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Vera v. Alstom Power Inc.

United States District Court, D. Connecticut

May 24, 2016

MARIANGELICA VERA, Plaintiff,
v.
ALSTOM POWER, INC., Defendant.

          RULING AND ORDER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff, 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 determination).

         This 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.

         II. DISCUSSION

         A. Alstom’s Motion for Judgment as a Matter of Law or, In the Alternative, a New Trial or Remittitur (ECF No. 141)

         Alstom renews[1] 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.

         1. Judgment as a Matter of Law

          The 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)).

         Applying 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.

         As an 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.

         The 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.

         First, 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.”).[2] 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).

         Second, the jury reasonably could have found that Alstom’s proffered reason for terminating Vera - reducing head count - was pretext.[3] 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.

         Days 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.

         Two 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.

         When 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 persuasive.”).

         Buchholz 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.

         Third, 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.

         Considering 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.

         2. New Trial

         Alstom 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.

         A 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).

         As 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.

         Alstom 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.

         Vera introduced evidence that she was the only employee terminated in June 2011.[4]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.

         Vera’s 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.

         The 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. 404, 638.

         To 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.

         The 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[8] territory.” Id. 405.

         Continuing 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 answered:

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 response. Id.

         The 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.

         The 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[05], at 408-31 (1988)).

         Even if 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.

Id. 612.

         In sum, 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.

         3. Remittitur

         a. Non-economic Damages

         Alstom 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.

         “Remittiturs 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 (remittitur).”).

         “Remittitur 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 ...


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