MEMORANDUM OF DECISION AND ORDER
The Plaintiff in this case, John Welch, alleged that his employer, the Defendant United Parcel Service, Inc. (“UPS”), discriminated against him on the basis of his disability, and also retaliated against him for complaining about that discrimination. Based on these allegations, the Plaintiff asserted (1) federal claims under the Americans with Disabilities Act (“ADA”), (2) state claims under the New York State Human Rights Law (“NYSHRL”), and (3) city law claims under the New York City Human Rights Law (“NYCHRL”). A trial was held and a mixed verdict was rendered. Presently before the Court are several post-trial motions filed by both parties.
A. Factual Background
This case was initiated by the Plaintiff John Welch in 2009 against his employer, the Defendant UPS. Welch was hired by UPS in March 1987 as a part-time package loader at its facility in Brooklyn, New York. Throughout the Plaintiffs long tenure with UPS, only a portion of which is relevant for the legal disputes in this case, the Plaintiff went through a number of transfers to various positions in UPS. These positions included: (1) in March 2005, the Plaintiff was a preload supervisor for UPS’s Foster Avenue Facility; (2) in mid-2005, the Plaintiff worked as a P.M. supervisor at the Greenpoint Center; (3) in or about October 2005, the Plaintiff was transferred to Comprehensive Health and Safety Program (“CHSP”) Supervisor for its Long Island City facility; (4) in or about October 2006, the Plaintiff was transferred to a position on the Nassau preload; (5) in or about June 2007, the Plaintiff was returned to a position as CHSP Supervisor; (6) in or about June 2008, the Plaintiff conducted driver safety training out of UPS’s Nassau facility and was also transferred back to the Nassau preload; and (7) on or about September 6, 2010, the Plaintiff accepted and commenced the preload assist supervisor (“PAS”) position, which is the position he held at the time of the trial.
The Plaintiff suffers from various medical conditions, including: (1) hypertrophic cardiomyopathy (“HCM”); (2) bipolar disorder; (3) hiatal hernia; (4) restless leg syndrome (“RLS”); (5) sleep apnea; and (6) depression with post-traumatic stress disorder (“PTSD”). Because of these alleged disabilities, namely the HCM and sleep apnea, the Plaintiff made various requests for accommodation under UPS’s American Disabilities Act (“ADA”) accommodation policy. His requests for accommodation were as follows: (1) on or around August 23, 2005, the Plaintiff requested an accommodation of no lifting over 30 pounds, light duty, and avoiding extremes of exertion, which UPS claims was satisfied when he was moved to the position of CHSP supervisor in or about October 2005; (2) in 2007, the Plaintiff again requested an accommodation of no lifting over 40 pounds; working shifts of 8 hours or less; and no overnight shifts due to his HCM and sleep apnea, which UPS claims was satisfied when they again returned him to the position of CHSP supervisor in or around June 2007; and (3) in 2010, the Plaintiff requested a third accommodation of no lifting over 20 pounds; no operation of heavy machinery; and no driving of heavy trucks, which UPS claims was satisfied when they put him in the Preload Assist Supervisor (“PAS”) position, which he remains in today.
According to the Plaintiff, the numerous transfers, requests for accommodation, and discussions between him and his employer, led to various instances of retaliation and failures to accommodate his disabilities.
B. Procedural History
On May 16, 2011, the Defendant moved for summary judgment dismissing all of the Plaintiffs claims, on the grounds that (1) portions of the Plaintiffs claims were barred by the relevant statute of limitations, (2) the Plaintiff did not have a disability (or record of disability) under the ADA, (3) the Plaintiff was not otherwise qualified to perform the essential functions of his job, and (4) the Defendant accommodated the Plaintiffs disability at all times. The Court found there to be genuine issues of material fact in all aspects of the case. Therefore, on September 2, 2011, the Court denied the Defendant’s motion for summary judgment.
On September 23, 2011, the jury rendered a verdict. With regard to the Plaintiffs disability claims, the jury found that: (1) the Plaintiff did not prove that he was an individual with a “disability” within the meaning of the ADA, namely that he had an impairment which substantially limited a major life activity; (2) the Plaintiff did prove that he was an individual with a “disability” within the meaning of the NYSHRL and the NYCHRL; (3) the Plaintiff did prove he was a “qualified individual” within the meaning of the terms as instructed by the Court; (4) UPS failed to accommodate the Plaintiff with regard to his disability and required him to work in a significantly more difficult work area which would adversely affect his physical conditions; but that (5) UPS proved by a preponderance of the evidence that it made a good faith effort to identify and provide the Plaintiff with a reasonable accommodation that would allow him to work within his restrictions. Therefore, the Defendant UPS was successful in defending the Plaintiffs failure to accommodate claims under the ADA, NYSHRL, and NYCHRL.
With regard to the Plaintiffs retaliation claims, the jury found that: (1) the Plaintiff proved that the Defendant required him to work in a significantly more difficult work area which would adversely affect his physical conditions, after he sent a letter to Kevin DiLibero at UPS; had a letter sent to Kevin DiLibero by his attorney; and filed his EEOC complaint; and that (2) the Plaintiff proved that there was a causal connection between the letters sent to DiLibero and the filing of the EEOC complaint and the requirements to work in significantly more difficult work areas. Thus, the Plaintiff was successful under his NYSHRL and NYCHRL retaliation causes of action. As a result, the jury awarded the Plaintiff $200,000 for compensatory damages and no punitive damages.
On October 21, 2011, the Defendant filed the instant motion for judgment as a matter of law and/or a new trial, and the Plaintiff filed a motion for a new trial as well as a motion for attorneys’ fees and costs.
II. DISCUSSION
A. Legal Standards
1. The Renewed Motion for Judgment as a Matter of Law
In substance, Fed.R.Civ.P. 50(b) provides that if a jury returns a verdict for which there is not a legally sufficient evidentiary basis, the District Court may either order a new trial or direct the entry of judgment as a matter of law. In order to grant a motion for JMOL, there must be 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 ... such an
“The same standard that applies to a pre-trial motion for summary judgment pursuant to Fed.R.Civ.P. 56 also applies to motions for judgment as a matter of law during or after trial pursuant to Rule 50.” Piesco v. Koch,
A district court may not grant a motion for a judgment as a matter of law unless “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.” Cruz v. Local Union No. 3, Int’l Bhd. of Elec. Workers,34 F.3d 1148 , 1154-55 (2d Cir.1994) (quoting Simblest v. Maynard,427 F.2d 1 , 4 (2d Cir.1970)) (internal quotation marks omitted). Weakness of the evidence does not justify judgment as a matter of law; as in the case of a grant of summary judgment, the evidence must be such that “a reasonable juror would have been compelled to accept the view of the moving party.” Piesco,12 F.3d at 343 .
Id.; see also Fabri v. United Techs. Int’l Inc.,
When ruling on a motion for JMOL, the court must “ ‘consider the evidence in the light most favorable to the [non-moving party] and ... give that party the benefit of all reasonable inferences that the jury might have drawn in [its] favor from the evidence.’ ” Concerned Area Residents for the Env’t v. Southview Farm,
A JMOL is thus “proper 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]
2. The Motion for a New Trial
Under Federal Rule of Civil Procedure 59 (“Fed.R.Civ.P. 59” or “Rule 59”), a court “may, on motion, grant a new trial on all or some of the issues — and to any party — ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). “‘Amotion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or ... the verdict is a miscarriage of justice.’ ” DLC Mgmt. Corp. v. Town of Hyde Park,
In comparison to a Rule 50 motion for judgment as a matter of law, the Second Circuit has held that the standard for a Rule 59 motion in some respects is less onerous for the moving party in two ways: first, “[ujnlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury’s verdict.” DLC Mgmt. Corp.,
B. As to the Defendant’s Motion for Judgment as a Matter of Law
1. NYCHRL Claims
a. Whether a Rule 50(b) Motion as to the NYCHRL Claims is Proper
As an initial matter, the Plaintiff argues that UPS is procedurally barred from raising a Rule 50(b) motion in connection with the Plaintiffs NYCHRL claims because the Defendant did not raise this issue in its initial Rule 50(a) motion. According to the Plaintiff, UPS was required to raise the objection that the evidence was insufficient to establish a claim under the NYCHRL at the charging conference, or at the very least, prior to the jury being charged. See Thorsen v. Cnty. of Nassau,
In response, the Defendant argues first, that it did raise the applicability of the NYCHRL to the Plaintiffs claims prior to the start of the trial. (9/7/2011 Tr., 11:14— 24.) The Court specifically reserved judgment as to the particular issue. Also, the Defendant points out that the Court sua sponte raised the issue of whether the NYCHRL could apply to the Plaintiffs allegations, given the fact that the majority of his work for UPS during the relevant time period took place on Long Island. Second, the Defendant asserts that because the applicability of the NYCHRL to the Plaintiffs claims is a legal question, it is a recognized exception to the bar under Rule 50(b) for failure to preserve a claim. Third, the Defendant claims that declining to rule on this issue would result in a manifest injustice because UPS will be
Rule 50(a) provides that, prior to submission of a case to a jury, if a court that “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [a given] issue,” it may enter judgment as a matter of law on that issue. Rule 50(a)’s language thus permits a party to make a motion for judgment as a matter of law prior to submission of the case to the jury. Rule 50(b) provides that a party may renew this motion after a verdict. Thus, Rule 50(b) implies that a motion for judgment as a matter of law must be renewed at the close of all the evidence if the moving party wants to obtain such relief should the jury bring in a verdict against him. See Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers,
Here, it is undisputed that the Defendant did, at a minimum, raise the issue before the jury was instructed and deliberated. It was not presented to the Court as a formal Rule 50(a) motion, but rather, as a motion in limine. Specifically, the Defendant’s Counsel stated the following before the Court at a hearing on September 7, 2011, prior to the commencement of the trial:
The third aspect of this is I understand this discrimination failure to accommodate claim is based on the ADA, the New York State Human Rights Law and the New York City Human Rights Law. However, Mr. Welch worked in New York City only in 2010. Anything prior cannot be covered jurisdictionally by the New York City Human Rights Law. So as a result, that claim has to be limited to the time Mr. Welch was working in Manhattan....
Again, but I want to be clear, clearly it’s in the statute as well as the case law in that regard.
(9/1/2011 Tr., 11:14-22; 12:3-5.) However, the Court reserved judgment on the issue. (See 9/7/2011 Tr., 11:23-24 (“THE COURT: But I’m not going to that now, that will all come later, of course.... When I give instructions to the jury, we will get into that.”).)
On one hand, the Court could find that the Defendant is not procedurally barred from now asserting this argument again by a Rule 50(b) motion because the arguments were somewhat raised prior to deliberations and it was the Court’s decision to not explore the merits at that time. Cf. Roberts v. Nat’l R.R. Passenger Corp., Nos. 04 Civ. 1318, 04 Civ. 1622, 04 Civ. 2195,
A Rule 50(b) motion “is limited to those grounds that were specifically raised in the prior [Rule 50(a) motion].” Tolbert v. Queens College,242 F.3d 58 , 70 (2d Cir.2001). Pursuant to this specificity requirement, the Rule 50(a) motion “must at least identify the specific element that the defendant contends is insufficiently supported.” Galdieri-Ambrosini v. National Realty & Dev. Corp.,136 F.3d 276 , 286 (2d Cir.1998). The purpose of the specificity requirement is “so that the responding party may seek to correct any overlooked deficiencies in the proof.” Id. (quoting Fed.R.Civ.P. 50 Advisory Committee Note (1991)).
Drake v. Delta Air Lines, Inc., No. 94 Civ. 5944,
On the other hand, the Defendant’s counsel raised the issue at the commencement of the trial, without any formal motion based on the insufficiency of evidence as a matter of law at the close of the Plaintiffs case. Cf. Syracuse v. Program for the Dev. of Human Potential, No. 07 Civ. 2205,
Many circuits have taken a forgiving view of certain violations of the renewal requirement. See, e.g., Giles v. General Electric Co.,
For instance, one district court in Virginia clarified that it had effectively excused the Defendant from formally making a Rule 50(a) motion at the close of all the evidence, because it had been made clear upon ruling on Plaintiffs motion for a directed verdict at the close of all the evidence, that the matter contained sufficient factual concerns for the jury to consider. See Cretella v. Kuzminski,
However, not all courts have been so lenient. In 2009, the Tenth Circuit found that because the Defendant did not assert its arguments in a Rule 50(a) motion at the close of the Plaintiffs case-in-chief, it was precluded from relying on them as a basis for Rule 50(b). See M.D. Mark, Inc. v. Kerr-McGee Corp.,
This case presents a somewhat unusual situation. Typically, cases to have addressed whether the procedural requirements of a Rule 50(b) motion have been met, have dealt with the situation where a Rule 50(a) motion was made but either (1) the Judge reserved decision; or (2) it did not contain the same arguments that are raised in the subsequent Rule 50(b) motion. As to (1), the Second Circuit has held that “where the trial judge has indicated that renewing a previously made motion for judgment as a matter of law at the close of all the evidence was not necessary, and where the opposing party could not reasonably have thought that the motion was dropped, then judgment as a matter of law may be sought post-verdict.” See Brady v. Wal-Mart Stores, Inc.,
The rationale behind the renewal requirement is to provide “the requisite opportunity to cure any perceived deficiency in her proof before the case was submitted to the jury.” Lore v. City of Syracuse,
Here, the Court finds that pursuant to the letter of Fed.R.Civ.P. 50(b) and the relevant case law, because the Defendant only raised the issue of the applicability of the NYCHRL at a pre-trial conference and again in the middle of jury deliberations (9/22/11 Tr., 1533-1536), but did not raise the issue in its Rule 50(a) motion, the present 50(b) is proeedurally improper. Cf. Bracey v. Board of Educ. of City of Bridgeport,
However, the Second Circuit has created an exception, holding that a court “may
Here, because the Court finds that manifest injustice would occur if a verdict as to the NYCHRL is permitted to stand, as explained further, below, then this a basis under which the Court may permit the filing of a Rule 50(b) motion. See Ramos v. Co. of Suffolk,
b. NYCHRL Retaliation
The Defendant contends that even if it is assumed that the Plaintiff was retaliated against in violation of the NYCHRL, the Defendant is nevertheless entitled to judgment as a matter of law in connection with the NYCHRL claims because the Plaintiff was never assigned to a more difficult work environment within the five boroughs during the relevant statutory time period. Quite simply, UPS argues that the record is devoid of any factors or evidence that could support a finding that Welch felt the impact of UPS’s alleged retaliation within the five boroughs.
Title 8 of the New York City Administrative Code makes it unlawful for an employer to discharge from employment, or to discriminate against in compensation or in the terms, conditions or privileges of employment, any person based on their “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orienta
Here, it is undisputed that the Plaintiff is a non-resident of New York City. Thus, the Plaintiff necessarily needed to establish at the trial that he felt the impact of the Defendant’s alleged retaliation within the boundaries of New York City.
In the Plaintiffs opposition papers, he does not specifically argue that there was any evidence presented at trial that would establish that he felt the impact of the Defendant’s alleged retaliation within New York City. Rather, his post-trial memorandum merely recounts the following facts elicited from Welch’s testimony. From January to October 2006, prior to the relevant time period, the Plaintiff worked as a supervisor in the comprehensive health and safety program (“CHSP”) in Maspeth, Queens. (9/7/2011 Tr. 131; 138; 9/8/2011 Tr., 253:8-19.) In October 2006, Welch was reassigned to work as a supervisor at the Nassau preload. (9/7/2011 Tr., 139.) Then from July to December 2007, he worked as a supervisor in the CHSP in Melville, New York. (9/7/2011 Tr., 146-47.) Thus, the only instances of the Plaintiff conceivably feeling the impact of the Defendant’s alleged retaliation are: (1) at a meeting in Brooklyn on June 20, 2008, DiLibero, UPS’ employee relations manager, told Welch that his allegations of discrimination were “false” (9/8/2011 Tr., 169:9-17) and that he was going to be “reassigned to the preload operation, the very operation [Welch] was taken from prior to that because it did not meet [his] restrictions” (9/8/2011 Tr., 170:5-24); and (2) that the Plaintiff worked at the Foster Avenue facility in Brooklyn for two days during the Jewish holidays in September 2009, during which time he delivered packages that exceeded the weight restrictions imposed by his physicians (9/8/2011 Tr., 192:1-18.)
As for the June 2008 meeting, as previously stated, it is the impact of the adverse action, not the location where acts leading to the discrimination occur, that gives rise to a claim under the NYCHRL. See Shah,
The meeting in Brooklyn is simply insufficient, as a matter of law, to demonstrate that the impact of the retaliation occurred within the confines of New York City. See Fried v. LVI Servs., Inc., No. 10 Civ. 9308,
As for the two day working period during the Jewish holidays, the main alleged instances of retaliation made by the Plaintiff were the reassignment to the Nassau preload in June 2008 and the peak season assignments at the Roosevelt Field Mall in Long Island. These reassignments were to facilities outside of the boundaries of New York City. It would be tenuous to an absurd degree to find that because the Plaintiff testified that he covered for other workers observing a religious holiday for two days, that is sufficient to recover under the NYCHRL. Cf. Regan v. Benchmark Co., LLC, No. 11 Civ. 4511,
Therefore, the Court finds that the Defendant’s motion for judgment as a matter of law dismissing the Plaintiffs NYCHRL retaliation claims must be granted,
c. NYCHRL Failure to Accommodate
Similarly, the Defendant also contends that even if it is assumed that it failed to accommodate the Plaintiff in violation of the NYCHRL, the Defendant is nevertheless entitled to judgment as a matter of law in connection with the NYCHRL claims because the Plaintiff was not impacted by this lack of accommodation within the five boroughs during the relevant statutory time period. Ultimately, the jury found in favor of the Defendant’s good faith defense as to this cause of action. However, because the Court finds that the NYCHRL would be inapplicable to any failure to accommodate claims, the
The only argument that the Plaintiff makes as to how the impact of the failure to accommodate under the NYCHRL was felt in New York City is that Welch was working in Manhattan in an administrative position in the industrial engineering department, which accommodated his disabilities, when he was reassigned to a position in Long Island that did not accommodate his disability. However, it is illogical for Welch to assert that his position in New York City accommodated his disability, but then simultaneously claim that the impact of UPS’ failure to accommodate was felt while he was in that position. Thus, the Court agrees with the Defendant that there is insufficient evidence, as a matter of law, to demonstrate that the Plaintiff is entitled to recovery under the NYCHRL for failure to accommodate.
In sum, the Court finds that the jury’s verdict must be set aside in connection with the NYCHRL claims and that judgment be entered as a matter of law in favor of the Defendant dismissing these causes of action. In light of this finding, the Court need not address the Defendant’s contention that the jury’s verdict is a miscarriage of justice because of the addition of the NYCHRL claims on the eve of trial.
2. Retaliation Claims
The next major issue raised by the Defendant in its post-trial motions involves the jury’s verdict in connection with the Plaintiffs retaliation claims. Here, UPS claims that it is entitled to judgment as a matter of law on the Plaintiffs retaliation cause of action because there is a complete absence of evidence supporting the jury’s verdict.
“ADA [and NYSHRL] retaliation claims are ... analyzed under a burden-shifting analysis — first, the plaintiff must make a prima facie showing of retaliation; then, the burden shifts to the employer to articulate a legitimate, non-[retaliatory] reason for the adverse action; lastly, the plaintiff must provide evidence demonstrating that the proffered reason is merely a pretext for [retaliation].” Shepheard v. N.Y. City Correctional Dep’t,
This Court instructed the jury that the first two prongs of the Plaintiffs prima facie case were undisputed; namely, that the Plaintiff engaged in a protected activity and that UPS knew about the activity. Only prongs three and four — whether UPS took an adverse employment action against Welch and whether a causal connection existed between the protected activity and the adverse action — were submitted to the jury. The Defendant now argues that the evidence at trial simply did not establish those prongs.
a. As to Whether the Evidence Established that the Plaintiffs Job Reassignment was an Adverse Employment Action
An adverse employment action is a “ ‘material adverse change’ in the terms and conditions of employment.” Sanders v. New York City Human Resources Admin.,
At the trial, the Plaintiff contended that he was transferred in June 2008 to the Nassau preload in retaliation for: (1) a written complaint of discrimination he made to Kevin DiLibero on April 20, 2008, which Welch testified he sent because he “felt there was an ongoing pattern of discrimination, retaliation, gross negligence on account of [his] illness and treatment, and [he] just wanted to be taken care of’; and (2) a letter sent to DiLibero from his attorneys on June 12, 2008. (9/8/11 Tr., 165:17-21; 170:1-14.) In addition, the Plaintiffs complaint to the EEOC in 2008 was alleged to be another instance of protected activity.
There is no dispute that Welch did not attempt to demonstrate at the trial that the transfer to the Nassau preload in 2008 resulted in a demotion or reduction in his pay or benefits. Rather, the Plaintiff asserted that the reassignment to the Nassau preload required him to work in violation of his medical restrictions, and consequently this constituted an adverse employment action. Welch testified at the trial that he was required to lift in excess of his medical restrictions in this position and now argues that the jury credited this testimony. For instance, when asked by counsel “At the Nassau preload, were you lifting packages that exceeded the weight limitations that had been recommended by your physicians?”, Welch responded “Yes, I was.” (9/8/2011 Tr., 170-71) He now contends that with this testimony, he presented sufficient evidence for the jury to conclude that his transfer to the preload could have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.
On the other hand, the Defendant claims that this reassignment to the Nassau preload was made for the precise purpose of accommodating his disability. In particular, the Defendant claims that the evidence demonstrates that it transferred Welch with the specific instruction to not lift any packages in excess of his weight restriction. Thus, although the Plaintiff may have refused to follow this edict at times, this does not change the terms of his reassignment. In this regard, DeLiberto testified at the trial as follows:
Q: Did you have any reservation about assigning Mr. Welch to be a preload supervisor given his restrictions?
A: No.
Q: Why not?
A: It is definitely something that could [fit] his accommodations. My concern was that, and I made this very clear in the meeting several times, that John had to understand it was his responsibility to adhere to these restrictions.
I mean, we can definitely accommodate you. You don’t have to drive a UPS vehicle. We can work you nine hours.You don’t have to lift packages over 80, 40 pounds. And no repetitive movement of those packages.
Q: What did you mean by conveying to Mr. Welch that it would be his responsibility?
A: Well, we had issues with him in the past where he was not working within his restrictions in the past when we accommodated him, and I wanted to make it very clear that we couldn’t accept this any longer; that we’re giving you the accommodations and it is your responsibility to ensure that you do follow them and adhere to them.
(9/15/2011 Tr., 965-66.)
First, there is no question that if the reassignment was to a position that no longer accommodated his disability, that could theoretically constitute an adverse employment action. See Vinson v. N.Y. City Dep’t of Corrections, No. 01 Civ. 6900,
Second, merely making accommodations for the Plaintiffs disability on paper, but not actually accommodating him for such a disability in reality, would not prevent this reassignment from constituting an adverse employment action. If that were the case, then any employer could escape liability by simply theoretically accommodating or failing to retaliate without actually doing so. Thus, the jury was entitled to conclude that despite the Defendant’s testimony regarding its attempts to accommodate his disability, Welch’s disability was not accommodated in practice and this had a sufficiently material negative impact on the terms and conditions of Welch’s employment with UPS to constitute an adverse employment action for purposes of a retaliation analysis.
Third, the Court is certainly aware of the Second Circuit’s admonition that, in determining a Rule 50 motion, a court “must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses....” Kinneary v. City of New York,
Therefore, the Court finds that based upon Welch’s testimony, the evidence at trial was sufficient to establish that his job reassignment to the Nassau preload in 2008 was an adverse employment action,
b. As to Whether the Evidence Established a Causal Connection
In addition to disputing whether there was sufficient evidence to establish an adverse employment action suffered by Welch, the Defendant contends that the evidence at the trial did not establish a causal connection between the Plaintiffs protected activities and the alleged adverse employment action.
First, the Defendant asserts that the assignment to the Nassau preload oc
Second, according to UPS, the evidence at the trial established that UPS assigned the Plaintiff to the Nassau preload as early as October-2006, which was twenty months prior to the Plaintiffs April 20, 2008 letter to DiLibero and June 12, 2008 letter to DiLibero from the Plaintiffs attorneys. UPS argues that “[ajssignment to the same position after plaintiff lodged an internal complaint cannot constitute retaliation.” (Reply Mem. at 8) (citing Young v. Westchester Co. Dep’t of Social Servs., 57 Fed.Appx. 492, 495 (2d Cir.2003)). In other words, because the Plaintiffs theory of the case was that UPS had a long history of repeatedly assigning him to job positions that did not confirm to his medical restrictions, the 2008 reassignment to the Nassau preload did not change or worsen after his complaints of discrimination.
In Young v. Westchester Co. Dep’t of Social Servs., 57 Fed.Appx. 492, 495 (2d Cir.2011), the Second Circuit affirmed the district court’s granting summary judgment in favor of the county. In particular, the Court noted that:
Young has not submitted any evidence to suggest that there is a causal relationship between her requests to return to work, or to transfer, and the disciplinary measures and delayed transfers to which she alleges she was subjected. Ordinarily, causality can be inferred from the fact that “ ‘the protected activity was closely followed in time by the adverse action.’ ” Lovejoy-Wilson [v. NOCO Motor Fuel, Inc.], 263 F.3d [208] at 224 [ (2d Cir.2001) ] (quoting Cifra v. Gen. Elec. Co.,252 F.3d 205 , 216 (2d Cir.2001)). However, where the adverse action was already ongoing at the time of the protected activity, or is very similar to another adverse action that was taken before the protected activity, with no other change in relevant circumstances, logic precludes any inference of causation. See Slattery v. Swiss Reinsurance Am. Corp.,248 F.3d 87 , 95 (2d Cir.2001). Young had already had a transfer request pending since March of 1997 at the time she requested her accommodations. Absent evidence that suitable positions were unavailable during that period, but available during late 1998 and 1999, it is hard to see how any failure to transfer Young could have been related to her protected activities... .Young offers no evidence, other than relative nearness in time, to link the allegedly adverse actions to her protected activities. Under these circumstances, we conclude, there is no reasonable inference that the two sets of events were causally related.
Id. at 495.
As a general matter, the Defendant is correct that if the adverse action was already ongoing at the time of the protected activity, or is very similar to another adverse action that was taken before the protected activity with no other change in relevant circumstances, logic precludes any inference of causation. However, in the Court’s view, under the unique facts of this case, this broad principle is inapplicable. Certainly, the subject of the retaliation — the assignment to the Nassau preload — was a position that was previously held by Welch prior to his protected activity. However, certain significant events took place in the interim. In particular, the Plaintiff had made a request for an accommodation and was
3. Failure to Accommodate Claims
Next, UPS contends that it is entitled to judgment as a matter of law in connection with the Plaintiffs failure to accommodate cause of action because there is a complete absence of evidence to support the jury’s verdict. As an initial matter, there is no practical impact if this Court were to reverse the jury’s finding that UPS failed to accommodate him with regard to his disability under the NYSHRL because ultimately, the jury found in favor of the Defendant on the disability discrimination causes of action. Nevertheless, for purposes of comprehensiveness, the Court will proceed to rule on the Defendant’s motion in this regard.
The issue arises once again as to whether it is proper for the Defendant to raise this in a Rule 50(b) motion. In its initial motion for judgment as a matter of law, the Defendant raised several issues, including: (1) whether Welch is a disabled individual under the ADA, an issue as to which the Defendant ultimately prevailed at the trial (9/13/2011 Tr., at 658); (2) whether Welch engaged in protected activities and whether there was a causal connection with regard to the retaliation claims, discussed above (9/13/2011 Tr., at 666-67); and (3) whether punitive damages were applicable, which the jury ultimately did not award (9/13/2011 Tr., at 676-77.) Thus, the Court may only consider the Defendant’s current arguments as to the failure to accommodate claims if there is a manifest injustice. However, as set forth below, the Court does not find there to be any danger of injustice based upon the jury’s verdict and the Defendant’s renewed motion for judgment as a matter of law as to the failure to accommodate claims is denied.
a. As to Whether the Evidence Established Welch is a Qualified Individual under NYSHRL
UPS argues that the Plaintiff did not demonstrate at trial that he was a “qualified individual” under the terms of the NYSHRL. At trial, Welch had the burden to establish that: (1) the Defendant was subject to the NYSHRL; (2) that he was disabled within the meaning of this law; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) that he suffered an adverse employment action because of his disability. See Giordano v. City of New York,
The Second Circuit has stated that “[t]he term ‘essential functions,’ which is not defined in the statutes themselves, is generally defined in ADA regulations promulgated by the Equal Employment Opportunity Commission (‘EEOC’) to mean the ‘fundamental’ duties to be performed in the position in question, but not functions that are merely ‘marginal.’ ” Stone
UPS now argues that the evidence at trial plainly established that the Plaintiff could not meet the essential functions of the preload supervisor or CHSP positions. In particular, it claims that Welch was unable to meet the essential job functions because he could not lift in excess of, first 40, then 20 pounds, or to work the requisite 9-10 hours per day, or the varying shifts or extended hours as necessary. Moreover, UPS contends that although it may have waived numerous essential job functions, this does not render those job functions non-essential.
The Court agrees with UPS as to this general principle of law. See Uhl v. Home Depot U.S.A., Inc., No. 08 Civ. 3064,
The Plaintiff claims that the CHSP and PAS positions did not require him to lift or work excessive hours. {See 9/7/2011 Tr., 81-82 (testimony by Welch that he was not required to do any lifting or work excessive hours in his PAS position); 134-35 (testimony by Welch that he was not required to do any lifting or work excessive hours in CHSP position); 9/8/2011: 198.) In any event, the Plaintiff contends that whether lifting and working long hours was “essential” to the supervisor position, as opposed to a “marginal” function, was a question of fact for the jury. Given that the Plaintiffs duty was to supervise a number of loaders and thus not to move packages himself, Welch argues that a reasonable jury could find that lifting was “marginal” to the position. See Russo v. Sysco Food Servs. of Albany, L.L.C.,
The Defendant points to Exhibit I and Welch’s testimony regarding a note from Dr. Sherrid, dated March 11, 2010, which was in connection with Welch’s final request for an accommodation. At this time, the Plaintiff could not lift more than 20 pounds or operate heavy machinery and commercial or heavy vehicles. As part of this evidence, there was a list of supposed “essential job functions” he was doing at the time, on which Welch wrote “no” next to a function if he could not do it. Welch marked “no” next to several alleged essential job functions, including (1) “assist in moving packages weighing up to 150 pounds”; (2) “extended hours may be required as service needs dictate”; and (3) “ability to work varying shifts and extended hours as business needs dictate.” (9/12/2011 Tr., 341.)
In short, the Defendant emphasizes that the Plaintiff appeared to admit in this document that he could not perform what are listed as several essential job functions. However, this does not end the relevant inquiry, especially in the post-trial context. Cf. Violette v. IBM, No. 96 Civ. 9078, 1997 U.S.App. LEXIS 13823, at *4,
b. As to Whether the Evidence Established that UPS Discharged its Duty to Provide Welch With Reasonable Accommodations
The jury was asked, “Based on all the evidence presented, did the plaintiff John Welch prove that United Parcel Service, Inc., failed to accommodate him with regard to his disability and required him
According to the Defendant, the evidence established at trial proves that UPS offered the Plaintiff numerous accommodations of his disability, and that under relevant Second Circuit case law, once a reasonable accommodation has been made, an employer has fulfilled its statutory obligation. See Fink v. N.Y. City Dep’t of Personnel, 53 F.3d 565, 567 (2d Cir.1995.) In particular, UPS claims that it demonstrated that it accommodated Welch in several ways, including when: (1) it assigned Welch to the position of CHSP in 2006, which does not require lifting and UPS waived the requirement for excessive hours (9/8/2011 Tr., 284:25-285:3); (2) it then reassigned Welch as a full-time supervisor on the Nassau preload waiving any lifting or excessive hours requirements; (3) it then reassigned Welch back to a CHSP position in June 2007 when the Nassau preload no longer met his medical restrictions (9/7/2011 Tr., 145:14-21); and (4) it reassigned Welch once again as a full-time supervisor on the Nassau preload waiving any lifting or excessive hours requirements, when Welch requested to be moved out of the CHSP position. Finally, UPS created the position of driver safety training provider to accommodate his disability in 2010.
In particular, UPS claims that the assignment to the CHSP position in June 2007 fully accommodated his disability, but that it was Welch himself who requested to be removed from this position. Thus, UPS argues that the evidence plainly establishes that once Welch rejected this reasonable accommodation, UPS’s legal obligation expired. The Plaintiff is correct in its assertion that this verdict cannot be overturned unless there was a manifest injustice; namely, that the verdict was wholly without legal support.
However, if the Court looks at only a portion of the allegations, namely the transfer to the Nassau preload in 2006, it is not a manifest injustice for the jury to find that Welch had been accommodated in the CHSP position for ten months but was subsequently transferred out to the Nassau preload not upon his request. Welch testified that he liked the position at the CHSP — that he “loved it.” (9/7/2011 Tr., 134.) When asked directly whether he asked anyone to transfer him from CHSP to the preload, Welch answered “No.” (9/7/11 Tr., 138.) Thus, the jury was entitled to credit Welch’s testimony and find that, in spite of the Defendant’s assertion that he rejected the CHSP accommodation in 2006, he in fact was only accommodated in a temporary fashion. Certainly, “[ojnce a reasonable accommodation has been made, a defendant has fulfilled its obligation to make an accommodation.” Kemer v. Johnson,
In addition, UPS argues that the moves to the Nassau preload with lifting and hours restrictions in place accommodated Welch’s disability, even if those restric
Therefore, the Court does not find there to be a manifest injustice so as to vacate the failure to accommodate jury finding.
C. As to the Defendant’s Motion for a New Trial
As another source of contention raised in the Defendant’s post-trial papers, it claims that even if the Court denies UPS’ motion for judgment as a matter of law, it requests a new trial because of the claim that the jury verdict is a miscarriage of justice.
After the verdict in this case, the Defendant notified the Court that the jury’s verdict in its favor on the good faith defense was inconsistent with its finding of retaliation. In particular, as to Question 6, the jury answered ‘Tes” to the question: “Did UPS prove by a preponderance of the evidence, that it made a good faith effort to identify and provide the plaintiff with a reasonable accommodation that would allow him to work within his restrictions?” However, in response to Question 8, the jury responded ‘Tes” to the question: “Did the plaintiff John Welch prove that there was a causal connection between the letters sent to Kevin DiLibero and the plaintiffs filing of the EEOC complaint and the requirements to work in significantly more difficult work areas which adversely affected his physical condition?” The Defendant asserts that the jury could not simultaneously find that with regard to the two assignments in question that formed the basis for the retaliation and accommodation claims — the transfer to the Nassau preload in June 2008 and the transfer to the Roosevelt Field Mall in September 2008 — 'that UPS in good faith made an effort to accommodate the Plaintiffs medical restrictions while also finding those assignments to be retaliatory. However, in light of the unique factual circumstances of this case, the Court disagrees. The Second Circuit has held:
If [an] inconsistency between special verdict answers is noticed prior to the dismissal of the jury, the trial court has the discretion to resubmit the issues to the jury with a request for clarification, whether or not the parties’ themselves request clarification. If the court elects not to seek clarification from the jury, or if the inconsistency is not noticed until after the jury has been dismissed, the court must take one of two actions. [1] It is the duty of the court to attempt to harmonize the answers, if it is possible under a fair reading of them. Thus, where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way. [2] If there is no way to harmonize the jury’s answers, the court must order a new trial.
Auwood v. Harry Brandt Booking Office, Inc.,
There is, in the Court’s view, a reasonable interpretation of the verdict sheet that would harmonize these two answers. Importantly, it was certainly reasonable for the jury to find that Welch’s transfers to CHSP and to the PAS position constituted a good faith effort to identify and provide the plaintiff with a reasonable accommodation that would allow him to work within his restrictions. However, it was also reasonable for the jury to find that one of these accommodations, although made in good faith by UPS, was removed in retaliation for Welch’s protected activities. In other words, the jury could have found that a good faith effort was made in connection with certain assignments, but that transfer to the Nassau preload was
The Defendant also argues that it is entitled to a new trial because the language and interrogatories on the verdict sheet were improper, significantly prejudicial, and resulted in a miscarriage of justice.
For example, in connection with the accommodation causes of action, question 5 in the Verdict Sheet read: “Based on all the evidence presented, did [the] plaintiff John Welch prove that United Parcel Services Inc. failed to accommodate him with regard to his disability and required him to work in a significantly more difficult work area which would adversely affect his physical conditions?” The Defendant asserts that this question did not allow the jury to find that, for instance, although the Nassau preload position may not have accommodated his disabilities, the Plaintiffs rejection of the CHSP position discharged UPS’s obligation to provide him with a reasonable accommodation.
As another example, in connection with the retaliation causes of action, question 7 asked, “Did the plaintiff John Welch prove that the defendant United Parcel Services Inc. required him to work in a significantly more difficult work area which would adversely affect his physical conditions ... ?” The Defendant argues that this impeded the jury’s fact-finding and improperly prejudiced UPS. Here, instead of asking whether the Plaintiff suffered a materially adverse employment action, the Court directly asked whether the Plaintiff proved the specific materially adverse employment action presented by the circumstances in this particular case. At the charge conference, the Defendant’s Counsel objected to this language, stating that if the Court were to phrase the materially adverse effect issue in this manner, it would persuade the jury that as a matter of law, there was an adverse employment action. In other words, the Defendant argued then, and again now, that this language effectively gave the jury their legal conclusion. (9/19/2011 Tr., 1167.)
“Where the court’s instruction misleads the jury as to the correct legal standard or where it fails to adequately inform the jury on the law, it will be deemed erroneous.” Gordon v. New York City Bd. of Educ.,
However, to the extent that these arguments were preserved, the Court does not see any language in the jury charge or the verdict sheet that could be considered improper or prejudicial. The Court’s choice of words was sufficiently broad and fairly covered what were the disputed issues of fact at trial. With this question, the jury had the opportunity to find that UPS did not fail to accommodate him and require him to work in a significantly more difficult work area. This question posed directly what was at issue in this case. Moreover, the jury could have found that the precise allegation of retaliation in this case — that Welch was required to work in
Therefore, the Court denies the Defendant’s motion for a new trial based upon alleged errors in the verdict sheet.
D. As to Whether the Court Should Reduce the Compensatory Damage Award
In the event that the Court does not grant judgment as a matter of law or a new trial, UPS asserts that remittitur of the compensatory damages award is necessary. According to the Defendant, a $200,000 award for compensatory emotional distress damages is excessive and well beyond what can be sustained in the record. UPS asserts that the jury failed to give adequate consideration to the fact that Welch’s emotional distress stemmed, in large measure, from factors not chargeable to UPS, such as his time in the Marine Corps and his unpleasant upbringing. In addition, UPS points out that at the time of the alleged retaliation, the Plaintiff was undergoing a contentious divorce and child custody dispute, as well as facing tremendous financial pressure.
A conditional order for remittitur under Rule 59 if granted by the Court, requires a plaintiff to choose between accepting the reduction of a verdict found to be excessive, or of submitting to a new trial. See Kirsch v. Fleet Street, Ltd.,
“A plaintiff is not permitted to throw himself on the generosity of the jury. If he wants damages, he must prove them.” Douglass v. Hustler Magazine, Inc.,
Under federal law, an award will not be disturbed unless it is “so high as to shock the judicial conscience and constitute a denial of justice.” Ismail v. Cohen,
In determining whether an award “materially deviates”, this Court must consider awards in analogous cases for injuries similar to those sustained by the Plaintiff. Indeed, “[t]he practice of assessing awards by comparing them to awards made in similar cases stems from the recognition that although judges are in no better position than jurors to place a monetary value on a person’s pain and suffering, by reviewing case law they can provide some uniformity and predictability in damage awards.” Bick v. City of New York, No. 95 Civ. 8781,
The Defendant cites to Rainone v. Potter,
At the low end of the continuum are what have become known as “garden-variety” distress claims in which district courts have awarded damages for emotional distress ranging from $5,000 to $35,000. “Garden-variety” remitted awards have typically been rendered in cases where the evidence of harm was presented primarily through the testimony of the plaintiff, who describes his or her distress in vague or conclusory terms and fails to describe the severity or consequences of the injury....
The middle of the spectrum consists of “significant” ($50,000 up to $100,000) and “substantial” emotional distress claims ($ 100,000). These claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses.
Finally, on the high end of the spectrum are “egregious” emotional distress claims, where the courts have upheld or remitted awards for distress to a sum in excess of $100,000. These awards have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of plaintiff was significantly affected.
Id. at 122-23.
As for a “garden variety” type case, an example is Norville v. Staten Island University Hosp., No. 96 Civ. 5222 (E.D.N.Y. Oct. 20, 2003), aff'd,
As for the middle of the spectrum, “courts have awarded damages for emotional distress in the sum of $100,000 only in cases where the employer’s discriminatory conduct has caused plaintiff stress which manifested itself in the form of severe emotional or physical reactions.” Cucuzza, supra, at 445. For example, in Bick v. City of New York, No. 95 Civ. 8781,
As for the high end of the spectrum, i.e., awards that are well in excess of $100,000, these are cases that generally contain evidence of debilitating and permanent alterations in lifestyle. See, e.g., Ramirez v. N.Y. City Off-Track Betting,
Here, as an initial matter, there is no doubt that the testimony presented at trial could lead the jury to believe that Welch suffered severe emotional distress due to UPS’ actions. When asked if his experience at UPS affected him emotionally, Welch responded “I feel like I can never do enough. The only way I can do enough is to die. What is enough?” and that he walks into work every day like he is “going into the executioner.” (9/8/2011 Tr., 208, 209.) In particular, Welch testified that he has gone into a “dark place” in his life where he has distanced himself from people, and has been affected physically, emotionally, and mentally. He also stated that he felt that his circumstances were “physically] and mentally draining [him] to the point where [he] had no solace whatsoever.” (9/8/2011 Tr., 204.)
The Plaintiffs expert witness, Dr. Marcia Knight, testified that “he was mostly sad” (9/13/2011 Tr., 591), and that she “would say he is sad, and some of his symptoms would consist of him being depressed. But not to the point from where
Based upon Welch’s and Dr. Knight’s testimony, there is no doubt that there was enough proof in the record for Welch’s emotional suffering to constitute, at least, more than a garden variety type of case.
However, to fall into the category of cases that are beyond the garden variety case, this stress would necessarily need to manifest itself in the form of severe emotional or physical reactions. As for whether there have been physical manifestations of his emotional difficulties, Welch testified that he had a “feeling of nervousness” and “a feeling of mind racing”. (9/8/2011 Tr., 209.) Of importance in regard to these emotional distress damages, when probed further, Welch stated that this affected his ability to be creative; his ability to eat; his ability to sleep; and his ability to drive a vehicle. He testified that he experienced “[shortness of breath, palpitations, dizziness, chest pain, nausea, fear, fear of the results of the continued lifting of heavy packages and the consequences of still having a job at UPS.” (9/8/11 Tr. at 192:15-18.)
Certainly, a portion of the physical ailments complained of by Welch were the direct result of his physical conditions, and thus not based upon violations of the NYSHRL. Nevertheless, Welch did testify that some of his physical symptoms were undeniably caused by the actions of UPS. In this regard, he testified that he experienced difficulty sleeping, and elaborated upon this serious daily problem as follows:
This roller coaster ride of hours being changed, of waiting for someone to help me, of requests being heard, three years or so of me not wondering or wondering when this is going to end, resulted in constant fear of the fact this would not be resolved....
There became a period that, a few days where my mind was racing and I did not lay down. I did not close my eyes for three straight days ... I felt dizzy and I was very — I was ready to just fall asleep walking.
(9/8/11 Tr. at 177-78.) Of importance, it is undisputed that the Plaintiff was admitted to the VA Hospital from August 25 to September 19, 2008 following this incident. (9/8/11 Tr. at 174:16-17.) Thus, there is no doubt here that Welch’s stress manifested itself in the form of severe emotional or physical reactions, for which he sought medical and hospital treatment.
Therefore, the court disagrees with Defendant’s characterization of the Plaintiffs emotional distress damages claim as merely “garden variety.” It is well-established that a “garden variety” emotional distress
Here, the Plaintiff presented more with the testimony of Dr. Knight. Some of the Plaintiffs testimony as to his emotional distress was corroborated by Dr. Knight, such as Welch’s fear of death because of the manner in which he was working. Moreover, the Court finds that Dr. Knight was able to provide testimony as to the severity of the emotional distress suffered by the Plaintiff. Cf. e.g., McIntosh v. Irving Trust Co.,
It is true that Welch failed to seek regular psychiatric help for his emotional anguish, beyond the outpatient psychological treatments he receives for his bipolar disorder. See Manhattan & Bronx Surface Transit Operating Auth. v. N.Y. State Exec. Dep’t,
With regard to whether this case more appropriately falls into the middle of the spectrum or towards the higher end of the spectrum, is a more difficult inquiry. As one judge observed, damages arising out of an emotional distress claim are not always easily translated into a dollar amount, and the law does not provide a precise formula for reducing such injuries to a monetary value. Sulkowska v. City of New York,
In Reiter v. Metropolitan Transportation Authority of New York, No. 01 Civ. 2762,
As another point of contrast, in Kim v. Dial Service International, Inc., No. 96 Civ. 3327,
On the other hand, there are a number of precedents that demonstrate that the amount awarded here does not materially deviate from damages awarded in the labor context. See, e.g., Shea v. Icelandair,
The Court acknowledges that Welch’s evidence of emotional distress is arguably more akin to that involved in Reiter, Rainone and Norville, as opposed to Phillips or Transit Authority. However, the key distinguishing circumstance in this case is the severity of Welch’s emotional distress. The allegations against UPS, as attested to by Welch at the trial, demonstrated to the jury that Welch was fearful of losing his life as a result of his working conditions. Welch testified that beyond the physical problems he experienced, such as shortness of breath, chest pain, dizziness, and light-headedness associated with the physical consequences of UPS’ actions, he also had “the fear of what could happen to [him] should [he] be met with the circumstances that [his] brothers met”, (9/7/2011 Tr., 115), as both died from the same HCM condition that Welch suffered from. As Welch also stated, “[i]t wasn’t just I’m doing a few lifting of packages and I’m having some symptoms. This was the time that I really became afraid.” (9/7/2011 Tr., 140.) The Plaintiff directly
Certainly then, it was reasonable for the jury to find that lifting heavy packages and working hours in excess of his medical restrictions, when one had a life-threatening heart condition, could cause someone severe emotional distress. Welch’s fear of death was buttressed not only by his testimony, in which he described the death of his two brothers and father to the same disease, but by his treating cardiologist as well. Dr. Mark V. Sherrid testified as to the Plaintiffs heart condition hypertrophic cardiomyopathy (“HCM”). (9/13/2011 Tr., 534). Sherrid accounted how he had provided documentation to UPS on a number of occasions that the Plaintiffs work should be restricted from heavy lifting and repetitive lifting, so as not to trigger a life-threatening arrhythmia. This testimony reasonably led the jury to believe Welch’s testimony that UPS’ alleged failures to accommodate his medical restrictions caused him anxiety that put him in legitimate “constant fear” of his life. (9/8/11 Tr., 173:8-12.) Thus, cases analogous to such a circumstance are also instructive. In Spielberg v. American Airlines, Inc.,
As a practical matter, it is unlikely that the stress suffered by the Plaintiff during the relevant time period and manifested in physical symptoms is wholly attributable to what was happening at work. The Court understands that the Plaintiffs financial issues, divorce, and child custody concerns must have contributed, at least in some degree, to the Plaintiffs stress. Nevertheless, the Court specifically instructed the jury that to award damages for emotional distress, it was only to compensate the Plaintiff for emotional injuries he suffered “as a direct result of the acts of the defendant.” Moreover, the Court instructed the jury that it could not award damages to the Plaintiff for emotional distress by other factors such as his medical conditions which are unrelated to the acts of the Defendant or his matrimonial problems. There is no basis for the Court to find that the jury did not follow this instruction. See Blueford v. Arkansas, — U.S. -,
In sum, because the instant award of $200,000 for past emotional distress brought on by the failure to accommodate is within the range of similar New York verdicts for past emotional distress brought on by traumatic events and/or work place discrimination, it cannot be said that the jury’s verdict “deviates materially from what would be reasonable compensation.” Therefore, the Defendant’s motion for remittitur to reduce the damages for emotional distress is denied.
E. As to the Plaintiff’s Motion for a New Trial
The Plaintiff has also filed a motion for post-trial relief, specifically for a new trial on damages pursuant to Fed.R.Civ.P. 59 and for injunctive or other equitable relief.
1. As to Whether There is a Good Faith Defense to the NYSHRL
At the trial, the Plaintiff ultimately did not recover for the failure to accommodate causes of action under the state and city
The Court agrees with the Plaintiff that claims under the NYCHRL should be viewed independently from and “more liberally” than their federal and state counterparts.
As a result of [the Restoration Act], the City HRL now explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights laws have comparable language. The independent analysis must be targeted to understanding and fulfilling what the statute characterizes as the City HRL’s “uniquely broad and remedial” purposes, which go beyond those of counterpart state or federal civil rights laws.... As New York’s federal and state trial courts begin to recognize the need to take account of the Restoration Act, the application of the City HRL as amended by the Restoration Act must become the rule and not the exception....
[T]he Restoration Act notified courts that (a) they had to be aware that some provisions of the City HRL were textually distinct from its state and federal counterparts, (b) all provisions of the City HRL required independent construction to accomplish the law’s uniquely broad purposes, and (c) cases that had failed to respect these differences were being legislatively overruled.—
Loeffler v. Staten Island Univ. Hosp.,
As for the NYSHRL, it is true that there is no comparable provision in the text of the NYSHRL. Moreover, the Court acknowledges that the NYSHRL should not be treated as a carbon copy of the ADA. Nevertheless, the Court finds that this defense should be applicable to the NYSHRL. See Vig v. N.Y. Hairspray Co., L.P.,
Putting aside the NYCHRL, many of same theories underlie the NSYHRL and the ADA, and this includes the idea that defendants “engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested,” as required under the New York State Human Rights Laws. See Phillips v. City of New York,
Furthermore, the Court agrees with the Defendant that “the aims of the NYSHRL ... are not thwarted, nor are the protections diminished, by application of the good faith defense” because the statute “seek[s] to eradicate discrimination based on disability and encourage employers to work with employees to find reasonable accommodations.” (Def. Opp. at 7.)
Therefore, the Court rejects the Plaintiff’s contention that the good faith defense is inapplicable to the NYSHRL and thus the Plaintiffs motion for a new trial on this ground is denied.
2. As to Whether Injunctive Relief is Warranted
The Plaintiff also urges the Court to award equitable relief consistent with the jury’s verdict. N.Y. Exec. Law 297(9) provides that any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages ... and such other remedies as may be appropriate. A permanent injunction is appropriate where the party seeking the injunction has succeeded on the merits and “show[s] the absence of an adequate remedy at law and irreparable harm if the relief is not granted.” Roach v. Morse,
Here, the Plaintiff has failed to make any showing as to why he is entitled to injunctive relief. Significantly, he has not demonstrated any irreparable harm if the relief is not granted or how, despite the compensatory damages awarded, there is an absence of an adequate remedy at law. Furthermore, the Plaintiff has acknowledged that his current position at UPS which was created for him by the company does accommodate his disability. (9/8/2011 Tr., 205-206.) The Plaintiff claims that the irreparable harm is that if the Defendant does not continue to accommodate him in the future, he is at risk of death due to his heart condition. However, this speculative assertion is insufficient to warrant the strict remedy of permanent injunctive relief.
Therefore, the request of the Plaintiff for permanent injunctive relief is denied.
F. As to the Plaintiff’s Motion for Attorneys’ Fees and Costs
As a final matter, the Plaintiff is seeking an award for reasonable attorneys’ fees in the amount of $396,425.00 and costs in the amount of $22,930.14 pursuant to the New York City Administrative Code § 8-502(f). However, as the Court has found that the Defendant is entitled to judgment as a matter of law in connection with the New York City Human Rights Law claims, this provision under which the Plaintiff is seeking fees is inapplicable. See Bonner v. Guccione,
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Defendants’ renewed motion for judgment as a matter of law as to all other claims is denied; and it is further
ORDERED that the Defendant’s motion for a new trial is denied; and it is further
ORDERED that the Defendant’s request for a remittitur as to the damages award is denied; and it is further
ORDERED that the Plaintiffs request for a new trial is denied; and it is further
ORDERED that the Plaintiffs request for attorneys’ fees and costs is denied; and it is further
ORDERED that after the entry of the judgment, the Clerk of the Court is directed to mark this ease as closed.
SO ORDERED.