Piesco v. Koch

• Decision Date: 10 December 1993
• Docket Number: No. 140,D,140
• Citation: 12 F.3d 332
• Parties: Dr. Judith PIESCO, Plaintiff-Appellee, v. Edward I. KOCH, Defendant, The City of New York, Department of Personnel, Juan Ortiz and Nicholas LaPorte, Jr., Defendants-Appellants. ocket 93-7149.
• Court: U.S. Court of Appeals — Second Circuit

Page 332

12 F.3d 332

Dr. Judith PIESCO, Plaintiff-Appellee, v. Edward I. KOCH, Defendant,

The City of New York, Department of Personnel, Juan Ortiz

and Nicholas LaPorte, Jr., Defendants-Appellants.

No. 140, Docket 93-7149.

United States Court of Appeals, Second Circuit.

Argued Sept. 23, 1993.

Decided Dec. 10, 1993.

Ronald Podolsky, New York City (Sharon C. Konits, on the brief), for plaintiff-appellee.

Kristin M. Helmers, New York City (O. Peter Sherwood, Corp. Counsel, City of New York, Stephen J. McGrath, Ruby Bradley, Paul Marks, on the brief), for defendants-appellants.

Before: MESKILL, KEARSE, and WINTER, Circuit Judges.

KEARSE, Circuit Judge:

This case, previously before this Court on appeal from the granting of summary judgment in favor of defendants, returns to us following the entry of judgment in favor of plaintiff after trial. Defendants City of New York (the "City"), its Department of Personnel, Juan Ortiz, and Nicholas LaPorte, Jr., appeal from a judgment entered in the United States District Court for the Southern District of New York after a jury trial before John S. Martin, Jr., Judge, awarding plaintiff

Dr. Judith Piesco $1,800,000 in compensatory damages against all defendants, $50,000 in punitive damages against Ortiz, and $50,000 in punitive damages against LaPorte, on her claim under 42 U.S.C. Sec. 1983 (1988) for termination of her employment in retaliation for the exercise of her speech rights under the First Amendment to the Constitution. On appeal, defendants contend principally that the district court should have granted their posttrial motion for judgment as a matter of law or, in the alternative, for a new trial. They also contend that, absent judgment as a matter of law or a new trial, the court should have reduced and vacated the compensatory and punitive damages awards, respectively, on the ground that those awards were unsupported by the evidence. For the reasons below, we uphold the refusal to grant judgment to defendants as a matter of law, but we vacate the denial of a new trial and remand for consideration of the new-trial motion under the proper legal standard.

I. BACKGROUND

The events leading to the present lawsuit, taken in the light most favorable to Piesco, revealed the following.

A. The Hiring and Firing of Dr. Piesco

The City's Department of Personnel ("DOP") was responsible for developing and administering employment examinations for various City jobs. From 1981 until 1986, Ortiz was DOP's Director; LaPorte was its First Deputy Director. In the summer of 1982, during a period in which numerous DOP-administered employment examinations were facing legal challenges on the ground that they had discriminatory impact on minority applicants, Ortiz and Laporte sought to hire a Deputy Director for Examinations who would be the third highest official at DOP, behind Ortiz and LaPorte, and whose primary responsibility would be to oversee the written tests to be administered to applicants for City jobs. Qualifications for that position included the ability to design tests that would withstand legal challenges and the ability to work well with other high-ranking City officials while helping to shape and implement strategies devised by Ortiz and LaPorte. On September 20, 1982, Ortiz and LaPorte hired Piesco for the position.

By all accounts, Piesco's tenure at DOP began well. For the period September 20, 1982, to June 30, 1983, both Ortiz and LaPorte rated her work "outstanding," concluding that Piesco had "proven to be a valuable asset to this agency." As discussed in Part I.B. below, however, there is substantial dispute as to the quality of her performance thereafter.

In December 1984, DOP administered Examination Number 4061 ("No. 4061"), a test for whose development Piesco's bureau had responsibility, for the position of entry-level police officer. The test was modeled after the previous test for that position, Examination Number 1175 ("No. 1175"), but apparently was simplified by the removal of several complex questions. In February 1985, representatives from DOP and the Police Department met to set the "pass mark" for No. 4061, i.e., the score deemed to be the minimum passing grade. The pass mark for No. 1175 had been 82 (115 correct answers out of 140), but Piesco, arguing that No. 4061 should have a higher pass mark to compensate for its reduced complexity, pressed for a pass mark of 89 (125 correct out of 140). She argued that anything less would pass unqualified candidates. Eventually, the matter was compromised, and the pass mark was set at 85. Piesco testified that she had viewed that mark as inappropriate but had essentially thrown up her hands, stating, "You do what you want to do." In contrast, one participant at the meeting testified that Piesco did not express any disagreement with setting the mark at 85 when that compromise was reached. Ortiz testified that Piesco told him that though a pass mark of 89 was preferable, 85 was acceptable, and "she could live with an 85."

In early 1985, the New York State Senate Committee on Investigation, Taxation, and Government Operations, chaired by Senator Roy M. Goodman, established a committee to review the City's Police Department ("Goodman Committee"). Representatives of the Goodman Committee met with Piesco, Ortiz, and LaPorte at the DOP offices in June 1985. At that meeting, Piesco told them that, in her Ortiz testified that he was surprised to hear this view because he had met with Piesco at least once every two weeks and she had never complained to him that the pass mark was too low. He also testified that after that initial meeting with the Goodman Committee representatives, Piesco recanted and agreed with him that 85 was an acceptable pass mark. In the wake of that meeting, Laporte suggested to Piesco that she needed to "learn to tell the truth more creatively," in light of the potential for negative publicity from use of terms such as "moron." During the following month, Piesco twice went to meet with representatives of the committee but did not disclose those meetings to Ortiz or Laporte.

view, given the pass mark of 85, any moron could pass No. 4061.

On July 11, 1985, Piesco testified at a hearing of the Goodman Committee. At that hearing, Senator Goodman asked Piesco, "Would a functional illiterate pass the entrance examination to the Police Academy?" Piesco answered, "At the pass mark set, I would say that it is possible." There was apparently no attempt during the hearing to define either "functional illiterate" or "possible" with any specificity. At trial, in response to questioning from the court, Piesco clarified that by "functional illiterate" she meant "people who may not be able to appropriately read and write and understand," or "who could read words but could not draw enough inference from what they were reading to apply the concepts, particularly within the context of a given function, such as to be a police officer you have to understand concepts such as illegal search and seizure"; by saying that it was "possible" that such persons could pass if the pass mark were 85, she meant "likely."

Ortiz sent a letter to the Mayor on the day after Piesco's committee testimony, calling that testimony "irresponsible." He testified at trial that his first opportunity to try to discuss in detail with Piesco why she felt the 85 pass mark was unacceptable was a meeting on July 31, 1985. He began by asking her whether she had read the exam, but she stood up and said, "You don't know a fucking thing about testing. I am fed up with your bullshit and ineptitude." When Ortiz asked Piesco to calm down, she responded, "I don't have to do a fucking thing, why don't you fire me?" Ortiz promptly terminated the meeting and placed a letter of reprimand in Piesco's personnel file.

As indicated above, Piesco's performance for the first nine months of her tenure was rated "outstanding." For the following year, 1983-84, her performance was rated "very good," and in March 1983, July 1983, and May 1984 she received the maximum permissible merit raises in salary. For the year ending June 30, 1985, however, Ortiz and Laporte rated Piesco's performance "marginal." Both testified that the ratings were indicative solely of the continual decline they had observed in Piesco's performance (see Part I.B. below), and that they had scrupulously avoided considering Piesco's remarks to the Goodman Committee because those remarks occurred after June 30, the end of the evaluation period. LaPorte informed Piesco of the 1984-85 evaluations personally on August 13, 1985. He testified that Piesco responded, "This is horseshit, that I am--this is war, I am going to sue, I am going to Gabe Pressman, this is going to be on TV, you are going to regret this, I am going to get you."

Piesco promptly filed a complaint with the City's Department of Investigation ("DOI"), alleging that defendants had improperly placed the reprimand letter in her file, had excluded her from important meetings, and had given her unjustified unfavorable evaluations. Piesco alleged that at no time before her testimony to the Goodman Committee had she been informed that her conduct was considered marginal; she asserted that the unfavorable personnel actions were taken by Ortiz and Laporte solely in retaliation for her testimony to that committee. In early December 1985, DOI concluded that it had not been improper for Ortiz to place a letter in Piesco's file criticizing her conduct at the July 31 meeting or for defendants to exclude her from certain other meetings. DOI concluded, however, that although the factual bases for the conclusions in the August evaluations of Piesco were substantially accurate, the evaluations had not been prepared in On December 27, 1985, Ortiz terminated Piesco's employment.

                accordance with DOP's own procedures.  A formal report eventually issued by DOI, dated January 10, 1986 ("DOI Report"), elaborated that, prior to the

...