Opinion
97 Civ. 2670 (WK).
January 4, 2001.
Daniel Kinburn, Esq., Dwyer, Kinburn Hall, Totowa, New Jersey, for Plaintiff.
Howard M. File, Esq., Howard M. File, Esq., P.C., Staten Island, New York 10314, for Defendants.
MEMORANDUM ORDER
A jury trial was held in the above captioned case which took place March 21, 2000 through March 24, 2000. The jury returned a verdict against Cosmetics Plus, N.Y., Ltd. ("Cosmetics Plus") and its Chief Operating Officer Ronald Sharman (collectively "defendants"), finding that they had violated the Employee Polygraph Protection Act, 29 U.S.C. § 2001-2009 (1999) ("the EPPA"). The jury awarded Ross D. Albin ("plaintiff") damages in the amount of $5,000 for emotional distress and $75,000 for lost wages.
After the conclusion of the trial both parties made motions to the Court. Defendants moved for a directed verdict or, in the alternative, for a new trial. Plaintiff moved for an award of attorney's fees and pre-judgment interest. We address these motions simultaneously.
As we assume familiarity with the facts of and our previous opinions in this case, we do not elaborate on this matter's factual or procedural details.
DISCUSSION
I. Motion For A Directed Verdict Or For A New Trial
The legal standard upon which a motion for a directed verdict may be granted is very strict. Judgments as a matter of law "should not be granted unless (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 [people] could not arrive at a verdict against [it]." Galdieri-Ambrosini v. National Realty Dev. Corp. (2d Cir. 1998) 136 F.3d 276, 289 (citations omitted).
Defendants contend that plaintiff has failed to establish by a preponderance of the evidence these essential matters: (1) that defendant was engaged in interstate commerce; (2) that defendants had requested or suggested that plaintiff take a polygraph test; (3) that his termination was due to his refusal to take a polygraph test. They further contend that the damage award was excessive and contrary to the jurors' responses to the questions on the verdict sheet.
A. Interstate Commerce
Section 2002 of the Employee Polygraph Protection Act ("EPPA") requires that an employer be "engaged in or affecting commerce or in the production of goods for commerce." 29 U.S.C. § 2002. The definition of "commerce" for this section is provided by the Fair Labor Standards Act, 29 U.S.C. § 203(c), which requires that the employer be engaged in interstate commerce.
The question of jurisdiction under the EPPA was raised and decided before trial in our Memorandum and Order dated October 3, 1997. We then rejected defendants' contention that Cosmetics Plus was not engaged in interstate commerce at the time plaintiff was discharged. We found that "[e]ven if at that time defendants had no stores outside the State of New York, there is no indication that their inventory did not move through the states either before or after sale." Memorandum and Order (October 3, 1997) at 5.
Although defendants in no way during the trial suggested that they wanted to relitigate the question we had disposed of in our pretrial Memorandum and Order, they now invite us to examine the evidence produced at trial to see whether a proponderance of it justified the result we reached when the question was at issue before us. We decline that invitation.
B. The Polygraph Test
Defendants argue that plaintiff did not prove by a preponderance of the evidence that they requested or suggested that plaintiff take a polygraph test. We found that plaintiff offered sufficient evidence on this issue to send this case to a jury. The first question posed to the jury on the verdict sheet asked: "[h]as the plaintiff, Ross Albin, established by a preponderance of the evidence that any person or persons acting on behalf of the defendant Cosmetics Plus, either directly or indirectly, suggested, requested, required or otherwise asked that the plaintiff submit to a polygraph or lie detector test?" The jury answered this question in the affirmative. We find no reason to disturb the jury's determination.
C. Plaintiff's Termination
Not only does the EPPA make it unlawful for a private employer to directly or indirectly suggest or require any employee to submit to any lie detector test, but the EPPA also makes it unlawful for any action to be taken against an employee who refuses to take a lie detector test. 29 U.S.C. § 200(1) and (3); see Wiltshire v. Citibank (N.Y.Sup. 1996) 653 N.Y.S.2d 517.
Defendants argue that plaintiff did not prove by a preponderance of the evidence that plaintiff's termination was due to his refusal to take a lie detector test. Cases brought under the EPPA are viewed in the same manner as Title VII cases. Plaintiff's burden is only to show that the lie detector was a factor in his termination. Once a plaintiff makes out a prima facie case, the defendant must show that it would have come to the same decision without the illegitimate consideration. See Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 241. (Title VII case holding that an employer shall not be liable if it can prove that it would have come to the same decision regarding a particular person, even if it had not taken gender into account). If the defendant makes such a showing, the burden shifts back to plaintiff to demonstrate that the reason provided was a pretext for discrimination.
Defendants contend that the jury's verdict was caused by sympathy for the plaintiff. Finding that plaintiff made out a prima facie case, we shall not second guess the jury's decision.
D. The Damage Award
A court may properly grant remittitur only when a jury award is "so high as to shock the judicial conscience and constitute a denial of justice." King v. Macri (S.D.N.Y. 1992) 800 F. Supp. 1157, 1160-61 (citing Zarcone v. Perry (2d Cir. 1978) 572 F.2d 52, 56. The jury's award of $5,000 for emotional distress and $75,000 for lost wages does not "shock" our "conscience." The jurors arrived at this figure after weighing all the evidence, including plaintiff's testimony. We see no reason to disturb the verdict.
II. Attorney's Fees
The EPPA provides in relevant part:
The court, in its discretion may allow the prevailing party (other than the United States) reasonable costs, including attorney's fees.29 U.S.C. § 2005(c)(3). While only one case of record discusses attorney's fees awards under the EPPA, and none to our knowledge discusses disbursements, it seems clear to us that the EPPA allows courts to award such fees it finds reasonable. Here plaintiffs attorneys have asked for attorneys' fees and disbursements in the amount of $94,404.11. We find this amount to be excessive.
First, the original complaint contained four counts: one under the EPPA, one for slander, one claiming breach of contract, and one claiming intentional infliction of emotional distress. We dismissed the breach of contract and intentional infliction of emotional distress claims and plaintiff voluntarily withdrew the slander claim.
Second, plaintiff's attorneys spent time defending a proposed counterclaim that was never filed. This counterclaim supposedly sought to assert that plaintiff deliberately stole or was responsible due to negligence for over $300,000 in inventory shortages. Plaintiff states that the time spent on defending the proposed counterclaim should not be deducted from the overall figure, citing Broome v. Biondi (S.D.N.Y. 1997) 17 F. Supp. 230. In that case plaintiff sued for housing discrimination and defendant filed a counterclaim alleging defamation. Although plaintiff prevailed and the counterclaim was dismissed, the court in Broome denied defendants' request that reduce the attorney's fees be reduced for time spent defending the counterclaim. Id. at 233. The case before us is significantly different from Broome. Although the proposed counterclaim might have been significantly related to plaintiff's case in chief, no such counterclaim was actually filed.
We conclude that the time spent on the counts other than the one based on the EPPA should be deducted from the overall fees claimed by plaintiff. We suggest that the parties attempt to agree on what constitutes reasonable attorney's fees. Failing such agreement, we shall direct that a Magistrate Judge be appointed to make such determination.
III. Pre-judgment Interest
We find that pre-judgment interest is appropriate adequately to compensate plaintiff for the money damages he incurred. The jury awarded plaintiff $75,000 in lost wages. Interest on that amount from the date of his termination should be calculated at a rate of 6%. We deny plaintiff's motion for interest for the $5,000 the jury awarded for emotional distress.
CONCLUSION
We deny defendants' motion for a directed verdict and a reduction of damages. In addition, we deny plaintiff's motion for attorney's fees in the amount of $94,404.11 and request that the parties reach an agreement consistent with this opinion as to what constitutes reasonable attorney's fees for this case. As we have stated before, if the parties cannot agree, we will direct that a Magistrate Judge be appointed to make such a determination. We deny plaintiff's request that pre-judgment interest be applied to the entire jury award of $80,000 and order that pre-judgment interest be paid at a rate of 6% on the sum of $75,000 awarded for lost wages.
SO ORDERED.
U.S. v. LUGO, (S.D.N.Y. 2001)
UNITED STATES, Plaintiff, v. VICTOR LUGO, KENNETH METRICK, and ARTHUR SASSMAN, Defendants. 00 Cr. 44 (WK). United States District Court, S.D. New York. January 5, 2001.
ORDER
WHITMAN KNAPP, SENIOR U.S.D.J.
Upon the application of the Government, by and through Assistant United States Attorney Peter G. Neiman, it is hereby ORDERED that the time between the date of this Order and March 9, 2001 be excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). Since this continuance will allow the Government to discuss possible resolutions of the case with counsel for defendants Victor Lugo and Kenneth Metrick, the granting of such a continuance best serves the ends of justice and outweighs the best interest of the public and the defendant in a speedy trial.
SO ORDERED.