Opinion
17-CV-4797 (RA)(KNF)
08-05-2021
ANGELIQUE OLAECHEA, Plaintiff, v. THE CITY OF NEW YORK, CAPTAIN VINCENT GREANY, Defendants.
JURY INSTRUCTIONS
Draft as of July 28, 2021 - Annotated
Table of Contents
I. GENERAL INSTRUCTIONS ..................................................................... 3
A. Introductory Remarks ..................................................................... 3
B. Role of the Court..................................................................... 3
C. Role of the Jury..................................................................... 4
D. Role of Counsel..................................................................... 4
E. Sympathy or Bias..................................................................... 5
F. All Persons Equal before the Law ..................................................................... 6
G. Burden of Proof..................................................................... 6
H. What Is and Is Not Evidence ..................................................................... 7
I. Direct and Circumstantial Evidence ..................................................................... 8
J. Witness Credibility ..................................................................... 9
K. Prior Inconsistent Statement ..................................................................... 11
L. All Available Witnesses or Evidence Need Not Be Produced ..................................................................... 11
M. Multiple Defendants..................................................................... 12
II. SUBSTANTIVE INSTRUCTIONS ..................................................................... 13
A. Overview of Claims and Theories of Liability ..................................................................... 13
B. Title VII ..................................................................... 14
C. New York State Human Rights Law ..................................................................... 17
D. New York City Human Rights Law..................................................................... 19
III. DAMAGES..................................................................... 20
A. Compensatory Damages ..................................................................... 20
B. Punitive Damages ..................................................................... 23
IV. DELIBERATIONS OF THE JURY ..................................................................... 25
A. Selection and Duties of Foreperson ..................................................................... 25
B. Right to See Exhibits and Hear Testimony; Communication with the Court..................................................................... 25
C. Notes ..................................................................... 25
D. Duty to Deliberate; Unanimous Verdict ..................................................................... 26
E. Verdict Form ..................................................................... 27
F. Return of Verdict ..................................................................... 27
V. CONCLUSION ..................................................................... 27
I. GENERAL INSTRUCTIONS
A. Introductory Remarks
Members of the jury, you have now heard all of the evidence in the case as well as the final arguments of the parties. You have paid careful attention to the evidence, and I am confident that you will act together with fairness and impartiality to reach a just verdict in the case.
Now it is time for me to instruct you as to the law that governs the case. There are three parts to these instructions. First, I'm going to give you some general instructions about your role, and about how you are to decide the facts of the case. Most of these instructions would apply to just about any trial. Second, I'll give you some specific instructions about the legal rules applicable to this particular case. Third, I'll give you some final instructions about procedure.
Listening to these instructions may not be easy. It is important, however, that you listen carefully and concentrate. I ask you for patient cooperation and attention. You'll notice that I'm reading these instructions from a prepared text. It would be more lively, no doubt, if I just improvised. But it's important that I not do that. The law is made up of words, and those words are very carefully chosen. So when I tell you the law, it's critical that I use exactly the right words.
Because my instructions are lengthy, I have provided each of you with a copy of them, not only so that you can follow them as I read them now, but also so that you can have them with you for reference as you deliberate. Nonetheless, feel free to just listen for now.
B. Role of the Court
My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law and to apply them to the facts as you determine them. With respect to legal matters, you must take the law as I give it to you. If any attorney or witness has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. You must not substitute your own notions or opinions of what the law is or ought to be.
C. Role of the Jury
As members of the jury, you are the sole and exclusive judges of the facts. You evaluate the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide to draw from the facts as you have determined them, and you determine the weight of the evidence.
Do not conclude from any of my questions or any of my rulings on objections or anything else I have done during this trial that I have any view as to the credibility of the witnesses or how you should decide the case.
It is your sworn duty, and you have taken the oath as jurors, to determine the facts. Any opinion I might have regarding the facts is of absolutely no consequence.
I also ask you to draw no inference from the fact that upon occasion I asked questions of certain witnesses. These questions were only intended for clarification or to expedite matters and certainly were not intended to suggest any opinions on my part as to the verdict you should render, or whether any of the witnesses may have been more credible than any other witnesses. You are expressly to understand that the court has no opinion as to the verdict you should render in this case.
D. Role of Counsel
It is the duty of the attorneys to object when the other side offers testimony or other evidence that the attorney believes is not properly admissible. It is my job to rule on those objections. Therefore, why an objection was made or why I ruled on it the way I did is not your concern. You should draw no inference from the fact that an attorney objects to any evidence.
Nor should you draw any inference from the fact that I might have sustained or overruled an objection.
The personalities and the conduct of counsel in the courtroom are not in any way at issue. If you formed reactions of any kind to any of the lawyers in the case, favorable or unfavorable, whether you approved or disapproved of their behavior as advocates, those reactions should not enter into your deliberations.
During the course of the trial, I may have had to correct the presentation of an attorney, for example, to ask them to rephrase a question. You should draw no inference against him or the client. It is the duty of the attorneys to advocate on behalf of their clients.
From time to time, the lawyers and I had conferences out of your hearing. These conferences involved procedural and other legal matters, and none of the events relating to these conferences should enter into your deliberations at all.
E. Sympathy or Bias
Under your oath as jurors you are not to be swayed by sympathy or prejudice. Your verdict must be based solely upon the evidence developed at this trial, or the lack thereof. It must be clear to you that once you let fear or prejudice or bias or sympathy interfere with your thinking, there is a risk that you will not arrive at a true and just verdict.
It would be improper for you to consider any personal feelings you may have about one of the parties' race, religion, national origin, gender, age, sexual orientation, disability, or physical appearance. It would be equally improper for you to allow any feelings you might have about the nature of the claim against the defendants to influence you in any way. The parties in this case are entitled to a trial free from prejudice and bias. Our judicial system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence.
F. All Persons Equal before the Law
In reaching your verdict, you must remember that all parties stand equal before a jury in the courts of the United States. You should consider and decide this case as a dispute between parties of equal standing before the law, and of equal worth. All persons and entities deserve fair, impartial, and conscientious consideration by you. One of the defendants in this case is a city rather than a person, but that must not affect your decision. All parties expect that you will fairly and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.
G. Burden of Proof
Now I will define for you the standard under which you will decide whether a party has met its burden of proof on a particular issue. The standard that applies in this case is the preponderance of the evidence.
What does a “preponderance of the evidence” mean? To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true. A preponderance of the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness of the evidence, not to the number of witnesses or documents. In determining whether a claim has been proved by a preponderance of the evidence, you may consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them.
If you find that the credible evidence on a given issue is evenly divided between the parties-that it is equally probable that one side is right as it is that the other side is right-then you must decide that issue against the party having this burden of proof. That is because the party bearing this burden must prove more than simple equality of evidence-the party must prove the element at issue by a preponderance of the evidence. On the other hand, the party with this burden of proof need prove no more than a preponderance. So long as you find that the scales tip, however slightly, in favor of the party with this burden of proof-that what the party claims is more likely true than not true-then that element will have been proved by a preponderance of the evidence.
The plaintiff bears the burden of proving every essential element of each of her claims by a preponderance of the evidence. If you find that the plaintiff has failed to establish a claim by a preponderance of the evidence, you must decide against her on that claim.
One final note on the burden of proof: some of you may have heard of “proof beyond a reasonable doubt.” As I told you at the beginning of the trial, “beyond a reasonable doubt” is the standard of proof in a criminal trial. It does not apply to a civil case such as this and you should put it out of your mind.
H. What Is and Is Not Evidence
In determining the facts, you must rely upon your own recollection of the evidence. The evidence in this case is the sworn testimony of the witnesses and the exhibits received in evidence. Testimony that I may have stricken or excluded, however, is not evidence and may not be considered by you in rendering your verdict. Also, if certain testimony was received for a limited purpose, you must follow the limiting instructions I gave you, and use the evidence only for the purpose I indicated.
The only exhibits that are evidence in this case are those that were received in evidence. Exhibits marked for identification but not admitted are not evidence, nor are materials that were used only to refresh a witness's recollection.
As I told you at the start of this case, statements and arguments by lawyers are not evidence, because the lawyers are not witnesses. What they have said to you in their opening statements and in their summations is intended to help you understand the evidence to reach your verdict. If your recollection of the facts differs from the lawyers' statements, however, it is your recollection that controls.
For the same reasons, you are not to consider a lawyer's questions as evidence. It is the witnesses' answers that are evidence, not the questions. Similarly, any statements that I may have made do not constitute evidence. It is for you alone to decide the weight, if any, to be given to the testimony you have heard and the exhibits you have seen.
Finally, this means, of course, that anything you may have heard or read in the news media or anything outside of this courtroom may play no role in your deliberations. Your decision in this case must be made solely on the evidence presented at trial.
I. Direct and Circumstantial Evidence
Generally, there are two types of evidence that you may consider in reaching your verdict. One type of evidence is direct evidence. Direct evidence is testimony by a witness about something he or she knows by virtue of his or her own senses-something the witness has seen, felt, touched, or heard. For example, if a witness testified that when he or she left the house this morning, it was raining, that would be direct evidence about the weather.
Circumstantial evidence is evidence from which you may infer the existence of certain facts. For example, assume that when you came into the courthouse this morning the sun was shining and it was a nice day. Assume that the courtroom blinds were drawn and you could not look outside. As you were sitting here, someone walked in with an umbrella, which was dripping wet. Then a few minutes later another person entered with a wet raincoat. Now, you cannot look outside of the courtroom and you cannot see whether or not it is raining. So you have no direct evidence of that fact. But on the combination of facts that I have asked you to assume, it would be reasonable and logical for you to conclude that it had been raining.
That is all there is to circumstantial evidence. You infer on the basis of reason, experience, and common sense from one established fact the existence or non-existence of some other fact. As you can see, the matter of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a logical, factual conclusion which you might reasonably draw from other facts that have been proven. Many material facts-such as what a person was thinking or intending-can rarely be proved by direct evidence.
Circumstantial evidence is as valuable as direct evidence. The law makes no distinction between direct and circumstantial evidence.
There are times when different inferences may be drawn from the evidence. The plaintiff asks you to draw one set of inferences. The defendants ask you to draw another. It is for you, and for you alone, to decide what inferences you will draw.
J. Witness Credibility
You have had the opportunity to observe the witnesses. It is now your job to decide how believable each witness was in his or her testimony. You are the sole judges of the credibility of each witness and of the importance of his or her testimony.
You should carefully scrutinize all of the testimony of each witness, the circumstances under which each witness testified, the impression the witness made when testifying, the relationship of the witness to the controversy and the parties, the witness's bias or impartiality, the reasonableness of the witness's statement, the strength or weakness of the witness's recollection viewed in the light of all other testimony, and any other matter in evidence that may help you decide the truth and the importance of each witness's testimony.
In other words, what you must try to do in deciding credibility is to size a witness up in light of his or her demeanor, the explanations given and all of the other evidence in the case. How did the witness appear? Was the witness candid, frank, and forthright; or, did the witness seem to be evasive or suspect in some way? How did the way the witness testified on direct examination compare with how the witness testified on cross-examination? Was the witness consistent or contradictory? Did the witness appear to know what he or she was talking about? Did the witness strike you as someone who was trying to report his or her knowledge accurately? These are examples of the kinds of common sense questions you should ask yourselves in deciding whether a witness is, or is not, truthful.
In passing upon the credibility of a witness, you may take into account any inconsistencies or contradictions as to material matters in his or her testimony. You should also take into account any evidence that the witness who testified may benefit in some way from the outcome in this case. Likewise, you should note any evidence of hostility or affection that the witness may have towards one of the parties. Such bias or interest in the outcome creates a motive to testify falsely. It is your duty to consider whether the witness has permitted any such bias or interest to color his or her testimony and bear that factor in mind when evaluating the credibility of the testimony.
This is not to suggest that every witness who has an interest in the outcome of a case will testify falsely. It is for you to decide to what extent, if at all, the witness's interest has affected or colored his or her testimony.
If you find that any witness has willfully testified falsely as to any material fact, you have the right to reject the testimony of that witness in its entirety. On the other hand, even if you find that a witness has testified falsely about one matter, you may reject as false that portion of his or her testimony and accept as true any other portion of the testimony which you find credible or which you may find corroborated by other evidence in this case. A witness may be inaccurate, contradictory, or even untruthful in some aspects, and yet be truthful and entirely credible in other aspects of his or her testimony.
The ultimate question for you to decide in passing upon credibility is: did the witness tell the truth before you? It is for you to say whether his or her testimony at this trial was truthful in whole or in part.
K. Prior Inconsistent Statement
You have heard evidence that certain witnesses may have made statements on earlier occasions which counsel argue are inconsistent with their trial testimony. Evidence of a prior inconsistent statement by someone who is not a plaintiff or a defendantis not to be considered by you as affirmative evidence in determining liability. Evidence of any such prior inconsistent statements was placed before you for the limited purpose of helping you decide whether to believe the trial testimony of the witness who may have contradicted himself or herself. If you find that a witness made an earlier statement that conflicts with that witness's trial testimony, you may consider that fact in deciding how much of the trial testimony, if any, to believe.
In making this determination, you may consider whether the witness purposely made a false statement or whether it was an innocent mistake; whether the inconsistency concerns an important fact, or whether it had to do with a small detail; whether the witness had an explanation for the inconsistency; and whether that explanation appealed to your common sense.
It is exclusively your duty, based upon all the evidence and your own good judgment, to determine whether the prior statement was inconsistent, and if so how much, if any, weight to be given to the inconsistent statement in determining whether to believe all or part of the witness's testimony.
L. All Available Witnesses or Evidence Need Not Be Produced
The law does not require any party to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matters at issue in this trial. You should not draw any negative inference against any party with respect to any issue in dispute based on their failure to produce a witness. Nor does the law require any party to produce as exhibits all papers and things mentioned in the evidence in the case.
The weight of the evidence is not necessarily determined by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of one witness as to any fact is more probative or compelling than the testimony of a larger number of witnesses to the contrary.
M. Multiple Defendants
There are multiple defendants in this case. You should consider each claim and each defendant separately. You should consider the evidence against each defendant separately as to each claim and ask with respect to each defendant as to each claim whether the plaintiff has proved the elements of the claim you are considering by a preponderance of the evidence. Each defendant is entitled to a fair consideration of the evidence relating to that defendant, and is not to be prejudiced by any finding you make for or against the other defendant.
II. SUBSTANTIVE INSTRUCTIONS
I will turn now to my instructions on the substantive law to be applied to this case. As you know, the plaintiff in this case is Angelique Olaechea. The defendants are the City of New York (the “City”) and Captain Vincent Greany. We have talked briefly about the claims in this case before, but now I will add legal detail and instructions with respect to those claims.
A. Overview of Claims and Theories of Liability
Against defendant the City, the plaintiff brings claims for unlawful retaliation in violation of federal, state, and city law. Those laws are: Title VII of the Civil Rights Act of 1964 (often referred to as “Title VII”); the New York State Human Rights Law (sometimes called the “NYSHRL”); and the New York City Human Rights Law (sometimes called the “NYCHRL”).
Against defendant Captain Vincent Greany, the plaintiff also claims that she was subjected to unlawful retaliation, but only in violation of city and state law.
She claims that the defendants took a number of adverse actions against her as retaliation for her speaking out against the discrimination that she believed was suffered by Javier Velazquez. The defendants deny these claims. They contend that they took those actions for legitimate reasons rather than retaliatory reasons.
Although federal, state, and city anti-retaliation laws forbid retaliation against an employee for making a complaint of discrimination in the workplace based on race, national origin, or ethnicity, the standards under each law are somewhat different. I will now discuss the essential elements of each of these claims - first under federal law, then under state law, then under city law.
B. Title VII
The plaintiff's first claim arises under Title VII, a federal statute, which makes it an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” Title VII also makes it an unlawful employment practice for an employer to retaliate against an employee because that employee has opposed any practice made unlawful by Title VII.
42 U.S.C. § 2000e-3(a); see Galdieri-Ambrosini v. Nat'lRealty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998).
This claim is brought solely against the City, although you may consider the conduct of Captain Greany in determining the City's liability for that claim. In order to maintain a claim based on retaliation, the plaintiff must prove each of the following four elements by a preponderance of the evidence:
(1) First, that she engaged in protected activity;
(2) Second, that her employer was aware of that activity;
(3) Third, that the employer took materially adverse action against her;
(4) Fourth, that there was a causal connection between the protected activity and that adverse action.
See, e.g., Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013).
I will now address each of these elements in greater detail.
1. First Element: Protected Activity
The first element of the plaintiff's claim is that she engaged in protected activity. An individual engages in protected activity when she complains about what she reasonably and in good faith believes to be an unlawfully discriminatory employment practice, meaning discrimination, as relevant here, on the basis of race, ethnicity or national origin. A formal or informal complaint to management can constitute protected activity. In determining whether the plaintiff engaged in a protected activity on behalf of Javier Velazquez and/or herself, you must decide whether she had a good-faith, objectively reasonable belief at the time she complained of her employer's actions that those actions violated the anti-discrimination laws, specifically that they were discriminatory on the basis of race, ethnicity or national origin. It is not necessary for you to find that the defendants in fact committed such discrimination.
See, e.g., Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam); McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001).
See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 175 (2d Cir. 2005).
Summa, 708 F.3d at 125; see also Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998).
2. Second Element: The Defendants' Knowledge
The plaintiff can prevail on the knowledge element of her federal retaliation claim if she shows by a preponderance of the evidence that the City was aware of her protected activity before it took the allegedly adverse actions. To satisfy this element, the plaintiff must prove that the City understood, or reasonably could have understood, that the plaintiff's complaints concerned discriminatory conduct.
Kelly, 716 F.3d at 15; Galdieri-Ambrosini, 136 F.3d at 291-92.
The plaintiff need not prove that any particular individual within the NYPD had the required awareness; it is sufficient that the City as an entity was generally aware of her protected activity.
See, e.g., Summa, 708 F.3d at 126; Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).
3. Third Element: Materially Adverse Action
The third element that the plaintiff must prove is that her employer took a materially adverse action against her. In the context of a retaliation claim, an action is materially adverse if it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Trivial harms do not qualify; not every petty slight, minor annoyance, or lack of good manners rises to the level of material adversity. Only those actions that would deter a similarly situated individual of ordinary firmness from exercising his or her rights qualify as materially adverse. Whether an action was materially adverse should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
White, 548 U.S. at 57.
Hicks v. Baines, 593 F.3d 159, 169 (2d Cir. 2010) (citing White, 548 U.S. at 57).
Hicks, 593 F.3d at 165.
4. Fourth Element: Causal Connection Between the Protected Activity and Adverse Action
To satisfy the fourth element of her claim under federal law, the plaintiff must prove by a preponderance of the evidence that she would not have been subjected to the adverse actions “but for” her complaints about discrimination. It is not enough that retaliation was a “substantial” or “motivating” factor in the employer's decision. In other words, she must prove that the City would not have taken such adverse actions had she not engaged in the protected activity. The plaintiff need not prove, however, that retaliation was the only motive behind the adverse actions.
Vega, 801 F.3d at 90-91.
Id.
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).
In order to decide whether the plaintiff suffered adverse actions because of her complaints about discrimination, follow these steps: Determine whether the City's decisions were motivated by a desire to retaliate against her for her complaints. Remember that the retaliation must necessarily be in response to protected activity.
If you find that the City had no retaliatory motive, you must find for the City. If, on the other hand, you find that the decisions were motivated by retaliation, then you must determine whether the City was also motivated by legitimate (non-retaliatory) reasons. If you find that the City was not motivated by legitimate (non-retaliatory) reasons, you must find for the plaintiff. If, however, you find that the City had legitimate reasons to take the actions that it did, you must, in turn, determine whether the City would have done so based upon these legitimate (non-retaliatory) reasons alone. If you find that the City would have acted based upon these legitimate non-retaliatory reasons alone, then you must find for the City. Conversely, if you find that the City would not have acted for legitimate non-retaliatory reasons alone, you must find for the plaintiff.
As you can see, one of your key tasks is to determine the reasons why the City took certain actions, and whether it was in fact motivated by a desire to retaliate against protected activity.You are called upon to do so here in order to resolve a question of fact: what was the City's motivation? It is the plaintiff's burden to prove that is more likely true than untrue that the City would not have taken the actions that it did but for its motive to retaliate.
See, e.g., Gordon, 232 F.3d at 116.
C. New York State Human Rights Law
I am going to turn now to the plaintiff's second claim, which is brought under the New York State Human Rights Law against both the City and Captain Greany. Under the NYSHRL, it is unlawful for an employer to discriminate against an individual because of race or national origin. It is also “an unlawful discriminatory practice” for an employer “to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices forbidden” by that law.
In other words, this law also prohibits retaliation. It has the same four elements as the plaintiff's claim under federal law. I instruct you that the standards for each of these elements are the same under state law as under federal law. To remind you, those elements are (1) first, that she engaged in protected activity; (2) second, that her employer was aware of that activity; (3) three, that the employer took materially adverse action against her; and (4) fourth, that there was a causal connection between the protected activity and that adverse action.
See, e.g., Hicks, 593 F.3d at 164.
So, however you resolved these elements with respect to the plaintiff's claim under federal law, you must resolve those elements the same way in considering her claim under state law against the City.
1. State Law - Individual Liability
With respect to the claim against Captain Greany, however, there is one important distinction from the plaintiff's federal claim. You may find Captain Greany individually liable under the NYSHRL if you find that he participated in the conduct that gave rise to the plaintiff's claim of retaliation. But you can find Captain Greany individually liable only if you first find the City to be liable for unlawful retaliation. In other words, if you find that the City is not liable for discrimination under the NYSHRL, then you cannot find Captain Greany individually liable.
See Doe v. Bloomberg, L.P., 36 N.Y.3d 450, 457, 167 N.E.3d 454, 459 (2021) (clarifying that the “[NYSHRL] does not render employees liable as individual employers”).
D. New York City Human Rights Law
I am going to turn now to the plaintiff's final claim, which is brought under the New York City Human Rights Law. Like federal and state law, the city law prohibits an employer from engaging in retaliation. Under city law, the first and second elements are the same as those under federal and state law. Under city law, however, a different standard is applied to the third and fourth elements, which I will explain in further detail.
1. City Law - Adverse Action
To satisfy the third element of a city-law retaliation claim, the plaintiff must prove by a preponderance of the evidence that an employer took an action which would be “reasonably likely to deter a person from engaging in protected activity.” You should judge the deterrent effect of that conduct based on the totality of the circumstances in which such actions took place.
N.Y. Admin Code § 8-107(7); see Williams v. NYCHA, 61 A.D.3d 62, 71 (1st Dep't 2009); Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010).
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 112 (2d Cir. 2013).
2. City Law - Causal Link
To satisfy the fourth element of the plaintiff's claim under city law, the plaintiff must prove by a preponderance of the evidence that the defendants' desire to retaliate against the plaintiff for her discrimination complaints was a motivating factor in their decision to take the adverse actions, even if it was not the sole motivating factor. If you determine that retaliation was a motivating factor, you must find for the plaintiff. On the other hand, if you determine that retaliation was not a motivating factor, you must find for the defendants.
Watson v. Emblem Health Servs., 158 A.D.3d 179, 182, 69 N.Y.S.3d 595, 598 (2018).
3. City Law - Individual Liability
With respect to Captain Greany's individual liability, you may find him liable under city law if you find that the plaintiff has proved by a preponderance of the evidence that he actually participated in the conduct giving rise to the discrimination claim. In contrast to state law, you may find Captain Greany liable even if you do not find the City liable.
N.Y. Admin Code § 8-107(7).
See id. (establishing liability for “any person” that engages in retaliatory acts); Doe v. Bloomberg, L.P., 36 N.Y.3d 450, 459, 167 N.E.3d 454, 460 (2021) (stating that individual employees may be held liable under the NYCHRL for “retaliation against protected conduct”).
III. DAMAGES
I am now going to talk about the standards under which you may award damages in this case, if you decide that damages are appropriate. Of course, the fact that I am giving you instructions on damages should not be considered as an indication of any view of mine on what your verdict should be or on whether any damages should be awarded. It is entirely up to you to decide whether or not damages should be awarded in this case based on these instructions.
In this case, the plaintiff seeks to recover three types of damages: (1) economic or actual damages; (2) damages for emotional distress, pain and suffering, humiliation, and mental anguish, and (3) punitive damages. I'll explain each type of damages in turn.
A. Compensatory Damages
The first two types of damages that the plaintiff seeks are known as “compensatory damages, ” and are designed to award just and fair compensation for the loss, if any, which resulted from a defendant's violation of the law. If you find that the plaintiff has proven her claims under federal, state, or city law based on the law as I have explained it, then you must consider the amount of damages, if any, to be awarded to the plaintiff.
1. Economic Damages
If you find that any defendant acted unlawfully, the plaintiff may be entitled to the back pay that she would have earned if the defendants had not retaliated against her. The plaintiff is entitled to an award of backpay only if you conclude that her resignation from the NYPD was effectively a termination or discharge. The plaintiff bears the burden of proving by a preponderance of the evidence that the City “deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign.”In other words, she must prove that “a reasonable person in [her] shoes would have felt compelled to retire” as a result of the actions taken by the City. You may award her backpay for lost wages since her separation from the NYPD only if she makes that showing.
See Tulino v. Ali, No. 15-CV-7106 (JSR), 2019 WL 1447134, at *3 (S.D.N.Y. Feb. 27, 2019) (“plaintiff is not entitled to economic damages in the absence of a constructive discharge”), reconsideration denied sub nom. Tulino v. City of New York, No. 15-CV-7106 (JSR), 2019 WL 3810975 (S.D.N.Y. Aug. 1, 2019), and aff'd sub nom. Tulino v. City of New York, 813 Fed.Appx. 725 (2d Cir. 2020); E.E.O.C. v. Bloomberg L.P., 29 F.Supp.3d 334, 340 (S.D.N.Y. 2014); see also Green v. Town of E. Haven, 952 F.3d 394, 405 (2d Cir 2020) (noting that “what a reasonable person in the plaintiff's shoes would have felt compelled to do” is not “necessarily” “determinable as a matter of law”).
See, e.g., Green, 952 F.3d at 397.
See, e.g., id.
In terms of calculating economic damages, the amount consists of the wages and employee benefits that the plaintiff would have received but for the retaliatory treatment. If you do make an award of backpay, you should deduct any other income and benefits that the plaintiff has earned since her separation from the NYPD, such as what she earned through her pension.
See United States v. Burke, 504 U.S. 229, 239 (1992); Noel v. N.Y. State Office of Mental Health Cent. N.Y. Psychiatric Ctr., 697 F.3d 209, 213 (2d Cir. 2012).
2. Non-Economic Damages
The plaintiff also seeks damages for the pain and suffering that she experienced as a result of the defendants' actions. In awarding such damages, you must be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. The law does not require that a plaintiff prove the amount of her losses with mathematical precision, but only with as much definiteness and accuracy as the circumstances permit. Any uncertainty or doubt that you encounter when computing damages should be resolved in favor of the plaintiff, because the law requires that, where a wrongdoer's conduct has made a precise proof of damages difficult, the wrongdoer must bear the risk of uncertainty created by its conduct.
In all instances, you are to use sound discretion in fixing an award of damages, drawing reasonable inferences where you deem appropriate from the facts and circumstances in evidence. Compensatory damages in particular are meant to compensate the plaintiff for any loss that resulted from the defendants' actions. If you find that the defendants are liable under federal, state, and/or city law, then you must award the plaintiff sufficient damages to compensate her for any injury that she has proved, by a preponderance of the evidence, she suffered as a result of the defendants' wrongdoing.
You may award the plaintiff reasonable compensation for any of the following types of harms that you may find, based on a preponderance of the evidence, were caused by unlawful conduct by the defendants: (1) financial costs or expenses; (2) emotional or physical pain, suffering, mental anguish, emotional or physical distress, or loss of health; (3) embarrassment or humiliation; and (4) loss of enjoyment of life, meaning the plaintiff's loss of the ability to enjoy certain aspects of her life, as a result of any wrongful conduct by the defendants.
There is no requirement that evidence of the monetary value of intangible harms such as pain and suffering be introduced into evidence. There is no exact standard for fixing the compensation to be awarded for these elements of damages and, as I just explained, no expert or other testimony necessarily need be introduced. Still, it is necessary to arrive at a reasonable award that is fair and supported by the evidence presented at trial. As I have stated, damages must not be based on speculation, nor can they involve sympathy for a plaintiff.
B. Punitive Damages
In addition to compensatory damages, the plaintiff seeks what are called “punitive damages” from the defendants. Punitive damages serve the purpose of punishing a wrongdoer and serving as an example or warning to other defendants not to engage in similar unlawful conduct in the future. You thus must determine if the defendants' conduct warrants punitive liability.
1. Punitive Damages Under Title VII
Under Title VII, punitive damages are available to the plaintiff if she proves by a preponderance of the evidence that the City acted with “intentional discrimination, ” and did so “with malice or with reckless indifference to the . . . protected rights of an aggrieved individual.”You may find that the City acted with malice or reckless indifference if the plaintiff has proved by a preponderance of the evidence that the City knew that its actions were in violation of federal law prohibiting retaliation or acted with reckless disregard of that law.
Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 530, 119 S.Ct. 2118, 2121, 144 L.Ed.2d 494 (1999).
Id. at 535; see Chauca v. Abraham, 841 F.3d 86, 91 (2d Cir.), as amended (Nov. 8, 2016), certified question accepted, 28 N.Y.3d 1108, 68 N.E.3d 76 (2016), and certified question answered, 30 N.Y.3d 325, 89 N.E.3d 475 (2017).
2. Punitive Damages under State and City Law
The standard for punitive damage under state and city law is somewhat different. Under state and city law, a plaintiff is entitled to punitive damages when she has proven by a preponderance of the evidence (1) that the wrongdoer's actions amounted to willful or wanton negligence or recklessness; (2) that there was a conscious disregard of the rights of others, or (3) that there was conduct so reckless as to amount to such disregard. A defendant has acted with willful or wanton negligence if its discriminatory acts evidence a high degree of moral culpability and demonstrate exceptional misconduct towards a plaintiff. A defendant is considered reckless if it knew that there was a substantial risk that it would violate the law but consciously decided to take actions that violated the state and city law anyway, or if it engaged in conduct that was so reckless as to amount to a disregard of the rights of the plaintiff. This standard does not, however, require a plaintiff to prove that a defendant actually knew that their actions were in violation of the law.
See Chauca v. Abraham, 30 N.Y.3d 325, 334, 89 N.E.3d 475, 481 (2017).
See id.; Home Ins. Co. v. Am. Home Prod. Corp., 75 N.Y.2d 196, 200, 550 N.E.2d 930, 932 (1990).
In determining the appropriate sum of money to be awarded as punitive damages, if any, you should consider the degree to which the defendants should be punished for conduct that you find to be wrongful under federal, state, and city law, and the degree to which an award of one sum or another will deter them or entities like them from committing similar unlawful conduct. The amount of an award of punitive damages must not reflect bias, prejudice, or sympathy toward any party, but the amount can be as large as you believe necessary to fulfill the purposes of punitive damages. You have considerable discretion in this regard.
IV. DELIBERATIONS OF THE JURY
Ladies and gentlemen of the jury, that concludes the substantive portion of my instructions to you. You are about to go into the jury room and begin your deliberations. I will now give you a few final instructions on those deliberations.
A. Selection and Duties of Foreperson
Before you begin deliberating, you should by your own vote select one of you to sit as your foreperson. The foreperson doesn't have any more power or authority than any other juror, and his or her vote or opinion doesn't count for any more than any other juror's vote or opinion. The foreperson is merely your spokesperson to the court. He or she will send out any notes, and when the jury has reached a verdict, he or she will notify the marshal that the jury has reached a verdict, and you will come into open court and give the verdict.
B. Right to See Exhibits and Hear Testimony; Communication with the Court
All of the exhibits admitted into evidence will be sent to the jury room with you. If you want any of the testimony read, you may request that. Please remember that it is not always easy to locate what you might want, so be as specific as you possibly can be in requesting portions of the testimony. If you want any further explanation of the law as I have explained it to you, you may also request that.
Your requests for testimony-in fact any communications with the Court-should be made to me in writing, signed, dated, and timed by your foreperson, and given to one of the marshals. In any event, do not tell me or anyone else how the jury stands on any issue until after a unanimous verdict is reached and announced in open court by your foreperson.
C.
Some of you have taken notes periodically throughout this trial. I want to emphasize to you, as you are about to begin your deliberations, that notes are simply an aid to memory. Notes that any of you may have made may not be given any greater weight or influence than the recollections or impressions of other jurors, whether from notes or memory, with respect to the evidence presented or what conclusions, if any, should be drawn from such evidence. All jurors' recollections are equal. If you can't agree on what you remember the testimony was, you can ask to have the transcript read back.
D. Duty to Deliberate; Unanimous Verdict
Shortly, you will retire to decide the case. You must base your verdict solely on the evidence and these instructions as to the law, and you are obliged on your oath as jurors to follow the law as I instruct you, whether you agree or disagree with the particular law in question.
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of you must decide the case for himself or herself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is erroneous. Discuss and weigh your respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor for either party, and adopt that conclusion which in your good conscience appears to be in accordance with the truth.
Again, your verdict must be unanimous, but you are not bound to surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict or solely because of the opinion of other jurors. Each of you must make your own decision about the proper outcome of this case based on your consideration of the evidence and your discussions with your fellow jurors. No juror should surrender his or her conscientious beliefs solely for the purpose of returning a unanimous verdict.
Remember at all times, you are not partisans. You are judges-judges of the facts. Your sole interest is to seek the truth from the evidence in the case. Nothing said in these instructions and nothing in any verdict form prepared for your convenience is meant to suggest or convey in any way or manner any suggestion or hint as to what verdict I think you should find. What the verdict shall be is your sole and exclusive duty and responsibility.
If you are divided, do not report how the vote stands and if you have reached a verdict do not report what it is until you are asked in open court.
E. Verdict Form
Your verdict will take the form of a special verdict comprising your answers to written questions. Your answer to each question must reflect your unanimous verdict on each question. In a few moments, I will give you the verdict form with the questions for you to answer and you will retire to deliberate your decision.
You should answer every question except where the verdict form indicates otherwise. You should also proceed through the questions in the order in which they are listed.
F. Return of Verdict
After you have reached a verdict, your foreperson will fill in the form that has been given to you, you will all sign and date it, and your foreperson will advise the marshal outside your door that you are ready to return to the courtroom.
I will stress that each of you must be in agreement with the verdict which is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
V. CONCLUSION
In conclusion, ladies and gentlemen, I am sure that if you listen to the views of your fellow jurors, if you apply your own common sense, and if you follow my instructions on the law, you will reach a fair verdict here.