Fink v. City of New York

• Decision Date: 01 March 2001
• Docket Number: No. CIV. A. 97-CV-6314 (DGT).,CIV. A. 97-CV-6314 (DGT).
• Citation: 129 F.Supp.2d 511
• Parties: Dennis H. FINK, Plaintiff, v. CITY OF NEW YORK, and New York City Fire Department, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 511

129 F.Supp.2d 511

Dennis H. FINK, Plaintiff, v. CITY OF NEW YORK, and New York City Fire Department, Defendants.

No. CIV. A. 97-CV-6314 (DGT).

United States District Court, E.D. New York.

March 1, 2001.

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Margaret H. Mayo, Gaffin & Mayo, P.C., New York City, for Plaintiff.

William S.J. Fraenkel, Corporation Counsel of the City of New York, for Defendants.

MEMORANDUM AND ORDER

TRAGER, District Judge:

Plaintiff Dennis H. Fink, a retired fire marshal with the New York City Fire Department sued the City and the Fire Department under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, claiming discrimination and retaliation on the basis of his military service and his perceived disability, a hearing loss. A trial was held, and Fink prevailed on all his claims. Defendants now move for judgment as a matter of law overturning the jury's verdict, or, in the alternative, for a new trial, noting numerous dispositive issues on which, they claim, no reasonable jury could have found for Fink.

Background

At a six-day trial held from July 10-14 and on July 17, 2000, Dennis H. Fink alleged that the defendants violated USERRA by intentionally discriminating against him because of his military service insofar as they failed to offer him a makeup promotional exam immediately upon his return from military service in 1994 or to provide him with appropriate study materials in 1997, when he was given a make-up promotional exam. Fink further alleged that the defendants retaliated against him by altering the terms and conditions of his employment after his return from military duty. In addition, Fink claimed that the defendants violated the ADA, intentionally discriminating against him because they viewed him as hearing-impaired by forcing him to submit to a medical examination and by changing the terms and conditions of his employment, placing him on light duty and forcing him to work a five-day schedule. Fink also contended that the defendants retaliated against him when he attempted to protect his rights.

At trial, a total of twelve witnesses were called, ten by Fink and two by the defendants. The jury found in Fink's favor on all his claims and awarded him damages as follows: (1) under USERRA, $42,000.00 in compensatory damages for back pay and other lost benefits and $42,000.00 in liquidated damages; and (2) under the ADA, $7,800.00 in compensatory damages and $800,000.00 in emotional distress damages. The court reserved for itself the decision as to the amount of the damages necessary to compensate plaintiff for any lost pension benefits.

On November 16, 2000, judgment in the action was entered awarding Fink the above-mentioned damages, except that in accordance with 42 U.S.C. § 1981a, the statutory damages cap, the court reduced the jury's award for emotional distress damages from $800,000.00 to $300,000.00. In addition, the court awarded, under USERRA, prejudgment interest on the back pay award in the amount of $8,282.86 per year in pension, retroactive to June 1, 1999, and $91,000 for liquidated damages, plus attorneys' fees and costs. The court also directed defendants to promote plaintiff to the rank of Supervising Fire Marshal.

Defendants now move for a judgment as a matter of law or, in the alternative, a new trial on six grounds: (1) the defendants are not liable under USERRA because Fink failed to present enough evidence for a reasonable jury to have concluded that there was a reasonable certainty of his promotion in the absence of defendants' discriminatory conduct; (2) Fink is not entitled to liquidated damages because he has not come forth with evidence from which a reasonable jury could have concluded that the defendants' violations of USERRA were willful; (3) Fink is not entitled to prejudgment interest because there is no clear evidence here that the defendants were intent upon flouting USERRA; (4) the defendants are not liable for retaliating against Fink because he has adduced no evidence from which a reasonable jury could have concluded that retaliatory acts were done by actors with knowledge of Fink's protected activities, viz. filing of discrimination complaints; (5) the defendants are not liable under the ADA because Fink has not shown that his hearing limitation precluded him from holding a broad class of jobs; and (6) the award of $300,000 for emotional distress damages should be reduced because the current award shocks the judicial conscience.

Other pertinent facts will be set forth as they become relevant.

Discussion

In order to grant a judgment as a matter of law and overturn a jury's verdict, a court must conclude that, "drawing all reasonable inferences in favor of the nonmoving party and making all credibility assessments in his favor, there is [in]sufficient evidence to permit a rational juror to find in his favor." Sir Speedy v. L & P Graphics, 957 F.2d 1033, 1039 (2d Cir.1992); see also Fed.R.Civ.P. 50. Judgment as a matter of law should not be granted unless there is either "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 unless "there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against it." Galdieri-Ambrosini v. Nat'l Realty and Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998).

(1)

Defendants' first claim is that the evidence at trial was insufficient to find liability under USERRA because there was no reasonable certainty that Fink would have been promoted absent the discriminatory conduct at issue. Defendants argue that there is no guarantee that he would have passed the promotional exam, had it been administered to him and no guarantee that he would have been promoted even if he had scored highly. But this line of argument is premised on the assumption that the "reasonable certainty" standard is the appropriate one in this case, a proposition for which defendants cite three cases, two from the U.S. Supreme Court and one from the Southern District of New York. Careful examination of these cases, however, reveals that the standard they employ is inappropriate for the case at bar.

In Chernoff v. Pandick Press, Inc., 419 F.Supp. 1192 (S.D.N.Y.1976), Judge Conner had occasion to consider the claim under 38 U.S.C. § 2021, the predecessor of the USERRA sections at issue here, of a veteran who had worked as a utility worker, gone on military leave and returned to find that he had not been accorded the degree of seniority that was due him, which, he contended, would have resulted in his promotion to the rank of apprentice printing press operator. The defendant, his employer, maintained that there was no absolute certainty of promotion since promotion was not an automatic result of seniority, but rather, subject to the employer's discretion.

The district court, however, found that "absolute certainty" was an incorrect standard. Examining the Supreme Court's decisions in McKinney v. Missouri-Kansas-Texas R.R. Co., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958) and Tilton v. Missouri Pacific R.R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964), the court wrote that "[r]ather than absolute certainty, Section 2021 requires no more than a showing of `reasonable certainty that the veteran would have enjoyed advancement simply by virtue of continuing employment during the time he was in military service.'" Chernoff, 419 F.Supp. at 1198 (citation omitted). Under this standard, the court upheld the plaintiff's claim.

Both McKinney and Tilton present similar fact patterns. An employee goes on military leave and demands a retroactive promotion upon his return. The Supreme Court then has to decide whether there is a reasonable certainty that he would have been promoted absent his departure. The provision at issue in these cases is either 38 U.S.C. § 2021(b)(2), entitling an employee to be restored or reemployed "in such manner as to give such person such status in his employment as he would have enjoyed if such person had continued in such employment continuously," or a provision much like 38 U.S.C. § 2021(b)(2).

But, the case at bar does not present this same scenario. Here, an employee studies for a test that is a prerequisite for promotion, goes on military leave, which prevents him from taking that test at the scheduled time, returns from military leave a few months later, asks to take the test and is denied the opportunity to do so. Thus, we are not trying to determine what would have happened while he was away on leave, i.e. whether he would have taken the test, passed it and been promoted. Rather, we are assessing the legality of defendants' actual conduct when Fink, returning from military service, requested to take his promotional exam and was refused. Under this fact pattern, a "reasonable certainty" inquiry would make a mockery of the statutory protection. Any returning veteran who is denied a right to take a difficult promotional make-up exam with a low pass rate will never satisfy a "reasonable certainty" standard, and an employer will necessarily avoid any adverse consequences for his violation of the relevant provisions of USERRA. Surely, this is not the outcome Congress intended in enacting the statute.

Although, as will be discussed shortly, the "reasonable certainty" standard is inappropriate in the present case, Fink's claim survives even if "reasonable certainty" were the appropriate test, since there was enough evidence for a reasonable jury to find that there is a reasonable certainty that he would have been promoted had not the defendants discriminated against him. Looking again at the facts of the three "reasonable certainty" cases discussed above, it quickly becomes apparent that some measure of discretion...