UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Patrolmen's Benevolent
Association
of the City of New York, et
al
Plaintiffs-Appellees,
-against-
The City of New York, et al
Defendants-Appellants.
Docket No. 00-9538
310 F.3d 43
2002 U.S. App. Lexis 21656
90 FEP Cases (BNA) 1
January 30, 2002, Argued
October 17, 2002, Decided
LEVAL
and CALABRESI, Circuit Judges, and STEIN, District Judge. n1.
STEIN,
District Judge:
Defendants appeal from a judgment of the
United States District Court for the Southern District of New York (Shira A.
Scheindlin, Judge) upon a jury verdict in favor of plaintiffs. Appellants are
the City of New York, former New York City Mayor Rudolph Giuliani, former
Police Commissioner Howard Safir, and certain other police officials
(collectively, "the City"). Appellees are the Patrolmen's Benevolent
Association of the City of New York, on behalf of 22 individual police
officers, and the Sergeant's Benevolent Association of the City of New York, on
behalf of two police sergeants. Plaintiffs, all of whom are black or
black-Hispanic, sued the City for transferring them into New York City's 70th
Precinct on the basis of their race in the wake of the beating and torture of
Abner Louima, a black man, by police officers in the 70th Precinct in August
1997. They asserted violations of Title VII of the Civil Rights Act of 1964,
the New York State Human Rights Law, and the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution. At the conclusion of a
three-week trial, the jury returned a verdicts in favor of the City with
respect to all but one of the plaintiffs on the employment discrimination
claims, but found in favor of all plaintiffs on the equal protection claim, and
awarded $50,000 damages to each plaintiff. After the district court denied the
City's motion for judgment as a matter of law or, in the alternative, a new
trial, the City filed this appeal.
The City asserts the following grounds for
appeal: 1) plaintiff Oscar Espinal (the only plaintiff to prevail on the Title
VII employment discrimination claim) failed to establish that he suffered an
adverse employment action when he was transferred to the 70th precinct; 2) the
City demonstrated that the race-based transfers, as a matter of law, were
narrowly tailored to meet the compelling state interest of effective law
enforcement and therefore did not violate the equal protection clause; 3) the
jury charge on the "narrowly tailored" prong of the strict scrutiny
test was erroneous; 4) the trial judge improperly "coerced" the jury
to award damages to each plaintiff by issuing supplemental instructions on
damages; 5) the jury charge [*47] on damages was erroneous; and 6) the damages
awarded were excessive. We affirm the judgment of the district court.
I.
BACKGROUND
The following facts are taken from the
district court's opinion denying summary judgment, Patrolmen's Benevolent Ass'n
of New York. Inc. v. City of New York. 74 F. Supp. 2d 321, 325-26 (S.D.N.Y.
1999), and the trial record. On August 9, 1997, Haitian immigrant Abner Louima
was beaten and ignobly tortured by
police officers in the 70th Precinct station house in Brooklyn, New York.
Louima was black and the officers who assaulted him were white. Two days after
the assault, leaders of the New York City Police Department ("NYPD")
and the City -- including Commissioner Safir and Mayor Giuliani -- met with 40
to 50 leaders of the community surrounding the 70th Precinct, including
Councilwoman Una Clarke, to discuss an appropriate response to the incident.
Following that meeting, Commissioner Safir decided to assign additional black
police officers to the 70th Precinct.
News reports of the Louima incident began
to appear on August 12. The first of several public demonstrations in response
to those reports of the assault was held at the 70th Precinct the next day.
Police and city officials grew concerned that the protests might become
violent. On August 14, Commissioner Safir and Mayor Giuliani announced that the
commanding officer and executive officer of the 70th Precinct, as well as ten
police officers assigned to that precinct, were being immediately reassigned.
A few days later, the new commanding and
executive officers assumed control of the precinct, and new officers replaced
those who had been removed. The commanding and executive officers were Hispanic
and white, respectively, and the majority of the incoming officers were black
or Hispanic. (A. 459-60, 1333.) n2 The following week, the NYPD transferred an
additional 26 black and black-Hispanic police officers into the precinct. (A.
1334-35.) The City does not dispute that race was the basis for the transfers.
On August 29, some 6000 demonstrators marched from Grand Army Plaza in Brooklyn
to City Hall in Manhattan in protest over the Louima assault. Following the
rally, approximately 100 individuals were arrested for impeding traffic on the
Brooklyn Bridge. (A 1270.) Demonstrations continued outside the 70th Precinct
for the next several days.
The Patrolmen's Benevolent Association,
representing 22 of the transferred officers - who identify themselves variously
as African-American, Black-Hispanic, Jamaican, West Indian, Trinidadian or
Guyanese -- filed this action in the U.S. District Court for the Southern
District of New York in October 1997, alleging violations of Title VII, 42
U.S.C. §§ 2000(e) et seq., N.Y. Executive Law § 296, and the officers'
constitutional rights pursuant to 42 U.S.C. §§ 1981, 1983 and 1985. The
Sergeant's Benevolent Association, representing two transferred police
sergeants, subsequently filed a complaint asserting essentially the same claims
and the actions were subsequently consolidated. On cross-motions for summary
judgment, the district court 1) declined to grant summary judgment dismissing
the Title VII claim on the grounds that disputed issues of fact existed with
respect to whether plaintiffs had suffered an adverse employment action and 2)
held that the City's need for effective law enforcement could be a compelling
state interest justifying a race-based measure if the City could [*48] prove at
trial that such an interest existed and
that the transfers were narrowly tailored to advance that interest. See
Patrolmen's Benevolent Ass'n 74 F. Supp. 2d at 339.
A jury trial was held from May 25 to June
15, 2000. More than 40 witnesses testified at the trial, including all of the
plaintiffs, other NYPD officers and officials, Commissioner Safir, two expert
witnesses, and Councilwoman Clarke.
At the trial, defendants contended that the
transfers, admittedly race-based, were necessary to prevent a delicate
situation from getting out of control. Commissioner Safir stated that there was
a "great potential for violence" in the 70th Precinct following the
Louima incident and "we needed to act quickly and as quickly as possible
to put people in the community who would have a stake in the community."
(A. 468.) Safir testified that at the meeting held at police headquarters
several days after the incident that was referred to above, "one of the
themes that continually came out... was the theme that they needed more
African-American officers.. . and that if we wanted better police community
relations then we needed to assign more African-American police officers to
their community." (A. 475.)
Councilwoman Clarke testified that at the
same meeting she told Safir "unless you do something quickly we in the
community may not be able to control the rage of the community." (A. 820.)
Clarke did not specifically request a transfer of black officers into the
precinct, although she did call for the removal from the precinct of any
officer who may have known about the incident. (A. 821.) She testified that
other community members "may have" requested more black officers in
the community. Defendants' expert Hubert Williams, former Director of the
Newark, New Jersey Police Department, testified that he believed the race-based
transfers were "a very important step in defusing the volatility that
existed in the community." (A. 991.) In Williams' view, there was a danger
of civil disturbance in the 70th Precinct after the Louima incident and the
transfer of black officers into the precinct helped to defuse tensions. He believed
that the volatile situation after the incident called for swift action, and
Safir was correct in responding to Clarke's "indirect" request for
more black officers. (A. 1015.)
In response, plaintiffs presented evidence
that the community surrounding the 70th Precinct, while outraged, was peaceful
following the Louima incident. Detective Yvan Pierrelouis, Caribbean liaison
for the NYPD, testified that he canvassed the community following the incident
and found no evidence of rioting, looting, or property damage. (A. 276.) Police
Officer Corlis Smith, an officer in the Community Affairs Division assigned to
monitor the community in the days after the incident, testified that she
witnessed no community unrest. (A. 257-260.)
The plaintiffs' testimony indicated that,
far from being welcomed by black residents of the 70th Precinct, the
transferred officers endured frequent insults and epithets from community
members angry about the Louima assault. (See, e.g., A. 384.) Several plaintiffs
also testified to tensions with the other officers in the precinct, who viewed
the new officers with suspicion, believing they were part of an NYPD internal
affairs investigation into the 70th Precinct. (See, e.g., A. 237.) Plaintiffs'
expert Dr. Stephen Leinin, a sociologist and former New York City police
officer, testified that black officers were not necessarily better at policing
black communities than white officers, and that cultural similarities - such as
language skills - were more important than race. (A. 844.) He also suggested
other [*49] ways the City could have responded to the crisis, such as providing
incentives for officers to transfer voluntarily into the district, and reaching
out to Haitian-American officers and officers of different ethnic groups with
training in police-community relations. (A. 847.)
At the close of evidence, defendants moved
for a directed verdict on the employment discrimination claims on the grounds
that no plaintiff had suffered an adverse employment action, and on the equal
protection claim on the grounds that no reasonable juror could find that there
was not a crisis that justified Commissioner Safir's decision to transfer
minority officers into the 70th Precinct. The court denied the motions. (A.
1094-95.)
The trial judge then charged the jury. On
the City's defense to the equal protection claim, she instructed the jury that
it first had to determine whether the City had proved that "community
hostility towards the New York City Police Department following the Louima incident
created a crisis which compromised the goals of effective law enforcement and
public safety; and that race-based transfers would restore those goals."
The City did not object to that instruction. (A. 1132.) n3 If the jury found
that such a compelling state interest existed, it was charged to consider,
next, whether the transfers were "narrowly tailored" to satisfy that
interest; in other words, "whether the race-based transfers were better
suited to address the police department's compelling interest in maintaining
community order following Louima than any other available alternative."
(A. 1133.)
With respect to damages, the trial judge
instructed the jury that if it found in favor of a plaintiff on any claim, it
could award damages to compensate the plaintiff for his or her injuries,
including "lost wages or lost promotion and career opportunities, as well
as damages for physical pain and suffering, mental anguish, shock, fear,
humiliation, and discomfort." (A. 1133.) However, the jury could only
award damages for emotional distress on the constitutional claim if plaintiffs
provided "convincing evidence that their emotional distress over the 70th
Precinct transfers resulted in physical manifestations." n4 (A. 1134.) The
court informed the jury that nine of the 24 plaintiffs - Robert Drayton, Silas
Plunkett, Phillip Tai, Lavern Stuger, John Robertson, [*50] Peggy Alves, Margo
McKenzie, Oscar Espinal, and Missie Lewis-Manning - had presented physical
evidence of emotional distress. (A. 1134.)
On the afternoon of the first day of
deliberations, the jury announced that it had reached a verdict. The jury found
that only one plaintiff, Oscar Espinal, had suffered an adverse employment
action and found in favor of Espinal on the Title' VII claim. (A. 1171.) With
respect to the equal protection claim, the jury found that the City had failed
to establish a compelling state interest justifying the transfer of plaintiffs
into the 70th Precinct based on their race and therefore found for plaintiffs on
their equal protection claims. The jury awarded $50,000 "compensatory
damages" to each plaintiff
Judge Scheindlin determined that, in light
of her instruction that only nine plaintiffs could recover damages for
emotional distress, the jury's award of $50,000 to each of 24 plaintiffs was
inconsistent with only one plaintiff having suffered employment discrimination
and only nine plaintiffs having suffered emotional distress with physical
manifestations. (A. 1171.) She therefore read a supplemental instruction to the
jury that "mental anguish, shock, fear, humiliation and discomfort, as a
matter of law, are part of emotional distress." (A. 1173.) The court then
instructed the jury to resume deliberations, and stated that the jury was
entitled to reconsider or stand by its findings on liability, "but then
when you face damages on the 1983 charge, you have to decide what the damages
are that you are compensating for. . ." (A 1174.)
The next day, the judge read a second
supplemental charge modifying her earlier instruction on damages:
If
you determine that a plaintiff's evidence of emotional distress is corroborated
by other testimony, then you need not find a physical manifestation of such
distress. In determining whether a plaintiff’s testimony of emotional injury is
corroborated, you may consider the testimony of other officers as possible
corroboration.
(A.
1189.) In response to a subsequent question from the jury asking for a
definition and examples of corroboration, the court stated that "corroboration
is any evidence other than a plaintiffs own testimony that supports that
testimony" and declined to give examples. (A. 1194.)
Three hours later, the jury returned with
its second verdict. As in the first verdict, it found that only Espinal had suffered
an adverse employment action, but that the City was liable on the § 1983 claim.
Once again, the jury awarded $50,000 to each of the plaintiffs. The foreperson
stated that all the damages were for emotional distress, with the damages for
nine plaintiffs based on physical symptoms and the damages for the other
plaintiffs based on corroborating evidence. (A. 1196-97.)
After the verdict, defendants renewed their
motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) and
also moved for a new trial pursuant to Fed. R. Civ. P. 59. The court denied the
motions see Patrolmen's Benevolent Ass'n of New York, Inc., v. City of New
York, 2000 U.S. Dist. Lexis 15179, No. 97 Civ. 7895, 2000 WL 1538608 (S.D.N.Y.
Oct. 18, 2000), and this appeal followed.
II.
DISCUSSION
A.
Motion for Judgment as a Matter of Law
We review de novo a decision on a motion
for judgment as a matter of law, applying the same standard as the district
court. See Dailey v. Societe Generale, 108 F.3d 451, 455 (2d Cir. 1997). The
motion should be denied unless, "viewed in the [*51] 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 men
could have reached.' " Samuels v. Air Transport Local 504, 992 F.2d 12, 14
(2d Cir. 1993) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)).
The City contends that it is entitled to
judgment as a matter of law 1) on the Title VII claim because plaintiff Espinal
did not suffer an adverse employment action and 2) on the equal protection
claim because the race-based transfers were justified by the City's compelling
state interest in law enforcement. Because we find that the jury's verdict was
supported by adequate evidence, we affirm the district court's denial of
judgment as a matter of law on both claims. n5
1.
Espinal's Title VII Claim
Title VII forbids an employer from discriminating
against employees with respect to the "compensation, terms, conditions, or
privileges of employment," or "limit[ing], segregat[ing], or
classify[ing] ... employees.., in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely
affect his status as an employee" on the basis of race. 42 U.S.C. § 2000e-2(a).
To constitute an adverse employment action
in violation of Title VII, a change in working conditions must be
"materially adverse." Galabya v. New York City Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000). A materially adverse change "must be more
disruptive than a mere inconvenience or an alteration of job
responsibilities" and "might be indicated by a termination of employment,
a demotion evidenced by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly diminished material
responsibilities, or other indices... unique to a particular situation."
Id. (internal quotation and citation omitted). See also Wanamaker v. Columbian
Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). A lateral transfer that does not
result in a reduction in pay or benefits may be an adverse employment action so
long as the transfer alters the terms and conditions of the plaintiffs
employment in a materially negative way. See de la Cruz v. New York City Human
Resources Admin. Dep't of Social Servs., 82 F.3d 16, 21 (2d Cir. 1996)
(transfer to "less prestigious" unit of social services department
with reduced opportunities for professional growth was adverse employment
action); Rodriguez v. Board of Educ., 620 F.2d 362, 366 (2d Cir. 1980)
(transfer of experienced middle school art teacher to elementary school
constituted adverse action).
At trial, Espinal testified that prior to
joining the NYPD, he had received training in domestic violence issues and had
worked as a caseworker for agencies serving domestic violence victims. (A.
628.) Upon joining the police force, he was assigned to the 68th Precinct where
he requested and was granted work in the domestic violence unit. When Espinal
was transferred to the 70th Precinct, he unsuccessfully sought an assignment as
a domestic violence officer. (A. 630.) Espinal further testified that community
members in the 70th Precinct shouted abusive comments at him, and he feared for
his safety [*52] because the level of mistrust among the other officers in the
precinct prevented the open communication necessary to effective police work.
(A. 630, 631.) The jury was entitled to conclude from the above testimony, if
it so chose, that the transfer had a sufficiently material negative impact on
the terms and conditions of Espinal's employment with the NYPD to constitute an
adverse employment action.
2.
Equal Protection Claim
In seeking to overturn the jury's finding
that the race-based transfers violated the Equal Protection Clause, the City
faces a particularly steep uphill climb. It is well-established that
"racial and ethnic distinctions of any sort are inherently suspect and
thus call for the most exacting judicial examination." Regents of the
University of California v. Bakke, 438 U.S. 265, 291, 57 L. Ed. 2d 750, 98 S.
Ct. 2733 (1978) (opinion of Justice Powell). Accordingly, all racial classifications
imposed by a government actor "must be analyzed by a reviewing court under
strict scrutiny." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227,
132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995). To survive that strict scrutiny, a
racial classification must be narrowly tailored to further a compelling
governmental interest. Id. See also Wygant v. Jackson Bd. of Educ., 476 U.S.
267, 274, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986); United States v. Secretary
of Housing and Urban Development. 239 F.3d 211, 218-19 (2d Cir. 2001) cert.
denied, 122 S. Ct. 643 (Dec. 3, 2001).
The remediation of past discrimination is
the only compelling state interest explicitly recognized as such by the Supreme
Court. See United States v. Paradise, 480 U.S. 149, 167, 94 L. Ed. 2d 203, 107
S. Ct. 1053 (1987 ant 476 U.S. at 274-75. See also Reynolds v. City of Chicago,
296 F.3d 524, 530 (7th Cir. 2002); Susan M. Maxwell, Note, Racial
Classifications Under Strict Scrutiny: Policy. Considerations and the
Remedial-Plus Approach, 77 Tex. L. Rev. 259 (1998). However, the City does not
seek to justify the race-based transfers on this ground. Instead, the City
argues that the transfers were justified by its compelling interest in
effective law enforcement. We have recognized that "a law enforcement
body's need to carry out its mission effectively, with a workforce that appears
unbiased, is able to communicate with the public and is respected by the
community it serves," may constitute a compelling state interest, Barhold
v. Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988), and several courts have relied
on the "operational need" of law enforcement and correctional
agencies to uphold hiring or assignment practices that favored minorities, even
in the absence of past discrimination. See, e.g., Talbert v. City of Richmond,
648 F.2d 925, 931-32 (4th Cir. 1981); Wittmer v. Peters, 87 F.3d 916, 921 (7th
Cir. 1996); Reynolds, 296 F.3d at 530-3 1; Minnick v. Dep't of Corrections, 95
Cal. App. 3d 506, 520-21, 157 Cal. Rptr. 260, 268-69 (1979).
The mere assertion of an "operational
need" to make race-conscious employment decisions does not, however, give
a police department carte blanche to dole out work assignments based on race if
no such justification is established. The assignment of police officers to
certain neighborhoods or tasks because of their race has been rightly held to
run afoul of the Fourteenth Amendment. See. e.g., Baker v. City of St.
Petersburg, 400 F.2d 294, 300 (5th Cir. 1968). Mindful of the potential for
abuse in an "operational need" defense to race-based employment
actions, courts recognizing the defense have required the government actor to
demonstrate that it is "motivated by a truly powerful and worthy concern
and that the racial measure. . . [*53] adopted is a plainly apt response to
that concern." Wittmer, 87 F.3d at 918. The justification must be
substantiated by objective evidence -- mere speculation or conjecture is
insufficient. Id at see also McNamara v. City of Chicago, 138 F.3d 1219, 1222
(7th Cir. 1998); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d
207, 213-14 (4th Cir. 1993).
Further, the race-based measure must be
narrowly tailored to serve the identified interest. "Racial
classifications are simply too pernicious to permit any but the most exact
connection between justification and classification." Fullilove v.
Klutznick, 448 U.S. 448, 537, 65 L. Ed. 2d 902, 100 S. Ct. 2758 (1980)
(dissenting opinion of Justice Stevens). In determining whether a race-based
measure is narrowly tailored, courts consider factors such as the need for the
measure, the efficacy of alternative measures, and the flexibility and duration of the measure. See
Paradise, 480 U.S. at 171; U.S. v. Secretary of HUD, 239 F.3d at 219 (both
discussing narrow tailoring in the context of remedial affirmative action
plans).
At trial, the jury heard testimony from
police officials that there was no rioting, looting, or other violence in the
70th Precinct itself following the Louima incident. Commissioner Safir testified
that he believed the NYPD had to act quickly to respond to the threat of
violence, but rather than ordering immediate, temporary transfers, chose to
enact permanent transfers through normal NYPD channels that took several weeks
to take effect. (A. 461-62.) Plaintiffs' expert Dr. Leinen testified that the
City could have more effectively responded to community concerns by assigning
Creole-speaking Haitian-American officers and officers trained in
police-community relations to the precinct. From this testimony, the jury could
reasonably have concluded that the City had not demonstrated that the transfers
were narrowly tailored to meet a compelling state interest.
Appellants contend that "common
knowledge" regarding the "historical reality" of race relations
in police work suffices to justify the City's actions. As noted above, strict
scrutiny by this Court requires more than the assumption that a racial
classification is an appropriate response to a state interest. "Argument
in so sensitive an area of human relations must not.. . be allowed to draw on
'common sense,' which might be inflected by stereotypes." Reynolds, 296
F.3d at 526. Appellants have identified academic literature and case law
supporting the general proposition that increased minority representation on a
police force may improve police community relations. (Appellant Br. at 39-42,
(citing Race as an Employment Qualification to Meet Police Department
Operational Needs, 54 N.Y.U. L. Rev. 413 (1979) and Detroit Police Officers'
Ass'n v. Young, 608 F.2d 671, 695-96 (6th Cir. 1979))). However, it can
scarcely be denied that in individual cases the assignment of minority officers
to minority neighborhoods or to dangerous or otherwise unattractive tasks on
the basis of their race may impede those very goals by decreasing the officers'
willingness to serve on the police force, as well as their morale and
self-esteem. See (A. 394, 570, 624); Young, 608 F.2d at 693; Baker, 400 F.2d at
300, n.9. The difficulty of balancing such competing interests underscores the
need for particularized evidence of a compelling state interest.
Appellants also urge that the jury should
not be allowed to "second guess" the Commissioner's decision to
implement the transfers, since the decision was made in the context of the
emergency situation following the brutalization of Abner Louima. Such
unconditional deference to a [*54] government agent's invocation of
"emergency" to justify a racial classification has a lamentable place
in our history, see Korematsu v. United States, 323 U.S. 214, 223, 89 L. Ed.
194, 65 S. Ct. 193 (1944) (upholding internment of Japanese-Americans based on
wartime security concerns), and we are not inclined to repeat the same mistakes
today. See Adarand, 515 U.S. at 236, 244, 275 (Justice O'Connor for the Court,
Justice Stevens in dissent and Justice Ginsburg in separate dissent,
criticizing Korematsu); see also 50 U.S.C. App. § 1989.
There may indeed be occasions where
race-conscious transfer of police officers is a constitutionally permissible
means of improving law enforcement, whether as a long-term strategy to create a
diverse police force see Barhold, 863 F.2d at 238, or as an immediate response
to an emergency situation. See Wygant, 476 U.S. at 314 (dissenting opinion of
Justice Stevens); Baker, 400 F.2d at 300-01, n. 10. The jury concluded that
this was not such an occasion. Since the evidence reasonably supported the
jury's verdict, we conclude that the district court correctly denied the motion
for judgment as a matter of law.
B. Motion for a New Trial
We review a district court's decision on a
motion for a new trial for abuse of discretion. Song v. Ives Labs., Inc., 957
F.2d 1041, 1047 (2d Cir. 1992). The motion for a new trial "ordinarily
should not be granted unless the trial court is convinced that the jury has
reached a seriously erroneous result or that the verdict is a miscarriage of
justice." Atkins v. New York City, 143 F.3d 100, 102 (2d Cir. 1998)
(quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997)).
The City claims it is entitled to a new trial because I) the jury charge on the
"narrowly tailored" standard was erroneous; 2) the court's
supplemental instructions "pushed" the jury to award damages to all
plaintiffs; 3) the charge on emotional distress damages was prejudicially
vague. In addition, the City contends that the damage award should be reduced
to nominal amounts since plaintiffs failed to provide independent evidence of
emotional distress. We find that the denial of the new trial motion was not an
abuse of discretion.
1.
"Narrowly Tailored" Jury Charge
The City did not object to the court's
instruction on the "narrowly tailored" prong of the strict scrutiny
test at trial. We therefore review the instruction for "fundamental error;"
that is, an error "so serious and flagrant that it goes to the very
integrity of the trial." Shade v. Housing Auth. of New Haven, 251 F.3d
307, 312-13.(2d Cir. 2001) (citations omitted). The trial court's instruction
on "narrowly tailored" could not possibly have affected the integrity
of the trial, since the jury, having determined that the City had failed to
establish a compelling state interest, did not go on to consider whether the
transfers were narrowly tailored. n6 (A. 1195-96, 1373-74.) Any error in the
instructions [*55] relating to this standard was harmless. See United States v.
Masotto, 73 F.3d 1233, 1239 (2d Cir. 1996); Richards v. City of Topeka, 173
F.3d 1247, 1253 (10th Cir. 1999).
2.
Prejudicial Effect of Supplemental Jury Charge
If the jury returns an inconsistent
verdict, the trial judge has the discretion to resubmit the issues to the jury
with a request for clarification. See Fed. R. Civ. P. 49(b) (court may either
return the jury for further consideration of its answers to the interrogatories
or order a new trial); Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d
884, 891 (2d Cir. 1988). Since the trial judge is in the best position to
determine if a jury's answers are inconsistent, we review the decision for
abuse of discretion. See Kerman v. City of New York, 261 F.3d 229, 244 (2d Cir.
2001). The trial judge initially concluded that the jury's award of $50,000 to
each plaintiff was inconsistent with its finding that only one plaintiff had
suffered an adverse employment action and the court's initial refusal to allow
the jury to award damages for emotional distress unless the plaintiff showed
physical manifestations. The court, however, then relaxed the standard for
proving emotional distress, allowing an award without a showing of physical
manifestation if the plaintiff put forth evidence corroborating the claim. We
find no error. Furthermore, we see no indication that the district court
"pushed" the jury in her supplemental charges to reach a certain
verdict, especially since the jury returned essentially the same verdict after
hearing the supplemental charges.
3.
Emotional Distress Damages
"A jury charge is erroneous if it
misleads the jury as to the correct legal standard, or if it does not
adequately inform the jury of the law." Pahuta v. Massey-Ferguson, Inc.,
170 F.3d 125, 135 (2d Cir. 1999) (quoting Hathaway v. Coughlin, 99 F.3d 550,
552 (2d Cir. 1996)). In evaluating a jury charge, we look to the charge as a
whole, and will reverse the jury verdict "only if we are persuaded 'that
the error was prejudicial or the charge was highly confusing.'" Time Inc.
v. Petersen Publ'g Co., 173 F.3d 113, 119 (2d Cir. 1999) (quoting Warren v.
Dwyer, 906 F.2d 70, 73 (2d Cir. 1990)).
It is well-established that courts may award
emotional distress damages in section 1983 cases. Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993).
However, the mere fact that a constitutional deprivation has occurred does not
justify the award of such damages; the plaintiff must establish that she
suffered an actual injury caused by the deprivation. See Carey v. Piphus, 435
U.S. 247, 263-64, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978). The damage award
"must be supported by competent evidence concerning the injury." Id.
at 264, n. 20. A plaintiff's subjective testimony, standing alone, is generally
insufficient to sustain an award of emotional distress damages. See, e.g.,
Cohen v. Bd of Educ., 728 F.2d 160, 162 (2d Cir. 1984); Annis v. County of
Westchester, 136 F.3d 239, 249 (2d Cir. 1998). Cf Price v. City of Charlotte,
93 F.3d 1241, 1254 (4th Cir. 1996). Rather, the plaintiff's testimony of
emotional injury must be substantiated by other evidence that such an injury
occurred, such as the testimony of witnesses to the plaintiff's distress see
Miner, 999 F.2d at 663, or the objective circumstances of the violation itself.
See id.; Walz v. Town of Smithtown, 46 F.3d 162, 170 (2d Cir. 1995). Evidence
that a plaintiff has sought medical treatment for the emotional injury, while
helpful, see, e.g., Carrero v. New York City Hous. Auth., 890 F.2d 569, 581 (2d
Cir. 1989), is not required. Miner, 999
F.2d at 663.
[*56] In Annis, we found that the plaintiff
had failed to submit sufficient evidence to support emotional distress damages
because
the only evidence of [plaintiff's] emotional
distress - her own testimony - is insufficient to warrant an award of
compensatory damages for that injury. She has not alleged any physical
manifestations of her emotional distress, and despite the discrimination she
remained a lieutenant with the County police. She testified that she needs and
has counseling, but introduced no affidavit or other evidence to corroborate
her testimony. In short, her testimony fails to establish that she suffers from
any concrete emotional problems.
136
F.3d at 249 (internal citations omitted). Judge Scheindlin relied on Annis in
her original instruction to the jury that only those plaintiffs alleging
physical manifestations of emotional distress could recover for emotional
distress damages in section 1983 cases. (A. 1184.) In her supplemental charge,
she amended her instruction to state that emotional distress could be proved
either by physical manifestations or by the plaintiff's testimony
"corroborated by other testimony."
We agree that Annis should not be read to
require physical symptoms of emotional distress in cases brought pursuant to 42
U.S.C. § 1983. While the district court's instructions on the issue could have
been clearer, they were not so confusing or prejudicial to the City to warrant
overturning the jury verdict.
Finally, the testimony at trial was
sufficient to support the jury's damage awards. Having concluded that emotional
distress damages were properly awarded, we may only reduce the award if the amount
"shocks the conscience." See, e.g., Walz, 46 F.3d at 170; Ismail v.
Cohen, 899 F.2d 183, 186 (2d Cir.1990). In making this determination, we look
to amounts awarded in similar cases. Id. The jury's award of $50,000 per
plaintiff is well within the range of acceptable awards for emotional distress
in civil rights cases. See, e.g., Walz, 46 F.3d at 170 (damages ranging from
$20,400 to $40,800); Phillips v. Bowen, 278 F.3d 103, 111-12 (2d Cir. 2002)
(damages of $400,000); Hughes v. Patrolmen's Benevolent Ass'n of New York.
Inc., 850 F.2d 876, 884 (2d Cir. 1988) (damages of $575,000).
III.
CONCLUSION
We find that the jury could reasonably
conclude from the evidence adduced at trial that plaintiff Espinal suffered an
adverse employment action upon being transferred to the 70th Precinct and that
the City's race-based transfers violated the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution. The trial judge adequately
instructed the jury on the applicable law and the damages awarded were not
excessive. Accordingly, we affirm the judgment of the district court.
1.
The Honorable Sidney H. Stein of the United States District Court for the
Southern District of New York, sitting by designation.
2.
References to "A. __" are to the appropriate page of the joint
appendix on appeal.
3.
The verdict sheet phrased this somewhat differently, as follows: "Did
defendants prove, by a preponderance of the evidence, that the transfer of
plaintiffs into the 70th Precinct based on their race was necessary to maintain
effective law enforcement and to ensure public safety in the wake of the Louima
incident?" (A. 1363) (emphasis added). Just as the City did not object to
the instruction, it did not object to the verdict sheet.
4.
The district court's instruction on emotional distress damages was as follows:
In
order to prove injury resulting from emotional distress under sections 1981 and
1983, plaintiffs must demonstrate, by a preponderance of the evidence, that
they suffered "concrete" emotional problems. Concrete emotional
problems may be established through evidence of physical manifestations of
emotional suffering, such as sleeplessness, headaches, loss of appetite, crying
spells, or trembling. Plaintiffs are not required to demonstrate that they
sought medical treatment for their distress, nor are they required to present
corroborating evidence of that distress from doctors, clergy, or family
members. However, plaintiffs must provide convincing evidence that their
emotional distress over the 70th Precinct transfers resulted in physical
manifestations. Evidence of emotional suffering absent such physical
manifestation is insufficient to prove concrete injury leading to recovery of
damages, and I stress again that is only with respect to [sections] 1981 and
1983 [the claims for violation of equal protection], not Title VII.
(A.
1134.)
5. To
the extent that appellants request a new trial on these claims on the grounds
that the verdict was against the weight of the evidence, (Appellant Br. at 62,
79), that request must be denied because it was not raised before the trial
judge. See Scientific Holding Co. v. Plessey, Inc 510 F.2d 15, 28 (2d Cir.
1974); (A. 1383).
6. As
noted previously, the verdict sheet instructed the jury that in order to find a
compelling state interest it had to conclude that the race-based transfers were
"necessary to maintain effective law enforcement and to ensure public
safety." We have considerable doubt that the instruction was proper,
focusing as it did on the issue of whether the City had demonstrated that the
transfers were "necessary," rather than whether the City had
demonstrated a compelling state interest. Had the jury been given an
instruction that avoided the question of necessity, it might well have reached
a different verdict However, as the City neither objected in the district
court, nor raised the issue on appeal, we have no occasion to consider it.