Plaintiff Brandi Johnson brings claims of gender and race-based employment discrimination and retaliation under Title VII, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107 et seq. Following a five-day trial concluding on September 3, 2013, the jury found STRIVE East Harlem Employment Group as well as Rob Carmona liable for unlawful discrimination. Defendants now move for judgment as a matter of law, a new trial, remittitur of damages, and dismissal for discovery violations. For the reasons below, Defendants’ motion for remittitur is GRANTED. The Court therefore will grant a new trial on damages unless Plaintiff accepts a reduced compensatory award of $128,109.59. But Defendants’ remaining motions are DENIED.
BACKGROUND
STRIVE is an organization designed to assist low-income individuals with securing and maintaining gainful employment. On February 19, 2010, the U.S. Department of Labor awarded STRIVE a federal grant worth over $4.7 million. (Krebs Decl. Ex. B.) The initial grant stated that its “[p]eriod of [p] erf or manee” would be from January 29, 2010 through January 28, 2012. (Id.) Shortly after receiving this grant, STRIVE hired Plaintiff, an African-American woman, as an Affiliate Services Cоordinator on May 3, 2010. (Id. Ex. C.) Essentially her position was to oversee the work done under the grant. Her position was funded entirely through the grant. Plaintiffs annual salary throughout her tenure was $60,000. On January 24, 2012, the grant’s period of performance was extended to June 30, 2012. (Krebs Deck Ex. H, at JOHNSON 125.)
Carmona, STRIVE’s president and founder, a dark-skinned Puerto Rican male, was Plaintiffs first supervisor. (Id. Ex. C.) According to Plaintiff, Carmona was a difficult supervisor to work under. For example, soon after she was hired, Carmona purportedly “yelled and screamed at [Plaintiff] in an offensive tone.” (Trial Tr. 49:22-50:8.) This followed a time when Carmona came to believe that Plaintiff was spreading rumors about other STRIVE employees. Carmona also told Plaintiff that she was “the kind [of] woman who [would] throw a woman under the bus” and that she “had a sick way about [her]self.” (Id. 50:8-10.) He then threatened to terminate Plaintiff if she were involved in any similar incidents. Sometime after this confrontation and within the first six months of Plaintiffs tenure, Lisa Stein, STRIVE’s then-CFO, replaced Carmona as Plaintiffs direct supervisor.
Throughout her employment at STRIVE, Plaintiff testified that she “tried to initiate a friendship” with Carmona so that he would “leave [her] alone.” (Id. 53:12-15.) But at one point, Plaintiff brought to Carmona’s attention that a STRIVE employee may have sexually harassed one of STRIVE’s female clients. As Plaintiff testified at trial, Carmona criticized Plaintiffs judgment in bringing the issue to him, commenting that this participant was “ugly as shit” and “she would have enjoyed it anyway.” (Id. 58:5-10.) He also urged Plaintiff to “stop being so emotional.” (Id. 58:12-13.) And according to Plaintiff, Carmona’s practice of forcefully berating Plaintiff for perceived transgressions continued unabated. (Id. 60:2-15.)
At some point, Plaintiff then began to surreptitiously record her conversations
Carmona also made other comments during Plaintiffs employment at STRIVE that could be construed as demonstrating his discriminatory animus. First, Carmona acknowledged that he “may have” told Plaintiff that “black women get in the way of themselves.” (Trial Tr. 421:14-18.) While he claimed not to remember this specific conversation, Carmona then affirmed that he truly believed black women could “get in the way of themselves.” (Id. 422:23-424:7.) In his defense, Carmona then urged that while he was at times “a male chauvinist[,] ... in [his] head [he] knew it didn’t make sense because [he] was raised by a woman that defied all of that stereotypical type of thinking.” (Id. 388:4-17.) Nevertheless, Carmona acknowledged that he had a “tendency” as a “Puerto Rican male” to feel that “the man ... rules in his house,” that a man’s “word is law,” and that women “are too emotional” while men are not. (Id. 418:3-13.)
Less than one month after the March 14 incident, Plaintiffs counsel sent a draft complaint to Phil Weinberg, STRIVE’s chief executive officer, on April 11, 2012. In response, Weinberg headed an internal investigation into Plaintiffs allegations of employment discrimination. (Id. 474:9-20.) And by April 26, a STRIVE attorney interviewed Carmona regarding Plaintiffs complaints. (Id. 432:22-25.) Yet after Plaintiff complained about discrimination, Carmona had another dispute with Plaintiff. This time, Carmona complained about Plaintiff eating her lunch with other STRIVE employees outside of Carmona’s office. (Id. 400:3-11.) After telling the group to “wrap it up,” Carmona advised Plaintiffs lunch companions that they should “not allow [themselves] to be used.” (Id. 70:11-21; 402:4-10.) Carmona also asked a STRIVE client to stop associating with Plaintiff “because there [was] something going on with her and the company, and [Carmona] didn’t really want [the client] to get mixed up in it.” (Id. 215:11— 16.) Plaintiff further testified that at one point after notifying STRIVE of her potential lawsuit, Carmona walked by her desk and threatened that he would “[p]ut this bitch in a smash.” (Id. 72:20-23.) Although the parties were precluded from introducing' evidence of Plaintiffs text messages at trial, one text message indicated that Plaintiff had previously reported that Carmona had used the word “[s]hit” instead of “bitch.” (Krebs Decl. Ex. J.) And the text message suggested that Plaintiff had some uncertainty as to whether Carmona had directed the comment at her.
Carmona also testified that he played no role in Plaintiffs termination. (Id. 404:13-16.) But it is undisputed that Weinberg communicated to Carmona the results of his investigation of Plaintiffs complaints before her ultimate termination. (Id. 492:20-22.) STRIVE’s board of directors also admonished Carmona following that investigation. (Id. 497:6-10.) Yet despite this reprimand, Plaintiff testified that Carmona’s role at STRIVE “never changed.” (Id. 76:25-77:4.) And in general, testimony revealed that Carmona played a significant role in personnel actions at STRIVE, including with regard to Plaintiff. Indeed, Carmona interviewed Plaintiff when she was first hired. (Id. 95:7-8.) And Plaintiff testified to previous occаsions where Carmona had threatened to terminate her “on the spot.” (Id. 50:11-23.) Finally, Carmona still remains “the face of STRIVE.” (Id. 76:25-77:4; 509:6-8.)
After her termination, Plaintiff was unemployed for just over six months. On January 7, 2013, Plaintiff obtained a new position that pays $50,000 annually. (Id. 80:13-81:20.) Plaintiff also testified that while she was still employed at STRIVE, she began seeing a therapist as a result of these events. But Plaintiff declined to take any prescribed medication. (Id. 80:5-8.) Nor did Plaintiff testify as to any physical manifestations of her distress. Instead, she urged that when Carmona “call[ed] [her] a nigger” and implied that she was “low class,” it “sh[ook] [her] character.” (Id. 78:4-14.) Yet at trial, current STRIVE employees testified that Plaintiff also used the word “nigger” in the workplace, including to. describe her own son. (Trial Tr. 235:1-18; 247:5-13; 399:13-18.) Nevertheless, despite counsel’s claim that this testimony was “unrefuted,” Plaintiff unequivocally disputes these accounts. (Id. 90:7-11.) And immediately following the confrontation with Carmona, Plaintiff urges that she cried in the bathroom for “about 45 minutes.” (Id. 66:12-22.) She also had trouble sleeping that night, crying again at home. (Id. 66:25-67:4.) Ultimately, as a result of her treatment, Plaintiff claims she has suffered from reduced confidence, has become a less effective parent, and sometimes needs to “muster up the energy to get [herself] together” just to get out of bed. (Id. 78:18-24.)
Following the trial, the jury concluded that both STRIVE and Carmona had (1) “subjected [Plaintiff] to a hostile work environment,” (2) “discriminated against [Plaintiff] because of her gender or race when STRIVE East Harlem Employment Group terminated her employment,” and (3) “retaliated against [Plaintiff] because of her complaints of gender or race discrimination.” (Ct. Ex. F.) The jury awarded Plaintiff $250,000 in compensatory damages. Following a subsequent bifurcated proceeding, the jury also awarded punitive damages in the amounts of $25,000 against Carmona and $5,000 against' STRIVE.
DISCUSSION
A. Sufficiency of the Evidence
On these facts, Defendants first move for judgment as a matter of law or a new trial based upon the sufficiency of the evidence. To succeed on their motion for judgment as a matter of law under Rule 50, Defendants must demonstrate that “there exists such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded [persons] could not arrive at a verdict against [it].” Tepperwien v. Entergy Nuclear Operations, Inc.,
But Defendants’ hurdle is lower as to their motion for a new trial under Rule 59(a). In that regard, “(1) a new trial under Rule 59(a) ‘may be granted even if there is substantial evidence supporting the jury’s verdict,’ and (2) ‘a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.’ ” Manley v. AmBase Corp.,
Here, applying either the standard for judgment as a matter of law or a new trial, the evidence on liability passes muster. In reaching this conclusion, the Court notes that the verdict sheet combined Plaintiffs claims of race and gender discrimination. Accordingly, the jury was not required to specify whether they found racial animus, gender animus, or both. (See Ct. Ex. F.) Because the Court also declined Defendants’ invitation to inquire separately as to the different types of discrimination, the verdict “must be reversed and a new trial ordered if the court cannot determine whether the verdict was based upon [an] invalid theory.” AIG Global Sec. Lending Corp. v. Banc of Am. Sec. LLC,
In addition, Plaintiff originally brought all of her claims pursuant to federal, state, as well as city law. But in passing the NYCHRL, the New York City Council determined that “state and federal civil rights statutes can serve only ‘as a floor below which the City’s Human Rights law cannot fall.’ ” Mihalik v. Credit Agricole Cheuvreux N. Am.,
1. Gender and Race Discrimination
The Court turns then to Plaintiffs discrimination claims under the NYCHRL. Although the Court instructed the jury separately as to Plaintiffs hostile work environment claims as well as her discriminatory termination claims, “[u]nder the NYCHRL, there are not separate standards for ‘discrimination’ and ‘harassment’ claims.” Clarke v. InterContinental Hotels Grp., PLC, No. 12 Civ. 2671,
And in that regard, any “unwanted ... conduct” on the basis of a protected characteristic “imposes a different term or condition of employment^] ... even if the harassing conduct does not rise to the level of being ‘severe and pervasive.’ ” Id. (quoting Williams,
I examine Carmona’s racial animus first. In that regard, whatever context Defendants seek to attach to Carmona’s behavior, the jury could have easily concluded that Carmona’s racial animus became apparent when he called Plaintiff a nigger less than three months prior to her termination. To be clear, under no circumstances that I can conceive of would calling a subordinate a nigger be acceptable conduct. Further, to suggest as Defendants do that the jury was compelled to accept Carmona’s after — the—fact rationalizations is equally far-fetched. See La Grande v. DeCrescente Distrib. Co.,
And Carmona’s comments about black women also support a finding of gender discrimination. Indeed, despite what Carmona described as his best attempts to change, the jury could have reasonably concluded that he still viewed black women as inferior. Carmona’s response to Plaintiffs concerns that a STRIVE employee had sexually harassed a client only supports a finding of gender animus. By accusing Plaintiff of bad judgment in bringing this serious issue to him, not only ridiculing the complainant as “ugly as shit” but also stating that she “would have enjoyed it,” (Trial Tr. 58:5-10.), Carmona “clearly signaled that [he] considered it appropriate to foster an office environment that degraded women.” Hernandez v. Kaisman,
b. Defendants’ Affirmative Defense
As an affirmative defense, Defendants urge that Carmona’s treatment of Plaintiff constituted nothing more than petty slights or trivial inconveniences. In that regard, Defendants seek to separate the March 14 “nigger” accusations from the rest of Carmona’s tirades. Similarly, Defendants also ask the Court to view in isolation Carmоna’s comment that Plaintiff was “the kind [of] woman” to sabotage other women. But “[a]s with most affirmative defenses, the employer has the burden of proving the conduct’s triviality under the NYCHRL.” Mihalik,
Further, the evidence demonstrates that Carmona brought these views into the workplace. First, after Plaintiff reported the sexual harassment complaint and Carmona responded by belittling the complainant’s appearance and sexual choices, Carmona told Plaintiff she should “stop being so emotional.” (Trial Tr. 58:12-13.) Then, during the March 12 incident in which he called Plaintiff a “nigger,” Carmona explained his view that “niggers let their feelings rule them.” (Krebs Deck Ex. G, at 3:2-9.) Carmona later justified calling Plaintiff a “nigger” as only seeking to convey that she was “too emotional.” (Trial Tr. 398:25-399:12.) Finally, when asked to explain his “male chauvinist” views, Carmona explained that “black women get in the way of themselves,” that women in general are “too emotional,” and that women should obey men. (Id. 418:3-13.)
To be sure, Carmona minimized these views as a “tendency” of his that contradicted some of his other experiences with women. (Id. 418:3-13.) But the story that these comments and rationalizations tell the jury is that of an individual whose demeaning treatment of Plaintiff — regardless whether Carmona made a gender — or race-based comment during each confrontation — was in fact motivated by both her gender and her race. See Tomassi v. Insignia Fin. Grp., Inc.,
c. Carmona’s Role in Plaintiffs Termination
Defendants next urge that because Weinberg was not found liable for discrimination, Plaintiffs claim for discriminatory termination must fail. But while no direct testimony confirmed Carmona’s influence in Plaintiffs termination, that inference was well within the jury’s ability to draw. Although Weinberg claimed that he alone made the decision to terminate Plaintiff, the jury disregarded that testimony when it found both Carmona and STRIVE liable for Plaintiffs discriminatory termination. That credibility determination is entitled to deference. Pouncy,
In that regard, several facts pierce the wall that Defendants seek to erect around Carmona. First; Carmona had a direct hand in the decision to hire Plaintiff, as well as subsequent decisions not to terminate her. Indeed, Carmona interviewed Plaintiff when she was first hired. (Trial Tr. 95:7-8.) Carmona had also previously
But nothing else changed regarding Carmona’s gеneral role in the organization. (Id. 76:25-77:4; 509:6-8.) Indeed, Carmona continued to exercise disciplinary authority.over Plaintiff, admonishing both her and her colleagues for eating lunch outside his office. And Carmona advised both STRIVE employees as well as STRIVE’s clients to keep their distance from Plaintiff because of her ongoing complaints of discrimination. By continuing to assert himself in personnel matters regarding Plaintiff after she complained, along with his prior role in matters relating to her hiring and firing as well as his unchanged prominence within the organization, the jury reasonably inferred Carmona’s involvement in the decision to fire Plaintiff. See Morgan v. NYS Att’y Gen.’s Office, No. 11 Civ. 9389,
d. The Grant’s Expiration
Defendants also proffer the expiration of the grant funding Plaintiffs position as the legitimate explanation for Plaintiffs termination. But the weight of the evidence supports the jury’s rejection of that theory as well. Indeed, Defendants do not dispute that the grant partially funded sevеral other positions, including Carmona’s and Weinberg’s. And the grant allocated $113,538.58 to the “Outcomes Data Specialist” — an amount comparable with the $135,171.49 set aside for Plaintiffs position. (Krebs Deck Ex. H, at JOHNSON 128.) That none of these positions suffered any financial impact upon the grant’s expiration belies Defendants’ claim that STRIVE was constrained to terminate Plaintiff. When presented with such conflicting evidence, the Court will defer to the jury’s determination that discrimination was the actual reason for Plaintiffs firing. See Furfero v. St. John’s Univ.,
2. Retaliation
Similarly, the weight of the evidence also supports a finding of retaliation based on Plaintiffs termination as well as Carmona’s treatment of her after she complained. To support a retaliation claim under the NYCHRL, “the plaintiff must show that she took an action opposing her employer’s discrimination and that, as a
And not only do Carmona’s comments demonstrate his retaliatory animus regarding her termination, but they also support a retaliation claim independent of Plaintiffs firing. See Mihalik,
B. Punitive Damages
Defendants next urge that Plaintiff did not рrove punitive damages as a matter of law. In analyzing punitive damages, the same “federal standard applies ... under the [NYCHRL]” as well as under federal law. MacMillan v. Millennium Broadway Hotel,
Here, Carmona’s plethora of discriminatory comments supports the jury’s finding of malice or reckless indifference to Plaintiffs right to work free from race and gender disсrimination. For example, Defendants do not dispute that Carmona directly referred to Plaintiff as a “nigger.” Yet STRIVE’s employee handbook expressly bans “[a]ll forms of illegal discrimination.” (Trial Ex. 33, at STRIVE 000054.) That handbook also prohibits conduct “that creates a hostile environment,” including “racial remarks.” (Id.) And according to STRIVE’s policy, discriminatory harassment also includes “commentary or conduct that would offend others on the basis of ... race, [or] ... sex.” (Id.) Carmona acknowledged that he was aware of and received training regarding these antidiscrimination and antiharassment policies. (Trial Tr. 439:13-25.) The evidence therefore supports the jury’s inference that Carmona acted at least with reckless indifference to Plaintiffs rights. Judgment as a matter of law as to punitive damages is thus inappropriate.
C. Additional Arguments for a New Trial on Liability
Next, Defendants argue that evidentiary errors warrant a new trial. Where there has been an objection, a new trial is warranted if the Court’s evidentiary ruling was “clearly prejudicial to the outcome оf the trial,” taking into account “the record as a whole.” Marcic v. Reinauer Transp. Cos.,
1. Defendants’ Testimony
Defendants first urge that they were prevented from fully testifying with regard to the various incidents of harassment that Plaintiff experienced. Here, the Court exercised its discretion pursuant to Rule 403 to exclude cumulative evidence that “replicate[d] other admitted evidence.” United States v. Valle, No. 12 Cr. 847,
To the extent that Defendants also urge that a new trial is warranted because the Court precluded redirect examination of Weinberg, the Court notes that “[t]he scope of redirect examination is a matter entrusted to a trial judge’s broad discretion.” United States v. Vasquez,
But even if the Court’s rulings prevented Defendants from presenting some new version of these events to the jury, that error was harmless. Indeed, Defendants make no attempt to provide the Court with any excluded testimony that might have swayed the jury’s decision. See Henry v. Wyeth Pharm., Inc.,
2. Plaintiff’s Prior Conviction
Defendants next contend that the Court erred in refusing to admit Plaintiffs 13-year-old conviction for fraud as evidence of Carmona’s state of mind and the need to be firm with Plaintiff. First, Defendants failed to make this argument in their opposition to Plaintiffs motion in limine to- preclude evidence of the prior conviction under Federal Rule of Evidence 609(b). (See Trial Tr. 6:1-14; 614:14-23.) In that opposition, Defendants instead ar
Defendants also urge that Plaintiffs summation related to this issue warrants a new trial. In that regard, Plaintiff urged in closing that she “was not previously incarcerated” and therefore Carmona had no reason to subject her to his rough motivation techniques apart from discrimination. (Trial Tr. 592:15-24.) Plaintiff in fact was not incarcerated in connection with her fraud conviction, but the jury could have erroneously concluded from these comments that Plaintiff had a clean record. Of course it is also possible for the jury to have inferred that she had a criminal conviction but that she had avoided incarceration. Despite this lapse in judgment on the part of Plaintiffs counsel, a new trial is not warranted on this ground. Indeed, “[n]ot every improper or poorly supported remark made in summation irreparably taints the proceedings; only if counsel’s conduct created undue prejudice or passion which played upon the sympathy of the jury, should a new trial be granted.” In re Vivendi Universal, S.A. Sec. Litig.,
3. Weinberg’s Investigation Notes
Defendants also ask for a new trial on the basis of the, Court’s refusal to admit Weinberg’s notes regarding his investigation of Plaintiffs complaints. During trial, Defendants offered this evidence pursuant to the hearsay exception for business records. See Fed.R.Evid. 803(6). But as the Court concluded at trial, Weinberg’s admission that these were “unique” business records, (Trial Tr. 479:21-24), meant that they fell outside the scope of the business record hearsay exception. See Park W. Radiology v. CareCore Nat’l LLC,
To the extent Defendants now recast their argument, urging that Weinberg’s notes were admissible evidence of his state of mind — i.e., a nonhearsay purpose — that alternative theory was waived at trial when they sought to introduce these records pursuant only to a hearsay exception. Nor did refusing to admit these records for this nonhearsay purpose constitute plain error, as Weinberg testified at length regarding his own participation in the investigation.' (See, e.g., Trial Tr. 473:475:20; 481:9-484:15.) Indeed, without prejudice as to Defendants’ ability to demonstrate the scope of the investigation through testimony or any serious dispute from Plaintiff as to whether an investigation in fact occurred, a new trial is not warranted. See Marcic,
4. Remaining Evidentiary Concerns
Defendants next urge that the Court should not have permitted Maria Ortiz to testify regarding Carmona’s treatment of a male STRIVE client as compared with a female STRIVE client. Defendants do not even bother to identify any possible unfair prejudice from this testimony. And regardless whether Plaintiff witnessed these incidents, they are clearly relevant to any animus Carmona holds towards women and the likelihood that he discriminated against Plaintiff on the basis of her gender. The jury was therefore well-positioned to decide the testimony’s probative value. Fed.R.Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”); Fed.R.Evid. 402 (noting that “[r]elevant evidence is admissible” unless otherwise provided).
Finally, Defendants assign error to the preclusion of Plaintiffs text messages for impeachment purposes. At trial, Plaintiff testified thаt Carmona threatened that he would “[p]ut this bitch in a smash.” (Trial Tr. 72:20-23.) But Plaintiffs text message indicated both that she previously reported that he said “[s]hit” instead of “bitch” and that she was slightly uncertain as to whether Carmona was referring to her. (Krebs Decl. Ex. J.) But even if preclusion of this statement were error, it is harmless and therefore does not support a new trial. See United States v. Williams,
And the significant independent evidence of gender discrimination and retaliation also supports a finding of harmless error. For example, Carmona himself admitted that he generally viewed black wоmen as inferior. He also admitted that he had sought to keep STRIVE employees from interacting with Plaintiff following her complaint. Thus, in the context of the trial as a whole, the record still supports gender discrimination and retaliation even if Plaintiff had been impeached with her text messages. See Marcic,
D. Discovery Issues
Defendants also ask the Court to award Defendants either dismissal or a new trial because of Plaintiffs discovery violations. First, Defendants argue that the Court did not go far enough in sanctioning Plaintiff for failing timely to disclose the identities of Plaintiffs therapists. The Court precluded these doctors from testifying a trial. But Defendants now ask for a new trial based on Plaintiffs testimony in which she told the jury that she saw these therapists as a result of her experience at STRIVE. In that regard, the Court “has broad discretion to determine an appropriаte sanction for discovery violations based on the facts of the particular case.” R.F.M.A.S., Inc. v. So.,
Here, Defendants did not have the opportunity to depose Plaintiffs therapists and Plaintiff did not offer a convincing explanation for her failure to disclose. Therefore, preclusion of the therapists’ testimony was warranted. See Patterson v. Balsamico,
Second, Defendants ask for dismissal of Plaintiffs claims as a consequence of these discovery violations as well as because of issues regarding her failure to disclose certain audio tapes prior to trial. To be sure, Plaintiffs failure to comply with her discovery obligations is of concern. But dismissal of her case is unwarranted here. Indeed, the Court already not only excluded most of the audio tapes with the exception of those to which Defendants had no objection, but also precluded the therapists from testifying as noted above. And given its harsh nature, dismissal on the basis of discovery violations generally requires a prior warning from the Court. In re Consol. RNC Cases, No. 05 Civ. 1564,
E. Damages Remittitur
■ Finally, Defendants ask the. Court to reduce the jury’s compensatory damages award. “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,
Considering back pay first, the evidence supports an award of $38,109.59. The Court defined back pay for the jury as “the amount of damages or lost earnings through the date of your verdict.” (Ct. Ex. E, at 25.) Plaintiff was terminated on June 11, 2012, but continued to be paid through June 29, 2012. (Trial Ex. S.) Given her reemployment on January 7, 2013, Plaintiff was unemployed without pay for 192 days. And prorating her annual $60,000 salary at STRIVE for that period results in a back pay award of $31,561.64. But Plaintiffs -new salary is also $10,000 per year less than her salary at STRIVE. Accordingly, from January 7, 2013 through the date of the verdict on September 3, 2013, Plaintiff proved an additional back pay award of $6,547.95, for a total back pay award of $38,109.59.
Turning to front pay, Defendants' dispute whether front pay could have been awarded based on the lack of a specific charge to the jury mentioning front pay. But in describing compensatory damages, the Court instructed the jurors that “[i]f you find in favor of the Plaintiff, then you
But even given an award of front pay, the amount of proven front pay is limited. Indeed, while the jury reasonably concluded that the expiration of the grant funding Plaintiffs position was an insufficient explanation for Plaintiffs immediate termination, thаt expiration necessarily affected STRIVE’s ability to pay Plaintiffs salary. With no evidence as to how STRIVE would be able to make up that $4.7 million shortfall over the long term, Plaintiff has not proved that she would have stayed employed at STRIVE for longer than an additional year. See Chisholm,
As Plaintiff did not prove the value of any lost fringe benefits, see Becerril v. E Bronx NAACP Child Dev. Ctr., No. 08 Civ. 10283,
Here, to prove her emotional distress, Plaintiff relies only on her own testimony regarding seeing two therapists, her immediate emotional reaction to being called a nigger, as well as the lingering effects that Carmona’s treatment has had upon her emotional state. To be sure, being subjected to racial epithets as well as the harsh treatment Carmona regularly inflicted upon Plaintiff was undоubtedly distressing. But while Plaintiff testified that she saw a therapist and was prescribed some form of medication, Plaintiff declined to take that medication. (Trial Tr. 80:5-11.) Nor did she explain what that medication’s purpose would have been or what it was intended to do for her. Indeed, Plaintiff described only in vague terms
Additionally, Plaintiffs decision to record her interactions with Carmona also supports a reduced emotional distress award. Indeed, the recording played at trial indicates that Plaintiff herself asked Carmona to explain his statement from the previous day that “You and your girl from TW is just alike.” (Krebs Decl. Ex. G, at 2:6-8.) There is no evidence that this first statement was recorded. Only after Plaintiffs prompting did Carmona then refer to her as a “nigger.” {Id. 2:20-24.) Thus, Plaintiffs recordings, while surely helpful in proving her case, also demonstrate a willingness to engаge Carmona to document his animus. And while not detracting from the fact that these comments were made, they pretty clearly reveal Plaintiffs efforts to invite a confrontation with Carmona and fail to bolster support for an award that is founded on extreme emotional distress.
Given this limited evidence, Plaintiff has proved at most $80,000 in emotional distress. This figure, falling within the upper half of the range for garden variety emotional distress, recognizes the continuous, egregious behavior that Carmona displayed toward Plaintiff, along with Plaintiffs resulting therapy. But this reduction also recognizes the limited evidence of any lasting physical or emotional impact on Plaintiff as well as the lack of corroborative testimony. See, e.g., Patterson,
CONCLUSION
The Court has considered the parties’ remaining arguments and finds them meritless. After aggregating the awards for back pay, front pay, and emotional distress described above, the Court will order a new trial unless Plaintiff accepts a compensatory award of $128,109.59. The jury’s punitive damages award remains undisturbed. Defendants’ remaining motions are DENIED. Plaintiff is directed to inform the Court of her decision no later than Wednesday, January 15,2014. The Clerk of Court is instructed to close this motion and remove it from my docket.
SO ORDERED.