670 F.3d 127 (2nd Cir. 2012), 09-3772-cv(L), Lore v. City of Syracuse

Docket Nº:09-3772-cv(L), 09-4206-cv(XAP).
Citation:670 F.3d 127
Opinion Judge:KEARSE, Circuit Judge:
Party Name:Therese LORE, Plaintiff-Appellee-Cross-Appellant, v. CITY OF SYRACUSE, Defendant-Appellant-Cross-Appellee, City of Syracuse Police Department; Chief of Police John Falge in his individual and official capacity; First Deputy Chief Daniel Boyle in his individual and official capacity; Deputy Chief Robert Tassone in his individual and official capacit
Attorney:A.J. Bosman, Rome, NY, (Bosman Law, Rome, NY, on the brief), for Plaintiff-Appellee-Cross-Appellant. Kevin E. Hulslander, Syracuse, NY, (Gabrielle Mardany Hope, Smith, Sovik, Kendrick & Sugnet, Syracuse, NY, on the brief), for Defendant-Appellant-Cross-Appellee and Defendants-Cross-Appellees.
Judge Panel:Before: KEARSE, SACK, and LYNCH, Circuit Judges.
Case Date:February 02, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 127

670 F.3d 127 (2nd Cir. 2012)

Therese LORE, Plaintiff-Appellee-Cross-Appellant,

v.

CITY OF SYRACUSE, Defendant-Appellant-Cross-Appellee,

City of Syracuse Police Department; Chief of Police John Falge in his individual and official capacity; First Deputy Chief Daniel Boyle in his individual and official capacity; Deputy Chief Robert Tassone in his individual and official capacity; City of Syracuse Mayor Roy Bernardi in his individual and official capacity; Lieutenant Mike Rathbun in his individual and official capacity; Captain Mike Kerwin in his individual and official capacity; Rick Guy, City Corporation Counsel, in his individual and official capacity; Michael Lemm, in his individual and official capacity; John Doe, in his individual and official capacity, Defendants-Cross-Appellees. [*]

Nos. 09-3772-cv(L), 09-4206-cv(XAP).

United States Court of Appeals, Second Circuit.

February 2, 2012

Argued: Nov. 19, 2010.

Final Submission: Dec. 7, 2010.

Page 128

[Copyrighted Material Omitted]

Page 129

[Copyrighted Material Omitted]

Page 130

[Copyrighted Material Omitted]

Page 131

[Copyrighted Material Omitted]

Page 132

[Copyrighted Material Omitted]

Page 133

[Copyrighted Material Omitted]

Page 134

[Copyrighted Material Omitted]

Page 135

[Copyrighted Material Omitted]

Page 136

[Copyrighted Material Omitted]

Page 137

[Copyrighted Material Omitted]

Page 138

[Copyrighted Material Omitted]

Page 139

A.J. Bosman, Rome, NY, (Bosman Law, Rome, NY, on the brief), for Plaintiff-Appellee-Cross-Appellant.

Kevin E. Hulslander, Syracuse, NY, (Gabrielle Mardany Hope, Smith, Sovik, Kendrick & Sugnet, Syracuse, NY, on the brief), for Defendant-Appellant-Cross-Appellee and Defendants-Cross-Appellees.

Before: KEARSE, SACK, and LYNCH, Circuit Judges.

KEARSE, Circuit Judge:

Defendant City of Syracuse (" Syracuse" or the " City") appeals from so much of a judgment of the United States District Court for the Northern District of New York, David N. Hurd, Judge, as orders the City to pay plaintiff Therese Lore, a member of the Syracuse Police Department (" SPD" or the " Department"), a total of $417,955.34, including $167,955.34 in attorneys'

Page 140

fees and costs, following a jury verdict (a) finding that the City, because of her complaints of gender discrimination, retaliated against Lore in violation of Title VII of the Civil Rights Act of 1964 (" Title VII"), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law (" HRL"), N.Y. Exec. Law § 296 et seq. , and (b) awarding her compensatory damages against the City totaling $250,000 for pain, suffering, emotional distress, and injury to her reputation as a result of the retaliation. On appeal, the City contends principally that as a matter of law Lore was not entitled to damages for injury to her reputation, that she did not prove that any emotional distress she suffered was caused by acts found to have been performed by the City or its employees, that there were various errors in the court's submission of the case to the jury, and that the damages awarded for emotional distress were excessive.

Lore cross-appeals, principally challenging so much of the judgment as dismisses her retaliation claims against individual defendants, dismisses her gender discrimination claims against the City and the individual defendants, and denies her additional damages and attorneys' fees. She contends principally that the district court erred (1) in having the jury decide whether defendant Rick Guy was entitled to qualified immunity, in failing to rule that he was not entitled to such immunity, and, given the jury's findings that Guy had intentionally retaliated against Lore and caused her injuries totaling $250,000, in not awarding her that amount in addition to the $250,000 awarded against the City; (2) in granting summary judgment dismissing her gender discrimination claims; (3) in failing to impose sanctions on defendants for noncompliance with discovery orders; and (4) in failing to award higher attorneys' fees. Lore also contends that she is entitled to a new trial on her retaliation claims against defendants Daniel Boyle and Mike Kerwin on the ground that the court improperly excluded evidence relevant to those claims.

For the reasons discussed in Part II below, we conclude that the City's appeal— considered without reference to any relief to which Lore may be entitled on her cross-appeal— provides no basis for overturning the judgment against the City. For the reasons discussed in Part III below, we conclude that Lore's cross-appeal has merit only in its challenges to (A) the dismissal, on qualified immunity grounds, of her HRL claim against Guy, and (B) the grant of summary judgment dismissing her main discrimination claims under the HRL against the City and defendant Roy Bernardi, and that Lore was entitled to trial of those discrimination claims. However, because of the substantial overlap in the evidence relevant to Lore's retaliation claims against the City, which were tried, and her main HRL discrimination claims, which were summarily dismissed, and considering the intertwined nature of her retaliation claims against the City and those against Guy, we conclude that a trial of the erroneously dismissed HRL discrimination claims alone could lead to an award of damages that would be duplicative, in whole or in part, of the compensation Lore is awarded in the present judgment. Accordingly, as set out in Part V below, we conclude that if there is to be a trial of the HRL discrimination claims, that trial, in order to avoid an unjust outcome, must be combined with a retrial of Lore's Title VII and HRL retaliation claims against the City and her HRL retaliation claim against Guy. Because we see no other basis for disturbing the judgment against the City, and because we recognize that Lore may prefer to forgo pursuit of the HRL discrimination claims and retain the present award, we will only conditionally vacate so

Page 141

much of the judgment as dismisses the pertinent HRL discrimination claims and as awards damages, costs, and fees against the City. The vacatur will become effective if Lore elects to proceed to trial as indicated above.

I. BACKGROUND

As there has been a trial in this case, the following description includes facts that have been established by the jury's verdict (see Trial Transcript (" Tr.") at 1247-55), as well as pertinent allegations in Lore's final amended complaint (" Complaint"). As Lore's claims of gender discrimination were dismissed on summary judgment, the record with respect to those claims is described in the light most favorable to Lore.

A. The Parties and Lore's Claims

At all times pertinent to this case, Lore was a member of SPD. She joined the Department as an officer in 1978; she was promoted to the rank of sergeant in 1990. In January 1996, then-Chief of Police Timothy Foody invited Lore to join his staff as SPD's public information officer (" PIO"), serving as liaison between the Department and the media, i.e., the spokesman for the Department.

In May 1999, Lore was removed from her position as PIO. (See Complaint ¶ 21.) In June, she was transferred to SPD's Technical Operations Section; in August she was transferred to the Uniform Patrol Division. (See Complaint ¶ 22-23.) Lore, a member of the SPD force's union (the " Union" or " Police Union") (see Complaint ¶ 88), whose collective bargaining agreement (or " CBA") with the City prohibited the City from subjecting Union members to unlawful discrimination or retaliation (see id. ¶ 89; Plaintiff's Exhibit (" PX") MMM, art. 2, ¶ 2.1(B)), filed a grievance with the Union after she was removed from the PIO post. This grievance was settled in December 1999 (" 1999 Settlement Agreement"), with the City agreeing, inter alia, to assign Lore to the Department's Community Relations Division (" CRD") and to give her overtime assignments comparable to those of other CRD sergeants.

In June 2000, Lore discovered that she was receiving fewer overtime assignments than the other CRD sergeants. Routinely, SPD employees retrieved their biweekly paychecks from an open, uncovered box in the Department's Audit Budget and Control Office (" ABC Office")— a common area accessible to all SPD personnel (see Complaint ¶ 39)— and an accountant-clerk in that office testified that SPD employees routinely saw each others' checks as they searched for their own (see, e.g., Tr. 414). Attached to each check was a pay stub that separately itemized the employee's current and cumulative regular pay and overtime pay. Lore complained that the City had breached the 1999 Settlement Agreement by not giving her equal overtime assignments; and to document the disparity, she photocopied the three other CRD sergeants' pay stubs. An arbitration hearing was held on the disparity-in-overtime claim in September 2000 (" September 2000 Arbitration Hearing").

In the meantime, in July and August 2000, Lore filed verified complaints with the EEOC against SPD, the City's mayor, and the Department's top officials, complaining principally of gender discrimination and of retaliation for her complaints of gender discrimination. Her July EEOC complaint alleged, inter alia, that those defendants, motivated by her gender, had caused her removal from the PIO position without justification. It alleged that in retaliation for her complaints of discrimination, they had subjected her to, inter alia, a series of job transfers to less desirable

Page 142

positions; had assigned males who were junior to Lore in rank and seniority to positions that she had requested and for which she was qualified; and had denied Lore perquisites, such as overtime work, an office key, a computer, and a vehicle, that were given to males in...

To continue reading

FREE SIGN UP