Perry v. City of N.Y.

• Decision Date: 05 August 2021
• Docket Number: 13-CV-1015 (VSB)
• Citation: 552 F.Supp.3d 433
• Parties: Chaz PERRY et al., Plaintiffs, v. The CITY OF NEW YORK et al., Defendants.
• Court: U.S. District Court — Southern District of New York

552 F.Supp.3d 433

Chaz PERRY et al., Plaintiffs,

v.The CITY OF NEW YORK et al., Defendants.

13-CV-1015 (VSB)

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

Signed August 5, 2021

Molly A. Elkin, Sara L. Faulman, Diana J. Nobile, Sarah M. Block, McGillivary Steele Elkin LLP, Washington, D.C., Counsel for Plaintiffs.

Felice B. Ekelman, Mark Mancher, Michael A. Frankel, Jackson Lewis P.C., New York, NY, Andrea O'Connor, Corporation Counsel of the City of New York, New York, NY, Counsel for Defendants.

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Before me is the motion for judgment as a matter of law or, in the alternative, motion for a new trial or an amended judgment filed by Defendants the City of New York (the "City") and the New York City Fire Department ("FDNY," and, together with the City, "Defendants"). (Doc. 318.) Because I find that Defendants failed to meet their substantial burden needed to warrant a judgment as a matter of law and failed to demonstrate that the jury reached a seriously erroneous result or that the verdict was a miscarriage of justice, Defendants’ motion is DENIED.

I. Factual Background and Procedural History

Plaintiffs are 2,519 current or former Emergency Medical Technicians ("EMTs") and Paramedics below the rank of lieutenant in the FDNY, and they brought this action against Defendants to recover unpaid compensation under the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq. (Doc. 115.)¹ On October 24, 2019, after a three-week trial, a ten-member jury returned a unanimous verdict in Plaintiffs’ favor, finding that Defendants violated the FLSA by failing to compensate Plaintiffs for work done before and after their compensated shifts. (Doc. 269.) Specifically, the jury found that Plaintiffs proved, by a preponderance of the evidence, that:

• Defendants have a policy or practice of suffering or permitting the Plaintiffs to work before their shift without pay, in violation of FLSA;

• Defendants have a policy or practice of suffering or permitting the Plaintiffs to work after their shift without pay, in violation of FLSA;

• The CityTime system accurately captures the unpaid pre-shift work minutes at issue in this case;

• The CityTime system accurately captures the unpaid post-shift work minutes at issue in this case; and

• Defendants willfully violated the FLSA.

(Id. ) On December 23, 2019, I issued an Opinion & Order granting Plaintiffs’ motion for entry of final judgment. (Doc. 307.) On February 5, 2020, I issued final judgment in this case, awarding Plaintiffs $17,780,063.00 to be allocated as follows: $7,238,513.00 in backpay, $7,238,513.00 in liquidated damages, and $3,303,037.00 in attorneys’ fees and expenses pursuant to 29 U.S.C. § 216(b). (Doc. 313.)

On March 4, 2020, Defendants filed this renewed motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b), or, in the alternative, a motion for a new trial or remittitur of the judgment pursuant to Fed. R. Civ. P. 59(a), along with a memorandum of law, declaration, and exhibits. (Docs. 318–20.) Plaintiffs filed their response in opposition to Defendants’ motion on April 3, 2020, with an accompanying declaration and exhibits. (Docs. 327–28.) This motion became fully briefed when Defendants filed their reply memorandum of law on April 17, 2020. (Doc. 329.)

On March 10, 2021, Plaintiffs filed a letter bringing to my attention a recent decision by Judge Alison J. Nathan in Campbell v. City of New York , 1:16-cv-08719-AJN (S.D.N.Y. Mar. 4, 2021), related to the testimony of Plaintiffs’ expert Dr. Louis Lanier. (Doc. 330.) In a letter dated March 31, 2021, Plaintiffs brought to my attention a recent decision by Judge Paul G. Gardephe in Foster v. City of New York , 1:14-cv-04142 (S.D.N.Y. Mar. 30, 2021), adopting the Report and Recommendation of Magistrate Judge Robert Lehrburger finding that Plaintiffs in that case were similarly situated to each other. (Doc. 331.)

II. Legal Standards

A. Rule 50(b)

"Under Rule 50(a), a party may move for judgment as a matter of law (‘JMOL’) during trial at any time prior to the submission of the case to the jury." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp. , 136 F.3d 276, 286 (2d Cir. 1998) (citing Fed. R. Civ. P. 50(a)(2) ). "The Rule requires the party making such a motion to specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.’ " Tolbert v. Queens Coll. , 242 F. 3d 58, 70 (2d Cir. 2001) (internal quotation marks omitted) (citing Fed. R. Civ. P. 50(a)(2) ). "After an unfavorable verdict, Rule 50(b) allows the party to ‘renew’ its motion." Galdieri-Ambrosini , 136 F.3d at 286.

"A district court may grant a motion for judgment as a matter of law only if it can conclude that, with credibility assessments made against the moving party and all inferences drawn against the moving party, a reasonable juror would have been compelled to accept the view of the moving party." Emamian v. Rockefeller Univ. , 823 F. App'x 40, 45 (2d Cir. 2020) (internal quotation marks omitted) (emphasis in original). "Judgment as a matter of law should be granted only when (1) there is 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 (2) 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." Id. (internal quotation marks omitted).

B. Rule 59

"[F]or a district court to order a new trial under Rule 59(a), it must conclude that the jury has reached a seriously erroneous result or ... the verdict is a miscarriage of justice, i.e., it must view the jury's verdict as against the weight of the evidence." Manley v. AmBase Corp. , 337 F.3d 237, 245 (2d Cir. 2003) (internal quotation marks omitted). "Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." DLC Mgmt. Corp. v. Town of Hyde Park , 163 F.3d 124, 134 (2d Cir. 1998). That said, "the court should only grant such a motion when the jury's verdict is egregious," and the "court should rarely disturb a jury's evaluation of a witness's credibility." Id. (internal quotation marks omitted).

III. Discussion

A. Rule 50(b)

1. The Finding That the City had a Policy or Practice

Defendants first argue that "no reasonable jury could conclude that Defendants had an unlawful FDNY-wide policy or practice of suffering or permitting Plaintiffs to work without pay in violation of the FLSA." (Doc. 319, at 2.) Defendants are correct that there was no operative written policy or practice suffering or permitting such work, (Doc. 329, at 3), a fact that Defendants emphasized in their arguments to the jury, (see Tr. 2000:7-9, 2011:13-18.) Yet neither the statute nor case law specifies that a policy or practice must be written; rather, it merely must be "systematically-applied." Scott v. Chipotle Mexican Grill, Inc. , 954 F.3d 502, 516 (2d Cir. 2020) ; Foster v. City of N.Y. , 14-CV-4142 (PGG) (RWL), 2020 WL 8173266, at *9 (S.D.N.Y. Oct. 30, 2020).

There are four main reasons why Defendants do not come close to meeting their substantial burden under Rule 50(b), and why the jury did not have a "complete absence of evidence supporting" its verdict. Emamian , 823 F. App'x at 45 (internal quotation marks omitted). First, the jury heard sufficiently specific testimony from many witnesses, particularly on direct testimony, that Plaintiffs regularly engaged in unpaid pre-shift, (see Doc. 327, at 6–7), and post-shift, (see id. at 7–9), work. Defendants appear to acknowledge that the jury heard at least some direct testimony that supported Plaintiffs’ claims, but they argue that such testimony "did not hold up to cross-examination." (Doc. 329, at 2–3.) Defendants’ concession is telling and essentially proves the point: Plaintiffs elicited useful direct testimony, Defendants were able to poke some holes in it on cross-examination, and the jury performed its role of parsing through it all and coming to a conclusion. I see nothing in the record that would indicate that the jury acted in a manifestly unreasonable way, or that there is a complete absence of evidence supporting the verdict for Plaintiffs such that I must take the extraordinary step of overruling their judgment and credibility determinations.²

Second, it was reasonable for the jury to find that Defendants’ failure to implement its 2008 draft policies was sufficient evidence not just that pre-shift and post-shift was occurring, but that Defendants had at least a de facto policy of permitting such work. The jury reviewed evidence that Defendants had drafted Command Orders in 2008 that prevented EMTs and Paramedics from performing work-related tasks before or after their shift unless specifically approved, (Doc. 328-12), but that these orders were not formally issued until 2014, (Doc. 328-9). During trial, Defendants failed to provide a justification for why the 2008 draft policy was not issued in the intervening six years. (See, e.g. , Tr. 1044:17-1045:3.) Without any clear justification from Defendants, it was reasonable for the jury to determine that Defendants were aware that at least some pre-shift and post-shift work was happening, and that Defendants ultimately decided against instituting a policy to remedy the issue—either because Defendants did not want to pay the extra money or because they did not want to have to change the way they supervised and managed their employees.

Third, the trial record demonstrated that Plaintiffs for years performed post-shift narcotics audits and securement, but that Defendants did not provide an overtime code for that work until April 2016, (Doc. 328-14; see, e.g. , Tr. 545:2-5, 546:9-15), two years after the Command...