Lee v. City of Syracuse

446 F. App'x 319

• Court: Court of Appeals for the Second Circuit
• Decided: October 27, 2011
• Docket: 10-3206-cv(L); 10-3304-cv(XAP); 10-3308-cv(XAP)
• Status: Unpublished

Opinion

SUMMARY ORDER

The defendants make a cavalcade of arguments. First, they argue that the district court erred by denying the City’s motion for judgment as a matter of law on Lee’s Monell claim. 1 We review a district court’s denial of a motion for judgment as a matter of law de novo and draw all reasonable inferences in favor of the non-moving party. Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir.2010). Here, the jury found that the Syracuse Police Department had a custom and practice of retaliating against employees who complained about discrimination. The City argues that the jury’s finding that Deputy Chief Heenan — the only individual defendant before the jury — did not violate Lee’s constitutional rights precludes Mo-nell liability, and that therefore, the district court improperly denied the City’s motion for judgment as a matter of law. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986).

A jury’s finding that no individual committed a constitutional violation precludes municipal liability for that individual’s acts. Heller, 475 U.S. at 799, 106 S.Ct. 1571. Municipal liability under § 1983 can only be predicated on individual wrongdoing that is carried out in accordance with a municipal policy, custom, or practice. Thus, the dispositive issue is whether the plaintiff pleads an injury caused by individual wrongdoing that is in accordance with a municipal policy, custom, or practice.

Viewing the evidence in the light most favorable to Lee, it is clear that Lee pleaded and proved numerous retaliatory acts by individuals other than Heenan, and that these acts were the result of the Syracuse Police Department’s custom and practice of retaliating against employees who complained about discrimination. As the district court explained, the City “concede[d] there were other decision-makers who took action against [Lee] after her protected activity.” Since Heenan was not the only wrongdoer, the jury’s finding that he did not violate Lee’s constitutional rights does not shield the City from Monell liability. There was a legally sufficient evidentiary basis for the jury to conclude that an individual within the Syracuse Police Department violated Lee’s constitutional rights by retaliating against her for complaining about discrimination, and that the retaliation was caused by a City custom or practice.

Second, defendants argue that plaintiff failed to present sufficient evidence that the emotional distress and rep-utational harm damages she claimed were caused by their retaliatory conduct. See Patrolmen’s Benevolent Ass’n v. City of New York, 310 F.3d 43, 55 (2d Cir.2002) (“[T]he mere fact that a constitutional deprivation has occurred does not justify the award of [emotional distress] damages; the plaintiff must establish that she suffered an actual injury caused by the deprivation.”). However, in their motion for judgment as a matter of law, the defendants asked the district court to dismiss plaintiffs claims only “to the extent [she] seeks economic damages.” Defendants’ causation challenge to plaintiffs emotional distress and reputation damages is therefore waived. See Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 287 (2d Cir.1998) (holding that a motion for judgment as a matter of law must be “sufficiently specific to alert the opposing party to the supposed deficiencies in her proof’).

Third, defendants argue that the court abused its discretion by admitting testimony by other female Syracuse Police Department officers regarding their own experiences of being retaliated against after complaining about gender discrimination. Defendants argue that the testimony of two of the witnesses was unhelpful to plaintiffs Monell claim because those officers were not disciplined after complaining about gender discrimination, but rather were retaliated against in other ways. However, the jury was not instructed that to find against the City on the Monell claim it had to find a policy of retaliation by discipline. Rather, the charge correctly asked the jury to determine whether the Department “has a pervasive and widespread custom or policy of retaliating against police officers who complain of discrimination.” Similarly, the jury instruction defining a “materially adverse employment action” was not limited to disciplinary actions. Accordingly, the district court did not err by admitting this testimony.

Similarly, we reject defendants’ argument that the district court abused its discretion by admitting another officer’s testimony that her supervisor allowed male employees to watch pornography at work. This testimony was necessary background for the officer’s subsequent testimony that after she filed a complaint about the pornography she was disciplined by Captain Rathbun for conduct for which other officers were not disciplined—testimony that was clearly relevant to plaintiffs Monell claim.

Fourth, defendants argue that the jury’s award of $400,000 for plaintiffs Title VII and Monell retaliation claims was excessive. However, viewing the evidence in the light most favorable to plaintiff, plaintiff demonstrated that the defendants engaged in numerous acts of retaliation of varying degrees of severity over a period of several years, causing plaintiff intense emotional distress. As long ago as 2002, we sustained a $400,000 verdict in a retaliation ease brought by another female police officer on similar facts. See Phillips v. Bowen, 278 F.3d 103, 110-12 (2d Cir.2002) (noting evidence of ongoing harassment by defendants over five years, testimony about plaintiffs emotional distress, and defendants’ unapologetic defense of their treatment of plaintiff). Accordingly, we reject defendants’ argument that the verdict in this case was excessive.

Fifth, defendants claim that the jury’s damages award of $200,000 for plaintiffs Title VII retaliation claim and $200,000 for her Monell retaliation claim was duplicative, and that the district court therefore erred by denying their motion to reduce the jury’s award by half. See Bender v. City of New York, 78 F.3d 787, 793 (2d Cir.1996) (“If two causes of action provide a legal theory for compensating one injury, only one recovery may be obtained.”). However, as defendants ac knowledged in their post-argument letter to this court, they never requested a dupli-cative damages instruction. While defendants did challenge the district court’s proposed verdict form, they argued only that the form created a substantial risk of duplication amongst “three potential damages under each cause of action” (ie., (1) emotional distress damages, (2) reputational damages, and (3) economic damages). Defendants made no objection to the form’s duplication of causes of action, which is the argument that defendants now press on appeal. Thus, this argument was not properly preserved.

To the extent that defendants claim that the district court’s failure to use a duplicative damages instruction or an alternative verdict form amounted to plain error, we disagree. Unlike the verdict in Bender, where we did find plain error, the damages award in this case was (as noted above) not excessive, undercutting any inference that the award was “highly likely to have been artificially inflated by duplication of awards among causes of action.” 78 F.3d at 794-95; see also Martinez v. The Port Auth. of N.Y & N.J., 445 F.3d 158, 161 (2d Cir.2006) (rejecting duplica-tive damages argument where defendants “failed to establish with any degree of certainty that such double-counting actually or likely occurred in this particular case” (internal quotation marks omitted)). Under these circumstances, we cannot conclude that the district court’s failure to use a duplicative damages instruction or an alternative verdict form was plain error.

Sixth, we reject defendants’ argument that plaintiffs counsel improperly sought punitive damages—which were not available in this action—by telling the jury during her closing argument to “send a message” to the Syracuse Police Department that it should not retaliate against women who complain about gender discrimination. See Ramirez v. N.Y.C. Off-Track Betting Corp., 112 F.3d 38, 40 (2d Cir.1997) (rejecting argument that use of the phrase “send a message” amounts to de facto request for punitive damages).

We also reject plaintiffs arguments on cross-appeal. Plaintiff suggests that the district court abused its discretion by awarding attorneys’ fees at an hourly rate of $210, rather than $275. However, as we have recently held, an award of $210 per hour for an experienced civil rights attorney in the Northern District of New York “is located within the range of permissible decisions and does not rest on an erroneous view of the law.” Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277, 290 (2d Cir.2011) (internal quotation marks omitted).

Nor did the district court err in granting summary judgment on plaintiffs sex discrimination claims. First, all of plaintiffs evidence that she herself was denied overtime assignments on the basis of her gender occurred outside of the statute of limitations period for her second lawsuit. Second, while plaintiff may have been denied the opportunity to attend medical appointments during work hours, plaintiff failed to present any evidence that men who work for the department were allowed to go to medical appointments during work hours. Finally, the district court correctly determined that plaintiffs evidence (including her own deposition testimony) suggested that she was disciplined because the defendants sought to retaliate against her, not because the defendants sought to discriminate against her on the basis of her gender.

We have considered all of the parties’ remaining arguments and find them to be without merit.

AFFIRMED.

1 . In Monell v. Department of Social Services, the Supreme Court held that in order to establish municipal liability pursuant to 42 U.S.C. § 1983, a plaintiff must demonstrate an injury caused by a municipal policy, custom, or practice. 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).