Makinen v. City of N.Y.

• Citation: 167 F.Supp.3d 472
• Decision Date: 29 February 2016
• Docket Number: 1:11-cv-07535 (ALC) (AJP)
• Parties: Kathleen Makinen and Jamie Nardini, Plaintiffs, v. City of New York, Raymond W. Kelly, as Police Commissioner of the City of New York, and Sergeant Daniel J. Sweeney, individually and in his official capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

167 F.Supp.3d 472

Kathleen Makinen and Jamie Nardini, Plaintiffs,

v.City of New York, Raymond W. Kelly, as Police Commissioner of the City of New York, and Sergeant Daniel J. Sweeney, individually and in his official capacity, Defendants.

1:11-cv-07535 (ALC) (AJP)

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

Signed February 29, 2016

Filed March 1, 2016

Lisa Ferro Joslin, Peter N. Sinclair, Gleason, Dunn, Walsh & O'Shea, Attorneys, Albany, NY, for Plaintiffs.

Christopher Saleh Bouriat, Benjamin Welikson, Yuval Rubinstein, Eric Jay Eichenholtz, NYC Law Department, Office of the Corporation Counsel (NYC), New York, NY, for Defendants.

OPINION AND ORDER

ANDREW L. CARTER, JR., United States District Judge.

Plaintiffs Kathleen Makinen and Jamie Nardini sued the City of New York, former Police Commissioner Raymond Kelly, and Sergeant Daniel Sweeney, claiming that they had been discriminated against based on a perceived disability in violation of the Americans with Disabilities Act, the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”).¹ Following an eight-day jury trial in May 2015, the jury entered verdicts in both Plaintiffs' favor under the NYCHRL only and awarded Makinen damages in the total amount of $46,100 and Nardini damages in the total amount of $105,000.

Before the Court are Defendants' post-trial motions pursuant to Fed. R. Civ. P. 50 (“Rule 50 ”) and Fed. R. Civ. P. 59 (“Rule 59 ”). Defendants seek judgment as a matter of law as to all NYCHRL claims, pursuant to Rule 50(b), or a new trial pursuant to Rule 59. For the reasons set forth below, Defendants' Rule 50(b) motion is GRANTED in part and DENIED in part. Defendants' Rule 59 motion is DENIED.

BACKGROUND

Familiarity with the facts and procedural history of the case is assumed. For a more complete description of the underlying facts, seeMakinen v. City of New York, 53 F.Supp.3d 676 (S.D.N.Y.2014).

Plaintiffs were both police officers employed by the New York City Police Department (“NYPD”). Each was separately referred to the NYPD's internal Counseling Services Unit (“CSU”), to be assessed for alcoholism. The CSU is a certified New York State Office of Alcoholism and Substance Abuse Services outpatient treatment center, with a stated objective of assisting police officers who are experiencing difficulty with substance abuse in their rehabilitation and returning them to productive service. At the time at issue, CSU was overseen by Sergeant Daniel Sweeney.

At the time of referral and since, both Plaintiffs denied that they had issues with alcohol abuse. Nevertheless, CSU determined that both did in fact have such issues and prescribed treatment plans. If Plaintiffs did not comply with the treatment plans, they risked suspension and termination. Over the course of several years, Makinen's treatment plan included: outpatient treatment; attendance of Alcoholics Anonymous meetings; alcohol abstinence, inpatient treatment; and private therapy. Plaintiff Nardini's treatment plan included: weekly meetings with a counselor for six weeks and the viewing of six education videos over that same period of time.

After trial, the jury found that the City of New York was liable to both Plaintiffs for discrimination under the New York City Human Rights Law, and that Commissioner Kelly and Sergeant Sweeney were personally liable. It awarded Makinen compensatory damages totaling $16,100, and awarded her $15,000 in punitive damages against Defendant Kelly and an additional $15,000 in punitive damages against Defendant Sweeney. It awarded Nardini compensatory damages totaling $75,000 and awarded her $15,000 in punitive damages against Defendant Kelly and an additional $15,000 in punitive damages against Defendant Sweeney. Defendants filed the instant post-trial motions on July 2, 2015.

LEGAL STANDARD

I. Rule 50(b)

A court may grant a motion for judgment as a matter of law pursuant to Rule 50 only if “the evidence, viewed in the light most favorable to the nonmoving party, is insufficient to permit a reasonable jury to find in his favor.” Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). Rule 50 “imposes a heavy burden on a movant,” Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir.2011), and “[t]hat burden is particularly heavy where, as here, the jury has deliberated in the case and actually returned its verdict in favor of the non-movant.” Id. (quoting Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir.2005) ). In such a situation, a court may set aside the jury's verdict “only if there exists such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded persons could not arrive at a verdict against it.” Id. (quoting Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir.2010) ) (internal quotation marks omitted). Put differently, “a Rule 50 motion may be granted only if the court, viewing the evidence in the light most favorable to the non-movant, concludes that a reasonable juror would have been compelled to accept the view of the moving party.” Id. (emphasis in original) (quoting Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir.2007) ) (internal quotation marks omitted).

II. Rule 59

“In contrast to a motion for judgment as a matter of law, a motion for a new trial pursuant to [Rule] 59 may be granted by the district court, although there is evidence to support the jury's verdict, so long as the district court determines that, in its independent judgment, the jury has reached a seriously erroneous result or its verdict is a miscarriage of justice.” Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir.2005) (quoting Munafo v. Metropolitan Transportation Authority, 381 F.3d 99, 105 (2d Cir.2004) ) (alterations and internal quotation marks omitted). “[O]n a Rule 59 motion the court may weigh the evidence and the credibility of witnesses and need not view the evidence in the light most favorable to the verdict winner.” ING Glob. v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 99 (2d Cir.2014) (quoting Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir.2012) ) (internal quotation marks omitted). However, “a high degree of deference is accorded to the jury's evaluation of witness credibility, and ... jury verdicts should be disturbed with great infrequency.” Id.

DISCUSSION

I. Rule 50(b)

Defendants argue that they are entitled to judgment as a matter of law under Rule 50(b) on six grounds: (1) Plaintiffs are not recovering alcoholics as defined by the NYCHRL; (2) Nardini did not incur an adverse employment action; (3) Dr. Frances's expert report and testimony were inadmissible; (4) Plaintiffs cannot demonstrate they were wrongfully perceived as alcoholics; (5) Plaintiffs failed to demonstrate that Kelly or Sweeney were individually liable; and (6) the punitive and compensatory damage claims fail as a matter of law.

A. Definition of Plaintiffs' Disabilities Under NYCHRL

Defendants first argue that Plaintiffs' NYCHRL claims are legally insufficient because neither Plaintiff suffers from the disability of alcoholism as defined by the NYCHRL. The law provides, “In the case of alcoholism, drug addiction or other substance abuse, the term 'disability' shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse ...” N.Y.C. Admin. Code § 8-102(16)(c) ( “Section 102(16) definition”). Plaintiffs admit that they do not meet that definition; indeed, their contentions that they are not or were not alcoholics are at the heart of their case. Instead, they argue that the relevant provision of the NYCHRL is the section forbidding “an employer or an employee or agent thereof, because of the actual or perceived ... disability ... of any person ... to discriminate against such person in compensation or in terms, conditions or privileges of employment.” N.Y.C. Admin. Code § 8-107(a) (emphasis added).

The Court agrees with Plaintiffs. As the Court earlier found, if the Section 102(16) definition applied here, “the NYCHRL's protective reach would be narrower than that of its state and federal counterparts, which would be contrary to the express purpose of the New York City Council in enacting the Local Civil Rights Restoration Act of 2005.” (Summ. J. Order, ECF No. 64 (“Summ. J. Order”), 23 n. 5.) That is, if the Court were to require plaintiffs bringing claims of discrimination based on perceived alcoholism to meet the NYCHRL definition of “alcoholism,” the Court would preclude plaintiffs from bringing claims under the NYCHRL that they could still bring under the ADA and the NYSHRL. The ADA allows a plaintiff to establish a claim of discrimination by establishing that “she has been subjected to an action prohibited ... because of an actual or perceived physical or mental impairment

whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3). Under the ADA, plaintiffs need only establish that defendants regarded them as having an impairment—including alcoholism—regardless of their actual condition. See, e.g.Rodriguez v. Verizon Telecom, No. 13 Civ. 6969 (PKC) (DCF), 2014 WL 6807834, at *5 (S.D.N.Y. Dec. 3, 2014) (dismissing ADA claim based on actual disability of alcoholism but allowing ADA claim based on perceived disability of alcoholism); Hilton v. Wright, 928 F.Supp.2d 530, 554–55 (N.D.N.Y.2013) (concluding that a genuine issue of material fact existed as to whether defendant regarded plaintiff as having a “drug addiction” or “alcoholism,” “which would constitute a physical or mental impairment for purposes of being regarded as disabled ...”); Darcy v. City of N.Y., 06 Civ. 2246, 2011 WL 841375, at *4 (E.D.N.Y. Mar. 8, 2011) (concluding that a rational jury could find that plaintiff was regarded as having an impairment, where defendant made a remark to plaintiff implying...