United States District Court, D. Connecticut
RULING AND ORDER
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Mariangelica Vera (“Vera”), filed this action
against her former employer, Alstom Power, Inc.
(“Alstom”), claiming sex discrimination and
retaliation in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”) and the Connecticut Fair
Employment Practices Act (“CFEPA”). A jury found
for Alstom on the sex discrimination claims, but found for
Vera on her claims that Alstom retaliated against her for
filing a complaint of discrimination with the Connecticut
Commission on Human Rights and Opportunities
(“CHRO”) by denying her a performance evaluation
and raise, and terminating her employment. The jury awarded
$500, 000 in non-economic damages and $350, 000 in punitive
damages. After the trial, the Court held an evidentiary
hearing and oral argument to determine back pay and other
relief. See Broadnax v. City of New Haven, 415 F.3d
265, 271 (2d Cir. 2005) (because back pay is an equitable
remedy under Title VII, a party is not entitled to a jury
ruling addresses two post-trial motions, as well as
Vera’s request for back pay. First, Alstom’s
Motion for Judgment as a Matter of Law or, In the
Alternative, a New Trial or Remittitur is GRANTED IN PART AND
DENIED IN PART. The Court denies Alstom’s motion for
judgment as a matter of law. The Court does not order a new
trial on the basis of a claimed error in an evidentiary
ruling, but does order a new trial on damages, unless Vera
agrees to remit the non-economic damages award to $125, 000
and remit the punitive damages award to $50, 000. Second,
because Alstom did not prove that Vera failed to mitigate her
damages, the Court awards $475, 345.65 in back pay (including
salary, bonuses, and 401(k) contributions), plus prejudgment
interest. Third, Vera’s Motion for Reinstatement or, In
the Alternative, an Award of Front Pay is GRANTED. The Court
orders Alstom to reinstate Vera.
Alstom’s Motion for Judgment as a Matter of Law or, In
the Alternative, a New Trial or Remittitur (ECF No. 141)
renews its motion under Federal Rule of Civil
Procedure 50(b) for judgment as a matter of law, arguing that
the jury’s verdict is unsupported by the evidence. In
the alternative, Alstom seeks a new trial on the ground that
an evidentiary ruling was error. Finally, Alstom seeks
reduction of the non-economic and punitive damages awards.
Judgment as a Matter of Law
standard governing a motion for judgment as a matter of law
is “appropriately strict.” Stubbs v.
Dudley, 849 F.2d 83, 85 (2d Cir. 1988). The motion
“may only be granted if there exists such a complete
absence of evidence supporting the verdict that the
jury’s findings could only have been the result of
sheer surmise and conjecture, or the evidence in favor of the
movant is so overwhelming that reasonable and fair minded
[persons] could not arrive at a verdict against [it].”
Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 112 (2d
Cir. 2015) (quoting Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 133 (2d Cir. 2008)). The Court must deny the
motion “unless, viewed in the light most favorable to
the nonmoving party, the evidence is such that, without
weighing the credibility of the witnesses or otherwise
considering the weight of the evidence, there can be but one
conclusion as to the verdict that reasonable [persons] could
have reached.” Cobb v. Pozzi, 363 F.3d 89, 101
(2d Cir. 2004) (internal quotation marks omitted). The
familiar McDonnell Douglas burden-shifting framework
applies to Alstom’s motion for judgment as a matter of
law. See Bucalo v. Shelter Island Union Free Sch.
Dist., 691 F.3d 119, 128 (2d Cir. 2012) (applying
McDonnell Douglas framework to Rule 50 motion in
Title VII retaliation case); see also Alfaro v. Wal-Mart
Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000)
(“[T]he same standard that applies to a pretrial motion
for summary judgment pursuant to Fed.R.Civ.P. 56 also applies
to motions for judgment as a matter of law during or after
trial pursuant to Rule 50.”) (quoting This Is Me,
Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998)).
those principles, the Court concludes that the jury
reasonably could have found that Vera’s protected
activity was a but-for cause, and motivating factor, in
Alstom’s decisions to deny her a performance evaluation
and raise, and terminate her employment.
initial matter, Vera established a close temporal proximity
between her protected activity and the adverse employment
actions she suffered. She filed a CHRO complaint on September
27, 2010. Ex. 48; Tr. 133. When Alstom received the
complaint, it had not yet selected Vera for termination. Tr.
267-68, 428, 638. A few weeks later, before the end of
October, Alstom decided to terminate Vera. See Id.
404, 638. Approximately six months after Vera’s CHRO
complaint, Alstom denied her a performance evaluation and
raise. See Id. 137, 613. Vera’s
supervisor’s supervisor, Bruce Buchholz, testified that
Alstom did not give Vera a performance evaluation because she
had been identified for termination. See Id. 613.
Joan Solnick, a human resources representative, testified
that Alstom did not give Vera a performance evaluation
because of her CHRO complaint. See Id. 271.
temporal proximity between Vera’s protected activity
and the adverse employment actions gives rise to an inference
of retaliation. See Zann Kwan v. Andalex Grp. LLC,
737 F.3d 834, 845 (2d Cir. 2013) (three-week period from
plaintiff’s complaint to her termination raised
inference of retaliation); Espinal v. Goord, 558
F.3d 119, 129-30 (2d Cir. 2009) (six-month period from
dismissal of plaintiff’s lawsuit to alleged retaliatory
beating supported inference of causal connection). Of course,
Vera needed to show more than temporal proximity to carry her
ultimate burden. See El Sayed v. Hilton Hotels
Corp., 627 F.3d 931, 933 (2d Cir. 2010) (temporal
proximity raises an inference of retaliation, but is alone
insufficient to show pretext). The Court concludes that Vera
did supplement her showing of temporal proximity with
evidence that, viewed in the light most favorable to her, is
sufficient to support the jury’s verdict.
the jury could have inferred retaliatory animus from the
reactions of Vera’s supervisor, Timothy Barry, and his
supervisor, Bruce Buchholz, upon learning that Vera had filed
a CHRO complaint. Barry learned the news while driving to a
school alumni event. Tr. 524. He was “disappointed,
surprised, [and] upset” and “so offended that
[he] had to pull over on the side of road and check [his]
blood pressure because [he] couldn’t believe it.”
Id. 506, 525-26. The jury could have found that
Buchholz was “surprised and offended” by the news
and said, “You’ve got to be kidding me.”
See Id. 267, 638. Shortly after Alstom decided to
terminate Vera, Barry received an e-mail indicating that Vera
had lost her e-mail access. He responded, “I think I
just peed a little.” Id. 510, 527; Ex. 51. The
jury could have disbelieved Barry’s explanation for
this remark, and concluded that he was excited at the
possibility of Vera’s termination. See Zellner v.
Summerlin, 494 F.3d 344, 371 (2d Cir. 2007) (in ruling
on motion for judgment as a matter of law, “the court
must bear in mind that the jury is free to believe part and
disbelieve part of any witness’s
testimony.”). The jury observed Barry and Buchholz while
they testified, and was free to give weight to their remarks
because they were supervisors involved in the decisions to
deny Vera an evaluation and terminate her employment. See
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir.
2010) (in determining whether a remark is probative of
discrimination, courts consider, inter alia, whether
supervisor or decision-maker made the remark).
the jury reasonably could have found that Alstom’s
proffered reason for terminating Vera - reducing head count -
was pretext. In 2010, Alstom sought to reduce head
count at the Windsor, Connecticut facility at which Vera
worked, and within the Heat Recovery Steam Generator
(“HRSG”) and Project Management groups to which
Vera belonged. See Ex. 514; Tr. 395-400. The head
count targets were “moving” for several months.
See Tr. 373-74; 610; Ex. 514, 515, 517. But by late
October, Alstom developed targets for its next fiscal year.
See Tr. 395-402; Ex. 517 at 20219-20; Def.’s
Mem. at 8. The head count target for the Project Management
group, previously set at twelve, was reduced to ten.
See Tr. 399-402; Ex. 514 at 20182; Ex. 517 at 20220;
Def.’s Mem. at 8.
later, Alstom selected individuals for termination.
See Tr. 402. Vera was among those selected.
Id. 403. Vera testified that, after layoffs were
announced in November, Barry indicated that the layoffs were
over. Id. 136.
months later, Alvaro Rodriguez, another project manager in
the Project Management group, resigned unexpectedly. See
Id. 63; 136-37; 641; 656. The jury reasonably could have
found that Rodriguez’s unexpected resignation obviated
the need to carry out Vera’s termination, which had not
yet been executed, because Alstom had selected Vera for
termination in order to meet head count targets on the
assumption that Rodriguez would stay, and the jury could have
discredited contrary testimony.
asked if his head count target changed between October 2010,
when Alstom decided to terminate Vera, and May 2011, when
Alstom notified Vera of her termination, Buchholz said that
the targets were “constantly fluctuating, ” but
referred to changes that led to the Project Management
group’s head count target of ten in October 2010.
See Tr. 614; 395-402; Ex. 514 at 20182; Ex. 517 at
20220; Def.’s Mem. at 8. Again, when asked if his
target in April 2011 was different than his target in October
2010, Buchholz recounted the changes that led to the Project
Management group’s head count target of ten in October
2010. See Tr. 652; 395-402; Ex. 514 at 20182; Ex.
517 at 20220; Def.’s Mem. at 8. In light of these
responses, the jury could have found untrustworthy
Buchholz’s testimony regarding head count targets
during the relevant period, and concluded that Vera’s
termination following Rodriguez’s resignation was
retaliatory. A finding that Buchholz’s explanations
were unworthy of credence may have been quite persuasive on
the question of whether Alstom’s true motivation was
retaliation. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 147 (2000) (“Proof that the
defendant’s explanation is unworthy of credence is
simply one form of circumstantial evidence that is probative
of intentional discrimination, and it may be quite
offered another reason for carrying out Vera’s
termination despite Rodriguez’s resignation: he would
have needed to submit a requisition to “fill that
position” and bring “that head count . . . back
into the organization[, ]” and requisitions were not
being approved at the time. Tr. 613-14, 642. The jury could
have disbelieved Buchholz and found that keeping Vera in the
position that she had held for twenty-four years and had not
yet been removed from would not have posed the insurmountable
administrative hurdle that Buchholz suggested. See
Zellner, 494 F.3d at 371. Similarly, while Alstom claims
that the decision to terminate Vera was “not
reversible” once it was in the hands of its lawyers,
Def.’s Mem. at 15, the jury could have drawn on its
common sense and concluded that Alstom was free to change its
mind and instruct its agents accordingly. Even Buchholz
testified that he “could have tried to change the
decision[.]” Tr. 644, 639.
the jury reasonably could have found that Alstom did not use
the same procedure in its 2010 round of layoffs as it did in
its 2009 round of layoffs to identify individuals for
termination. See Stern v. Trustees of Columbia
Univ., 131 F.3d 305, 314 (2d Cir. 1997) (where an
employer’s “deviat[ion] from its normal
decisionmaking procedures” resulted in the challenged
employment decision, an inference of pretext may arise).
Cheryl Wilner, a human resources director, agreed that
applying regular policies and procedures in selecting
employees for layoffs helps ensure that decisions are not
based on impermissible considerations. See Tr. 413.
Wilner and Barry seemed to testify that Alstom employed a
similar comparison and ranking procedure in the 2010 layoffs
as it did in the 2009 layoffs, but the jury could have found
their testimony suspect in light of Buchholz’s
admission that a document reflecting the comparison and
ranking procedure was created during the 2009 layoffs but not
during the 2010 layoffs. See Tr. 649-51. The jury
could have found that Alstom used a particular procedure in
the 2009 layoffs, but abandoned that procedure when deciding,
a few weeks after Vera’s CHRO complaint, who would be
terminated in the 2010 layoffs, and was free to infer that
Vera would have ranked well under the prior procedure, and
that Alstom abandoned that procedure in order to carry out
retaliation against her.
the temporal proximity between Vera’s protected
activity and the adverse employment actions, as well as the
evidence discussed supra, this is not a case where
“there exists such a complete absence of evidence
supporting the verdict that the jury’s findings could
only have been the result of sheer surmise and
conjecture[.]” Wiercinski, 787 F.3d at 112.
While Alstom offered reasons for its actions, the evidence
did not leave “but one conclusion” that those
were its true reasons. Cobb, 363 F.3d at 101.
Rather, the jury reasonably could have found that
Alstom’s explanations were not credible, and that Vera
was singled out for retaliatory reasons, and the Court will
not second guess the jury’s evaluation of the evidence.
Accordingly, the Court does not grant Alstom judgment as a
matter of law.
argues that the Court should order a new trial because it
improperly precluded evidence of the fact of settlement
negotiations that occurred during the period between
Alstom’s decision to terminate Vera and the execution
of that decision, and that this affected a substantial right
of Alstom’s. The Court disagrees.
district court may order a new trial under Federal Rule of
Civil Procedure 59 if an erroneous evidentiary ruling
affected a substantial right of the moving party. Lore v.
City of Syracuse, 670 F.3d 127, 155 (2d Cir. 2012)
(“[A]n erroneous evidentiary ruling warrants a new
trial only when ‘a substantial right of a party is
affected, ’ as when ‘a jury’s judgment
would be swayed in a material fashion by the
error.’”) (quoting Arlio v. Lively, 474
F.3d 46, 51 (2d Cir. 2007)). The standard governing a motion
for a new trial is “less stringent” than the
standard governing a motion for judgment as a matter of law,
in that (1) the court may order a new trial even if there is
substantial evidence supporting the jury’s verdict, and
(2) the Court may weigh the evidence and need not view it in
the light most favorable to the party that prevailed at
trial. Manley v. AmBase Corp., 337 F.3d 237, 244-45
(2d Cir. 2003). Still, the Court may only grant a motion for
a new trial “if the jury has reached a seriously
erroneous result or [its] verdict is a miscarriage of
justice, ” or “if substantial errors were made in
admitting or excluding evidence.” Stampf v. Long
Island R.R. Co., 761 F.3d 192, 202 (2d Cir. 2014)
(internal quotation marks and citations omitted).
noted supra, Alstom decided in October 2010 to
terminate Vera. But Alstom did not execute that decision in
November, when it terminated other employees. Instead, Alstom
notified Vera of her termination in May 2011, and her last
day was in June. According to Alstom, the delay between the
decision to terminate Vera and the execution of that decision
is attributable to two circumstances. First, Vera is married
to Alstom’s in-house employment counsel. Consequently,
Alstom retained outside counsel to offer advice with respect
to Vera’s termination. Second, Alstom’s outside
counsel and Vera’s counsel were engaged in settlement
negotiations during at least some of the period between
October 2010 and June 2011.
claims that the Court precluded it from “introduc[ing]
the fact of these negotiations to explain the timing of
plaintiff’s layoff, ” and precluded it from
having its witnesses testify that “the decision was
made in November and Alstom was simply waiting for its lawyer
to tell them when plaintiff would be terminated, not
if she would be laid off[.]” Def.’s Mem.
at 14, 19 (emphasis in original). The Court disagrees. The
evidentiary ruling was not error, and, in any event, did not
affect a substantial right of Alstom’s.
introduced evidence that she was the only employee terminated
in June 2011.Alstom’s counsel sought to rebut that
point with evidence that Alstom made the decision to
terminate Vera in October 2010, concurrent with its decision
to terminate other employees, and the reason it waited until
June 2011 to execute that decision was because settlement
negotiations occurred in the interim. See Tr. 284.
counsel raised concerns under Federal Rule of Evidence 408,
which provides that evidence of settlement negotiations is
not admissible to prove or disprove the validity or amount of
a disputed claim, or impeach by prior inconsistent statement,
but may be admissible “for another purpose, such as
proving a witness’s bias or prejudice, [or] negating a
contention of undue delay . . . .” Fed.R.Evid. 408.
Vera’s counsel also disputed the timing of the
settlement negotiations, and expressed concern that he may be
required to testify to rebut any contention that settlement
negotiations began before February 2011. Tr. 285-86.
Court told the parties that “Mr. Buchholz, Mr. Barry,
and I guess Ms. Solnick, they can testify as to when they
made the decisions.” Id. 290. Accordingly,
Alstom could offer evidence as to when it decided to
terminate Vera, and that evidence was admitted. Id.
address Alstom’s concerns about rebutting Vera’s
point that she was the only employee terminated in June 2011,
and showing that the timing of Vera’s termination was
the result of settlement negotiations, the Court sought
“a generic phrase that could be used that doesn’t
necessarily significantly undercut [Rule] 408, but then
allows you all to . . . rebut the notion that she has put
forward.” Id. 290. The Court allowed Alstom to
offer testimony that “there were discussions going on
between lawyers[.]” Id. 291.
next trial day, a witness testified that Alstom decided in
October 2010 to terminate Vera’s employment.
Id. 404. When Alstom’s counsel asked why Vera
was not laid off in November, counsel had a sidebar with the
Court. Id. The Court told Alstom’s counsel
that the witness could testify that “[s]he was waiting
for instruction from the lawyers. . . . [T]hat seems to get
to the fact that there was delay without getting us in
dangerous 40 territory.” Id. 405.
the examination of the witness, Alstom’s counsel asked
why it took so long to execute the termination of
Vera’s employment, and whether Alstom’s lawyer
advised the witness to wait. Id. 408-09. The witness
This is very hard to answer without talking. We just -- we
wanted a better resolution. We wanted to find a way to work
between both parties to resolve the issue.
Id. 409. The Court struck the last sentence of that
Court’s evidentiary ruling was essentially as follows.
Alstom’s witnesses could testify as to when they
decided to terminate Vera. See Id. 290 (“Mr.
Buchholz, Mr. Barry, and I guess Ms. Solnick, they can
testify as to when they made the decisions.”). To
explain the delay between that decision and its execution,
the Court, consistent with Alstom’s counsel’s
representation that “we need not characterize them as
settlement discussions, ” id. 287-88, allowed
Alstom to offer testimony that “there were discussions
going on between lawyers[, ]” id. 291, and
that Alstom was “waiting for instruction from the
lawyers[, ]” id. 405. This ruling did not
preclude Alstom from introducing evidence of the fact of
discussions that resulted in the delay, nor did it preclude
Alstom’s witnesses from testifying that they were
waiting for instruction from lawyers as to when, not whether,
to terminate Vera.
ruling was not error. While Rule 408 provides that the Court
“may” admit evidence of settlement negotiations
for purposes other than those prohibited, admission is not
required. See Complex Sys., Inc. v. ABN AMBRO Bank
N.V., No. 08 Civ. 7497 (KBF), 2014 WL 1055263, at *4
(S.D.N.Y. Mar. 13, 2014) (“Rule 408 is not an all or
nothing rule; it is not a rule which states that all
settlement communications for any purpose are out, nor is it
a rule which states all communications offered for a purpose
other than to prove the validity of a primary claim are in.
Instead, the Rule enables the Court to exercise its
discretion, weighing various factors, to determine whether
settlement communications offered ‘for another
purpose’ should be admitted.”). “[A] trial
court has broad discretion as to whether to admit evidence of
settlement negotiations offered for ‘another
purpose.’” Trebor Sportswear Co. v. The Ltd.
Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989). The
Court exercised that discretion, and crafted a ruling that
allowed Alstom to offer evidence of the fact of discussions
to explain the delay, without wading into the substance of
those discussions and potentially undermining Rule
408’s public policy objectives. See Id. at
510-11 (“[C]are should be taken that an indiscriminate
and mechanistic application of this ‘exception’
to rule 408 does not result in undermining the rule’s
public policy objective. . . . The [court] should weigh the
need for such evidence against the potentiality of
discouraging future settlement negotiations.”) (quoting
2 J. Weinstein & M. Berger, Weinstein’s
Evidence ¶ 408, at 408-31 (1988)).
the ruling were error, it did not affect a substantial right
of Alstom’s. Alstom argues that the Court’s
ruling precluded it from introducing evidence that it was
waiting for its lawyers to say “when, not if,
plaintiff was to be laid off[.]” Def.’s Mem. at
15 (emphasis in original). But the Court allowed
Alstom’s witnesses to testify that they were
“waiting for instruction from the lawyers, ” Tr.
405, and nothing in the Court’s ruling prohibited
Alstom’s witnesses from testifying that they were
waiting for instruction from lawyers as to when, not whether,
to terminate Vera. In any event, this evidence essentially
came in. Alstom’s human resources director testified:
We had a lot of discussion with our counsel, and because we
already knew our intent was that she would be leaving,
we’d already made that decision, it was more of the
timing of when and how . . . .
Id. 431. Later, Alstom’s counsel asked
Buchholz why Vera was not “told” in November that
she had been selected for termination. Buchholz responded:
There were discussions going on between lawyers that revolved
around Ms. Vera’s claims of discriminatory actions, and
I was not authorized at that time to execute her layoff. I
was put on hold for that one.
the Court denies Alstom’s request for a new trial
because the evidentiary ruling was not error, and, in any
event, did not affect a substantial right of Alstom’s
or otherwise cause a seriously erroneous result or
miscarriage of justice.
argues that the Court should reduce the $500, 000
non-economic damages award because Vera suffered
“garden variety” emotional distress. The Court
agrees, and orders a new trial on damages unless Vera agrees
to remit the non-economic damages award to $125, 000.
are a common procedure used by the courts to, in effect,
reduce the amount of a damage award that the court concludes
is impermissibly high.” Turley v. ISG Lackawanna,
Inc., 774 F.3d 140, 167 (2d Cir. 2014). With remittitur,
a court “compels a plaintiff to choose between
reduction of an excessive verdict and a new trial.”
Stampf, 761 F.3d at 204 (quoting Shu-Tao Lin v.
McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir.
1984)); accord Gasperini v. Ctr. for Humanities,
Inc., 518 U.S. 415, 433 (1996) (district court’s
discretion to grant new trial includes “ordering a new
trial without qualification, or conditioned on the verdict
winner’s refusal to agree to a reduction
is appropriate in two situations: ‘(1) where the court
can identify an error that caused the jury to include in the
verdict a quantifiable amount that should be stricken, and
(2) more generally, where 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.’” Anderson Grp., LLC v. City of
Saratoga Springs, 805 ...