18-3148-cv Sooroojballie v. Port Authority of New York & New Jersey and Gary Frattali
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of June, two thousand twenty.
PRESENT: ROBERT D. SACK, PETER W. HALL, JOSEPH F. BIANCO, Circuit Judges.
NEIL SOOROOJBALLIE,
Plaintiff-Appellee, 18-3148-cv
v.
PORT AUTHORITY OF NEW YORK & NEW JERSEY, GARY FRATTALI, INDIVIDUALLY,
Defendants-Appellants.
FOR PLAINTIFF-APPELLEE: MARJORIE MESIDOR, Phillips & Associates, PLLC (Stephen Bergstein, Bergstein & Ullrich, LLP, on the brief), New York, New York.
FOR DEFENDANTS-APPELLANTS: KATHLEEN GILL MILLER, The Port Authority of New York and New Jersey, New York, New York. Appeal from a judgment of the United States District Court for the Eastern District of New
York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED IN
PART, and the case is REMANDED for further proceedings.
The Port Authority of New York and New Jersey (“the Port Authority”) and Gary Frattali
(collectively, “defendants”) appeal from the judgment of the United States District Court for the
Eastern District of New York, entered on October 5, 2018. Plaintiff Neil Sooroojballie
commenced this action against his former employer and supervisor under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and 42 U.S.C. § 1981, alleging employment
discrimination on the basis of his race and national origin. On September 17, 2018, a jury found
in favor of Sooroojballie on his hostile work environment claim under Title VII and § 1981,
awarding him compensatory damages in the amount of $2,160,000 against the Port Authority and
Frattali, and punitive damages in the amount of $150,000 against Frattali. Defendants challenge
the judgment on the following grounds: (1) the district court should have dismissed the § 1981
claim against the Port Authority at summary judgment because Sooroojballie failed to offer
evidence of a municipal policy or custom as required under that statute; (2) the district court erred
in allowing time-barred acts and allegedly retaliatory acts to be considered by the jury with respect
to the hostile work environment claim, and the admissible evidence was insufficient to support the
jury’s verdict as a matter of law; (3) the district court erred in its instructions to the jury; (4) the
awards for compensatory and punitive damages were excessive, and Frattali was improperly
precluded from introducing evidence of his finances in connection with the punitive damages
award; and (5) the award for attorneys’ fees and costs was excessive. We assume the parties’
2 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Section 1981 Claim Against the Port Authority 1
Defendants argue that the district court erred in concluding that, because the Port Authority
is not a municipality, and Frattali is not being sued in his official capacity, there was no
requirement that Sooroojballie demonstrate the existence of a policy or custom under Monell v.
Department of Social Services of City of New York, 436 U.S. 658 (1978). See also Patterson v.
County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“[W]hen the defendant sued for
discrimination under § 1981 or § 1983 is a municipality—or an individual sued in his official
capacity—the plaintiff is required to show that the challenged acts were performed pursuant to a
municipal policy or custom.” (citations omitted)).
As an initial matter, Sooroojballie asserts that this challenge is waived because the Port
Authority failed to renew it at trial. We disagree. Although a motion at trial pursuant to Rule
50(a) of the Federal Rules of Civil Procedure is necessary to preserve a challenge to the sufficiency
of the evidence, “where the trial court’s denial of a summary judgment motion is not based on the
sufficiency of the evidence, but on a question of law, the rationale behind Rule 50 does not apply,
and the need for such an objection is absent.” Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir.
2004). Here, the district court’s determination was not based upon any disputed facts about the
Port Authority’s structure or purpose, but rather was a legal determination regarding its legal
status. 2 Thus, the Port Authority’s challenge to that summary judgment decision was not waived,
1 After this lawsuit was filed, this Court held that § 1981 does not confer a private right of action against state actors because 42 U.S.C. § 1983 already contains such a remedy. Duplan v. City of New York, 888 F.3d 612, 620-21 (2d Cir. 2018). Thus, we construe Sooroojballie’s claim to be brought under § 1983. See id. 2 Although Sooroojballie suggests that he has been prejudiced because he could have offered evidence of a policy or custom if defendants had raised this issue at trial under Rule 50, that assertion is undermined by his failure to offer any such factual evidence in response to defendants’ summary judgment motion, which
3 and the legal issues underlying the denial of summary judgment are subject to de novo review.
Keeling v. Hars, 809 F.3d 43, 47 (2d Cir. 2015).
The Port Authority is “a body corporate and politic” created in 1921 by an interstate
compact between New Jersey and New York that was approved by Congress, see N.Y. Unconsol.
Law § 6451 (McKinney 1922); N.J. Stat. Ann. § 32:1-25 (West 1922); see also 42 Stat. 174 (1921),
and is referred to “as the municipal corporate instrumentality of the two states for the purpose of
developing the port” of New York, N.Y. Unconsol. Law § 6459 (McKinney 1922). The Supreme
Court, in Hess v. Port Authority Trans-Hudson Corporation, acknowledged that the Port Authority
has been characterized as “a state arm or agency” and as “[a] discrete entity created by
constitutional compact among three sovereigns” that “is financially self-sufficient.” 513 U.S. 30,
38 n.8 & 52 (1994); see also N.Y. Unconsol. Law § 6416 (McKinney 1979) (noting that the Port
Authority would be funded by New York and New Jersey until it could “meet all expenditures”
itself); N.J. Stat. Ann. 32:1-16 (West 1990) (same). Moreover, the Port Authority “shall be
regarded as performing an essential governmental function in undertaking the effectuation” of its
purposes. N.Y. Unconsol. Law § 6610 (McKinney 1962); N.J. Stat. Ann. § 32:1-35.4 (West 1990).
Given the structure, funding, and purpose of the Port Authority, the Port Authority stands in the
shoes of a municipality for purposes of § 1981 or § 1983, and the district court erred in concluding
otherwise. Cf. Raysor v. Port Auth. of New York & New Jersey, 768 F.2d 34, 38 (2d Cir. 1985)
(“[T]he section 1983 claim against the Port Authority was properly dismissed because there was
no showing that the injury was caused by execution of a custom or policy of the Port Authority, as
required by Monell . . . .”). Accordingly, because of Sooroojballie’s failure to offer any evidence
specifically argued that evidence of a policy or custom was required for liability against the Port Authority under § 1981. Instead of offering such evidence in his opposition papers, Sooroojballie merely cited case authority relating to the standard under Title VII for imputing liability to an employer.
4 of a policy or custom that was linked to the alleged constitutional deprivation in the case, the
district court erred in failing to dismiss the Monell claim against the Port Authority on summary
judgment as a matter of law. 3
II. Hostile Work Environment 4
Defendants argue that the district court failed to exclude improper evidence at trial. In
particular, defendants assert that certain acts that were time-barred were improperly introduced to
the jury. Moreover, defendants contend that Sooroojballie was permitted to testify about his
alleged retaliation, a claim dismissed by the district court on summary judgment. Defendants
claim that, if this evidence were properly excluded, the non-time-barred acts would be insufficient
as a matter of law to support the hostile work environment claim.
To prevail on a hostile work environment claim, a plaintiff must prove: “(1) that the
harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment[;] and (2) that a specific basis exists for imputing the
objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)
(quotation marks omitted). “[A] plaintiff need not show that h[is] hostile working environment
was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a
sufficient combination of these elements, to have altered h[is] working conditions.” Redd v. New
3 We note that the absence of a § 1983 claim against the Port Authority due to a lack of proof of a policy or custom does not affect the Port Authority’s liability on the Title VII claim, up to the statutory cap of $300,000. See 42 U.S.C. § 1981a(a)(1), (b)(3)(D). Nor does this conclusion affect Frattali’s separate liability as an individual under § 1983 for his involvement in creating the hostile work environment. See Patterson, 375 F.3d at 226 (“[I]ndividuals may be held liable under §§ 1981 and 1983 for certain types of discriminatory acts, including those giving rise to a hostile work environment.”). 4 We analyze the hostile work environment claims under Title VII and § 1983 together because, on the issues raised by defendants (except as otherwise indicated), the standard is identical. See Patterson, 375 F.3d at 225-27 (comparing hostile work environment claims under Title VII with such claims under §§ 1981 and 1983).
5 York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (quoting Pucino v. Verizon Commc’ns, Inc.,
618 F.3d 112, 119 (2d Cir. 2010)). “[T]he conduct complained of must be severe or pervasive
enough that a reasonable person would find it hostile or abusive, and the victim must subjectively
perceive the work environment to be abusive.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir.
2014). We may consider the following factors to determine whether an environment is hostile or
abusive: “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
1. Time-Barred Acts
Sooroojballie filed his discrimination and retaliation complaint with the Equal
Employment Opportunity Commission (“EEOC”) on July 11, 2014. In its order on the motion for
summary judgment, the district court found that all conduct that occurred prior to January 12,
2014––180 days before he filed his EEOC complaint––was time-barred. The acts that were thus
time-barred were: (1) Frattali’s denial of boiler training for Sooroojballie; (2) Frattali’s failure to
assist Sooroojballie with the Junior Supervisory Assessment (“JSA”) Evaluation, a process by
which the Port Authority fills supervisory positions, in June and August of 2013; (3) Frattali’s
refusal to approve a meal reimbursement for Sooroojballie in November 2013; and (4) the
December 30, 2013 counseling memorandum which alleged that Sooroojballie took an extra hour
of compensation time. Nevertheless, the district court concluded that such acts were admissible
as background evidence to the timely claim.
Defendants contend that this was error because a hostile work environment claim “cannot
be used to revive time-barred discrete acts of discrimination.” Reply Br. at 2 (citing Hughes v.
Xerox Corp., 37 F. Supp. 3d 629, 648 (W.D.N.Y. 2014) (explaining that a hostile work
6 environment claim is “not a vehicle for resurrecting time-barred claims”)). Moreover, defendants
argue that, although an employee could use prior discrete acts as “background evidence” in support
of a timely claim, there was no limiting instruction here to inform the jury that these time-barred
incidents were merely background and were not actionable.
We review a district court’s evidentiary rulings for abuse of discretion, and such rulings
will not be disturbed unless they are “manifestly erroneous.” SR Int’l Bus. Ins. Co. v. World Trade
Ctr. Props., LLC, 467 F.3d 107, 119 (2d Cir. 2006) (quoting Luciano v. Olsten Corp., 110 F.3d
210, 217 (2d Cir. 1997)). Upon review of the record, we find no abuse of discretion with respect
to these evidentiary rulings.
As a threshold matter, the time-barred evidence regarding non-discrete acts––including
lack of training, evaluations, and discipline––are admissible to prove a hostile work environment
claim under the continuing violation doctrine. Sooroojballie correctly relies on Davis-Garett v.
Urban Outfitters, Inc., where we reiterated that, “[a] charge alleging a hostile work environment
claim . . . will not be time barred so long as all acts which constitute the claim are part of the same
unlawful employment practice and at least one act falls within the time period.” 921 F.3d 30, 42
(2d Cir. 2019) (alterations in original) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 122 (2002)). In that case, we held that the district court erred when it held that it could not
consider time-barred events in connection “with [its] assessment of liability on the hostile work
environment claim.” Davis-Garett, 921 F.3d at 42. Those events included the denial of training
given to younger sales associates, the plaintiff’s assignment to “the most unpleasant and arduous
duties,” and “age-disparaging criticisms daily.” Id.
We similarly hold here that the time-barred evidence constitutes non-discrete acts that are
sufficiently related to the acts that occurred within the limitations period, in that the acts involved
7 the same individual (namely, Frattali) and were part of the same pattern of harassing conduct
towards Sooroojballie. Thus, such time-barred evidence was properly considered by the jury in
connection with the evidence of harassment that fell within the applicable limitations period. 5
2. Evidence of Retaliatory Acts
Defendants also argue that the district court erred when it permitted Sooroojballie to testify
that Frattali issued the counseling memoranda in retaliation for filing his complaint with the EEOC
office, given that his claims for retaliation and retaliatory hostile work environment were dismissed
on summary judgment. We disagree.
Although the district court dismissed the retaliation claims at the summary judgment stage,
we have observed that “one type of hostility can exacerbate” the effect of another. Terry v.
Ashcroft, 336 F.3d 128, 150 (2d Cir. 2003). It follows that “hostile racial attitudes could have
exacerbated the [effect] of retaliation-based . . . hostility and vice versa.” Id. In this case, while
Sooroojballie alleged that the counseling memoranda were produced to retaliate against his filing
of the EEOC complaint, it was permissible for the jury to consider whether the counseling
memoranda were also issued based on Frattali’s racial and national origin animus and contributed
to Sooroojballie’s hostile work environment. See id. (observing that a reasonable factfinder could
conclude that both racial animus and a retaliatory motive played roles “in the creation of a hostile
5 In any event, to the extent that any of this time-barred evidence could be construed as a discrete act of discrimination outside the scope of the continuing violation doctrine, the district court correctly determined that such evidence is admissible as background to the acts that fall within the limitations period. See Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (“[E]vidence of earlier promotion denials may constitute relevant ‘background evidence in support of a timely claim.’” (quoting Morgan, 536 U.S. at 113)). Although defendants point to the lack of a limiting instruction to that effect, defendants did not request one and it was not plain error for the district court to fail to give such an instruction sua sponte. See Barrett v. Orange Cty. Human Rights Comm’n, 194 F.3d 341, 348 n.1 (2d Cir. 1999). Moreover, with respect to the hostile work environment claim against Frattali under § 1983, this timeliness argument would independently fail because the statute of limitations applicable to claims brought in New York under that statute is three years. See Patterson, 375 F.3d at 225.
8 work environment”); cf. Feingold v. New York, 366 F.3d 138, 151 (2d Cir. 2004) (“[W]hile
Feingold has not alleged sufficient facts to make out a hostile work environment claim based solely
on race, his allegations of racial animosity can nevertheless be considered by a trier-of-fact when
evaluating Feingold’s religion-based claim.”). Therefore, the district court did not abuse its
discretion in allowing the counseling memoranda to be considered by the jury in connection with
the hostile work environment claim.
3. Sufficiency of the Evidence
Defendants also challenge the sufficiency of the evidence supporting the hostile work
environment claim. We have explained that, “[i]n reviewing the sufficiency of the evidence in
support of a jury’s verdict, we examine the evidence in the light most favorable to the party in
whose favor the jury decided, drawing all reasonable inferences in the winning party’s
favor.” Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir. 2005). As part of this analysis, “we
cannot weigh conflicting evidence, determine the credibility of witnesses, or substitute our
judgment for that of the jury.” Id. at 292. In requesting that this Court disturb the jury’s verdict,
defendants “bear a heavy burden.” Id.
Sooroojballie testified that, on three occasions, Frattali made discriminatory comments to
him about his race and national origin. First, Sooroojballie testified that Frattali stated, in reference
to his national origin, “what is it with you type of people[?] I have two more that’s driving me
crazy, and now I have you to deal with.” J.A. at 514. Second, Sooroojballie testified that Frattali,
after a water leak sprung, yelled at him: “You fucking Indian asshole. Shut the pump down. Are
you stupid? . . . That’s why you people are the way you are.” Id. at 543. Third, Sooroojballie
asserted that Frattali told him that he was a “wanna be” in that “[y]ou Indians want to be
Americans,” even though Sooroojballie is a U.S. citizen. Id. at 544. On the same occasion, Frattali
9 told Sooroojballie that he was “not white” and to “go back to [the] country where [he] came from.”
Id. at 544, 705.
Defendants deny that Frattali made these comments and emphasize that these statements
were uncorroborated by any of Sooroojballie’s coworkers, and no other employee of color testified
about Frattali engaging in racially hostile behavior. Defendants further assert that three remarks
over a 12-to-14-month period, after Sooroojballie had worked for two and one-half years under
Frattali without any incident, cannot constitute an objectively hostile work environment.
As a threshold matter, the jury was entitled to consider and weigh the credibility of
Sooroojballie’s testimony regardless of whether it was corroborated. See Sorlucco v. New York
City Police Dep’t, 971 F.2d 864, 875 (2d Cir. 1992) (“The jurors heard both the testimony of [the
plaintiff] on the point and that of [another witness], which tended to contradict it. They were free
to settle upon which witness they believed.”); cf. Owens v. New York City Hous. Auth., 934 F.2d
405, 410 (2d Cir. 1991) (contention that the plaintiff’s evidence is “uncorroborated and not
credible is a jury argument inappropriate on a motion for summary judgment where every
reasonable inference is to be drawn in favor of the non-movant”). There is no basis to disturb the
jury’s credibility findings.
Moreover, the jury was entitled to consider those comments in conjunction with evidence
of Frattali’s other harassing conduct in determining whether the totality of the circumstances
created a hostile work environment for Sooroojballie. See Alfano, 294 F.3d at 378 (“Facially
neutral incidents may be included, of course, among the ‘totality of the circumstances’ that courts
consider in any hostile work environment claim” as long as there is “some circumstantial or other
basis for inferring that incidents sex-neutral on their face were in fact discriminatory.”). In
particular, Sooroojballie submitted evidence that Frattali intentionally interfered with
10 Sooroojballie’s professional advancement and potential promotions, drafted a series of false
counseling memoranda, and falsely accused Sooroojballie of committing vandalism by
intentionally sabotaging a boiler. There was more than sufficient basis, given the circumstances
surrounding these race-neutral acts, and Sooroojballie’s testimony regarding Frattali’s comments,
for the jury to consider these acts in connection with the hostile work environment claim. For
example, Sooroojballie testified that Frattali conveyed to him that, if Sooroojballie declined the
watch engineer position, Frattali would “stop writing [Sooroojballie] up, he’s going to stop
harassing [him], and he’s going to stop doing whatever he was doing.” J.A. at 541. Sooroojballie
eventually rejected the offer for the position. In short, when considered in conjunction with
Frattali’s remarks, it was reasonable for the jury to infer that Frattali sought to interfere with
Sooroojballie’s employment in these various ways because of his race and national origin. Cf.
Owens, 934 F.2d at 410 (“While the statements presented were not numerous, they were made by
individuals with substantial influence over [the plaintiff’s] employment.”).
Accordingly, viewing the evidence of the harassing conduct Sooroojballie faced—
including the offensive comments, the inability to advance within the Port Authority, the
counseling memoranda, and the accusation of vandalism—in the light most favorable to him, there
was more than sufficient evidence for the jury to find that Sooroojballie was subjected to a hostile
work environment based upon his race and national origin, and thus the jury’s findings must not
be disturbed.
III. Jury Instructions
Defendants take issue with two portions of the jury charge: the instruction on the effect
necessary to establish a hostile work environment claim, and the lack of a “business decision” or
“pretext” instruction. We review the district court’s jury instructions de novo and will reverse the
11 district court’s decision “only if the appellant shows that the error was prejudicial in light of the
charge as a whole.” Japan Airlines Co. v. Port Auth. of New York & New Jersey, 178 F.3d 103,
110 (2d Cir. 1999). “A jury instruction is erroneous if it misleads the jury as to the correct legal
standard or does not adequately inform the jury on the law.” Perry v. Ethan Allen, Inc., 115 F.3d
143, 153 (2d Cir. 1997) (quoting Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)).
First, defendants object to the hostile work environment charge in that it did not state that
the hostility must “alter” the terms of conditions of employment; rather, the district court’s
instruction provided that the environment must have “affected a term, condition, or privilege of
employment.” J.A. at 1334 (emphasis added). However, when the district court further defined
hostile work environment, it instructed that “based upon the totality of the circumstances, the
plaintiff must prove, by a preponderance of the evidence, that the workplace was permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the plaintiff’s employment and create an abusive working environment.” Id. at 1335
(emphasis added). Reviewing the instruction as a whole, the use of the term “affected” in addition
to the term “alter” did not lower Sooroojballie’s legal burden or prejudice defendants in any way.
Second, defendants claim the district court improperly declined to charge the jury on
“business decision” and “pretext” to guide the jury in evaluating the non-discriminatory reasons
proffered by defendants for certain actions. When read in context, it is clear that the instruction
that the district court read to the jury did not contain prejudicial error. The district court correctly
instructed the jury that, as one of the elements, Sooroojballie was required to “establish that he
was harassed because of his race and/or national origin.” J.A. at 1335. The district court was not
required to specifically instruct on business decision or pretext, which could have potentially
confused the jury in the context of a hostile work environment case which centered not on any
12 particular business decision, but on harassing comments based on race and national origin. See
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 155 (2d Cir. 2010) (“[W]e think it is unwise for a
court to charge the jury that a plaintiff must prove that the employer’s explanation of an adverse
action was a ‘pretext.’ Such an instruction has a likelihood of confusing the jury and adding
inappropriately to the plaintiff’s burden.”). In any event, defendants suggested legitimate reasons
for Frattali’s actions throughout the trial, and were free to argue in summation, as they did, that
Frattali’s decisions were sound and not because of Sooroojballie’s race or national origin.
Therefore, the district court properly instructed the jury on the elements of a hostile work
environment claim, and it did not err when it declined to give a jury instruction on business
decision or pretext.
IV. Damages
1. Emotional Distress Damages
Sooroojballie was awarded $2,160,000 in emotional distress damages, which defendants
argue is excessive. The “calculation of damages is the province of the jury.” Ismail v. Cohen, 899
F.2d 183, 186 (2d Cir. 1990). Although “[w]e are required to police closely the size of awards
rendered in the trial courts within our Circuit,” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 147
(2d Cir. 2014), we will not “vacate or reduce a jury award merely because we would have granted
a lesser amount of damages,” Lore v. City of Syracuse, 670 F.3d 127, 177 (2d Cir. 2012) (quoting
Nairn v. Nat’l R.R. Passenger Corp., 837 F.2d 565, 566-67 (2d Cir. 1988)). Therefore, on review,
we consider “whether the award is so high as to shock the judicial conscience and constitute a
denial of justice.” DiSorbo v. Hoy, 343 F.3d 172, 183 (2d Cir. 2003) (quoting Mathie v. Fries, 121
F.3d 808, 813 (2d Cir. 1997)). In making that determination, “we are bound by precedent
to compare the awards in this case with the awards in analogous cases.” Id. at 176. Defendants
13 contend that the district court erred in refusing to grant a remittitur or, alternatively, a new trial on
damages. We review the district court’s decision for abuse of discretion. Cross v. New York City
Transit Auth., 417 F.3d 241, 258 (2d Cir. 2005).
If an appellate court concludes that an award for damages is excessive, it is not necessary
for the court to order a new trial. Instead, like a district court, “[i]t may give plaintiff an alternative
by ordering a new trial unless plaintiff will consent to a remittitur in a specified amount.” 11
Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2820
(2d ed. 1995); see also Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (finding
remittitur appropriate when “the award is ‘intrinsically excessive’ in the sense of being greater
than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to
a particular, quantifiable error” (quoting Trademark Research Corp. v. Maxwell Online, Inc., 995
F.2d 326, 337 (2d Cir. 1993))). We have often invoked this option to set the remittitur when it is
determined on appeal that the amount of damages cannot stand as a matter of law. See, e.g.,
Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 51-52 (2d Cir. 2015) (ordering “a
new trial limited to the issue of damages unless [the plaintiff] agrees to a remittitur reducing the
$1,000,000 compensatory damages award to $100,000”); Stampf v. Long Island R.R. Co., 761 F.3d
192, 211 (2d Cir. 2014) (remanding “with instructions to grant a new trial on the issue of damages
unless [the plaintiff] agrees to a remittitur reducing her award for past emotional distress to
$100,000, her award for future emotional distress to $20,000, and her award for punitive damages
to $100,000”); DiSorbo, 343 F.3d at 176 (remanding “for a new trial on damages, unless the
plaintiff agrees to remit, resulting in $250,000 in compensatory damages and $75,000 in punitive
damages”); Lee v. Edwards, 101 F.3d 805, 813 (2d Cir. 1996) (remanding for a new trial “unless
[the plaintiff] agrees to remit $125,000, and accepts a punitive damage award of $75,000”).
14 In assessing whether a jury award for compensatory damages is excessive, courts in the
Second Circuit have routinely identified three categories of damages for emotional distress:
(1) garden variety; (2) significant; and (3) egregious:
In garden-variety claims, the evidence of emotional harm is limited to the plaintiff’s testimony, which describes his or her injuries in vague or conclusory terms, and fails to relate the severity or consequences of the injury. These claims typically lack extraordinary circumstances and are not supported by medical testimony. Significant emotional distress claims are based on more substantial harm or offensive conduct and may be supported by medical testimony, evidence of treatment by a healthcare professional, and testimony from other witnesses. Egregious emotional distress claims yield the highest awards and are warranted only where the employer’s conduct was outrageous and shocking or affected the physical health of the plaintiff.
Maher v. All. Mortg. Banking Corp., No. 06-CV-05073 (DRH) (ARL), 2010 WL 3516153, at *2
(E.D.N.Y. Aug. 9, 2010) (citations omitted), report and recommendation adopted by 2010 WL
3521921 (E.D.N.Y. Sept. 1, 2010); accord Duarte v. St. Barnabas Hosp., 341 F. Supp. 3d 306,
319-20 (S.D.N.Y. 2018); see also Lore, 670 F.3d at 178.
In the instant case, utilizing this helpful framework, we conclude that Sooroojballie’s
emotional distress damages were significant based upon the evidence presented at trial.
Sooroojballie testified that, from the summer of 2013 until he left the Port Authority in October
2014, he suffered stress at work from the hostile work environment, resulting in insomnia, anxiety,
and depression, for which he was prescribed medication. He also testified about how the stress
strained his relationship with his family and led to his excessive drinking. There was further
evidence that, between May 2014 and January 2015, he attended 14 counseling sessions with social
worker Dr. Stanley Schneider, and continued to attend the sessions for one to two months after he
left the Port Authority.
In cases with “significant” emotional distress claims, awards “usually range from
$50,000.00 to $200,000.00,” but “[c]ourts have, in some instances, upheld awards exceeding
15 $200,000.00.” Emamian v. Rockefeller Univ., No. 07 CIV. 3919 (DAB), 2018 WL 2849700, at
*16, *18 (S.D.N.Y. June 8, 2018) (collecting cases). For example, in Emamian v. Rockefeller
University, the district court found that the distress resulting from discrimination was in the
significant range, given the plaintiff’s “own testimony regarding her mental state, her
trichotillomania[, a disorder that involves urges to pull out one’s body hair,] and physical
manifestations of her emotional suffering, as well as the corroborative medical testimony she
presented.” Id. at *17. The district court then reduced her $2 million jury award to $200,000. Id.;
see also Marchisotto v. City of New York, No. 05 CIV. 2699 (RLE), 2007 WL 1098678, at *10
(S.D.N.Y. Apr. 11, 2007) (finding $300,000 award for significant emotional distress was
reasonable where psychologist corroborated that the plaintiff suffered from posttraumatic stress
disorder, major depressive disorder, and had difficulty performing sexually), aff’d, 299 F. App’x
79 (2d Cir. 2008); Quinn v. Nassau Cty. Police Dep’t, 53 F. Supp. 2d 347, 363 (E.D.N.Y. 1999)
(holding that $250,000 award for emotional distress was not excessive where the plaintiff’s
testimony, corroborated by his social worker, established that he suffered from years of pervasive
and severe harassment).
Although Sooroojballie urges the Court to uphold the jury verdict because the emotional
distress supports an award in the “egregious” category, we find that argument unpersuasive. In
particular, Sooroojballie did not provide evidence of lasting psychological effects from the hostile
work environment, and had no further contact with his internist (who was treating his mental health
issues) after he began his new job with the City of New York on October 27, 2014. 6 See Menghi
v. Hart, 745 F. Supp. 2d 89, 107 (E.D.N.Y. 2010) (“Awards at the high end of the spectrum may
be warranted in cases that generally contain evidence of debilitating and permanent alterations in
6 Although Sooroojballie continued to see a social worker after he began his new job, he stopped doing so after one or two months.
16 lifestyle.” (quotation marks omitted)), aff’d, 478 F. App’x 716 (2d Cir. 2012). In short,
Sooroojballie’s evidence falls far short of the type of shocking, prolonged discriminatory conduct
and/or long-term emotional harm that are part and parcel of the larger damage awards that can be
sustained for egregious cases. See, e.g., Turley, 774 F.3d at 146, 163 (upholding an award of $1.32
million when the plaintiff was subjected to “an extraordinary and steadily intensifying drumbeat
of racial insults, intimidation, and degradation over a period of more than three years,” resulting
in post-traumatic stress disorder, short-term adjustment disorder, depression, a panic disorder, and
multiple hospitalizations). Here, Sooroojballie’s proof regarding emotional distress did not
contain the evidence of prolonged mental harm or negative, long-term prognosis that is typically
present in cases with awards around $500,000. See, e.g., Ramirez v. New York City Off–Track
Betting Corp., 112 F.3d 38, 40, 41 n.1 (2d Cir. 1997) (upholding district court’s decision to reduce
$1.14 million pain and suffering award to $500,000 in Title VII case where evidence demonstrated
that the plaintiff was unable to work and was “rendered permanently non-functional”); Ravina v.
Columbia Univ., No. 16-CV-2137 (RA), 2019 WL 1450449, at *12 (S.D.N.Y. Mar. 31, 2019)
(granting motion for remittitur and reducing award from $750,000 to $500,000 in a retaliation case
where the plaintiff suffered significant emotional distress; the plaintiff testified about her
“insomnia, a herniated disc, anxiety, weight gain, and suicidal thoughts” and her psychiatrist
testified that the plaintiff’s “prognosis was ‘poor’”); Komlosi v. Fudenberg, No. 88 CIV. 1792
HBP, 2000 WL 351414, at *17 (S.D.N.Y. Mar. 31, 2000) (awarding the plaintiff $500,000 for
non-economic loss where psychological injury “destroyed [the plaintiff’s] ability to practice his
profession”), aff’d, No. 01-89(XAP), 2002 WL 34244996 (2d Cir. May 13, 2002); see also Watson
v. E.S. Sutton, Inc., No. 02 CIV. 2739 (KMW), 2005 WL 2170659, at *15 (S.D.N.Y. Sept. 6, 2005)
(finding that $500,000 emotional distress damages was excessive, and noting that “[the plaintiff]
17 has not pointed us to any comparable cases–that is, cases with no permanent psychological damage
or disability resulting from the harassment–with awards so high as the one the jury here gave her”),
aff’d, 225 F. App’x 3 (2d Cir. 2006).
Therefore, on this record, the jury’s $2,160,000 award for emotional distress damages far
surpasses the upper limit of the reasonable range and “shock[s] the judicial conscience.” DiSorbo,
343 F.3d at 183. Instead, given the evidence in this case and our survey of comparable cases, we
conclude that $250,000 is the upper limit of the reasonable range for the significant emotional
distress that was described in Sooroojballie’s testimony. Accordingly, we grant a new trial as to
Sooroojballie’s emotional distress damages unless he accepts a remittitur of the award to
$250,000. 7
2. Punitive Damages
The jury also awarded Sooroojballie $150,000 in punitive damages against Frattali.
Defendants request that the punitive damages award be overturned on the ground that it is
unconstitutionally excessive. We review de novo a district court’s decision regarding the
constitutionality of a punitive damages award. See Cooper Indus., Inc. v. Leatherman Tool Grp.,
Inc., 532 U.S. 424, 436 (2001).
Judicial review of a due process challenge to a punitive damages award is guided by three
factors articulated by the Supreme Court: “(1) the degree of reprehensibility of the defendant’s
misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the
punitive damages award; and (3) the difference between the punitive damages awarded by the jury
and the civil penalties authorized or imposed in comparable cases.” State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 418 (2003) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
7 Because this amount is less than the $300,000 limit set forth by Title VII, we decline to resolve the Port Authority’s argument that the jury’s award exceeded the statutory cap at this juncture.
18 575 (1996)). To merit punitive damages, the evidence must demonstrate that the “defendant’s
conduct was driven by an evil motive or intent, or that it involved a reckless or callous indifference
to plaintiff’s federally protected rights.” Carrion v. Agfa Constr., Inc., 720 F.3d 382, 387 (2d Cir.
2013). If punitive damages are warranted, they should not “result in the financial ruin of the
defendant” or “constitute a disproportionately large percentage of a defendant’s net worth.”
Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992) (citing Smith v. Lightning Bolt Prods., Inc.,
861 F.2d 363, 373 (2d Cir. 1988)).
With respect to defendants’ argument that the award is excessive, after considering the
three Gore factors—reprehensibility, ratio to compensatory damages, and civil penalties
authorized and imposed—we conclude that a reduction of punitive damages is not warranted.
First, as to reprehensibility, we emphasize the malicious nature of Frattali’s discriminatory
conduct, including not only a pattern of harassing behavior, but also evidence of a false accusation
that Sooroojballie sabotaged equipment. See Thomas v. iStar Fin., Inc., 652 F.3d 141, 148 (2d
Cir. 2011) (explaining how “some courts have noted the relative reprehensibility of intentional
discrimination as distinguished from some other forms of purely economic injury” (citation
omitted)). The evidence of Frattali’s conduct and malicious motive provided the jury with more
than a sufficient basis for the jury’s decision to award punitive damages, and to do so in the amount
of $150,000.
Second, whether utilizing the original compensatory damage award or the remittitur of
$250,000, we find that the ratio between the compensatory damages award and punitive damages
award raises no constitutional issue. See Campbell, 538 U.S. at 425 (noting that a “[punitive
damages] award of more than four times the amount of compensatory damages might be close to
the line of constitutional impropriety”). In other words, the punitive damages are “reasonable and
19 proportionate to the amount of harm to the plaintiff and to the general damages recovered.” Id. at
426.
Finally, the civil penalties that have been authorized or imposed in comparable cases are
consistent with the $150,000 punitive damages award here. In the past, we have referred to the
amount set by the New York City Human Rights Law, which permits the imposition of civil fines
up to $250,000 for “unlawful discriminatory practice[s]” stemming from “willful, wanton or
malicious” conduct. N.Y.C Admin. Code § 8-126(a); see also Thomas, 652 F.3d at 149.
Moreover, the award here is not only well below that benchmark but is also consistent with
punitive damages awards in other discrimination cases. See Thomas, 652 F.3d at 149-50
(upholding district court’s remittitur of punitive damages award from $1.6 million to $190,000);
see also Lewis v. Am. Sugar Ref., Inc., 325 F. Supp. 3d 321, 370 (S.D.N.Y. 2018) (“Comparable
cases in the context of Title VII claims are constrained by the statutory caps, and have allowed
plaintiffs . . . to recover $300,000 [in punitive damages on state discrimination claims] or the
equivalent maximum statutory cap.”).
Defendants also argue that Frattali was denied due process when the district court
precluded testimony on his net worth. Generally, “the preferred method of [handling punitive
damages] is to delay trial as to the amount of an award of punitive damages until the usual issues
of liability and compensatory damages have been tried, along with the matter of whether the
defendant’s conduct warrants any award of punitive damages at all.” Smith, 861 F.2d at 374.
Then, if warranted, the parties may present evidence relevant to punitive damages. Id. We have
warned, however, that “[t]he incompleteness of the record as to [a defendant’s] net worth is not a
basis for reducing the punitive damages award against him, for it is the defendant’s burden to show
that his financial circumstances warrant a limitation of the award.” Id. at 373.
20 As Sooroojballie correctly points out, “[defendants’] counsel neither objected nor tried to
explain that she was trying to prove Frattali’s net worth in reference to the punitive damages
claim.” Appellee’s Br. at 54. At trial, defendants’ counsel provided no context for why counsel
was asking Frattali questions about the monetary loss he would suffer from being personally sued;
instead of explaining that it was required for the punitive damages analysis, in the midst of other
questioning, counsel simply stated to the district court that it was “in connection with that liability,”
without mentioning the issue of punitive damages. J.A. at 1253-54. Such a statement does not
adequately frame the potential relevance of the testimony for the district court on the issue of
punitive damages, and thus Frattali’s argument fails. See United States v. Pugliese, 712 F.2d 1574,
1580 (2d Cir. 1983) (“Unless the basis for proposed admission is obvious, it is the burden of
counsel who seeks admission to alert the court to the legal basis for his proffer.”).
Nor did defendants utilize other available avenues to present Frattali’s financial
circumstances. For example, defendants did not request a bifurcated trial on punitive damages,
see Smith, 861 F.2d at 374 (noting that “[t]he trial court was not required to order this bifurcation
sua sponte”), nor did defendants seek to have the court exercise its discretion to consider such
evidence in considering a motion to reduce the award by remittitur. Given Frattali’s role in
creating an incomplete record of his finances, we will not say that his due process rights were
violated in this case.
In sum, having analyzed the evidence in the record and the applicable law, we find no basis
to vacate or reduce the jury’s award of punitive damages against Frattali.
V. Attorneys’ Fee Award
On January 17, 2019, the district court granted Sooroojballie’s motion for attorneys’ fees
in the amount of $177,882.70, in an electronic docket entry which contained no reasoning. “We
21 review a district court’s award of attorney’s fees for abuse of discretion.” Cabala v. Crowley, 736
F.3d 226, 229 (2d Cir. 2013) (per curiam). We utilize this standard of review because “[t]he district
court observes the parties’ litigation directly and is thus best situated to consider the case-specific
factors relevant to a reasonable fee assessment.” Id.
Although we recognize that the abuse of discretion standard is a highly deferential one,
“‘abuse of discretion’ is not the equivalent of ‘unreviewable.’” In re Bolar Pharm. Co., Inc., Sec.
Litig., 966 F.2d 731, 732 (2d Cir. 1992) (per curiam). In the past, we have found an abuse of
discretion when district courts issued sanctions or deviated from the lodestar figure without
sufficient explanation. See, e.g., Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d
Cir. 2007); Cohen v. W. Haven Bd. of Police Comm’rs, 638 F.2d 496, 505-06 (2d Cir. 1980). In
this case, even though the district court approved the fee award without deviating from counsel’s
proposed lodestar figure, we are unable to assess the reasonableness of the fees in the absence of
any explanation by the district court. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“[T]he
district court [should] provide a concise but clear explanation of its reasons for the fee award.”).
In fact, the district court granted the fee application in full before defendants’ time to respond,
under the Federal Rules of Civil Procedure, had expired. 8 Because the district court granted the
motion without any legal analysis, we are unable to discern whether it applied the correct legal
standard and properly exercised its discretion in determining that the fee award was indeed
8 Pursuant to Local Civil Rule 6.1(b) of the Eastern District of New York, defendants’ opposition was due on January 18, 2019, fourteen days after Sooroojballie filed his motion on January 4, 2019. See also Fed. R. Civ. P. 6(a). The district court issued its electronic order on January 17, 2019. Sooroojballie counters that, although the district court granted his motion for fees before defendants had an opportunity to file opposition papers, defendants explained their position in their motion for reconsideration, which the district court also rejected. That argument, however, overlooks the fact that the standard of review is much higher on a motion for reconsideration, and that the denial of the motion for reconsideration was issued the same day that that motion was filed, in an electronic docket entry that also did not articulate the district court’s reasoning.
22 reasonable. See In re Bolar Pharm. Co. Sec. Litig., 966 F.2d at 732 (stating that “[i]f we are to be
satisfied that a district court has properly exercised its discretion, we must be informed by the
record of why the district court acted as it did”); see generally United States v. Cavera, 550 F.3d
180, 193 (2d Cir. 2008) (en banc) (“We cannot uphold a discretionary decision unless we have
confidence that the district court exercised its discretion and did so on the basis of reasons that
survive our limited review.”).
Accordingly, we remand the issue to the district court to allow it to fully consider
defendants’ opposition and to provide the grounds for its discretionary decision in connection with
the fees motion.
***
We have considered the parties’ remaining arguments and conclude that they are without
merit. For the foregoing reasons, we AFFIRM IN PART and VACATE IN PART the judgment
of the district court, and REMAND for proceedings consistent with this order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court