Opinion
99 Civ. 5843 (GEL)
November 21, 2001
Antonia Kousoulas, Antonia Kousoulas Associates, New York, N Y for Plaintiff Jamal Uddin.
Michael Tiliakos, Assistant Corporation Counsel, New York, NY (Michael D. Hess, Corporation Counsel of the City of New York. Andrea Moss, Assistant Corporation Counsel, New York, NY, of counsel) for Defendant New York City
OPINION AND ORDER
Plaintiff, Jamal Uddin, filed this complaint pro se on July 23, 1999, against his employer, New York City (the "City") and its Administration for Children's services ("ACS"), charging national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") The complaint, liberally construed, alleged that several of the plaintiff's African-American supervisors subjected him to various adverse employment actions, a hostile work environment and retaliation because he was Bangladeshi. and sought compensatory damages, including damages for emotional distress This Court subsequently dismissed defendant ACS, as an improper party o the suit, and granted summary judgment for the City as to plaintiff's retaliation claim. Uddin v. New York City, Nos. 99 civ. 5843, 00 civ 3417, 2001 WL 15694 (Jan 8, 2001 S.D.N.Y.)
Uddin's remaining Title VII claims against the City were tried before this Court, beginning on August 8, 2001 At the close of plaintiff's case, the City moved to strike Uddin's claim for emotional distress damages on the grounds that he had failed to provide evidence of physical manifestations of his emotional distress. and for a directed verdict it claims (Tr. 357.) At the close of evidence, the City renewed its motion for a directed verdict (Tr. 571.) The motions were denied.
On August 14, 2001. the jury found in favor of the City on the hostile work environment claim, but found that the plaintiff had been subjected to adverse employment actions in violation of Title VII. The jury awarded Uddin compensatory damages in tile amount of $60,000. The City now renews its motion for a directed verdict, or in the alternative moves moves for a new trial on the grounds that the jury should not have been instructed on emotional damages. Additionally, plaintiff has moved for prevailing party attorney's fees under 42 U.S.C. § 2000e-5(k). After careful consideration of the parties' submissions and a full review the trial record, the City's motion is denied and plaintiff's motion for attorneys fees is granted.
Discussion
I. Motion for Judgment as a Matter of Law
Judgment as a matter of law may be granted "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue" FED R Civ P 50(a)(1) A party may only file a post-trial motion for judgment as a matter of law where, as here, it has first moved prior to submission of the case to the jury FED R Civ P 50(b) The standard for deciding Rule 50 motions is identical to that used on summary judgment. turning on whether "the evidence viewed in the light most favorable to the Opposing party, is insufficient to permit a reasonable juror to find in [its] favor." Galdieri-Ambrosini v. Nat Realty and Dev. Corp, 136 F.3d 276, 289 (2d Cir. 1998). Judgment as a matter of law is only appropriate if "there is such a complete absence of evidence supporting the verdict," or if the evidence is so "overwhelming," that a reasonable and fair-minded jury could only have reached one result. Id. (citation omitted). The court must not weigh the evidence itself, but must defer "to all credibility determinations and reasonable inferences of the jury." Id. Here, the jury found the City not liable on the hostile work environment claim, and thus we must only determine whether Uddin presented sufficient evidence to support a finding of adverse and discriminatory employment actions.
Employment discrimination actions are analyzed under the burden-shifting framework originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that well-established framework, a plaintiff enjoys a presumption of discrimination if he manages to establish a prima facie case Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997). The defendant can defeat this presumption only by providing a legitimate, non-discriminatory reason for its adverse employment actions, at which point the burden shifts back to the plaintiff to show that the defendant's proffered reason is pretextual. Id. Once the employer has articulated a nondiscriminatory reason, the presumption "drops out of the picture," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993), and the burden is once again on the plaintiff to "persuade the trier of fact that the defendant intentionally discriminated against the plaintiff" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000)
In a previous opinion denying the City's motion for summary judgment, this Court found that Uddin had successfully met his burden of presenting a prima facie case of employment discrimination, and had presented sufficient evidence to call into question the reason proffered by the City Uddin, 2001 WL 15694, at *3-4. As this Court ruled. "[l]ike all employment discrimination cases, this action involves difficult issues of motivation and intent," and there was a legally sufficient basis to infer a discriminatory intent since there was evidence in the record suggesting that "plaintiff's supervisors subjected him to a barrage of insults and disparate treatment on account of his Bangladeshi origin, and that his thirteen year employment history was otherwise favorable." Id. at *4. The only question remaining is whether Uddin similarly presented sufficient evidence at trial to persuade a fact-finder of this discriminatory intent. Looking at the trial record in its entirety, it is clear that Uddin did
Uddin presented a cogent theory of liability at trial. He argued that prior to the arrival of Alice Yanes, an African-American who was the Child Protective Manager in charge of his unit, he was considered a superior case-worker. (Tr. 15) Uddin maintained that upon becoming his supervisor, Yanes, along with three other African-American supervisors who worked under her, purposefully concocted a number of false charges against him because he was Bangladeshi. (Tr. 16.) Those charges resulted in his suspension and eventual exclusion from protective diagnostic work, an exclusion that limited both his future earning capacity and his opportunity for advancement within ACS (Tr. 17.)
Testimony established the following organizational hierarchy at ACS. Case-workers were organized into units under the direction of a Supervisor I, to whom the case-worker reported directly. Several of these units were overseen by a Supervisor II, to whom the Supervisor I reported. The Supervisor II acted as a type of "lieutenant" to the Child Protective Manager ("CPM"), and a given location apparently had several CPMs. In October of 1996, Alice Yanes became the Child Protective Manager in charge of unit 261. in which Uddin then worked.
Uddin clearly presented enough evidence at trial to support his theory of liability. Performance evaluations introduced into evidence established that prior to the arrival of Yanes, Uddin's supervisors regarded him as an outstanding and responsible case-worker. (Tr. 25, 26, 27, 28.) That evidence was corroborated by the uncontested evidence of several of Uddin's supervisors Robert Martin, the Child Protective Manager in charge of Uddin's unit until December of 1994, testified that under his supervision Uddin had been a responsible and capable worker, that he was well liked, and that he got along well with co-workers and supervisors alike. (Tr. 29-30.) He also testified that under his supervision, Uddin had been temporarily promoted from case-worker to Supervisor I. (Tr. 29-30.) He further indicated that on several occasions when he was out of the office or on extended leave, he informally appointed Uddin as an acting Supervisor II. (Id.) Perhaps most importantly, Valerie Cannella, who was Uddin's Supervisor II for approximately six months after Yanes became the CPM in charge of Uddin's unit, testified that Uddin had always been cooperative and completed his work in a timely and efficient manner. (Tr. 307.)
Those positive evaluations continued during the short period that Uddin was transferred, at his own request, from under the supervision of Yanes' group Uddin's Supervisor II at that time, Lynetta Lipsey-Hughes, testified that while under her supervision, Uddin was a conscientious and eager case-worker who communicated well with her and closed cases in an expeditious manner (Tr. 270.) Similarly Andre Springer, who held the position of Supervisor I, and to whom Uddin had at one point directly reported, testified that Uddin was a "good worker", a "good writer", and "had more experience than me." (Tr. 288.) As this Court previously noted, "[t]here is no dispute that for all but an eight month period during which Yanes was his supervisor. plaintiff compiled an unblemished thirteen-year record at ACS" Uddin, 2001 WL 15694, at *4.
These positive evaluations are. of course, in stark contrast to Uddin's evaluations upon coming under the supervision of Yanes and the several African-American supervisors she recommended for promotion. Testimony by Yanes, Mary Richardson (Uddin's Supervisor I), Pam Smith (the Supervisor II in charge of Uddin's unit) and Robert Virgil (another Supervisor II) established an apparent pattern of dereliction on Uddin's part. including his failure to visit clients and provide services to them, his failure to submit timely court ordered investigations, and his refusal to communicate with his superiors, culminating in the bringing of formal charges and specifications against Uddin. As I noted at the summary judgment stage of this litigation
That the supervisors in this case happened to be African-American, rather than some other non-Bangladeshi ethnicity, would ordinarily be irrelevant to the case and would not be worthy of mention. (Indeed, many witnesses who testified for Uddin. including Cannella, Lipsey-Hughes, Springer, and union delegate John Peek. were also African-American.) In this case, however, there was evidence that Yanes had made statements suggesting favoritism for her "own kind" (Tr. 61) and for people who "look like us" (Tr. 313), and a fact-finder could conclude that bias in favor of African-Americans affected her selection of supervisors and her treatment of Uddin. Notably, while Yanes denied such a bias, she did so in terms that a jury could have found betrayed a close attention to ethnicity, stating that "I consider Mr. Uddin a black individual like myself" (Tr. 380).
There may well be a logical and non-discriminatory explanation for plaintiff's anomalous eight-month period of deficient performance reviews. It is, for example, possible that Yanes arrived at plaintiff's unit to clean house, and that prior to her arrival plaintiff managed to loaf below management's radar scree. But at this stage of the litigation — or at any stage without some proof — I cannot conclude that from 1986, when the plaintiff was hired until late 1996, when Yanes came on board, ACS operated so dysfunctionally as to allow caseworkers to ignore their responsibilities and thereby place the City's at-risk children in danger of abuse. or worseUddin, 2001 WL 15694, at *4. While one reading of the evidencs presented at trial could lead to such a conclusion, whether to draw it, or to conclude instead that Uddin's present difficulties were the product of bias, was a question for the jury. In evaluating its verdict, I must draw all inferences in Uddin's favor rather than weighing the credibility of the evidence presented. By this standard, Uddin clearly presented evidence from which a reasonable jury could conclude that Yanes, and the other African-American supervisors who reported to her, concocted various charges against the plaintiff because he was Bangaldeshi. Although not intended as an exhaustive summary of the available evidence, the following examples illustrate that Uddin could have persuaded a reasonable jury that the City intentionally discriminated against him.
Evidence presented at trial indicates that Uddin was placed on "field restriction" upon returning to his former unit (effectively precluding protective diagnostic work), and that Yanes never inquired about his performance in the interim. (Tr. 446.) Other evidence indicated that Yanes did not place similar restrictions on two African-American case-workers who had heavier caseloads than Uddin (a factor considered significant in evaluating case-workers), although they had previously received reprimands from her. (Tr. 338, 436.) Upon returning to his former unit Uddin was brought up on charges for various employment deficiencies. However, Uddin presented evidence calling into question the accuracy of several of the charges brought against him that resulted in his being barred from performing protective diagnostic work. For example, there was testimony to the effect that many of the charges concerning the Pamela M. case, which played a central role in the charges brought against him, were inaccurate on their face. Although Uddin was charged with failing to provide services to the family in January of 1996, his supervisor at the time, Valerie Cannella, testified that he was not assigned the case until February 1997. (Tr. 328.) She further testified that, contrary to the charge brought against him, he had undertaken a thorough investigation, completed the appropriate documentation, and referred the case to the ACS legal department. (Tr. 329, 331-34.) The case was sent back by the legal department, according to both Cannella and Uddin. because the wrong from had been submitted. (Tr. 84-5, 329, 331-34.) Documents introduced into evidence, however. reflect that both Cannella and Yanes approved the referral. (Tr. 345.) Finally, the available evidence reflects that Uddin did not fail to appear in court for the Pamela M. case on April 16. 1997 as charged. (Tr. 272-73.)
Of course, evidence that the charges brought against him were inaccurate might not alone be sufficient to raise an inference of discriminatory intent. One could infer from the several inaccuracies contained within the charges that the supervisors responsible for documenting Uddin's purported deficiencies, and bringing them to the attention of the appropriate disciplinary authorities, made intentionally false accusations rather than inadvertent mistakes. This is especially the case where the facts could have been readily verified but apparently were not. Nevertheless, this might still be insufficient to establish anydiscriminatory motive in the absence of other evidence. However, testimony by the Uddin and others established that several of his supervisors made derogatory comments about his national origin Uddin testified that on one occasion, Pam Smith, the Supervisor II in charge of his unit referred to him as a "Bangladeshi shit" (Tr. 79.) In addition, Uddin and Andre Springer variously testified that on several occasions, Robert Virgil and Pam Smith derogatorily referred to Uddin as a "little Indian." (Tr. 74-8, 287.) Both Uddin and John Peek. Uddin's union-appointed representative, testified that during the disciplinary hearing at which Uddin was brought up on charges, Mary Richardson told Uddin to "go back to where you came from" (Tr. 74, 350.) Finally, as noted above, Uddin testified that Yanes had instructed her mostly African-American staff about the need to "look out for your own kind" (Tr. 61), and Cannella testified that Yanes had referred to the need to be especially protective of the children ACS served because "they look like us" — a statement that caused Cannella. herself African-American to be "taken aback" because she interpreted it as showing a racial or ethnic bias. (Tr. 313) While Yanes, Smith, Virgil and Richardson all denied making the discriminatory comments purportedly made by them, weighing the credibility of testimony is peculiarly the province of the fact-finder, and the jury could certainly have chosen to discount their denials.
In light of this evidence, a reasonable jury could have concluded that Uddin was a capable case-worker, that the charges brought against him, and based on the allegations of Yanes, Smith, Richardson and Virgil, were inaccurate in critical respects, and that these same supervisors possessed a discriminatory animus against him because he was Bangladeshi. Moreover, from these facts, a reasonable jury could have inferred that the inaccuracy of the charges was not an innocent mistake, but purposeful, and that the charges were motivated by a discriminatory animus. Accordingly, there is sufficient evidence to support liability under Title VII against the City, and thus the City's motion for judgment as a matter of law is denied
Defendant's argument that none of the supervisors charged with discrimination actually made the decisions regarding the filing of charges against Uddin (Tiliakos Decl. ¶ 11), is without merit for two reasons. First, the present claim is not against any of the individual supervisors, but against the City, and it is axiomatic that an employer is responsible for adverse employment actions taken against Uddin by employees in a supervisory capacity. See, e.g., Burlington Industries v. Ellerth, 524 U.S. 742, 760 (1998) ("At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of harassment when a supervisor takes a tangible employment action against a subordinate.").
Second, a jury may properly infer that decisions taken against plaintiff were product of bias where there was evidence that biased supervisors played a role in these decisions, even if there is no evidence that the ultimate decision maker was biased. See Rosen v. Thornburgh, 928 F.2d 528, 534 (2d Cir. 1991) Here, testimony indicated that several of his supervisors participated in collecting the allegations that were eventually embodied in the specific charges brought against Uddin. For example, Yanes testified that Richardson was the source of the allegation that Uddin had failed to appear in court for the Pamela M. matter on April 16, 1997 (Tr. 454-55.) Richardson herself testified that she was responsible for submitting the documentation to support several of the charges. (Tr. 463-64.) Smith also provided documentation concerning the charges at the suggestion of Yanes. (Tr. 556-62.) Additionally, Uddin testified that he overheard Virgil state his intention to "document" him. (Tr. 74-5.) Evidence that these supervisors made bigoted comments, as is the case here, is sufficient to permit an inference that the charges were brought against him because of a discriminatory motive.
II. Motion for a New Trial
The City also moves for a new trial pursuant to FED. R CIV P 59. A new trial may be ordered when the court "is convinced that the jury has reached a seriously erroneous result" or that the verdict is "against the weight of the evidence." U.S. East Telecomm., Inc. v. U.S. West Communications Servs., 38 F.3d 1289, 1301 (2d Cir. 1983) (citation and internal quotations omitted). An erroneous jury instruction, unless harmless, requires a new trial. Pahuta v. Massey-Fergusin. Inc., 170 F.3d 125, 135 (2d Cir. 1999). Where the trial record establishes that the jury's verdict on damages was "infected by fundamental error." the judgment should be vacated in favor of a new trial on damages. Ramirez v. New York City Off-Track Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997).
Here, the City has moved for a new trial on the grounds that the jury should not have been charged on the issue of emotional distress damages because Uddin failed to present any evidence of physical manifestations of his distress The City argues that a new trial is required because the $60,000 verdict could not have been reached without some award for emotional damages, and because it is impossible to ascertain what portion of the damages was awarded for Uddin's purported emotional distress. The Court adheres to its ruling during the trial that the record justified an instruction on emotional distress (Tr. 527-31), and there is no basis on this record for a conclusion that the jury reached a seriously erroneous result.
The City relies principally on the Second Circuit's recent decision inAnnis v. County of Westchester, 136 F.3d 239 (2d Cir. 1998). However, its reliance is misplaced. Annis involved a claim of sex discrimination brought by a female lieutenant in a county police department. At trial, the plaintiff testified that she was humiliated by the discrimination she endured, but failed to present evidence regarding any physical manifestations of her emotional distress. Id. at 244. The Second Circuit vacated the damage award because "the only evidence of [her] emotional distress — her own testimony — is insufficient to warrant an award of compensatory damages for that injury." Id. at 249. While the City urges that this language should be read broadly, to prohibit damages for emotional distress absent corroborating testimony of emotional distress, such a reading would be inconsistent with the well-established general proposition that fact-finding and credibility are matters for the jury, and that the testimony of a single eyewitness, if believed, is sufficient to establish a required element. See, e.g., Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989). Moreover, the Annis Court itself indicated that its holding was based on the nature of plaintiff's testimony, rather than the absence of corroboration, explaining that "her testimony fails to establish that she suffers from any concrete emotional problems" Id. Unlike the City's preferred reading of the opinion, the proposition that as a matter of substantive law, emotional distress damages may not be returned absent some tangible manifestation can be situated in a long tort-law tradition. See W. PAGE KEETON, ET AL. PROSSER AND KEETON ON TORTS § 54, at 364 (5th ED. 1984) (noting that in permitting damages for emotional distress the "great majority of courts require that the mental distress be certified by some physical injury, illness or other objective physical manifestation")
District courts in this circuit have adopted this narrower reading ofAnnis. In Mahoney v. Canada Dry Bottling Co., 94 civ. 2924, 1998 WL 231082, at *5. (E.D.N.Y. May 7, 1998), an African-American employee bought a race discrimination and retaliation claim against his employer. At trial, the plaintiff testified that the humiliation and embarrassment engendered by being subject to discrimination, and the financial hardship caused by his demotion, caused him to have difficulty sleeping. In denying the employer's post-verdict motion for a new trial, the district court found that the plaintiff had satisfactorily provided evidence of concrete emotional problems. In so ruling, the Court concluded that "Annis should [not] be read so broadly as to preclude any award of compensatory damages for mental anguish absent corroborating testimony."Id. See also Ortiz-Del Valle v. National Basketball Association, 42 F. Supp.2d 334, 341 (S.D.N.Y. 1999) (SHS) (declining to address the issue of whether an award of emotional distress damages requires corroborating evidence where the plaintiff "offered no testimony about a single physical manifestation of her emotional damage")
The present case is distinguishable from Annis because Uddin testified about experiencing concrete emotional problems. Indeed, Uddin presented the same quantum of evidence found to be sufficient in Mahoney. Just like the plaintiff in Mahoney, he testified that because of the humiliation he endured, and the financial hard ship caused by the drop in compensation that resulted from being precluded from protective diagnostic services, he was "almost to sleepless." (Tr. 194.) Uddin also testified that before the discrimination, he had been a "dynamite" and "fast-moving" case-worker, but that afterwards he was "unable to exercise [his] work practices as before." (Tr. 194.) Finally, he testified that he "used to be [a] very happy, laughing type of guy," but that he later became "depressed and very, very sad" (Tr. 194, 195.) Unlike in Annis, where the plaintiff only testified to being humiliated and embarrassed, Uddin pointed to concrete emotional problems having tangible physical consequences, including insomnia and reduced energy due to depression. From this evidence, a reasonable jury could therefore have found that Uddin suffered emotional distress and was entitled to compensation for this injury Consequently, the City's motion for a new trial is denied.
III. Attorney's Fees
Uddin also moves for attorney's fees under 42 U.S.C. § 2000e-5(k), which provides that "the court, in its discretion, may allow the prevailing party" "reasonable attorney's fee (including expert fees) as part of its costs." Specifically, he seeks to recover attorney's fees in the amount of $35,079, reflecting 127.56 hours expended in preparation for trial at a billing rate of $275.
The application is granted in full. Uddin originally filed his complaint pro se and represented himself through the summary judgment stage of this litigation. Shortly after defeating summary judgment on his Title VII claims, he hired his present counsel, Antonia Kousoulas, who prepared for trial and successfully presented Uddin's case to the jury. According to contemporaneous billing records submitted in conjunction with this motion, Uddin hired Ms. Kousoulas in May of this year (Kousoulas Decl. Ex. B), and consequently she had only three months to prepare for trial from a standing start. Plaintiff's case-in-chief consisted of seven witnesses and numerous documents, and undoubtedly required a considerable amount of time and effort in order to ensure an effective presentation of the case. It is quite appropriate that presenting such a case would require roughly two to three weeks of full-time preparation, and thus the time expended in preparation for trial seems well within reason. Moreover, the preparation actually accomplished by Ms. Kousoulas was evident in the effectiveness with which she presented the case. She was organized, efficient, and in full control of the documentary record, in a manner that could have only been the result of long hours of rigorous study and analysis of the material, and hard thought about strategy. Those hours of work paid off both in skillful advocacy of Uddin's position, and in the saving of court and jury time at trial.
Nor is the hourly billing rate of $275 excessive. In determining the reasonable hourly rate to be applied, district courts must look to market rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputations." Gierlinger v. Gleeson, 160 F.3d 858, 882 (2d Cir. 1998). Courts in this district have determined that an hourly rate of $300 is reasonable for fee awards in civil rights cases for attorneys with ten to fifteen years of experience. Marisol v. Giuliani, 111 F. Supp.2d 381, 386 (S.D.N.Y. 2000). Ms. Kousoulas has been practicing since 1989. (Kousoulas Decl. ¶ 1.) In addition. she has provided affidavit testimony establishing that a rate of $275 is within the range of market rates for attorneys with comparable experience. (Id. Ex. A ¶ 4 )
In light of the hours worked in preparing for this case and the reasonableness of the rate charged, an award of attorney's fees in the amount of $35,079 is appropriate.
Conclusion
For the forgoing reasons, the City's motion for judgment as a matter of law, or in the alternative for a new trial, is denied. Plaintiff's motion for attorney's fees is granted.
SO ORDERED: