opp. (Dkt. No. 170) at 35) While the jury
may have rejected the testimony of these two witnesses, the jury's credibility determination does
not demonstrate that their treatment of Plaintiff at work was reprehensible. Even assuming
arguendo that these managers perjured themselves, the Court is not aware of authority suggesting
that, under New York law, a punitive damage award against an employer can be predicated on a
manager's perjury at trial. Such an award would appear to be inconsistent with Supreme Court
precedent, which instructs courts to focus on the "reprehensibility of the tortious conduct," not
*34
on a witness's conduct at trial. Gore,
could hear when it was convenient for her to hear. (Id. at 584, 766, 848) There is also evidence that Hospital managers - Quinones and Arce-Tomala - ignored Plaintiffs repeated complaints about Quinones's discriminatory misconduct. Finally, there is evidence that the Hospital failed to investigate Plaintiffs complaints about Quinones's discriminatory misconduct in November 25, 2013, when the Hospital received Plaintiffs rebuttal to her written warning.
Based on Plaintiffs testimony, however, it is clear that the vast majority of staff meetings proceeded without discriminatory ridicule. (Id. at 791-92 (testifying that Quinones ridiculed Plaintiffs disability on two or three occasions in 2009 and 2010, and three times in 2011)) Moreover, most of the reprehensibility factors are absent here: there was no evidence of violence or a threat of violence; physical injury; termination of employment that resulted in financial vulnerability; deceit; indifference or reckless disregard for the health or safety of others; or discriminatory misconduct extending to employees other than Duarte. See MacMillan, 873 F. Supp. 2d at 566.
Having considered "all of the circumstancеs of the case," the Court concludes that
the Hospital's conduct "was insufficiently reprehensible to justify a punitive damages award in
significant excess of [the] compensatory damages award," which this Court has remitted to
$125,000. Thomas v. iStar Fin., Inc.,
35
to or reckless disregard for the health and safety or others"; prior to remittitur of punitive damage award, the punitive-to-compensatory-damages ratio was "approximately 5. 7: l "; following remittitur, compensatory damage award was larger than punitive damage award).
With respect to the ratio factor, the jury's award of $750,000 in punitive damages
represents a ratio of approximately 6 to 1 when measured against the remitted compensatory
The cases cited by Plaintiff (Pltf. Opp. (Dkt. No. 170) at 3 7-3 8) involve conduct that is far
more reprehensible. See, M.:., Zakre v. Norddeutsche Landesbank Girozentrale, 541 F. Supp. 2d
555, 564-65 (S.D.N.Y. 2008) ("[When plaintiff] was terminated, she had one child in college and
another approaching college, ... and she was the sole wage earner for the family .... In
addition, there was [] extensive evidence of discrimination against women generally[,] ... [ aµd]
[c]omplaints about discrimination ... were dismissed."); Greenbaum, 67 F. Supp. 2d at 269-70
("[Plaintiff] was subjected to a six-year pattern of discrimination, which ended in [retaliation]
when she finally complained .... Other evidence suggests that [defendant's] officials ... tried to
retaliate against her in a deceitful manner by moving her to a position that would later be phased
out for seemingly extrinsic reasons. The record also suggests that this pattern of discrimination
may have extended to other female employees .... "); Rivera v. United Parcel Serv., Inc., 148
A.D.3d 574, 574-75 (1st Dep't 2017)° ("[Plaintiffs] supervisor repeatedly made gross and highly
offensive sexually-charged remarks to plaintiff, including in front of plaintiffs subordinates,
causing them to lose respect for plaintiff and fueling rumors about her proclivity to engage in
workplace affairs. The supervisor [also] called her and followed her around after work, forcing
her to give him rides and otherwise communicate with him, on pain of threats oflosing her job
.... [Additionally,] plaintiff was the subject of widespread and unfounded workplace rumors
that she was having affairs with multiple coworkers, and ... [plaintiff's] subordinates made
crude and offensive remarks to each other and in plaintiff's presence."); Salemi v. Gloria's
Tribeca Inc.,
award of $125,000. The Second Circuit has stated that, "[a]s a general matter, [a] four-to-one
ratio of punitive to compensatory damages ... is close to the line of constitutional impropriety."
Turley,
Given that the punitive damages award here is six times greater than the remitted compensatory award-which itself falls at the top of the range for "garden variety" mental distress - the ratio factor weighs in favor of reducing the punitive damages award.
In reviewing the punitive award, this Court has also considered civil penalties under the NYCHRL and punitive damage awards upheld in comparable cases. "[T]he civil penalty for violating the NYCHRL [is] a maximum of $250,000 for an 'unlawful discriminatory practice [that] was the result of the respondent's willful, wanton or malicious act."' MacMillan, 873 F. Supp. 2d at 568 (quoting N.Y.C. Admin. Code§ 8-126(a)). The civil penalty amount *37 under the NYCHRL suggests that the $750,000 punitive damages award here is excessive. See id.
A survey of comparable cases likewise indicates that the punitive award here is
excessive. See Thomas, 652 F .3d at 148-49 (in race discrimination and retaliation case,
affirming remittitur of $1.6 million punitive damage award to $190,000, which was lower than
compensatory damage award, because plaintiff suffered no physical injury, and there was no
evidence of indifference to the health or safety of others); Caravantes v. 53rd St. Partners, LLC,
No. 09 CIV. 7821 RPP,
Having considered the reprehensibility factors, the ratio factor, civil penalties under the NYCHRL, and punitive damage awards imposed in comparable cases, the Court concludes that a punitive damages award ofno more than $125,000 is appropriate in this case. The Hospital's motion for a new trial concerning punitive damages will be granted unless Plaintiff agrees to a remittitur reducing the punitive damage award from $750,000 to $125,000.
CONCLUSION
For the reasons stated above, the Hospital's motion for a new trial is granted on the issue of damages unless Plaintiff agrees in writing by September 30, 2018, to a remittitur reducing the compensatory damage award to $125,000 and the punitive damage award to $125,000. The Clerk of Court is directed to terminate the motion. (Dkt. No. I 63) Dated: New York, New York
September 15, 2018
SO ORDERED.
Paul G. Gardephe United States District Judge