Opinion
21508/99.
Decided March 26, 2010.
Anthony Ofodile Esq., Brooklyn, NY, for Plaintiffs.
Jennifer Rubin Esq., Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., New York, NY, for Defendant.
This action proceeded to trial before a jury November 24-26 and December 1-5, 2008. On December 5, 2008, the jury rendered a verdict finding that defendant Bernard Spitzer participated in, encouraged, condoned, or approved of the termination of plaintiffs' employment at 150 East 57th Street, New York County, on account of their race or color. The jury awarded each plaintiff compensatory damages for past lost earnings and emotional distress and punitive damages, but no damages for future lost earnings or emotional distress.
Defendant moves to set aside the verdict on defendant's liability on the grounds that the verdict is (1) unsupported by legally sufficient evidence, warranting a judgment in defendant's favor, or (2) contrary to the weight of the evidence, warranting a new trial. C.P.L.R. § 4404(a). Alternatively, defendant moves to reduce the awards for compensatory and punitive damages because they materially deviate from reasonable compensation. C.P.L.R. § 5501(c).
After oral argument, for the reasons explained below, the court denies defendant's motion to set aside the jury's verdict on defendant's liability, punitive damages, and compensatory damages for plaintiffs' emotional distress. C.P.L.R. § 4404(a). The court grants defendant's motion, however, to the extent of reducing the verdict on compensatory damages for past lost earnings, based on plaintiffs' receipt of unemployment insurance. The court orders a new trial on these damages only, unless plaintiffs stipulate to the modest reductions in the lost earnings awards as forth below. C.P.L.R. §§ 4404(a), 5501(c).
II. STANDARDS FOR PLAINTIFFS' RECOVERY
Plaintiffs claim defendant violated New York Executive Law § 296(1)(a) and New York City Administrative Code § 8-107(1)(a), which prohibit an employer from refusing to employ or barring or discharging from employment any person because of race or color or from discriminating against any person in the terms, conditions, or privileges of employment because of race or color. Defendant concedes that he was plaintiffs' employer, because he owned at least 50% of East 57th Street, LLC, the owner of the residential building at 150 East 57th Street, which employed plaintiffs as building staff. NY Exec. Law § 296(1)(a); Patrowich v. Chemical Bank, 63 NY2d 541, 543-44 (1984); Pepler v. Coyne , 33 AD3d 434 , 435 (1st Dep't 2006). See N.Y.C. Admin. § 8-107(13)(b)(1); Minichiello v. Supper Club, 251 AD2d 182, 183 (1st Dep't 1998).
Defendant also does not dispute that plaintiffs are members of the statutorily protected class of African-American or dark skinned employees. Each plaintiff bore the initial burden to prove further that he was qualified for the position for which he was not employed or from which he was discharged and that the circumstances under which he was not employed or was discharged created an inference of discrimination based on race or color. If plaintiffs proved these elements, the burden shifted to defendant to rebut that presumption of discrimination and prove that he refused to employ or discharged plaintiffs for legitimate, non-discriminatory reasons. Stephenson v. Hotel Empls. Rest. Empls. Union Local 100 of AFL-CIO , 6 NY3d 265 , 270 (2006); Forrest v. Jewish Guild for the Blind , 3 NY3d 295 , 305 (2004); Ferrante v. American Lung Ass'n, 90 NY2d 623, 629 (1997); Baldwin v. Cablevision Sys. Corp. , 65 AD3d 961 , 965 (1st Dep't 2009). If defendant produced evidence that he rejected plaintiffs or preferred other employees for legitimate reasons not based on race or color, then plaintiffs, who retain the ultimate burden of persuasion under this framework, were required to prove that defendant's reasons were false and but a pretext for the true, discriminatory reason, on account of race or color. Stephenson v. Hotel Empls. Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d at 271; Forrest v. Jewish Guild for the Blind, 3 NY3d at 305; Ferrante v. American Lung Ass'n, 90 NY2d at 629-30; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 965.
The standards for recovery under Executive Law § 296 are comparable to the standards under federal statutes prohibiting discrimination in employment. Stephenson v. Hotel Empls. Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d at 270; Forrest v. Jewish Guild for the Blind, 3 NY2d at 305 n. 3; Rainer N. Mittl, Opthalmologist, P.C. v. New York State Div. of Human Rights, 100 NY2d 326, 330 (2003); Aurecchione v. New York State Div. of Human Rights, 98 NY2d 21, 26 (2002). The standards for recovery under Administrative Code § 8-107 are construed more liberally than analogous federal and state statutes. N.Y.C. Admin. Code § 8-130; Vig v. New York Hairspray Co., L.P. , 67 AD3d 140 , 146 n. 6 (1st Dep't 2009); Phillips v. City of New York , 66 AD3d 170 , 172. 180 n. 10 (1st Dep't 2009); Williams v. New York City Hous. Auth. , 61 AD3d 62 , 68-69 (1st Dep't 2009).
III. LEGAL SUFFICIENCY OR WEIGHT OF THE EVIDENCE REGARDING DEFENDANT'S LIABILITY
Defendant claims plaintiffs failed to sustain their burden to prove that he participated in, encouraged, condoned, or approved of any discriminatory termination of plaintiffs' employment at his building at 150 East 57th Street, to establish his liability for that action. Forrest v. Jewish Guild for the Blind, 3 NY3d at 311; State Div. of Human Rights v. St. Elizabeth's Hosp., 66 NY2d 684, 687 (1985); Totem Taxi, Inc v. New York State Human Rights Appeal Bd., 65 NY2d 300, 305 (1985); Clayton v. Best Buy Co., Inc. , 48 AD3d 277 (1st Dep't 2008). The court may not set aside the jury's verdict on any issue based on legal insufficiency of the evidence unless no valid line of reasoning and permissible inferences from the evidence presented would lead rational jurors to the conclusion they reached. Stephenson v. Hotel Empls. Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d at 271-72; Cohen v. Hallmark Cards, 45 NY2d 493, 499 (1978); Woodie v. Azteca Intl. Corp. , 60 AD3d 535 , 536 (1st Dep't 2009); Sow v. Arias, 21 AD3d 317 (1st Dep't 2005). The evidence supporting the verdict must be so lacking that the jury's findings must have been based purely on conjecture. Legal sufficiency of the evidence is a question of law for the court. See Cohen v. Hallmark Cards, 45 NY2d at 498; Sow v. Arias , 21 AD3d 317 . Setting aside a verdict based on legal insufficiency of evidence results in a judgment of dismissal. Cohen v. Hallmark Cards, 45 NY2d at 498; Smith v. Au , 8 AD3d 1 , 2 (1st Dep't 2004).
The court may not set aside the verdict on an issue as against the weight of the evidence, resulting in a new trial on the issue, if the verdict was based on a fair interpretation of the evidence. Cohen v. Hallmark Cards, 45 NY2d at 499; Woodie v. Azteca Intl. Corp. , 60 AD3d 535 ; McDermott v. Coffee Beanery, Ltd. , 9 AD3d 195 , 206 (1st Dep't 2004); Kraus v. Caliche Realty Estates, 302 AD2d 214, 215 (1st Dep't 2003). See Salter v. St. Preux , 63 AD3d 902 , 903 (2d Dep't 2009). The evidence in defendant's favor must have been so overwhelming that, even when all credibility assessments and inferences are drawn against defendant, reasonable, fair minded jurors could not have reached a verdict against him. As long as the verdict may be reconciled with a reasonable view of the evidence, plaintiffs are "entitled to the presumption that the jury adopted that view." Zhagui v. Gilbo , 63 AD3d 919 , 920 (2d Dep't 2009). See Cholewinski v. Wisnicki , 21 AD3d 791 (1st Dep't 2005); Rivera v. 4064 Realty Co. , 17 AD3d 201 , 202-203 (1st Dep't 2005); Price v. Studley , 28 AD3d 1196 , 1197 (4th Dep't 2006).
Specifically, defendant maintains that no evidence indicates (1) that any of the four plaintiffs ever conversed directly with defendant, (2) that he was involved in the decision to terminate any of plaintiffs' employment, (3) that he even knew about any discriminatory conduct affecting any of plaintiffs, or (4) that they were replaced by lighter skinned employees. Nonetheless, the record does reveal evidence from which the jury could infer these facts and other facts from which the jury could conclude that the termination of plaintiffs' employment was based on their race or color and that defendant himself participated in, encouraged, condoned, or approved of those discriminatory acts. Discrimination "is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished by devious and subtle means." Ferrante v. American Lung Ass'n, 90 NY2d at 631; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d 176, 183 (1978).
IV. EVIDENCE OF DEFENDANT'S LIABILITY
A. Defendant's Admission That He Did Not "Want Niggers in the Building"
Defendant acknowledges that plaintiff Haydenn testified he heard defendant's building superintendent Peter Senna mutter: "Now I see why Spitzer doesn't want niggers in the building." Tr. of Proceedings at 506 (Dec. 1, 2008). See id. at 524. Although defendant attempted to undermine Haydenn's credibility through cross-examination about his ability to hear Senna around a corner from Haydenn in the building lobby and his failure to report the comment immediately to the building management, these credibility issues were to be resolved by the jury, which was free to accept every word of Haydenn's testimony. E.g., Maskantz v. Hayes , 39 AD3d 211 , 214 (1st Dep't 2007); Rivera v. 4064 Realty Co., 17 AD3d at 202-203; Bota v. Kaminsky, 299 AD2d 259 (1st Dep't 2002); People v. Vasquez, 186 AD2d 440, 441 (1st Dep't 1992). The jurors who see and hear the witnesses are uniquely capable of assessing the "memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses." People v. Romero , 7 NY3d 633 , 645 (2006). See People v. Vasquez, 186 AD2d at 441. The testimony as to the circumstances surrounding Haydenn's opportunity to hear Senna, including any background noise, Haydenn's distance from Senna, and any other obstructions, and the precision with which the utterances were recounted was "within the ken of the typical juror" to evaluate and provided no basis for the court to disturb the jury's determination. People v. Austin , 46 AD3d 195 , 199 (1st Dep't 2007). See People v. Romero, 7 NY3d at 645; People v. Vasquez, 186 AD2d at 441.
In fact Scott Almond, another building employee during and after plaintiffs' employment, corroborated Haydenn's testimony.
Q. Did he [Senna] ever say he wanted to rid the building of African American employees?
A. Yes.
Tr. at 873 (Dec. 3, 2008).
In determining whether Senna's comment regarding defendant's desired objective was an admissible exception to the rule against hearsay, as an admission attributable to defendant on a matter he had authorized his agent Senna to speak about, the court proposed to defendant the option of leaving the determination of Senna's authority to the jury. Giandana v. Providence Rest Nursing Home , 32 AD3d 126 , 134 (1st Dep't 2006), rev'd on other grounds, 8 NY3d 859 (2007); Candela v. City of New York , 8 AD3d 45 , 47-48 (1st Dep't 2004); Browne v. Prime Contr. Design Corp., 308 AD2d 372 (1st Dep't 2003); Navedo v. 250 Willis Ave. Supermarket, 290 AD2d 246, 247 (1st Dep't 2002). See Tyrell v. Wal-Mart Stores, 97 NY2d 650, 652 (2001). If the determination were left to the jury, the court proposed to instruct the jury on the factors to consider in determining Senna's authority and caution the jury that, upon finding Senna unauthorized to speak regarding the retention, dismissal, management, or treatment of building employees, the jury must disregard the comment. Despite the court's expressed view that the evidence thus far demonstrated Senna was defendant's agent in this scope of building business and decisionmaking, defendant opted to allow the court to be the factfinder in resolving whether plaintiffs had laid the foundation for the admission's admissibility.
Senna testified that he was responsible for managing the building staff and ensuring that their functions were carried out as the building owner wanted, which would include no "niggers in the building." Tr. at 506 (Dec. 1, 2008). Senna worked for defendant, the owner, and implemented his objectives by interacting directly with him, particularly when defendant visited and walked throughout the building with Senna. Senna's duties included implementing hiring and firing decisions in conjunction with the owner and his intermediaries. See Patrowich v. Chemical Bank, 63 NY2d at 543-44; Pepler v. Coyne, 33 AD3d at 435; Minichiello v. Supper Club, 251 AD2d at 183. Senna played a role in selecting the permanent employees, but "couldn't have anybody I wanted." Tr. at 230 (Nov. 25, 2008). In addition to communicating directly to Senna, defendant communicated his desires to Lorraine Turpa, the building management's account executive, who forwarded them to Senna.
Both Daniel Wollman, the building management's chief operating officer in 1998, and defendant himself consistently testified that he delegated authority to Senna regarding the retention, oversight, and management of building employees. Defendant's testimony nevertheless demonstrated, and Senna evinced his understanding that, if he did not carry out defendant's desires regarding the employment, direction, and treatment of building staff, defendant would terminate Senna's employment: hence his explanation to Haydenn upon terminating his job, "it's either you or me." Id. at 521 (Dec. 1, 2008). See Patrowich v. Chemical Bank, 63 NY2d at 543-44; Pepler v. Coyne, 33 AD3d at 435; Minichiello v. Supper Club, 251 AD2d at 183.
Before determining whether to admit the proffered admission, the court gave defendant the opportunity to offer any further evidence bearing on the issue. No further evidence being offered, based on the testimony of Senna, Wollman, and defendant himself, the court determined that plaintiffs had laid the requisite foundation. The testimony demonstrated (1) that defendant had delegated responsibility and authority to Senna to speak on defendant's behalf regarding the retention and treatment of building employees and (2) that the proffered admission was within the scope of Senna's authority. Giandana v. Providence Rest Nursing Home, 32 AD3d at 134; Candela v. City of New York, 8 AD3d at 47-48; Browne v. Prime Contr. Design Corp., 308 AD2d 372; Navedo v. 250 Willis Ave. Supermarket, 290 AD2d at 247. See Tyrell v. Wal-Mart Stores, 97 NY2d at 652.
B. Credibility of the Evidence That This Admission Expressed the Reason for Discharging Plaintiffs
Other witnesses also revealed that, when Senna expressed the desire to rid the building of African-American employees, he was not imparting his own attitude, but, consistent with his principals' and his own testimony regarding his responsibilities as superintendent, was carrying out defendant's objectives at the building. Plaintiffs and Senna himself testified that his attitude toward plaintiffs was positive and free of racial animus, at least until defendant encountered them.
Plaintiff Boyce testified repeatedly, on direct and cross-examination, that Senna praised Boyce's work and promised Boyce permanent employment. "Senna said that I am a very good worker and when the building finish, he going to employ me permanent."
Tr. at 360 (Nov. 26, 2008). "He tell me when the building is finished he would give me a permanent job." Id. at 392.
Senna himself corroborated Boyce. He was a "very good" and "reliable employee," Tr. at 182, 185, 186 (Nov. 25, 2008), "came to work and did his job." Id. at 184-85. "I liked his work. . . ." Id. at 182. "I wouldn't have fired him. . . . I would have kept him on as long as I could." Id. at 186. Senna continued: "I would have kept him on if . . ." and then, tellingly, broke off. Later Senna added that
the property developers — Lorraine Turpa told me that they wanted sharp people, you know, they wanted the building to have a very upscale image. . . .
Id. at 185. See id. at 234.
Spitzer was very concerned with that, the image of the building. He felt that the staff was important to give a certain image to the building, one of luxury and one . . . you would think look at this guy, this is a great life.
Id. at 227.
Like Boyce, Haydenn was not in this "class" either. Id. at 228. While "your daytime doormen . . . are not expected to clean, id. at 227, "he was a totally different class of doorman," "expected to clean the bathroom" off the lobby. Id. at 228.
Boyce further testified regarding his two conversations with defendant directly. Each time defendant asked Boyce whether he worked at defendant's building, to which Boyce answered affirmatively. See Jordan v. Bates Adv. Holdings, Inc. , 46 AD3d 440 , 442 (1st Dep't 2007). Three weeks after defendant encountered Boyce the second time and found him still working at the building, Senna suddenly fired Boyce, despite his six months of employment with consistent praise and no complaints regarding his work. Ferrante v. American Lung Ass'n , 90 NY2d at 627 ; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 962-63; Pepler v. Coyne , 33 AD3d 434 ; Bemis v. New York State Div. of Human Rights , 26 AD3d 609 , 612 (3d Dep't 2006). See Kolstad v. American Dental Ass'n, 527 U.S. 526, 530 (1999); Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 379, 382-83 (2d Cir. 2001); Luciano v. Olsten Corp., 110 F.3d 210, 213, 215-16 (2d Cir. 1997).
Piecing this sequence of events together, when asked whether he knew "any employees at the building were fired based on the color of their skin," Boyce perceptively responded:
A. Yes.
Q. What do you based that knowledge on?
A. Because Peter Senna offered me a job working there permanently.
Mr. Spitzer asked me one day if I worked at the building.
. . . two months after that, three months, I see Mr. Spitzer again. He asked me if I worked at the building. I tell him, yes.
And within three weeks after that, I was fired. So . . . the questions he asked me . . . that is the reason why I lose my job.
Tr. at 392 (Nov. 26, 2008). Since the testimony, principally from Senna, consistently demonstrated that Boyce wore a building uniform, and defendant knew nothing about Boyce beyond what defendant observed, the answer to his repeated question was obvious. Equally obvious, then, is the inference that the inquiry was purely a rhetorical one to himself, questioning why his building would continue to retain a worker who looked like Boyce.
Senna also contemplated that plaintiff Morris would work long term at the building — until defendant observed Morris and complained about him. When defendant claims he was selecting building staff to retain as permanent employees, and when plaintiffs' employment was terminated, Senna acknowledged initially offering Morris a permanent position, although on a different shift than he was working. Morris corroborated that they "had a good working relationship." Id. at 638 (Dec. 2, 2008). Senna commented positively about plaintiff Rodriguez, too, and "liked Mr. Rodriguez," as "Akim did his best." Id. at 271 (Nov. 25, 2008).
C. Other Circumstances Supporting an Inference of Discrimination
Most employers who discriminate, especially by the end of the 20th century, do not leave a "smoking gun." Raskin v. Wyatt Co., 125 F.3d 55, 61 (2d Cir. 1997); Fields v. New York State Off. of Mental Retardation Dev. Disabilities, 115 F.3d 116, 124 (2d Cir. 1997); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992); Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). A person intent on discriminating:
cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive.
Imperial Diner v. State Human Rights Appeal Bd., 52 NY2d 72, 77 (1980); Sogg v. American Airline, 193 AD2d 153, 160 (1st Dep't (1993). Even if defendant's intentions as expressed by Senna were totally discredited and disregarded, plaintiffs met their burden through other circumstances, less overt or obvious and more subtle, to show that plaintiffs were treated less favorably than lighter skinned employees not of plaintiffs' race or color. Ferrante v. American Lung Ass'n, 90 NY2d at 626-27; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 965-66; Mete v. New York State Off. of Mental Retardation Dev. Disabilities , 21 AD3d 288 , 290 (1st Dep't 2005); Bemis v. New York State Div. of Human Rights, 26 AD3d at 610-11. See Luciano v. Olsten Corp., 110 F.3d at 215.
Specifically, the jury could infer that plaintiffs were not retained or were discharged due to discrimination based on race or color through evidence that the positions for which they were not retained or from which they were discharged were filled by persons not of plaintiffs' race or color. Ferrante v. American Lung Ass'n, 90 NY2d at 626, 628; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 966-67; Jordan v. Bates Adv. Holdings, Inc., 46 AD3d at 442, 444; Bemis v. New York State Div. of Human Rights, 26 AD3d at 610-11. See Zimmermann v. Associates First Capital Corp., 251 F.3d at 379, 381; Raskin v. Wyatt Co., 125 F.3d at 64; Luciano v. Olsten Corp., 110 F.3d at 214, 216. The evidence was uncontradicted that plaintiffs were the only African-American employees in defendant's building in the first instance, yet all lost their jobs, and no African-American employees continued after plaintiffs were discharged in late 1998 and early 1999, save one who may have been part African-American and lasted longer into 1999. According to defendant's witness, however, that employee, too, "was relieved early." Tr. at 892 (Dec. 3, 2008).
Senna further testified that, when plaintiffs were discharged or shortly afterward, new employees were added to the building staff. Yet the identified employees who continued after plaintiffs' discharge or who were added among the building staff were described, mostly by Senna, as "Irish," "white," "white Hispanic," "light skinned Hispanic," "medium skinned Hispanic," "medium toned Hispanic," or "olive toned Hispanic." Tr. at 187, 189, 237-40, 242-51, 275, 278, 281 (Nov. 25, 2008); id. at 692-93 (Dec. 2, 2008) (Morris). The one employee whose race and ethnicity were uncertain was described as: "Light brown," "darker than white," with "straight hair," id. at 761 (Dec. 3, 2008), and "medium tone." Id. at 851. While a few lighter skinned employees eventually may have left their jobs, their departures were for legitimate, non-discriminatory reasons.
The evidence that plaintiffs were replaced by employees who were not plaintiffs' race or color met their prima facie burden, independently of any other evidence, to establish an inference of discrimination, requiring defendant to explain his adverse action. Ferrante v. American Lung Ass'n, 90 NY2d at 626, 628; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 966-67; Mete v. New York State Off. of Mental Retardation Dev. Disabilities, 21 AD3d at 290; Classic Coach v. Mercado, 280 AD2d 164, 165-66 (2d Dep't 2001). See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); Zimmermann v. Associates First Capital Corp., 251 F.3d at 380-81; Raskin v. Wyatt Co., 125 F.3d at 64; Luciano v. Olsten Corp., 110 F.3d at 215-16. Defendant's proffered reasons for discharging Boyce, Rodriguez, and Morris were that they were temporary employees, aware they were temporary, and were to be employed only until the building construction was completed and the residents finished moving into the building. Once the residents finished moving into the building, building staff was reduced, and defendant no longer needed plaintiffs. His proffered reason for discharging Haydenn was his poor job performance.
Defendant never explained, through testimony or exhibits, why plaintiffs' status was different from any other employees like plaintiffs, hired during the construction, or why, if staff was reduced, plaintiffs were targeted for discharge rather than other employees. Nor did defendant show statistics or other concrete numbers, whether simply through witnesses' recollection or through documented compilations, that staff in fact was reduced. Bemis v. New York State Div. of Human Rights, 26 AD3d at 612. Instead Senna's testimony, that new employees were added after plaintiff's discharge and the completion of construction, suggested otherwise. Classic Coach v. Mercado, 280 AD2d at 166.
Even if defendant proved a legitimate, non-discriminatory reason for not retaining any plaintiff, the above evidence at minimum permitted the jury to infer that defendant's proffered reasons for plaintiffs' discharge were a pretext for discrimination based on plaintiffs' race or color. Ferrante v. American Lung Ass'n, 90 NY2d at 626-27, 630-31; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 966-67; Woodie v. Azteca Intl. Corp. , 60 AD3d 535 ; Clayton v. Best Buy Co., Inc., 48 AD3d at 278. See Zimmermann v. Associates First Capital Corp., 251 F.3d at 381-82; Luciano v. Olsten Corp., 110 F.3d at 215-16. The evidence showed not only that, after discharging plaintiffs, defendant retained persons not of plaintiffs' race or color and replaced plaintiffs with other persons not of plaintiffs' race or color, but, as further detailed below, that defendant and his agent Senna treated plaintiffs differently than other employees not of plaintiffs' race or color. Defendant, who wielded the ultimate hiring and firing authority, and his agent, who was involved in that decisionmaking, also made comments that not only reflected bias or stereotype, but even expressed an outright intent to discharge plaintiffs due to their race. See, e.g., Kolstad v. American Dental Ass'n, 527 U.S. at 531; Jordan v. Bates Adv. Holdings, Inc., 46 AD3d at 443; Mete v. New York State Off. of Mental Retardation Dev. Disabilities, 21 AD3d at 294. Many of those remarks, moreover, were made shortly before the decisions to discharge plaintiffs. Id.
Finally, once the jury found defendant's proffered reasons false, the jury was permitted to consider the false explanation as evidence that defendant was covering up a discriminatory purpose. Classic Coach v. Mercado, 280 AD2d at 168. Upon rejection of defendant's reasons, no additional proof was required to support a verdict of intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 149; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); Ferrante v. American Lung Ass'n, 90 NY2d at 630; Classic Coach v. Mercado, 280 AD2d at 168-69.
Proof that the defendant's explanation is unworthy of credence . . . is probative of intentional discrimination, and it may be quite persuasive. . . . [T]he trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. . . . Moreover, once the employer's justification has been eliminated, discrimination may be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 147. See Luciano v. Olsten Corp., 110 F.3d at 216.
The parties agreed that plaintiffs also could prove that their discharge was motivated in part by their race or color and in part by a legitimate, non-discriminatory reason. Allen v. Domus Dev. Corp., 273 AD2d 891, 892 (4th Dep't 2000); Michaelis v. State of New York, 258 AD2d 693, 694 (3d Dep't 1999). If the jury found that any plaintiff's discharge was motivated in part by his race or color and in part by a lawful reason, but that race or color was a substantial factor in his discharge, then the jury still was permitted to conclude that defendant's determinative reason for the discharge was discriminatory. Allen v. Domus Dev. Corp., 273 AD2d at 892; Michaelis v. State of New York, 258 AD2d at 694. See Luciano v. Olsten Corp., 110 F.3d at 218-19. While plaintiffs' initial burden is heavier under a mixed motives framework, the evidence that defendant and his agent treated plaintiffs differently than lighter skinned employees and uttered derogatory comments or taunts, even epithets, that evinced a discriminatory attitude met the heavier burden. Allen v. Domus Dev. Corp., 273 AD2d at 892; Michaelis v. State of New York, 258 AD2d at 694; Raskin v. Wyatt Co., 125 F.3d at 60-61, 63. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997). In contrast to the burdens under a pretext framework, the ultimate burden of persuasion then shifted to defendant to prove that plaintiffs' race or color was not the determinative reason for their discharge. Allen v. Domus Dev. Corp., 273 AD2d at 892; Michaelis v. State of New York, 258 AD2d at 694; Raskin v. Wyatt Co., 125 F.3d at 60. The evidence set forth above equally supported a finding that defendant failed to sustain this burden. Allen v. Domus Dev. Corp., 273 AD2d at 892; Michaelis v. State of New York, 258 AD2d at 694.
D. Complaints Regarding Plaintiffs' Job Performance as Further Evidence That the Reasons Offered for Discharging Plaintiffs Were Pretexts
Insofar as the evidence revealed defendant's isolated complaints directed at any plaintiff's job performance, the very nature of those complaints could suggest they were a subterfuge for a more insidious animus based on plaintiffs' readily observable dark skin. To be sure, the complaints elicited in the course of testimony may not have matched the proffered reasons for plaintiffs' discharge maintained by defendant's litigation stance, at least for plaintiffs other than Haydenn. Nonetheless, the pettiness, incongruity, obvious falsity, or other fallacy evident in these complaints, as well as their inconsistency with defendant's litigation posture, still could buttress the credibility of Senna's admission regarding his principal's motive and undermine the credibility of defendant's proffered reasons for discharging plaintiffs. Stephenson v. Hotel Empls. Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d at 270-71; Forrest v. Jewish Guild for the Blind, 3 NY3d at 305; Ferrante v. American Lung Ass'n, 90 NY2d at 627, 629-30; Miller Brewing Co. v. State Div. of Human Rights, 66 NY2d 937, 939 (1985). See Zimmermann v. Associates First Capital Corp., 251 F.3d at 379, 382-83; Luciano v. Olsten Corp., 110 F.3d at 215-16. More tellingly, many of these complaints emanated directly from defendant or were prompted by his initial disparagement of plaintiffs.
For example, defendant's office personnel transmitted a complaint to Senna that Rodriguez "was unkempt, dirty and smelly." Tr. at 166 (Nov. 25, 2008). While the contents of this complaint, on its face, might reflect a shortcoming in job performance, any truth is explained by Senna's description of Rodriguez's duties: cleaning up an "extremely filthy," id. at 223, "chaotic construction site," id. at 169, work that "got really heavy," for which the workers were not provided uniforms and had to use their own clothes. Id. at 171. As Senna further described the work: "The construction workers can be very, very dirty and these apartments need heavy, heavy cleaning" of "splattered grout" and "dirty toilets" used without flushing, id. at 223, "nasty stuff . . . beyond the scope of what a housekeeper would do" and including "garbage runs" of "construction debris." Id. at 224.
Senna's own lack of response to the complaint also undermined its legitimacy. He did not recall ever commenting to Rodriguez, before or after defendant's complaint, concerning Rodriguez's appearance, even though Rodriguez occasionally was assigned to the lobby apart from his cleaning duties. Nor did Senna recall any residents' complaints regarding Rodriguez's appearance or other aspects of his job performance. Ferrante v. American Lung Ass'n, 90 NY2d at 627; Pepler v. Coyne , 33 AD3d 434 ; Bemis v. New York State Div. of Human Rights, 26 AD3d at 612. See Kolstad v. American Dental Ass'n, 527 U.S. at 530; Zimmermann v. Associates First Capital Corp., 251 F.3d at 379, 382-83; Luciano v. Olsten Corp., 110 F.3d at 213, 215-16.
Senna did respond, however, to defendant's complaint that Haydenn was sitting at the concierge desk. Defendant's observation of Haydenn in the building lobby abruptly turned Senna's attitude toward Haydenn from "peaceful," Tr. at 505 (Dec. 1, 2008), to "extremely hostile. He would harass me and humiliate me on a daily basis." Id. at 510. He spoke to Haydenn disrespectfully, assigned him additional cleaning and porter duties, and found "fault where there was no fault," id., constantly "berating," id. at 507, "belittling . . ., and degrading" him. Id. at 519. See id. at 476, 504, 520. When Haydenn asked why Senna suddenly was changing Haydenn's job to include cleaning the lobby toilet, Senna's attitude soured such that he responded: "Your kind should be used to it." Id. at 508. See id. at 525; State Div. of Human Rights v. St. Elizabeth's Hosp., 66 NY2d at 686.
The evidence produced several factors, however, diminishing the persuasiveness of defendant's original complaint that triggered Senna's different attitude and of defendant's position that Haydenn's discharge stemmed from poor job performance. The building lobby where Haydenn was stationed was furnished with a concierge desk, where a concierge was stationed during the daytime shifts. Haydenn, the overnight doorman, functioned as the only lobby staff after midnight during the hours when few persons approached the building and thus was responsible for lobby duties that staff other than the doorman, such as the concierge, undertook during the daytime. The night when defendant observed Haydenn sitting, moreover, he had resorted to the concierge chair because he had sprained his ankle, and the work site provided no area where employees could sit while taking their break. Haydenn's willingness to work despite his injury was typical of his attendance throughout his employment, a record totally unblemished by absences, lateness, or complaints or cautions regarding his attendance. Pepler v. Coyne , 33 AD3d 434 . See Zimmermann v. Associates First Capital Corp., 251 F.3d at 379, 382-83; Luciano v. Olsten Corp., 110 F.3d at 213, 215-16.
Senna produced one building resident's complaint regarding Haydenn, but it could not have served as a factor in his discharge, having occurred afterward, and Senna acknowledged residents' compliments regarding Haydenn as well. Ferrante v. American Lung Ass'n, 90 NY2d at 627; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 967. Whatever aspersions Senna cast on Haydenn's job performance the jury may have discounted once Senna revealed his bitter discontent with Haydenn's complaint to the building management that Senna mistreated Haydenn. Finally, Senna's expressed reason for discharging Haydenn, because Senna found a urine stain on the lobby toilet bowl, was almost laughable and, like defendant's complaint that Haydenn was sitting at the concierge desk, equally suggested the complaint was contrived to cover up an illegitimate reason.
The parallel consequences flowing from defendant's observation of another dark skinned employee in the lobby support such a conclusion. When defendant observed Morris there holding a broom, defendant complained to Senna that Morris was not actually sweeping at that moment. Senna's only response, later instructing Morris to stay out of the lobby, out of immediate view, was revealing. While Morris's primary assignment was in the lobby,
Whenever Mr. Spitzer would come to the building, Peter Senna would tell me to leave. He would get really nervous and tell me that he didn't want me in the lobby. . . .
Q What happened when you were relieving or supposed to relieve people at the desk?
A. . . . [W]here Spitzer was coming to the building around lunch break time, my job was to relieve them, and I was told to wait until Spitzer left the building and let the concierge and the doorman wait until Spitzer leaves. . . .
Q Now, who else did you witness . . . Peter Senna ask to leave the lobby when Spitzer was coming . . . ?
A He wouldn't ask any of the white or white Hispanic employees, he would just tell me to leave.
Tr. at 637-38 (Dec. 2, 2008). See id. at 662-63, 694. These awkward circumstances thus changed Senna's attitude toward Morris.
Whenever Bernard Spitzer would come to the building that's when Peter would react rudely and be real nervous.
Q . . . [T]o whom will he be rude?
A to me.
Q Did you witness him being rude to any other . . . person while Spitzer was in the building?
A No.
Id. at 639. Like Boyce, Morris concluded: "that's why I feel Mr. Spitzer discriminated against me." Id. at 663. Defendant's lack of response to Morris's cordial greetings whenever defendant encountered Morris in the building reinforced this conclusion. On the same basis, the jury could draw a similar conclusion, especially when further circumstances supported this inference.
Although Morris preferred his assigned 8:00 a.m. to 4:00 p.m. shift due to his other commitments in the evenings, like Haydenn, and unlike lighter skinned employees who were not discharged despite their lateness, see Luciano v. Olsten Corp., 110 F.3d at 221, Morris never received any complaints regarding his hours or performance before his job was terminated. As for Senna's post hoc complaints that Morris sat on the chair in the service elevator when operating it and socialized in the lobby, he denied the former and explained that meeting, greeting, and welcoming tenants entering the lobby was part of his job description. Just as Senna never cautioned Morris regarding defendant's complaint or about deficient sweeping or cleaning, neither did Senna ever caution or complain to Morris about sitting in the elevator or socializing, before Senna terminated Morris's job. Nor could Senna recall any building residents' complaints regarding Morris. Ferrante v. American Lung Ass'n, 90 NY2d at 627; Pepler v. Coyne, 33 AD3d 434; Bemis v. New York State Div. of Human Rights, 26 AD3d at 612. See Kolstad v. American Dental Ass'n, 527 U.S. at 530; Zimmermann v. Associates First Capital Corp., 251 F.3d at 379, 382-83; Luciano v. Olsten Corp., 110 F.3d at 213, 215-16.
Again, the instance that precipitated Senna's termination of Morris's employment, his request for a union card that his co-workers had received, suggested it was but an excuse for an underlying reason. See Zimmermann v. Associates First Capital Corp., 251 F.3d at 383; Luciano v. Olsten Corp., 110 F.3d at 215-16. This inference was all the more plausible given that Senna then offered Morris a different position in the building, which he accepted despite his preference for his prior shift. Senna "seemed very positive about asking me back and he said for me to call him in about three or four days to follow up." Tr. at 643 (Dec. 2, 2008). See id. at 755 (Dec. 3, 2008). Then, equally curiously, Senna was unresponsive, until he ultimately expressed regret at offering Morris the position. At that point, the building management arranged to transfer Morris back to its building, not owned by defendant, where Morris worked before taking the job at defendant's building for higher wages.
As set forth above, evidence from defendant's own employees raised issues regarding the truth of the reasons proffered at trial for plaintiffs' discharge. Senna's post hoc complaints about the performance of plaintiffs besides Haydenn, the pettiness of all defendant's and Senna's complaints, and the failure to communicate them to the offending employee, as well as their inconsistency with the proffered justifications for discharge, suggested that the various complaints or justifications all were manufactured. These discrepancies also diverged both from the incidents that precipitated plaintiffs' discharge and from the reasons conveyed to plaintiffs upon their discharge. Yet defendant offered no explanation for any of these contradictory acts, to counter an inference that they reflected a discriminatory motive that defendant's agent was compelled to carry out, yet cover up. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d 207, 211 (1991).
E. Conclusions
The evidence painted a picture, viewed in plaintiffs' favor, that, while African-Americans may have been retained for the hard, dirty, nasty work, when it became easier, cleaner, and more normal, they were unsuitable for the "upscale image" or profile defendant stressed. Tr. at 185 (Nov. 25, 2008). As for the requisite involvement of defendant himself, in the instance of each plaintiff, the comment or complaint that precipitated his sudden treatment as undesirable emanated from defendant personally. Moreover, it ensued upon his first encounter with each plaintiff except Boyce and upon the second encounter with him, as if defendant was questioning why Boyce had not been removed from his job after their first encounter. See Zimmermann v. Associates First Capital Corp., 251 F.3d at 379. He questioned Boyce's employment at such a high class building, derided Haydenn sitting at the concierge desk after midnight, accused Morris of pretending to sweep the lobby, and recoiled at Rodriguez's untidiness when performing the heaviest, dirtiest, nastiest work cleaning up from the construction workers without being provided work clothes. Defendant then admitted that, if he noticed a building employee whose performance defendant disapproved of, he advised the building management, who, according to its witness and Senna, forwarded the disapproval to Senna.
None of plaintiffs had received any warning or criticism of his job performance before his encounter with defendant, which sufficiently proved that, even if plaintiffs' job performance was imperfect, it was satisfactory based on the operative criteria and qualified them for the positions for which they were not retained. Forrest v. Jewish Guild for the Blind, 3 NY3d at 306; Ferrante v. American Lung Ass'n, 90 NY2d at 627; Woodie v. Azteca Intl. Corp., 60 AD3d at 536; Bemis v. New York State Div. of Human Rights, 26 AD3d at 611. See Raskin v. Wyatt Co., 125 F.3d at 64. Neither Boyce nor Rodriguez received any subsequent warning or criticism. See, e.g., Kolstad v. American Dental Ass'n, 527 U.S. at 530; Jordan v. Bates Adv. Holdings, Inc., 46 AD3d at 443. Morris was warned simply to stay out of the lobby when defendant visited the building. Nevertheless, the change in the conduct of defendant's superintendent toward plaintiffs, soon culminating in their discharge, revealed that the superintendent had received defendant's message after these incidents, best summed up in the superintendent's comment to Haydenn that "it's either you or me," again revealing an explanation for the discharge inconsistent with defendant's proffered reasons. Tr. at 521 (Dec. 1, 2008). Moreover, little evidence corroborated the complaint, criticism, or other explanation conveyed to plaintiffs upon their discharge as the reason for the adverse action, whether one of defendant's proffered reasons or an inconsistent explanation. Ferrante v. American Lung Ass'n, 90 NY2d at 627. See Zimmermann v. Associates First Capital Corp., 251 F.3d at 379, 383.
All the above evidence permitted a reasonable inference that defendant's proffered reasons for plaintiffs' discharge were false and merely pretexts for discrimination based on plaintiffs' race or color, discrimination in which defendant himself participated. The verdict on defendant's liability thus was based on more than "sheer conjecture," Luciano v. Olsten Corp., 110 F.3d at 217, and was legally sufficient to support the verdict. Ferrante v. American Lung Ass'n, 90 NY2d at 628, 631; Baldwin v. Cablevision Sys. Corp., 65 AD3d at 965-66; Woodie v. Azteca Intl. Corp., 60 AD3d at 535-36; Bemis v. New York State Div. of Human Rights, 26 AD3d at 612. See Zimmermann v. Associates First Capital Corp., 251 F.3d at 383; Raskin v. Wyatt Co., 125 F.3d at 64; Luciano v. Olsten Corp., 110 F.3d at 215-16.
This evidence weighed against the evidence undermining Haydenn's veracity as to Senna's admission of whom defendant wanted to purge from the building and the evidence supporting his proffered reasons for discharging plaintiffs, rather than white or Hispanic employees. Whether or not the court as the factfinder would have drawn an inference of discrimination, the determination of the jury, who observed the witnesses, heard how they testified, and assessed their credibility, "is entitled to great deference." Maskantz v. Hayes, 39 AD3d at 212; Mesiti v. Wegman, 307 AD2d 339, 340 (2d Dep't 2003). See Jamal v. New York City Health Hosps. Corp., 280 AD2d 421, 422-23 (1st Dep't 2001); Bemis v. New York State Div. of Human Rights, 26 AD3d at 612. The evidence did not weigh so heavily against the legally sufficient evidence supporting the jury's finding and inexorably dictate, instead, that Senna never made the admission or that defendant's reasons for plaintiffs' discharge were not pretexts, as to warrant a new trial. Woodie v. Azteca Intl. Corp. , 60 AD3d 535 ; Maskantz v. Hayes, 39 AD3d at 213. Setting aside the verdict based simply on an alternate view of witness credibility would be a clear error. Cholewinski v. Wisnicke, 21 AD3d 791; Rivera v. 4064 Realty Co., 17 AD3d at 202-203; Jamal v. New York City Health Hosps. Corp., 280 AD2d at 422-23; Price v. Studley, 28 AD3d at 1197.
V. REASONABLE COMPENSATION FOR PLAINTIFFS' INJURIES
A. Standards for Excessive Compensation
To set aside any component of the jury's verdict as excessive, the court must conclude that the jury's award for that component of damages materially deviates from reasonable compensation. C.P.L.R. § 5501(c). Measuring material deviation from reasonable compensation requires analyzing awards at the appellate level based on analogous evidence and determining whether the current award departs substantially from those benchmarks. Urbina v. 26 Ct. St. Assoc., LLC , 46 AD3d 268 , 275 (1st Dep't 2007); Morsette v. The Final Call, 309 AD2d 249, 256 (1st Dep't 2003); Donlon v. City of New York, 284 AD2d 13, 14-15, 18 (1st Dep't 2001). Nonetheless, in no two actions are "the quality and quantity" of damages, particularly for emotional distress, identical. Morsette v. The Final Call, 309 AD2d at 257; Reed v. City of New York, 304 AD2d 1, 7 (1st Dep't 2003). Their "evaluation does not lend itself to neat mathematical calculation." Id. See Morsette v. The Final Call, 309 AD2d at 256; Donlon v. City of New York, 284 AD2d at 15. Evaluating "psychic injury — by nature essentially subjective —" is always difficult. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 215. The court must exercise caution and not simply substitute the court's view of the evidence for the six fact finders' judgment or modify the harshness of a verdict the court disagrees with, particularly on damages, when the jury's peculiar function is to evaluate damages. Po Yee So v. Wing Tat Realty, 259 AD2d 373, 374 (1st Dep't 1999). See New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 217; Mazariegos v. New York City Tr. Auth., 230 AD2d 608, 609 (1st Dep't 1996); Brown v. Taylor, 221 AD2d 208, 209 (1st Dep't 1995); Evans v. St. Mary's Hosp. of Brooklyn , 1 AD3d 314 , 315 (2d Dep't 2003).
It is incumbent on defendant, in seeking to reduce the jury's awards, to cite verdicts, including their fate on appeal, that assess injuries similar to plaintiffs', experienced for comparable periods. Donlon v. City of New York, 284 AD2d at 14, 18; Morsette v. The Final Call, 309 AD2d at 256; Reed v. City of New York, 304 AD2d at 7; Medina v. Chile Communications, Inc. , 15 Misc 3d 525 , 532 (Sup. Ct. Bronx Co. 2006). While the awards defendant cites are not useless in shedding further light on the factors to be considered when assessing reasonable compensation, the circumstances producing these awards do not delineate the limits of compensation to be awarded by a jury in this venue in December 2008, for injuries that parallel plaintiffs' emotional distress and lost earnings.
Regarding the awards for emotional distress, defendant relies exclusively on awards by the New York State Division of Human Rights (DHR), not by juries. Moreover, most of these awards were not even in an urban setting, and none was in New York City, let alone this venue. All predated the awards here by well more than a decade. Most importantly, however, they were subject to a different, less exacting standard than a jury's award. The court may disturb a jury's award only if it "deviates materially from . . . reasonable compensation." C.P.L.R. § 5501(c). The court may adjust an award by DHR, an administrative body, whenever it (1) is not supported by substantial or sufficient evidence, from which an inference of the damages found "may be drawn reasonably," Consolidated Edison Co. of NY v. New York State Div. of Human Rights, 77 NY2d 411, 417 (1991) (emphasis added); see C.P.L.R. § 7803(4); NY Exec. Law § 298; or (2) is not reasonably related to the wrongdoing; or (3) does not comport with — rather than "deviates materially from," C.P.L.R. § 5501(c) (emphasis added) — awards for comparable injuries. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 219; Consolidated Edison Co. of NY v. New York State Div. of Human Rights, 77 NY2d at 420; New York State Dept. of Correctional Servs. v. State Div. of Human Rights, 207 AD2d 585, 586 (3d Dep't 1994); New York State Off. of Mental Retardation Dev. Disabilities v. New York State Div. of Human Rights, 183 AD2d 943, 944-45 (3d Dep't 1992).
The remedial nature of Executive Law § 296(1)(a) and Administrative Code § 8-107(1)(a), in particular, evinces a legislative intent to compensate plaintiffs fully, Aurecchione v. New York State Div. of Human Rights, 98 NY2d at 25-26, for both emotional distress and lost earnings, to make them "whole." Id. at 26. Because the discrimination is intentional, the statutes' remedies vindicate society's interests as well as plaintiffs' interests. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 216. See 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d at 184.
B. Plaintiffs' Emotional Distress
The jury awarded plaintiffs Boyce and Rodriguez $150,000.00 each and Haydenn and Morris $25,000.00 each for emotional distress. These different assessments themselves demonstrate an evaluation of the quality and quantity of each plaintiff's emotional distress. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 217; Morsette v. The Final Call, 309 AD2d at 257; Reed v. City of New York, 304 AD2d at 7.
Awards for emotional distress, including mental anguish and humiliation, may be based on plaintiffs' testimony alone, as they were here, corroborated by the circumstances of plaintiffs' mistreatment. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 214, 216; State of New York v. New York State Div. of Human Rights, 284 AD2d 882, 884 (3d Dep't 2001); Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 AD2d 44, 57 (4th Dep't 1996); City of Fulton v. New York State Div. of Human Rights, 221 AD2d 971 (4th Dep't 1995). Focussing first on the testimony supporting the higher awards, Boyce testified that the termination of his job at 150 East 57th Street affected him a "very lot," Tr. at 370 (Nov. 26, 2008), and even as of trial, almost a decade later, still bothered him emotionally. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 214.
Although plaintiffs also may recover for emotional distress without psychiatric or other medical treatment, Boyce sought treatment at Kings County Hospital Center due to the onset of depression and high blood pressure from the termination. Id.; New York State Dept. of Correctional Servs. v. New York State Div. of Human Rights , 53 AD3d 823 , 826 (3d Dep't 2008); Kondracke v. Blue, 277 AD2d 953, 954 (4th Dep't 2000). His inability to afford the physician and medication fees, however, forced him to discontinue treatment. His wife resented his asking her for money, whether for medical or psychological treatment, transportation to search for work, or training in another line of work, and became "cruel" toward him. Tr. at 371 (Nov. 26, 2008). See id. at 414-15; Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d 1009, 1011-12 (2d Cir. 1988). He further explained that he understood himself how the job termination affected him emotionally and did not need a mental health professional to help him understand.
Boyce's account of walking the streets of Brooklyn, day after day, in all weather conditions, without a vehicle or funds for transportation, even the subway fare to take him to the other boroughs, in search of even the most menial employment, was particularly poignant. The jury could infer not only his stress, but also his humiliation, after holding relatively high status employment in his native Barbados. Boyce's efforts to seek any type of alternative employment, even if only part-time, and his exposition of his mental anguish and humiliation, their physical manifestations, and other associated symptoms support a finding of lasting and severe effects from that anguish and humiliation. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 216, 218; Kondracke v. Blue, 277 AD2d 953, 954 (4th Dep't 2000). See Town of Lumberland v. New York State Div. of Human Rights, 229 AD2d 631, 637 (3d Dep't 1996); Port Wash. Police Dist. v. State Div. of Human Rights, 221 AD2d 639, 640 (2d Dep't 1995); Quality Care v. Rosa, 194 AD2d 610, 611 (2d Dep't 1993); New York State Off. of Mental Retardation Dev. Disabilities v. New York State Div. of Human Rights, 183 AD2d at 944-45.
Rodriguez's testimony was comparable. The termination of his job at 150 East 57th Street also caused depression and upset his home life, forcing him back to his mother's home against his desire. See Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d at 1011-12. The lapse in income due to the termination caused a continuing desperation, as he continually was "catching up" financially. Tr. at 445 (Dec. 1, 2008). Due to the discontinuation of health care benefits and his consequent inability to afford health care, an infection developed in his teeth and caused his loss of three teeth. Since he could not pay for mental health treatment, he consulted his sister, who held a degree in psychology, and his mother. New York State Dept. of Correctional Servs. v. New York State Div. of Human Rights, 53 AD3d at 826. His demeanor also revealed his humiliation as he recounted each of these effects.
The adverse consequences to physical health suffered by Boyce and Rodriguez distinguished them from the other two plaintiffs and warranted the higher awards to Boyce and Rodriguez for their emotional distress. Given the gaps of well over a decade, the different venues, and the different factfinder, here the jury rather than DHR, benchmarks even in the category defendant cites support the jury's $150,000.00 awards to these two plaintiffs. E.g., New York State Div. of Human Rights v. Garvey Nursing Home, 249 AD2d 549, 550 (2d Dep't 1998). See, e.g., New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 214; Allender v. Mercado, 233 AD2d 153 (1st Dep't 1996); Boutique Indus. v. New York State Div. of Human Rights, 228 AD2d 171 (1st Dep't 1996); Tiffany Co. v. Smith, 224 AD2d 332 (1st Dep't 1996).
Although the only adverse consequences to physical health suffered by Haydenn were sleepless nights and lack of exercise, these effects were caused by the depression and upset family life that he also suffered from the termination of his job at the building. New York State Dept. of Correctional Servs. v. New York State Div. of Human Rights, 53 AD3d at 826. See Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d at 1011-12. The particular circumstances of his mistreatment made him "very angry." Tr. at 531 (Dec. 1, 2008). See New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 214. While Senna did not direct his remark about "why Spitzer doesn't want niggers in the building" at Haydenn in so many words, because Senna prefaced the remark by berating Haydenn's failure to sweep up leaves outside, that contemptible epithet unmistakably referred to Haydenn. Tr. at 506 (Dec. 1, 2008). Yet Senna did not recall giving Haydenn any job description that included cleaning among his duties as a doorman and admitted that a doorman's regular duties included nothing of the sort. Nevertheless, once Senna informed Haydenn his duties were of "a totally different class," he performed the cleaning tasks. Id. at 228 (Nov. 25, 2008).
Plaintiffs' witnesses further testified convincingly that Haydenn performed his job well and consistently received expressions of gratitude and praise from the building residents he served. His confidence about the quality of his performance, thus well founded, was forever shaken and his anger fueled by the crescendo of derision and degradation Haydenn suffered from the point defendant observed Haydenn in the building lobby.
[S]ince then whenever I'm interviewed by a white employer I'm wondering . . . if this individual is going to give me a fair shot at a job or is he looking at me as if I'm inferior because I'm black.
I never had this thought prior to working at 150 East 57th Street.
Id. at 532. The "unjust termination" immediately "dashed" and "destroyed" his family's plans to purchase a home, causing his wife to become "very upset" at his loss of employment, and leading to their divorce and his limited custody of his children. Id. See 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d at 184; Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d at 1011-12. Lacking resources like his co-plaintiffs, Haydenn obtained semi-weekly counselling and spiritual guidance for his emotional anguish from a church counsellor. New York State Dept. of Correctional Servs. v. New York State Div. of Human Rights, 53 AD3d at 826.
The loss of Morris's job at 150 East 57th Street also strained his familial relationships and caused him hopelessness and desperation, as he no longer could afford his rented apartment, became homeless, and was forced to live from one friend's home to another's, sleeping in hallways and basements. See Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d at 1011-12. His eating suffered from the combined emotional and financial stress. He even attributed a fainting spell in February 1999 to his lack of sustenance and desperation, such that he referred to it as "a panic attack," causing him to hit his head and requiring an emergency room visit and 10 staples to close the wound. Id. at 697 (Dec. 2, 2008). See id. at 739-40 (Dec. 3, 2008); Kondracke v. Blue, 277 AD2d at 954. He attributed a further panic attack and emergency room visit followed by six months of group therapy at Columbia-Presbyterian Medical Center, albeit several years after his job loss, to his continued anxiety, desperation, and "panic," which continued through the trial. Id. at 665 (Dec. 2, 2008), 735 (Dec. 3, 2008).
Although defendant attempted through cross-examination to attribute Morris's therapy and head wound to his substance abuse, again it was the jury's prerogative to assess which causal relationship was most credible. E.g., Schneider v. Diallo , 14 AD3d 445 (1st Dep't 2005); Kraus v. Caliche Realty Estates, 302 AD2d 214, 215 (1st Dep't 2003); Jamal v. New York City Health Hosps. Corp., 280 AD2d at 422-23; Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d at 1012. See New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 217. A more direct and lasting and hence more significant effect on Morris from the loss of his job, however, similar to Haydenn's experience, was his continual worry that "you're going to be judged on what you look like when you start a new job." Tr. at 735 (Dec. 3, 2008). See New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 214; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d at 184.
All plaintiffs suffered mental anguish and humiliation associated with both the initial loss of their jobs at defendant's building and their ongoing unemployment well after their discharge. The $25,000.00 lesser awards and the $150,000.00 awards for plaintiffs whose suffering was longest and severest, including physical consequences, were therefore reasonable. New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 210, 214; Allender v. Mercado, 233 AD2d 153; New York State Dept. of Correctional Servs. v. New York State Div. of Human Rights, 53 AD3d at 826; Bemis v. New York State Div. of Human Rights, 26 AD3d at 610, 613. See Morsette v. The Final Call, 309 AD2d at 257; Sogg v. American Airline, 193 AD2d at 163; Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d at 1013. Finally, even though Executive Law § 296(1)(a) and Administrative Code § 8-107(1)(a) vindicate the interests of society as well as plaintiffs, New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 216, the jury's separate punitive damages awards for each plaintiff ensure that none of plaintiffs' compensatory awards includes a punitive component. Id. at 217; New York State Dept. of Correctional Servs. v. New York State Div. of Human Rights, 53 AD3d at 826; Kondracke v. Blue, 277 AD2d at 954; Town of Hempstead v. State Div. of Human Rights, 233 AD2d 451, 452 (2d Dep't 1996).
C. Plaintiffs' Lost Earnings
The jury awarded plaintiffs Boyce and Rodriguez $250,000.00 each and Haydenn and Morris $100,000.00 each for lost earnings. These different assessments themselves demonstrate an evaluation of the different periods each plaintiff's job loss prevented each from earning wages, including likely increases, and employee benefits comparable to the amounts each plaintiff would have accrued had he not lost his job at defendant's building. Caban v. City of New York , 46 AD3d 319 , 320 (1st Dep't 2007); Walsh v. State of New York, 232 AD2d 939, 941 (3d Dep't 1996). This evaluation entailed not only a calculation of how long plaintiffs remained unemployed or underemployed after their job loss, but also the extent to which they would have remained employed at defendant's building. Both Boyce and Rodriguez were unemployed several years, longer than Haydenn and Morris. Given the totally spotless performance records of both Boyce and Rodriguez and their popularity with the superintendent, the jury also may have assessed that Boyce and Rodriguez would have remained at the building another 10 years, but for their discriminatory discharge. Bell v. New York State Div. of Human Rights , 36 AD3d 1129 , 1131 (3d Dep't 2007). While Boyce was of more advanced age, neither his appearance at trial, nor any other evidence, showed any incapacity to perform his former work.
Even if each plaintiff did not provide precise figures for his rate of pay at the building, the testimony and records in evidence disclosed a wage range with minimal differences for employees at plaintiffs' level. Plaintiffs lost employee benefits as well as wages. The jury also may have found a reasonable expectation that plaintiffs would have received increases in their wage rate and the value of their benefits between 1998 and 2008. Paek v. City of New York , 28 AD3d 207 , 209 (1st Dep't 2006); Silvestri v. Smallberg, 224 AD2d 172 (1st Dep't 1996). Even if each plaintiff did not provide precise figures for his hours per week, plaintiffs indicated they worked either full-time or part-time.
Rodriguez testified that he worked three to four days per week and occasionally five, but that he worked two shifts, spanning 7:00 a.m. to 11:00 p.m. Although his deposition testimony read to the jury specified 16 to 24 hours, in that answer he did not specify 16 to 24 hours per week. In fact, the answer was consistent with his testimony that he worked 16 hours per day.
QUESTION: Now, did you work every day?
ANSWER: 16 to 24 hours.
Tr. at 466 (Dec. 1, 2008) (emphasis added). Only in answer to the next question, which did not refer specifically to the hours in his previous answer, did he testify:
QUESTION: In a week?
ANSWER: Yes.
Id. Then, when asked at trial whether his deposition testimony was true, and he "only worked about 16 to 24 hours a week," he clarified: "No, I worked more than that. I worked three to four days a week in that building." Id. at 466-67. The jury was free to reject his single answer at his deposition, susceptible of different interpretations, in favor of his first answer at his deposition and his repeated trial testimony that, while he may have worked only three to four days per week, each day he worked 16 hours, the equivalent of full-time or more. Rivera v. 4064 Realty Co., 17 AD3d at 202-203; Jackson v. Young, 226 AD2d 230, 231 (1st Dep't 1996); People v. Rivera, 281 AD2d 702, 703 (3d Dep't 2001). See Maskantz v. Hayes, 39 AD3d at 214; Bota v. Kaminsky, 299 AD2d 259; Jamal v. New York City Health Hosps. Corp., 280 AD2d at 422-23; People v. Toland , 2 AD3d 1053 , 1055 (3d Dep't 2001). The evidence was uncontradicted that Boyce also worked full-time. Therefore the $250,000.00 awards are within the upper limit of these two plaintiffs' reasonable lost earnings.
Defendant maintains that no award for Morris's lost earnings is reasonable, because he refused continued employment at the building. The jury was entitled to accept his version of events, outlined above, that he did not refuse continued employment at the building and that the alternative employment eventually offered to him, which he accepted, was at a lower rate of pay, under less desirable conditions, and not long term. His lower award of $100,000.00 reflects the extent of his success in mitigating his lost earnings with alternative employment. E.g., Murphy v. Columbia Univ. , 4 AD3d 200 , 203 (1st Dep't 2004); Exxon Shipping Co. v. New York State Div. of Human Rights, 303 AD2d 241, 242 (1st Dep't 2003). See Mize v. State Div. of Human Rights, 33 NY2d 53, 56 (1973); Ruby v. Budget Rent A Car Corp. , 23 AD3d 257 , 258 (1st Dep't 2005).
Haydenn's comparable award for lost earnings likewise reflects his mitigation efforts. E.g., Murphy v. Columbia Univ., 4 AD3d at 203; Exxon Shipping Co. v. New York State Div. of Human Rights, 303 AD2d at 241-42. Insofar as defendant maintains that Haydenn's days at defendant's building were numbered due to Haydenn's poor job performance, once the jury rejected his job performance as a basis for adverse action, the jury likewise may have found that his performance record would not have limited his longevity at the building. See id. The jury also was entitled to accept his testimony explaining the lower rates of pay, sporadic nature, and loss of his subsequent jobs.
The court must reduce all plaintiffs' awards for past lost earnings, however, by the unemployment insurance plaintiffs received during that past period, since the court instructed the jury not to consider plaintiffs' receipt of those benefits. Allender v. Mercado, 233 AD2d 153; New York State Div. of Human Rights v. Garvey Nursing Home, 249 AD2d at 550; Pioneer Group v. State Div. of Human Rights, 174 AD2d 1041, 1042 (4th Dep't 1991). Boyce received $7,852.00 in unemployment insurance; Rodriguez received $22,424.00; Haydenn received $16,823.25; and Morris received $17,963.00. Therefore the court reduces Boyce's lost earnings award to $242,148.00, Rodriguez's lost earnings award to $227,576.00, Haydenn's lost earnings award to $83,176.75, and Morris's lost earnings award to $82,037.00. Bryant v. New York City Health Hosps. Corp., 93 NY2d 592, 606-607 (1999). See Oden v. Chemung County Indus. Dev Agency, 87 NY2d 81, 88 (1995); Exxon Shipping Co. v. New York State Div. of Human Rights, 303 AD2d at 242; Gonzalez v. Iocovello, 249 AD2d 143, 144 (1st Dep't 1998).
VI. REASONABLE PUNITIVE DAMAGES
To prove that defendant acted with the malice or reckless indifference to aggrieved individuals' protected rights, as required for punitive damages, N.Y.C. Admin. Code § 8-502(a); McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 AD2d 269, 271 (1st Dep't 1998); Hirschfeld v. Institutional Inv., 208 AD2d 380 (1st Dep't 1994), the evidence must show that he discriminated in the face of a perceived risk that his actions would violate state or local law. E.g., Walsh v. Covenant House, 244 AD2d 214, 215 (1st Dep't 1997); Umansky v. Masterpiece Intl., 276 AD2d 692, 693 (2d Dep't 2000). See Kolstad v. American Dental Ass'n, 527 U.S. at 536; Farias v. Instructional Systems, Inc., 259 F.3d 91, 102 (2d Cir. 2001); Zimmermann v. Associates First Capital Corp., 251 F.3d at 384; Luciano v. Olsten Corp., 110 F.3d at 219-20. Federal law has prohibited racial discrimination since 1866 and specifically in employment since 1964. State and city statutes similarly have prohibited racial discrimination in employment for decades. Plaintiffs' discharge occurred long after this law was well established.
The extent of federal, state, and local statutory law and constitutional law prohibiting racial discrimination, without more, suggests that defendant must have known it was unlawful. Nevertheless, defendant also revealed his familiarity with these prohibitions when he denied he ever assessed an employee's performance or discharged anyone based on skin color. See Zimmermann v. Associates First Capital Corp., 251 F.3d at 385; Petramale v. Local No. 17 of Laborers' Int'l Union, 847 F.2d at 1014. Surely he could not reasonably believe that race or color satisfied a genuine occupational qualification or other exception to liability. See Kolstad v. American Dental Ass'n, 527 U.S. at 537.
Against this backdrop, the same evidence that proved defendant's liability proved, at minimum, his reckless indifference to the laws prohibiting racial discrimination, even by the standard of "clear, unequivocal and convincing evidence" on which the court instructed the jury. Munoz v. Puretz, 310 AD2d 382, 384 (1st Dep't 2003). See, e.g., Kolstad v. American Dental Ass'n, 527 U.S. at 535, 538-39; Walsh v. Covenant House, 244 AD2d at 215. If defendant in fact expressed the intended objectives attributed to him in the testimony, that he wanted to rid his building of "niggers" and that, if Senna did not carry out that objective for defendant, he would rid the building of Senna, such expressed objectives, at the end of the 20th century, are shockingly egregious. See Kolstad v. American Dental Ass'n, 527 U.S. at 535, 538-39; New York City Tr. Auth. v. State Div. of Human Rights, 78 NY2d at 210; Farias v. Instructional Systems, Inc., 259 F.3d at 102; Luciano v. Olsten Corp., 110 F.3d at 220. The evidence thus provided the jury a sufficient basis to assess punitive damages.
As for the amount assessed, the jury was permitted to award an amount necessary to punish defendant for his conduct and to deter him and other employers from repeating the prohibited conduct. McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 AD2d at 271. See Luciano v. Olsten Corp., 110 F.3d at 221. The jury awarded a total of $300,000.00 in punitive damages, $75,000.00 to each plaintiff, after awarding a total of $1,050,000.00 in compensatory damages, $400,000.00 each to Boyce and Rodriguez, and $125,000.00 each to Haydenn and Morris. Thus the punitive damages awards to each plaintiff were less than each's compensatory damages. See BMW of North America v. Gore, 517 U.S. 559, 581 (1996); McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 AD2d at 271.
Defendant has not disputed his financial ability to pay these awards. They are not a disproportionately large percentage of his net worth and will not cause him financial ruin. Id. Therefore it is impossible to conclude that the relatively modest punitive damages awards were higher than necessary to accomplish their punitive and deterrent purposes. BMW of North America v. Gore, 517 U.S. at 568; Mesiti v. Wegman, 307 AD2d at 341; McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 AD2d at 270-71. See Maskantz v. Hayes, 39 AD3d at 215; Luciano v. Olsten Corp., 110 F.3d at 221-22.
VII. CONCLUSION
In sum, the jury's verdict on defendant's liability was based on sufficient evidence and a fair interpretation of that evidence. C.P.L.R. § 4404(a). Except for the awards for lost earnings, the awards for compensatory damages, limited to past damages, and the lesser awards for punitive damages were within the upper limits of reasonableness. C.P.L.R. § 5501(c). The lost earnings awards as reduced by the court are within those limits as well. Therefore the court denies defendant's motion to set aside the verdict except as to the reductions in plaintiffs' awards for past lost earnings as set forth. The court orders a new trial on these damages only, unless plaintiffs stipulate to reduce plaintiff Boyce's lost earnings award to $242,148.00, plaintiff Rodriguez's lost earnings award to $227,576.00, plaintiff Haydenn's lost earnings award to $83,176.75, and plaintiff Morris's lost earnings award to $82,037.00. C.P.L.R. §§ 4404(a), 5501(c).
The parties shall appear for a conference in Room 103, 71 Thomas Street, New York, New York, April 16, 2010, at 9:30 a.m. This decision constitutes the court's order. The court will mail copies to the parties' attorneys.