RULING ON POST-TRIAL MOTIONS
Plaintiff William Jennings was a police officer in Connecticut for defendant Town of Stratford for many years. After he criticized what he thought was corrupt action by a captain in the police department, the police department retaliated against him in numerous ways, and plaintiff ultimately resigned. Plaintiff then filed this lawsuit, contending that the- Town of Stratford retaliated against him on the ground of his exercise of his right to free speech under the federal and state constitutions. Following a three-day trial, a federal jury agreed with plaintiff and awarded him. $1 million in compensatory damages and $1.5 million in punitive damages;
Several post-trial motions have ensued. For' the reasons set forth below, I will deny defendant’s motions to challenge the verdict and damages award, except to the extent that I will conditionally grant a new trial unless plaintiff accepts remittitur of the punitive damages award to an amount of $500,000. I will grant in part and deny in part plaintiffs motion for attorney’s fees to allow for an attorney’s fee of $500,000 (subject to plaintiffs acceptance of remitti-tur of the punitive damages award).
Background
The facts set forth below are based on evidence introduced at trial and presented in the light most favorable to the jury’s verdict in plaintiffs favor. Plaintiff began his decades-long tenure with the Stratford police department in the late-1980s. By 1999, he had earned the rank of detective and, soon thereafter, was assigned to the Special Services Narcotics and Vice Unit (also known as Special Services), where he received specialized training. After several years with Special Services in roles that often involved undercover work, plaintiff was offered a position to work with the federal Drug Enforcement Administration (DEA) as part of a statewide task force.
The DEA position was coveted by many local police officers. It came with the prestige of federal agent status and credentials issued through the Department of Justice, as well as the opportunity to investigate drug trafficking that included local, statewide, national, and at times international cases. Doc. # 65 at 76. Although plaintiff remained an employee of the Stratford
The McNeil Scandal
Plaintiffs position with the DEA often kept him physically away from the Strat-ford police department, but he nevertheless remained a detective there, privy to internal politics within the department and, as relevant tó this case, to a particular scandal that embroiled the department in 2008. As the story went, the brother of the Stratford mayor had applied to become a police officer, Joseph McNeil, a captain in the Stratford police department who disliked the mayor, decided to illegally access the mayor’s brother’s- confidential background report and leak it to the press. When confronted about accessing the application, McNeil lied to internal investigators despite the chief of police’s direct order to cooperate fully in the investigation. McNeil’s lies were eventually exposed, and he was soon suspended without pay and demoted from the rank of captain. See Exh. 6 at 5. McNeil was later criminally -charged with computer misconduct stemming from his role in the access of the mayor’s brother’s application, and those criminal charges immediately became statewide news. See Exhs. 6, 7.
Despite all the controversy, McNeil remained president of the local police union, around the same time that plaintiff served as vice president of the statewide police union. At a statewide police union convention in 2008, plaintiff was approached by union members who were curious about the news of McNeil’s actions.and suspension. This angered McNeil, who believed that plaintiff was spreading rumors about him. McNeil confronted plaintiff at the convention, and they had an extremely heated, exchange that resulted in lasting animosity by McNeil towards plaintiff.
McNeil’s fortunes, took a turn for the better. By January of. 2011, the criminal charges had been dismissed, and McNeil was restored to active duty. He was reinstated as a captain, and he was awarded full back pay, at a cost of $300,000 to the taxpayers of the Town of Stratford.
What happened between 2008 and 2011 to change the tides so favorably for McNeil? First, the local police union — in which McNeil maintained a leadership role — aggressively supported. the candidate running to unseat the mayor, and the union succeeded in placing its preferred candidate into power. The result for McNeil was the ouster of the mayor whose brother McNeil had embarrassingly exposed tó the press. Second, the local police union — -with McNeil’s participation — took a vote of no confidence against the police chief. After that vote, the incumbent chief left the department, and Patrick Riden-hour was elevated to acting, (and soon-to-be actual) chief of police. The upshot was that McNeil was free from the police chief who had disciplined him for illegally accessing the mayor’s brother’s file and. then lying about it to internal investigators.
Finally, the local police union — with McNeil’s , participation — renegotiated its collective bargaining agreement with the Town of Stratford. The new deal was quite
At least that’s what plaintiff believed. He thought that McNeil’s good fortunes in having his charges dropped, being reinstated to his position as captain, and being given hundreds of thousands of dollars in back pay, was all no coincidence. And he decided to speak his mind about these concerns.
Plaintiff’s Protected Speech
On March 18, 2011, plaintiff was in the .police department parking lot chatting with Sergeant David Gugliotti when the subject of McNeil came up. Plaintiff told Gugliotti that he was unhappy with the newly renegotiated collective bargaining agreement, and he said he believed McNeil had sold out the interests of the police union during contract negotiations in order to get his position back as a captain in the police department. He. deemed McNeil’s actions to be “corrupt.”
The parties have agreed — and the jury was instructed — that these comments to Gugliotti were constitutionally protected speech. Gugliotti and- plaintiff ended their conversation and went home, apparently without incident. But plaintiffs words in the parking lot that day set in motipn what the jury found to be a concerted effort by the police department to end plaintiffs career because of his exercise of his rights to free speech.
Retaliatory Actions Against Plaintiff
Plaintiff soon learned that he was being investigated for what he had said about McNeil. Indeed, the investigation was set in motion by McNeii himself: Gugliotti had gone right to McNeil — skipping over any lieutenant in the normal chain of command — to tell him what plaintiff had said, and then McNeil in turn had gone right to then-deputy.'police chief Ridenhour. Docs. # 65 at 113-14; # 66 at 53. After talking to McNeil, Ridenhour brought it up the chain of command to the soon-to-be ousted chief of police, who ordered an internal investigation into plaintiffs statements about McNeil. Doc. # 66 at 54.
In the meantime, plaintiff continued on at work until he got himself into more disciplinary hot water because of an incident that occurred on April 18, 2011. On that day, plaintiff ‘went to the home of a former DEA informant, David Fredericks, in order to collect a personal debt for a fellow federal agent, see Exh. 502 at 14, a decision he would agree at trial was a lapse in judgment. Fredericks reacted angrily to plaintiffs presence, and the police were called-after Fredericks confronted- plaintiff with a baseball bat: Fredericks eventually reported the incident to the press.
Ridenhour, who had been elevated to acting police chief almost the same day as the Fredericks incident, decided on May 17, 2011, ,to commence an internal investi.gation into plaintiffs conduct during that incident. He assigned Lieutenant Celeste Robitaille to investigate the Fredericks incident, notwithstanding that Robitaille’s direct supervisor — to whom Robitaille reported on a daily basis — was none other than plaintiffs nemesis, McNeil. Doc. # 66 at 114-15.
The next day, plaintiff went to his imme- ' diate supervisor, Captain John Popik, to discuss the written warning penalizing him for
Plaintiff immediately reported Popik’s threat to Ridenhour in an e-mail with the subject line “request of internal investigation.” In the e-mail, plaintiff described Po-pik’s threat — that if plaintiff grieved the written warning, he would be investigated and/or disciplined — and indicated that he felt “threatened and manipulated” by a McNeil-friendly faction of the police department, Exh. 11. Plaintiff then asked Ridenhour to investigate “the direct ■ threats made to me regarding this decision [to grieve the warning].” Ibid.
Ridenhour replied on May 23, 2011, that he would carefully evaluate plaintiffs allegations about the threats to determine whether a formal investigation was warranted. Ibid. A week later, however, plaintiff had still not heard anything about an investigation into Popik’s threat or about McNeil’s involvement in the threat. Worried, plaintiff sent an emotional e-mail to Ridenhour about the situation:
Sir,
I have had the opportunity to sit with my attorney to discuss the most recent threats upon my decision to file a grievance on the written warning.... I also discussed the complaints filed by me in an attempt to stop the harassment which were never dealt with. We came to a simple agreement that I am a target of a supervisor that apparently will not stop until my career is negatively affected by his actions. I will not allow this hostile environment to blemish my career.
After 24 years of working in this department I have faced no disciplinary action or had so many INTERNAL complaints filed against me. The rumors of Captain McNeil wanting me out of DEA have been flowing for years....
All [McNeil] has done is created a detective that can’t trust his union and a detective that has minimal supervisors to turn to for guidance and assistance. ...
This is indeed a hostile environment to work in even though I am in an outside assignment.
The [internal investigation] involving Sgt. Gugliotti and I [regarding my statements about McNeil] should not have gone as far as it did and would not have if Captain McNeil did not influence same....
I have already been advised that when I am back at my PD, I can expect more issues from Captain McNeil. Besidesdocumentation, all I can do is wait and fight the immature actions by a hell bent supervisor with the mayor on speed dial. My family and I will not tolerate it and I am not retiring!!.
Exh. 12. Plaintiff ended his e-mail by requesting an update on whether Ridenhour had launched an internal investigation into the threat plaintiff had received from Po-pik. Ibid. At trial, Ridenhour testified that he could not recall responding to this email; he further stated that he did not open an investigation into Popik’s threat to. plaintiff or McNeil’s involvement in the threat. Doc. # 66 at 117-18.
Plaintiff received another blow- on June 17, 2011, when he learned that Ridenhour had removed him from his position on the DEA Task Force. This occurred even before a suitable replacement had been located or before the investigation into the Fredericks incident had been completed. See Exhs. 500, 501, 502.
The jury found that plaintiffs removal from the DEA position was an adverse employment action substantially motivated by the fact that plaintiff had engaged in constitutionally protected speech. In doing so, the jury necessarily discredited Riden-hour’s stated reason for having removed plaintiff: pressure from the DEA to remove plaintiff once news of the Fredericks incident hit the press. Compare Doc. # 66 at 86 (removed plaintiff “shortly after” the Fredericks incident made the local news), with id. at 87, 89 (no recollection of whether anything about the Fredericks incident had been reported before June 17, 2011) and id, at 88-89 (identifying an article about the Fredericks incident updated on July 6, 2011), 28 (same).
At the time plaintiff was - removed from the DEA position that he had held for nine years, he had taken a valid medical leave of absence. He was still in that medical leave of absence by the time the Freder-icks investigation concluded and when he was called in to a disciplinary hearing. Plaintiff attended the disciplinary hearing with three union representatives who. would not even look at him. And after plaintiff watched his union attorney have a conversation with, either Ridenhour or Rid-enhour’s representative, he was told by his attorney that if he did not sign an agreement stipulating to discipline for the Fred-ericks incident, his attorney believed the Town would fire him. Doc. #65 at 143. The agreement given, to plaintiff that day imposed 10 days’ suspension for the Fred-ericks incident and waived plaintiff’s grievance rights. See Exh. 504. Realizing then that plaintiff had no support even from his union, and no choice but to sign the stipulation-for-discipline or face being fired, plaintiff reluctantly signed the stipulation. Doc. # 65 at 143.
Constructive Discharge
By then, plaintiff remained in the process of grieving the written warning with the assistance of a private attorney, but he had already been removed from the DEA and been presented with no option other than to agree to suspension for the Fred-ericks incident. Even had he immediately returned to work from medical leave, his assignment within Special Services had yet to be determined, Exh. 500, which injected a level of uncertainty plaintiff could no longer bear in light of all he had faced. By this time, he had told many of his superiors about being targeted by McNeil, and yet nobody had taken plaintiff seriously or looked into the matter. Doc. # 65 at 182-83 (Popik and Pinto, in addition to Riden-hour).
With the writing on the wall, and no one in the police department that was willing to cross McNeil to help him, plaintiff felt he had no choice but to retire. See Doc. # 65 at 154, 225, 228. He tendered his resignation on January 6, 2012, Exh. 509,
Soon after plaintiff left the Stratford police department, McNeil was promoted to deputy police chief and, as of the date of trial, held the position of chief of police. Doc. #66 at 108-09. Despite plaintiffs main theory at trial (that McNeil was orchestrating efforts against him), defendant did not call McNeil at trial, and the evidence was otherwise strong in support of plaintiffs theory that he was on McNeil’s blacklist for continuing hostile treatment at every turn. In August 2013, plaintiff won his grievance against the Town of Stratford for his written warning, Exh. 13, but by then it was only a hollow victory as he had already lost his career with the police department.
This lawsuit and trial followed. As relevant here, plaintiff alleged in his complaint’ that he was subject to retaliation by defendant, oh the grounds of his exercise of his right to free speech as protected under the federal and state constitutions. Doc. # 1 at 5-8. The jury awarded plaintiff $1 million" in compensatory damages and $1.5 million in punitive damages.
Discussion
Now before mé 'are several post-trial motions: (1) defendant’s motion for judgment as a matter of law or in the alternative motion for new trial (Doc. # 70); (2) defendant’s motion to alter or amend the judgment and motion to consider plain error-' in the jury instructions (Doc. # 71); and (3) plaintiffs motion for attorney’s fees (Doc. #74). I will first consider defendant’s varied challenges to the jury’s verdict of liability, followed by defendant’s challenge to the award of compensatory and punitive damages, and finally plaintiffs motion for-attorney’s fees.
Liability
Defendant moves for judgment as a matter of law pursuant tb Fed. R. Civ. P. 50 on the ground that the evidence was insufficient to prove (1) that the threat by Popik was an adverse employment action; (2) that plaintiffs removal from the DEA task force was an adverse- employment action; and (3) that plaintiff suffered' a constructive discharge. Doc. #70-1 at 1.
Under Rule 50, a motion for judgment as a matter of law will be granted only if “a reasonable jury [did] not have a legally sufficient evidentiary basis to find for the party” that prevailed at trial. Fed. R. Civ. P. 50(a)(1). A party seeking judgment on this basis bears a “heavy burden,” and will succeed only if “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could Have reached.”
Popik’s threat. Defendant first argues that there was insufficient evidence for the jury to conclude that Popik’s threat was an adverse employment action. For purposes of a First Amendment retaliation claim, “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional, rights constitutes an adverse action.” Zelnik v. Fashion Inst. of Tech.,
The evidence easily sufficed for the jury to conclude that Popik’s statement was a threat and that this threat would have deterred a person of ordinary firmness from exercising his free speech rights as plaintiff did. After receiving a written warning for his speech, plaintiff went to Popik — his supervisor — for help with respect to whether he should file a grievance from the written warning. Rather than assist plaintiff or simply do nothing, Popik instead threatened him with further repercussions of the kind suffered by McNeil when he éngaged in far worse, not-constitutionally-protected conduct. Viewing the evidence in the light most favorable' to plaintiff, Popik’s threat with its potential career-ending consequences was significant enough to deter a reasonable and similarly situated person of ordinary firmness from exercising his constitutional right to free speech as plaintiff did.
Removal from DEA. Defendant next argues there was insufficient evidence for the jury to conclude that plaintiff’s removal from his position with the DEA was an adverse employment action because the transfer from the DEA to Special Services was merely a lateral move. While it is true that plaintiffs base salary and rank remained the same after thé transfer, plaintiff testified that he would have had fewer' overtime opportunities in his assignment at Special Services. See Doe. #65 at 227-28. Moreover, the DEA position came with prestige and interesting assignments that were not available to a regular detective within the Stratford police department, Docs. # 65 at 76, # 66 at 30. Evén Ridenhour testified that the position was highly desirable. Doc. # 66 at 82-83. The' jury could have reasonably concluded that removal from this position, one which plaintiff had held and valued for nine years, would deter a reasonable person of ordinary firmness from exercising his constitutional right to free speech as plaintiff did.
The Second Circuit has recognized that “a constructive discharge claim can be premised on the cumulative- [ejffect of a number of adverse conditions in the workplace.” Terry v. Ashcroft,
Defendant argues that the evidence of constructive discharge was deficient because plaintiff had other remedies available to him to protest his mistreatment. But the jury was instructed to consider whether plaintiff had alternatives to resignation, such as resort to the grievance process, in determining whether he had been constructively discharged. Doe. # 61 at 8-9. - The jury could reasonably have determined that a reasonable person in plaintiffs shoes would have felt compelled to resign his employment — that plaintiff was progressively being forced out of his employment and that resort to the grievance procedure would have been futile. After all, plaintiff had already filed a grievance with respect to his written warning, which, rather than help to ameliorate the situation, provoked Popik’s threat of severe repercussions if he protested being sanctioned for speaking out about McNeil and the perceived corrupt union deal. Plaintiff then implored Ridenhour as the acting police chief for help and asked that he investigate McNeil’s acts of oppression against him. But Ridenhour ignored plaintiff. A complaint to director of Human Resources would have been equally futile, since Ing had personally approved of McNeil’s questionable reinstatement. Even the mayor also seemed to be on McNeil’s side. And when, despite the odds of successfully advocating for himself within the Town, plaintiff went to a disciplinary hearing on the Fredericks incident, he was told, after watching his union attorney meet with representatives from the Town, that, if he did not stipulate to his discipline and waive his grievance rights, it seemed likely that he would be fired. Doc. # 65 at 143.
In light of this evidence and viewing it in the light most favorable to plaintiff, a reasonable jury could have concluded that plaintiff was constructively discharged and that a reasonable person would have believed that further resort to the grievance process would have been futile. See Terry,
Defendant further argues that plaintiffs absence from work as a result of his medical leave softened the blow of each of the several adverse employment actions found by the jury, such that plaintiff could not
Rather, this is a case in which the evidence sufficed to show that plaintiff was targeted with several intentionally devastating employment actions aimed at eroding the bedrock of plaintiffs career. That plaintiff was out on leave is of no moment, as evidenced by Ing’s testimony that plaintiff remained preoccupied by being targeted even when filling out his retirement papers. See Doc. #66 at 146. The jury could have reasonably found that, regardless of whether plaintiff was at work or on a valid medical leave, the cumulative effect of these intentional actions levied at him would have caused a reasonable person in plaintiffs shoes to feel compelled to resign. The evidence was sufficient to support the jury’s finding of a constructive discharge.
In the alternative, defendant also moves for a new trial on the constructive discharge issue. Rule 59(a) of the Federal Rules of Civil Procedure provides that the Court may grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” The standard for granting a motion for a new trial is lower than the standard for granting a Rule 50 motion — a judge “may weigh the evidence and the credibility of witnesses and need not view the evidence in the light most favorable to the verdict winner.” Raedle v. Credit Agricole Indosuez,
Nor is a motion for a new trial “a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Sequa Corp. v. GBJ Corp.,
Even applying the more generous standard of Rule 59,1 conclude that a new trial on the issue of constructive discharge is not warranted. I have considered each of the aspects of testimony and evidence highlighted in defendant’s papers. Doc. # 70-1 at 20-29. Although the facts were somewhat intricate and not so compelling to admit of only one conclusion in plaintiffs favor, the jury had a sound basis to find that plaintiff had been constructively discharged — that he was and would be subject to continuing retaliation for his speaking out against McNeil and what he believed to be a corrupt deal engineered by McNeil between the poliee union and
Compensatory Damages
Apart from his challenges to the jury’s verdict of liability against him, defendant further challenges the size of the jury’s award of damages. First, defendant challenges the jury’s award of $1 million in compensatory damages insofar as the award appears to reflect a component of about $280,000 for emotional distress above and beyond plaintiffs evidence that he introduced at trial of about $770,000 in lost future wages and (benefits due to his early retirement.
The calculation of damages is the province of the jury, and courts will not “vacate or reduce a jury award merely because [the court] would have granted a lesser amount of damages,” Turley v. ISG Lackawanna, Inc.,
Defendant asserts that the jury’s award of emotional distress damages in this case is not comparable to awards in other cases. But the other cases cited by defendant are not instructive, because they involve primarily non-First-Amendment-retaliation claims, e.g., Bouveng v. NYG Capital LLC,
I conclude that an award of $230,000 in emotional distress damages was fair, reasonable, predictable, and proportionate in this case, and reasonably within the range found in other, more comparable cases. See McClain v. Pfizer, Inc.,
While plaintiff did not present medical evidence substantiating his distress,’ he testified with sincere emotion about how the loss of his career — the “career that was my life,” Doc. # 65 at 158 — completely devastated him. His work had been more than a job to him: “It was a way of life,” Doc. # 66 at 30, the loss of which clearly continues to shake plaintiff, as evidenced by plaintiffs demeanor during trial when he discussed his. forced retirement. Plaintiffs live testimony was particularly helpful to the jury in this regard, taking this case out of the realm of a “garden variety” claim of emotional distress when coupled with (and made worse by) the offensive conduct of the highest decision-makers within the Stratford police department, an agency that has been tasked with upholding the laws of this state and country, not breaking them. See Wallace v. Suffolk Cnty. Police Dept.,
Punitive Damqges .
Having concluded that the jury’s determination as to liability was permissible, I now address defendant’s various challenges to the jury’s award of punitive damages. These challenges include: (1) that the Court erred by instructing the jury on punitive damages because' the complaint did not expressly seek an award of punitive damages or expressly allege a violation of the statute (Conn. Gen. Stat. § 31-51q) that authorized a punitive damages award; (2) that an award of punitive damages was not' supported by the evidence; (3) that the Court erred by failing to instruct the jury' that an award of punitive damages should be limited to attorney’s fees and costs; and (4) that the award of punitive damages was otherwise excessive. See Docs. # 70-1 at 33-35; # 71; # 89;
1. Adequacy of complaint as to punitive damages
Defendant argues that punitive damages should not have been awarded because the complaint neither sought punitive damages nor expressly cited the statute (Conn. Gen. Stat. § 31-51q) that served as the basis for the jury to consider an award of punitive damages. I do not agree.
First, as to the lack of a punitive damages demand in the complaint, the Federal Rules of Civil- Procedure make clear that this omission does not preclude the Court from instructing the jury on punitive damages. See Fed. R. Civ. P. 54(c) (stating that a default judgment may not exceed “what is demanded in the pleadings” but that “[e]very other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings”). Nor were defendants unfairly surprised by any omission of a punitive damages demand from the complaint in light of the fact that plaintiffs proposed jury instructions that were submitted several weeks before trial included a request for an instruction on punitive damages. Doc. # 44 at 5-6; see also Bowles v. Osmose Utilities Services, Inc.,
Defendant further argues that the complaint did not allege a violation of Conn. Gen. Stat. § 31 — 51q, which is the statute that served as the legal predicate for the Court to instruct the jury on punitive damages:
Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages.
Conn. Gen. Stat. § 31-51q (emphasis added).
. Although it is true that the complaint did not expressly cite § 31-51q, I conclude that the complaint necessarily alleged a cause of action under § 31-51q by
Because the complaint sought relief in part under the state constitution as well as the federal constitution, the complaint necessarily relied for its cause of action not simply upon 42 U.S.C. § 1983 but also upon § 31-51q. See also Schumann v. Dianon Systems, Inc.,
Indeed, Connecticut courts have rejected the argument that the free-speech provisions of the Connecticut Constitution are independently actionable apart from the cause of action that is prescribed under § 31-51q. See Thibault v. Barkhamsted Fire Dist.,
It is true that defendant asserted in passing during the course of summary judgment briefing in this case that plaintiff was not proceeding under § 31-51q and that plaintiff did not dispute the assertion
More importantly, by the time that this case came up for trial and long after the Court’s summary judgment ruling, defendant itself acknowledged that plaintiff was proceeding pursuant to § 31-51q when defendant submitted a proposed jury instruction under § 31-51q. See Doc. # 41 at 6-9. The fact that defendant requested a jury instruction pursuant to § 31-51q refutes its claim that the complaint was not understood .to have alleged a cause of action pursuant to § 31-51q or that defendant did not have appropriate notice that plaintiff was proceeding in part pursuant to § 31-51q as well as under 42 U.S.C. § 1983.
Even assuming that the 'Court has erred in some respect with the foregoing analysis, the fact, remains that defendant did not object to the Court’s instructing the jury on punitive damages. To the contrary, defendant’s counsel — when furnished by the Court with a copy of § 31-51q and directed to its language that expressly allows for an award of punitive damages against a municipality — agreed with plaintiffs counsel’s. statement that “there should be a charge on. punitive damages,” adding that “I don’t disagree with that, Your Honor. It’s' [the statute] pretty explicit.” Doc. # 66 at 175. ■
In light of defendant’s failure to object to the Court’s instructing the jury on punitive damages (or at all to the content of the Court’s instruction), defendant’s burden at this, time is to show that that it was no less than “plain error” for the Court to have instructed the jury on punitive damages. See Fed. R. Civ. P. 51(d) (2); Rasanen v. Doe,
2. Sufficiency of Evidence to Support Punitive Damages Award
Because it was not plain error to submit the question of punitive damages to the jury, and such damages are not limited to costs of suit, I turn to whether the evidence was sufficient to allow the jury to award punitive damages. The jury was permitted to award punitive damages if it found that defendant’s conduct evinced a reckless indifference to- the rights of others or an intentional and wanton violation of those rights. See Doc. # 61 at 15 (jury instructions); Arnone v. Town of Enfield,
3. Common ■ Law Limitation on the Punitive Damages Award
Defendant argues that the Court committed plain error when it instructed the jury to determine the amount of punitive damages without limiting the jury’s award solely to the costs of litigation (including attorney’s fees, less taxable costs). See Doc. # 71-1. Defendant concedes pursuant to Fed. R. Civ. P. 51(d)(2) that this claim of error is subject to plain-error review for failure of defendant to have sought this limitation at trial. Ibid.
I conclude that there was no plain error here. Defendant’s argument rests on the notion that the punitive damages award should have been limited solely to the amount that is allowed as punitive damages under the common law of Connecticut. As the Connecticut Supreme Court has explained, common law punitive damages “are limited under Connecticut law to litigation expenses, such as attorney’s fees less taxable costs.” Hylton v. Gunter,
The difficulty with plaintiffs argument is that the award of punitive damages in this case was expressly authorized by statute, not by the common law or by means of any cause of action arising under the common law. The statute — § 31-61q — does hot limit the measure of punitive damages to the common law measure of attorney’s fees. To the contrary, the text of the statute provides for an award of punitive damages in addition to an award of attorney’s fees. See Conn. Gen. Stat. § 31-51q (providing in part that employer shall be liable for “punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages”) (emphasis added).
In view of the acknowledged purpose of a common law measure of punitive damages merely to compensate a plaintiff for his attorney’s fees, see Hylton,
Moreover, the Connecticut Supreme Court has interpreted similar statutory language that appears in the 'Connecticut Unfair Trade Practices Act (CUTPA) to concludé that an award of punitive damages under CUTPA is not subject to the common law limitation for the award of punitive damages. See Ulbrich v. Groth,
Even if I am mistaken, I cannot say that any error amounted to plain error in light of a contrary decision by the Connecticut Supreme Court on this state law issue. “To constitute plain error, a court’s action must contravene an established rule of law.” Lavin McEleney v. Marist Coll.,
b. Alleged Excessiveness of Punitive Damages Award
Finally, defendant challenges the amount of punitive damages awarded by the jury as unduly excessive and seeks remittitur. Doc. # 70 at 33-35. As the Second Circuit has observed, “[pjunitive damages ‘are given to the plaintiff over and above the full compensation for the injuries, for the purpose of punishing the defendant, of teaching the defendant not to do it again, and of deterring others from following the defendant’s example.’ ” Stampf v. Long Island R. Co.,
In deciding whether the punitive damages award was excessive, I am guided at the outset by the fact that § 31-51q specifically subjects municipalities to awards of punitive damages when they engage in free-speech retaliation and places no specific limits on the ratio of punitive damages to compensatory damages. See Ulbrich,
I am also mindful that the United States Constitution imposes a substantive limit’ on the size of a punitive damages award, and that I am to consider three “guideposts” in determining the propriety of a punitive damages award: (1) the degree of reprehensibility of the defendant’s conduct, (2) the relationship of the punitive damages award to the compensatory damages award, and (3) criminal and civil penalties imposed by the state’s law for the misconduct in question. See Stampf,
I will refer to these three factors as the “Gore factors” in light of their namesake case precedent. Defendant’s briefing perfunctorily cites these factors (Doc. # 70-1 at 33) but then makes no effort to analyze how any of these factors actually apply in this case. Instead, defendant’s briefing pivots to attack the fairness and accuracy of plaintiffs closing argument (and does so in ad hominem fashion without demonstrating that plaintiffs counsel’s argument was inaccurate and despite the fact that defendant did not lodge a timely or specific objection to the complained-of statements in plaintiffs closing argument). Doc. # 70-1 at 34-35.
Regardless of defendant’s failure to explain how the Gore factors apply in this case, I will attempt to do so. The first Gore guidepost for my review is “[p]erhaps the most important indicium of the reasonableness of a punitive damages award”: the degree of reprehensibility of the defendant’s conduct. Gore,
Here, I conclude that, although the harm did not result from a reckless disregard for safety and was not a physical harm, it was a harm that involved repeated, malicious actions that the jury could reasonably haVe determined resulted from intentional conduct. The reprehensibility was worse because the actors were the highest leaders within the Stratford Police Department, an agency that has been tasked with upholding the laws of this state and country, not breaking them. I conclude that the first factor weighs in favor of a reduction of the punitive damages award to the extent that there was no profit motive, no threat to health or safety, and that the noxious retaliatory conduct was largely a product of banal motives and seedy small-town politics.
Turning to the second Gore factor (the relationship of the punitive damages award to the compensatory damages award), the punitive damages of $1.5 million is 50% more • than the compensatory damages award of $1 million. As plaintiffs briefing notes, there are many examples of punitive damages awards that have well exceeded this ratio. See Doc. #76 at 12-14. The Court’s own research — unfortunately unaided by defendant’s complete failure to cite case examples — discloses additional examples of more modest awards in other First Amendment retaliation cases. See, e.g., Arnone v. Town of Enfield,
Here, the ratio of punitive damages to compensatory damages is 1.5:1, which is well- within the range of ratios found acceptable by other courts. But unlike many other cases, the jury here awarded very substantial compensatory damages, which raises - fairness concerns about the additional punitive damages awarded. As the Supreme Court has advised: “When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” See State Farm Mut. Auto. Ins. Co. v. Campbell,
As for the third Gore factor (comparison of the punitive damages awarded with the civil and criminal penalties for comparable misconduct), defendant does not direct the Court’s attention to any'state civil or criminal penalties at all, let alone those that would have been less severe than'the punitive damages awarded by the jury. See Russo,
I am mindful as well that punitive damages assessed against municipalities may burden local treasuries and their -taxpayers, see City of Newport v. Fact Concerts, Inc.,
Attorney’s Fees
The last motion before me is plaintiffs motion for attorney’s fees (Doc. #74). Plaintiff seeks an award, of attorney’s fees of $833,333, commensurate with-one-third of the total damages award in this case and in accordance with the amount provided under the written retainer agreement (Doc. #83-1). Plaintiff stakes his motion solely oh the attorney’s fee recovery provision of Conn. Gen. Stat. § 31-51q, rather than the cognate attorney’s fees provision under federal law, 42 U.S.C. § 1988. According to plaintiff, as a matter of state law, he is entitled to an award of attorney’s fees on the' simple basis of his contingency fee arrangement and without respect to the multiple factors that are ordinarily considered for an attorney’s fee award under federal civil rights statutes. See, e.g., Perdue v. Kenny A. ex rel. Winn,
Under Connecticut law, the Connecticut Supreme Court has instructed that “when a contingency fee agreement exists, a two step analysis is required to determine whether a trial court permissibly may depart, from it in awarding a reasonable fee pursuant to statute or contract.” Schoonmaker v. Lawrence Brunoli Inc.,
I have examined the retainer-and-fee agreement ánd conclude that plaintiffs one-third contingency-fee arrangement is permissible and reasonable. See, e.g., Fraser v. Wyeth, Inc.,
Nor is it unfair to allow for a contingency fee that is based in part on the award of punitive damages. The success of plaintiffs counsel in this case is properly measured in part by. his ability to persuade the jury that there were aggravated circumstances in this case that made an award~of punitive damages was appropriate. ■ ■
Conclusion
For the reasons stated above, defendant’s motions for judgment as a matter of law and for a new trial (Doc. # 70) and to alter or amend the judgment (Doc. # 71) are DENIED, subject to the Court’s re-mittitur of the punitive damages award to an amount of $500,000. Plaintiff shall file a statement by July 14, 2017, whether he accepts the Court’s remittitur of the punitive damages award or whether he wishes the Court instead to grant a new trial. Plaintiffs motion for attorney’s fees (Doc. # 74) is GRANTED in part in the amount of $500,000, subject to plaintiffs acceptance of the Court’s remittitur of the punitive damages award. It is so ordered.
Notes
. The jury had good reason to doubt the motive and credibility of Ing, who was present in court throughout the trial as defendant’s representative. Ing testified that he had decided to reinstate McNeil in ’2011, despite the huge cost to the taxpayers of the Town of Stratford, because he had concluded that McNeil’s 2008 internal investigation had been unfair. But when pressed about what exactly had been wrong about the investigation of McNeil, Ing could not elaborate or identify any example of unfairness, Doc. # 66 at 146-55.
. Defendant’s briefing confusingly cites Zelnik (Doc. # 70-1 at 3) but then goes on to cite and rely on Title VII discrimination cases in support of its claim that there was no adverse action here (Doc. #70-1 at 4). In Zelnik, however, the Second Circuit took pains to distinguish the higher standard that applies to show áñ adverse action in the context of a Title VII claim for employment discrimination than to show an adverse action in the context of a First Amendment retaliation claim. Zel-nik,
. Defendant does not claim that the Court erred with respect to its admission or exclusion of evidence.
. As the jury’s verdict form reflects, it did not rule in plaintiff's favor with respect to all of his claims of adverse retaliatory actions. Doc, # 60 at 1-2 (ruling in plaintiffs favor on 4 of 6 claims of adverse action). This is consistent with the Court’s conclusion that the jury carefully weighed and discerned its judgment from the mix of evidence.
. Defendant’s post-trial motion initially challenged the entire award of compensatory damages but at oral argument' defendant abandoned its challenge to the award of compensatory damages with respect to lost wages and benefits in light, of the substantial evidence of such damages that was introduced at trial. Docs, #70 at 31, #85 at 22 ("THE COURT: But you’re not challenging the 770. MR. HOLCOMB: No, Your Honor, I’m not.”).
. Défendant did not initially challenge the jury’s verdict on the ground that the complaint did not allege a violation of § 31-51q; it has pursued the argument only in response to the Court’s sua sponte order for supplemental briefing on this issue. Docs, # 87, #89. The- fact that defendant did not raise this argument in the 'first instance reinforces my conclusion that defendant understood by the time of trial that plaintiff's action was
. It is true that plaintiffs counsel later seemed to mistakenly think during trial that plaintiff could not seek punitive damages against a municipality. Doc. # 66 at 4, 175. But there is no showing that defendant relied on plaintiff's counsel’s misunderstanding. To the contrary, it was defendant's counsel that proposed jury instructions in accordance with Conn. Gen. Stat. § 31-51q, the statute that expressly authorizes the award of punitive damages for a First Amendment retaliation claim against a municipal employer. Doc, # 41 at 6-9; see also Doc. # 56 (defendant’s mid-trial submission noting in part that "Connecticut courts have applied the constructive discharge doctrine to claims [of] free speech retaliation in violation of Conn. Gen. Stat. § 31-51q’’).
. The complaint also expressly alleged a violation of 42 U.S.C. § 1983 (Doc. # 1 at 5 (¶ 2)) but of course § 1983 does not provide a cause of action for a violation of state law. See, e.g., Young v. County of Fulton,
. Consistent with the fact that plaintiff sought relief under both the federal and state constitutions, the jury instructions stated that plaintiff claimed retaliation "for exercising his rights to free speech as protected under the. federal and state constitutions,” Doc. # 61 at 6 (emphasis added). The parties did not otherwise suggest that there were any relevant differences presented on the facts of this case between the elements of a claim under the federal constitution and a claim under the state constitution. See Doc. # 66 at 3-4. To the extent that § 31-51q requires proof of "discipline” or "discharge” (as distinct from a general "adverse action"), the jury was instructed on the requirements for a construe-' tive discharge, and defendant agreed that a constructive discharge is actionable under § 31-51q. Doc. # 56 at 2. To the extent that § 31-51q requires proof that the protected speech activity “does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer,” defendant’s proposed jury instruction conceded that "[t]he defendant is not claiming that the plaintiff’s alleged statements interfered with his job performance or his working relationship with his employer.” Doc. #41 at 7.
. Not to the contrary is the Second Circuit’s unpublished ruling in McClain v. Pfizer,