Zakre v. Norddeutsche Landesbank Girozentrale

• Decision Date: 08 February 2008
• Docket Number: No. 03 Civ. 257.,03 Civ. 257.
• Citation: 541 F.Supp.2d 555
• Parties: Beverly ZAKRE, Plaintiff, v. NORDDEUTSCHE LANDESBANK GIROZENTRALE, Defendant.
• Court: U.S. District Court — Southern District of New York

541 F.Supp.2d 555

Beverly ZAKRE, Plaintiff, v. NORDDEUTSCHE LANDESBANK GIROZENTRALE, Defendant.

No. 03 Civ. 257.

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

February 8, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Vladeck, Waldman, Elias & Engelhard, P.C. by Anne L. Clark, Esq., Karen Cacace, Esq., New York, NY, for Plaintiff.

McDermott Will & Emery LLP by Joel E. Cohen, Esq., Carolyn T. Schiff, Esq., Katherine D. Kale, Esq., New York, NY, for Defendant.

OPINION

SWEET, District Judge.

Defendant Norddeutsche Landesbank Girozentrale ("Nord/LB," the "Bank," or the "Defendant") has moved under Rule 50(b), Fed.R.Civ.P., to set aside the punitive damage award in favor of plaintiff Beverly Zakre ("Zakre" or the "Plaintiff) and alternatively under Rule 59(a) and (e), Fed.R.Civ.P., for a new trial or remittitur.

Zakre has also moved for attorneys' fees and costs pursuant to Title VII, 42 U.S.C. § 2000e-5(k), and the New York City Administrative Code, N.Y. City Admin. Code § 8-502(f), and for reinstatement with pension credit, and interest, pursuant to Fed.R.Civ.P. 59(e), and federal, state and city law.

For the reasons set forth below, the motion to set aside is denied, and the motion for a remittitur with respect to punitive damages is granted. The motion for attorneys' fees and costs is granted, and the motion for reinstatement is denied.

Prior Proceedings

On April 23, 2007, after a ten-day trial, a jury found that the Bank discriminated against Zakre because of her gender and retaliated against her because of her opposition to unlawful employment actions, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"); the New York State Human Rights Law, N.Y. Exec. §§ 296-301 ("Executive Law"); and the Administrative Code of the City of New York §§ 8-107-8-131 ("City Law"). The jury awarded Zakre $1,348,971 in lost wages and benefits, $100,000 for emotional distress, and $2,500,000 in punitive damages.

On April 30, 2007, the Managing Clerk at McDermott Will & Emery, counsel for Defendant, noted that the electronic docket in this case reflected that judgment had been entered by the Court on April 27, 2007. The judgment was entered on April 26, 2007. Nord/LB filed this motion on May 10, 2007, and on May 11, 2007, filed an amended memorandum of law raising an additional argument. The instant motion was heard and marked fully submitted on June 6, 2007.

The Standards under Rule 50 and Rule 59

A motion for judgment as a matter of law pursuant to Rule 50(b) is appropriately granted only when the Court determines that "there is no legally sufficient evidentiary basis for a reasonable jury to find for a party." Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 120 (2d Cir.1998). In connection with a 50(b) motion, "the trial court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence." Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir.2001) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir.1988)). "The court cannot assess the weight of conflicting evidencing, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Id. Moreover:

In making its evaluation, the court should `review all the evidence in the record,' but `it must disregard all evidence favorable to the moving party that the jury is not required to believe....' That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.

Id. (emphasis in original, internal citations omitted) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

The standard for granting a new trial pursuant to Rule 59, Fed.R.Civ.P., is less stringent than that for judgment as a matter of law. See Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987); Bseirani v. Mahshie, 881 F.Supp. 778, 783 (N.D.N.Y.1995), aff'd, 107 F.3d 2 (2d Cir.1997). On a motion for new trial, the judge may grant a new trial even if there is substantial evidence to support the jury's verdict. Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). The court may weigh the evidence for itself without viewing it in the light most favorable to the verdict winner. See id.; Paper Corp. of the U.S. v. Schoeller Technical Papers, Inc., 807 F.Supp. 337, 347 (S.D.N.Y.1992). Still, a new trial may only be granted if "the court is convinced that the jury has reached a seriously erroneous result, or that the verdict is against the weight of the evidence, making its enforcement a miscarriage of justice." Lightning Bolt Prods., Inc., 861 F.2d at 370; Taylor v. National R.R. Passenger Corp., 868 F.Supp. 479, 484 (E.D.N.Y. 1994). Moreover, "[w]here the resolution of the issues depended on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial." Piesco v. Koch, 12 F.3d 332, 345 (2d Cir. 1993) (citing Metromedia Co. v. Fugazy, 983 F.2d 350, 361 (2d Cir.1992), cert, denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993)).

If a district court finds that a verdict is excessive, it may order a new trial, order a new trial limited to damages, or, under the practice of remittitur, condition denial of a motion for a new trial on the plaintiffs accepting damages in a reduced amount. See Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93, 96 (2d Cir.1995) (citing Phelan v. Local 305 of the United Ass'n of Journeymen and Apprentices of the Plumbing & Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir.1992), cert, denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993)). However, it is not among the powers of the trial court, where the jury has awarded excessive damages, simply to reduce the damages without offering the prevailing party the option of a new trial. See id. (citing Vasbinder v. Scott, 976 F.2d 118, 122 (2d Cir.1992)).

The Rule 50(b) Motion is Timely

Zakre has contended that this portion of the Nord/LB motion is untimely in that the Defendant raised its challenge to the back pay award on May 11, 2007, and raised only issues relating to the insufficiency of the evidence as to the failure to promote claim and as to pretext with respect to termination in its Rule 50(b) motion at the close of the Plaintiffs case. Zakre also noted that Nord/LB did not renew its 50(b) motion at the close of all evidence.

However, effective December 1, 2006, Fed.R.Civ.P. 50(b) was amended to delete the requirement that a Rule 50(a) motion for judgment as a matter of law made before the close of all the evidence must be renewed at the close of all the evidence. As explained in the 2006 Notes of the Advisory Committee:

This change responds to many decisions that have begun to move away from requiring a motion for judgment as a matter of law at the literal close of all the evidence. Although the requirement has been clearly established for several decades, lawyers continue to overlook it. The courts are slowly working away from the formal requirement. The amendment establishes the functional approach that courts have been unable to reach under the present rule and makes practice more consistent and predictable.

Fed.R.Civ.P. 50 Advisory Committee Notes (2006).

Nord/LB challenged the sufficiency of the evidence to support an award on liability, stating that there was no evidence that Defendant was motivated by improper animus. Trial Tr. 1081; Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148, 1155 (2d Cir.1994) (explaining that appellant could have challenged the sufficiency of the evidence for a damage award if not the award itself) (citing W.W.W. Pharm. Co. v. Gillette Col., 984 F.2d 567, 570 (2d Cir.1993) (explaining appellee moved for judgment as a matter of law in the district court "on the ground that there was no legally sufficient basis for a reasonable jury to find for the plaintiff[-appellant]")). Plaintiff concedes that Defendant moved for judgment as a matter of law at the close of Plaintiffs case.

The instant motion was timely and the grounds upon which it was based are appropriate for consideration.

Punitive Damages Were Appropriate

Nord/LB has contended that the punitive damage award was against the weight of the evidence. An award of punitive damages is warranted in a Title VII action where an employer discriminates "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b) (l). In Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), the Supreme Court explained that the terms "malice" and "reckless indifference" pertain to the employer's knowledge that it may be acting in violation of federal law. Id. at 535-36, 119 S.Ct. 2118. The Court stated that to be liable for punitive damages under Section 1981a, "an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages." Id. at 536, 119 S.Ct. 2118. "[A] positive element of conscious wrongdoing is always required." Id. at 538, 119 S.Ct. 2118 (internal quotation marks and citation omitted).

An employer does not have the requisite state of mind if it "discriminated with the distinct belief that its [alleged] discrimination is lawful," even if that belief is erroneous. Id. at 537, 119 S.Ct. 2118. According to Nord/LB, the Second Circuit has explicitly held that where the employer acts pursuant to advice that its action is consistent with the law, an award of punitive damages cannot stand under Kolstad. Farias...