Case 2:14-cv-03712-LDW-GRB Document 111 Filed 01/19/18 Page 1 of 17 PageID #: 3568
`FI LED
`IN CLERK'S OFFICE
`U.S. DISTRICT COURT E.D.N.Y.
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`* JAN 1 9 2018 *
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`LONG ISLAND OFFICE
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`MEMORANDUM AND ORDER
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`14 CV 3712
`(Wexler, J.)
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`UNITED ST ATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-------------------------------------------------------){
`BARRY REITER,
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`Plaintiffs,
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`-against-
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`MA){l-AIDS, INC. and ELLIOT ZARETSKY,
`in his individual and professional capacities,
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`Defendants.
`-------------------------------------------------------){
`APPEARANCES:
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`WIGDORLLP
`By: Lawrence M. Pearson, Esq., Tanvir H. Rahman, Esq. & Kenneth D. Sommer, Esq.
`85 Fifth Avenue
`New York, New York I 0003
`Attorneys for Plaintiff
`
`SILVERMAN ACAMPORA, LLP
`By: Keith J. Frank, Esq.
`I 00 Jericho Quadrangle
`Jericho,NewYork 11753
`Attorney for Defendants
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`WE){LER, District Judge:
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`In this employment discrimination case, Plaintiff Barry Reiter ("Plaintiff' or "Reiter")
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`sought damages for injuries sustained when he was terminated from his employment with
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`defendant Maxi-Aids, Inc. ("Maxi-Aids") by Maxi-Aids' principal, defendant Elliot Zaretsky
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`("Zaretsky"). A jury trial was held, and the following claims were submitted to the jury-
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`discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.,
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`discrimination under New York State Human Rights Law ("NYSHRL"), N. Y. EXEC. L. § 290 et
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`seq., associational discrimination under the ADA, and retaliation under the ADA, NYSHRL, and
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`the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The jury entered a
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`verdict in Plaintiff's favor as to the ADA associational disability and NYSHRL discrimination
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`Case 2:14-cv-03712-LDW-GRB Document 111 Filed 01/19/18 Page 2 of 17 PageID #: 3569
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`claims, and in Defendants• favor on the remaining claims. The jury awarded compensatory
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`damages in the amount of $0, and punitive damages in the amount of $400,000.
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`Currently before the Court is Defendants' post-trial motion under pursuant to Federal
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`Rule of Civil Procedure 50(b) for judgment as a matter oflaw or, alternatively, for a new trial
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`pursuant to Rule 59 of the Federal Rules of Civil Procedure. Defendants argue that relief is
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`warranted for the following reasons: ( 1) there was insufficient evidence to prove the claim of
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`associational discrimination; (2) punitive damages are not available for an ADA associational
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`discrimination claim; (3) there was insufficient evidence to support a punitive damages award;
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`(4) punitive damages are subject to a statutory cap of $50,000; and (5) the punitive damages
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`award was excessive and should be remitted. 1 See Motion, Docket Entry ("DE") [103]. In
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`addition to opposing Defendants' motion, Plaintiff has submitted his motion for economic
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`damages. See DE [100].
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`I. BACKGROUND
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`In brief, the testimony at trial revealed that Reiter was hired by Zaretsky and began
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`working for Maxi-Aids in March 2012 with the job title Director of Business Development. His
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`salary was $75,000 per year, plus commission of I% of sales over $15 million. The issue of
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`Plaintiff's participation in the company health plan arose at his interview, but Plaintiff did not
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`request coverage as he was covered by his wife's health insurance plan.
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`Reiter had several medical conditions before and during his employment with Maxi-Aids.
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`Prior to starting work with the company, he had been treated for lymphoma but was in remission
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`at the time he began work. Plaintiff also suffered from colitis and mixed connective tissue
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`disorder. He did not mention these conditions at the time of his hiring.
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`1 Punitive damages are not available under the NYSHRL claim and thus may only be awarded if the ADA
`associational discrimination claim stands.
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`2
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`In May 2013, Plaintiff told Zaretsky about the colitis, and subsequently suffered an acute
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`outbreak that required treatment and doctor's appointments. Once informed, Zaretsky started to
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`ridicule Reiter "both publically and privately about my health conditions." Trial Transcript
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`("Tr.") at 102. Zaretsky referred to him as a "very sick person" who was lucky to have a job. Id
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`Zaretsky told Plaintiff on several occasions that if he had known Reiter was sick at the interview,
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`he never would have hired him.
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`In December 2013, Plaintiff told Zaretsky that he needed to have himself and his family
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`added to Maxi-Aids' health plan. Zaretsky refused this request, claiming that it was a condition
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`of Reiter's employment that he would not get the company health insurance. Plaintiff asked
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`again in January 2014, and testified that Zaretsky replied that Reiter was "too sick to be on the
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`health plan, you make too much money to be on the health plan, it was a condition of your
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`employment that you were never to have medical, you're basically unemployable." Tr. at 113.
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`Reiter responded by telling Zaretsky that he could not discriminate against him because of his
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`health conditions. Zaretsky maintained his position at the January meeting, but several weeks
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`later, Reiter received an e-mail from an Human Resources representative and he was put on the
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`Maxi-Aids' health plan effective March 1, 2014. His wife and three children, including his 16
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`year old daughter Bailey Reiter ("Bailey") were also put on the plan at Plaintiffs cost. Tr. at
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`116.
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`The previous year, in the fall of 2013, Reiter's daughter Bailey began experiencing panic
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`attacks that rendered her inconsolable and resulted in Reiter having to pick her up from school
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`many times. She began seeing a therapist, started medication, and began entertaining thoughts of
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`suicide. On March 19, 2014, Bailey suffered a panic attack and revealed to Plaintiff that she had
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`been out on the roof earlier and had been on the internet looking for ways to kill herself. After
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`consultation with a psychiatrist, Bailey was taken to the emergency room and diagnosed as
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`"actively suicidal, chronic depression and acute anxiety disorder." Tr. at 124. She stayed in the
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`hospital overnight, and the next day was admitted to the adolescent suicidal ward at South Oaks
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`Hospital. She was discharged on March 25, 2014.
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`Plaintiff advised his supervisor, Larry DiBlasi, and Zaretsky of Bailey's situation within a
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`day or so of its onset. On Friday, March 28, 2014, Plaintiff went to Zaretsky's office to discuss
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`the situation and to request FMLA leave to care for Bailey. According to Plaintiff, Zaretsky
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`responded that he had had an adolescent grandchild in a similar condition, and that it would
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`require a lot of love, energy, and caring. Plaintiff claims that while Zaretsky acknowledged that
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`Reiter needed to care for his family, he also told Plaintiff"if you're not here, you're useless to
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`me." Tr. at 127.
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`At the end of the next business day, Monday, March 31, 2014, Zaretsky terminated
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`Plaintiffs employment, stating that the company was underperforming financially. Reiter
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`offered to assume the duties of a newly hired warehouse manager, but Zaretsky said his mind
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`was made up. Zaretsky testified that the sole reason Reiter was terminated was failure to make
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`sales. There was testimony from both Zaretsky and DiBlasi regarding Reiter's failure to perform
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`at expected levels. DiBlasi testified that Reiter wasn't performing to expectations, and that he
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`was aware Reiter's 'job was in jeopardy for probably six months or so." Tr. at 216. DiBlasi did
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`not know that Zaretsky was going to terminate Reiter on March 31, 2014. Tr. 23 7. Reiter
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`testified that he never received any performance warnings. It was undisputed that there were no
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`written warnings given to Reiter regarding his failure to meet sales expectations.
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`II. RULE 59 MOTION
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`A. Legal Standards
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`As provided by Rule 50(b ), defendants have renewed their motions for judgment as a
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`matter of law made prior to verdict. "In ruling on a motion for judgment as a matter of law, a
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`district court must consider the evidence in the light most favorable to the non-movant and draw
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`all reasonable inferences the jury could have drawn." Cweklinsky v. Mobil Chem. Co., 364 F.3d
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`68, 75 (2d Cir. 2004); see also Stevens v. Rite Aid Corp., 851 F.3d 224, 228 (2d Cir. 2017)
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`("Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence,
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`viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable
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`juror to find in h[is] favor" (internal quotation omitted)), cert. denied, No. 17-227, 2017 WL
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`3456814 (U.S. Oct. 16, 2017). The standard for granting a Rule 50 motion is high, and "[a] jury
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`verdict should be set aside only where there is 'such a complete absence of evidence supporting
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`the verdict that the jury's findings could only have been the result of sheer surmise and
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`conjecture, or ... such an overwhelming amount of evidence in favor of the movant that
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`reasonable and fair minded men could not arrive at a verdict against him."' Kosmynka v. Polaris
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`Indus., Inc., 462 F.3d 74, 79 (2d Cir. 2006) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041,
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`1046 (2d Cir. 1992) (ellipsis in original) (internal quotations and citation omitted)). In
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`evaluating the motion, the court "cannot assess the weight of conflicting evidence, pass on the
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`credibility of the witnesses, or substitute its judgment for that of the jury." Tolbert v. Queens
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`Coll., 242 F.3d 58, 70 (2d Cir. 2001) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363,
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`367 (2d Cir.1988)). It is enough that this testimony was in evidence for the jury to consider.
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`Where defendants' liability turns on the jury's credibility determinations, the Court "cannot
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`disturb" that determination unless the verdict was "egregious." See James v. Melendez, 567 F.
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`Supp. 2d 480, 484 (S.D.N.Y. 2008) (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d
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`124, 134 (2d Cir. 1998)).
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`C. Associational Discrimination under the ADA
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`Under the ADA, a party discriminates by "excluding or otherwise denying equal jobs or
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`benefits to a qualified individual because of the known disability of an individual with whom the
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`qualified individual is known to have a relationship or association." 42 U.S.C. §12212(b)(4)
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`A claim for associational discrimination under this section requires plaintiff establish: that he
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`was qualified for the job; 2) that he was subjected to an adverse employment action; 3) that he
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`was known at the time of that action to have a relative or associate with a disability; and 4) that
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`the adverse employment action "occurred under circumstances raising a reasonable inference
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`that the disability of the relative or associate was a determining factor in the employer's
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`decision." Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016). Defendants
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`argue that there was insufficient evidence to support the third and fourth elements.
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`1. Qualified Disability
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`Defendants first argue that there was no medical testimony supporting a finding that
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`Bailey had, or was regarded as having, a qualifying disability under the ADA. They cite no legal
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`authority, however, for the suggestion that medical evidence is necessary required to establish
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`the existence of a qualifying disability in a case such as this. Upon review of the record, the
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`Court finds that there was sufficient lay testimony for a jury to find that Bailey was disabled, or
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`perceived to be disabled, within the meaning of the ADA.
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`Anxiety disorder may qualify as a disability. See Spillers v. City of New York Health &
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`Hosps. Corp., No. 15-CV-06472, 2017 WL 4326505, at *4, n.5 (E.D.N.Y. Sept. 28, 2017)
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`(noting that "depression, psychosis, and generalized anxiety disorder can qualify as a disability
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`under the ADA" (citing cases)); see also Cody v. Cnty. of Nassau, 577 F. Supp. 2d 623, 639
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`(E.D.N.Y. 2008) (anxiety disorder impairing the ability to work recognized as impacting major
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`6
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`life activity), affd, 345 F. App1x 717 (2d Cir. 2009). Attendance at school constitutes a major
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`life activity under the ADA. See Weixel v. Bd. of Educ. of City of New York, 287 F .3d 138, 14 7
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`(2d Cir. 2002) (including "attending school" as a major life activity). There was ample lay
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`testimony regarding Bailey's condition, which had been ongoing since the previous fall. For
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`example, she testified that on numerous occasions, she had to leave school because of panic
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`attacks. Reiter testified that at the time of the March 2014 incident leading to her hospitalization,
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`Bailey was diagnosed as "actively suicidal, chronic depression and acute anxiety disorder." Tr.
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`at 124.
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`Defendants make the additional argument that there was a lack of evidence that Bailey's
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`condition was nothing more than a minor or transitory state not covered by the ADA. The record
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`belies this argument as well. Bailey testified that the panic attacks led to her seeking therapy
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`starting in the fall of 2013, evidencing a condition that had already persisted for a period of
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`months. In addition, there was evidence that Zaretsky perceived Bailey as disabled and believed
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`that her condition was serious and could be of long duration. Zaretsky testified that he had a
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`granddaughter who was admitted to a psychiatric hospital. Reiter testified that during that
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`conversation on Friday, March 28, 2014, Zaretsky indicated that based on his own experience "it
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`would require a lot more time and love and energy and caring than I had any idea about." Tr. at
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`127. Thus there was evidence to support a jury finding that Bailey's condition was not transitory
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`and/or that Zaretsky perceived it to be long-lasting.
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`2. A Determining Factor
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`As to the fourth element, Defendants acknowledge that there was evidence that they were
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`aware of Bailey's claimed disability, but argue that there was no evidence that this knowledge
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`was the reason for Plaintiffs termination. The Court disagrees.
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`Temporal proximity between the employer's knowledge and the adverse employment
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`action may by itself constitute sufficient evidence of causality where the proximity is "very
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`close." See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d
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`509 (2001) (noting that "cases that accept mere temporal proximity between an employer's
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`knowledge of protected activity and an adverse employment action as sufficient evidence of
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`causality to establish a prima facie case uniformly hold that the temporal proximity must be
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`'very close'"); see also Zann Kwan v. Anda/ex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (in
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`Title VII case, finding three-week period between plaintiff's complaint and termination was
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`"sufficiently short to make a prima facie showing of causation indirectly through temporal
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`proximity"). Here, there was substantial evidence regarding the close temporal proximity
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`between Defendants' acquisition of knowledge regarding Bailey's condition and their decision to
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`terminate Plaintiff's employment. Defendants' awareness of Bailey's disability coupled with the
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`their decision less than two weeks later to end Plaintiff's employment is sufficient evidence to
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`allow a reasonable jury to infer that the disability of Plaintiffs daughter was a determining factor
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`in the decision to terminate him.
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`There was also evidence that the financial reasons offered for Reiter' s termination by
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`Zaretsky were pretextual. Viewing the evidence in Plaintiff's favor, there was certainly
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`sufficient evidence to support ajury's determination that Reiter'sjob performance was not the
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`sole reason for his discharge, and that Zaretsky relied upon a manufactured financial reason to
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`cover his real motivation for his actions - the association between Reiter and Bailey.
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`The jury was instructed that it could find that Maxi-Aids associated plaintiff with his
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`daughter's disability if either Maxi-Aids believed, rightly or wrongly, that covering Bailey
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`through the company health insurance policy would be expensive, or if Maxi-Aids feared that
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`8
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`Plaintiff would be distracted or inattentive at work due to Bailey's disability. There was
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`sufficient evidence to support the jury's verdict under either theory.
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`There was significant testimony regarding Zaretsky's view on the health of his employees
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`or potential employees and the resulting impact on the company's insurance policy. Reiter
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`testified that the issue of his own health and need for health insurance was addressed at his
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`interview by Zaretsky. Moreover, Zaretsky routinely asked this question of all interviewees. As
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`to Reiter's own health issues, Reiter testified that Zaretsky noted he was lucky to have a job
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`since he "was so sick that [he] would be unemployable" and that ifReiter had disclosed his
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`conditions at the interview, Zaretsky wouldn't have hired him. Tr. at 102. As to the impact on
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`Maxi-Aids' health plan, Reiter testified that prior to his joining the plan, Zaretsky had remarked
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`that it was "lucky" Reiter was not on Maxi-Aids' health plan because "it would cost so much to
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`take care of you that you would ruin the plan for everybody else in the company." Tr. at 110.
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`According to Reiter, Zaretsky initially refused Reiter's requests to be added to the company
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`health plan in December 2013 and January 2014, and it was only after Reiter complained that
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`barring him from the company health plan was discriminatory that he was added effective March
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`1, 2014. While there was no direct testimony regarding any comments allegedly made by
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`Zaretsky regarding the impact of Bailey's condition on the company health plan, the evidence of
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`Zaretsky's attitudes coupled with the timing of Reiter's termination permit the jury to make the
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`reasonable inference that Zaretsky was concerned about the effect of Bailey's condition on the
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`plan and that this concern was a determining factor in the termination decision. Thus, the jury
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`could determine that Zaretsky's concerns regarding the expense of Bailey's coverage to the
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`company's health insurance policy, whether well-founded or not, led to his decision to terminate
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`Reiter.
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`There was also testimony that Zaretsky believed Reiter would be distracted by Bailey's
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`condition. At the Friday meeting preceding Reiter's Monday termination, Reiter testified that
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`Zaretsky, referencing his own experiences with his granddaughter, indicated that "it would
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`require a lot more time and love and energy and caring than I had any idea about." Tr. at 127.
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`According to Reiter, Zaretsky went on to acknowledge that Reiter needed "to do what you need
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`to do," but continued that "if you're not here, you're useless to me." Id. This evidence supports a
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`finding that Zaretsky prospectively feared that Reiter would be distracted from his work during
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`Bailey's treatment and recovery.
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`D. Punitive Damages
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`1. Availability of, and Evidentiary Support for, Punitive Damages Award
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`A party prevailing upon a claim of unlawful intentional discrimination under the ADA
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`may recover punitive damages "if the complaining party demonstrates that the respondent
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`engaged in a discriminatory practice or discriminatory practices with malice or with reckless
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`indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. §
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`1981a(b)(l). Defendants argue that punitive damages are not available in an ADA associational
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`discrimination claim, citing a case in this district that noted that "it is an open question in this
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`circuit whether a plaintiff can seek punitive or compensatory damages for a violation of the anti(cid:173)
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`retaliation provisions of the ADA." Infantolino v. Joint Indus. Bd. of Elec. Indus., 582 F. Supp.
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`2d 351, 362 (E.D.N.Y. 2008). An associational discrimination claim, however, arises from
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`§12212 of the ADA, the discrimination provision, and not from §12203, the provision governing
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`retaliation and coercion. As such, punitive damages may be awarded. The Court now turns to
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`analysis of whether punitive damages are appropriate in this case and if so, a resolution of issues
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`regarding that award.
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`An award of punitive damages is appropriate only upon evidence that the employer
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`"discriminated (or retaliated) against him with conscious knowledge it was violating the law, or
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`that it engaged in egregious or outrageous conduct from which an inference of malice or reckless
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`indifference could be drawn." Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556,
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`573 (2d Cir. 2011) (internal quotations and citation omitted). "Malice and reckless indifference
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`refer to 'the employer's knowledge that it may be acting in violation of federal law, not its
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`awareness that it is engaging in discrimination.'" Farias v. Instructional Sys., Inc., 259 F.3d 91,
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`101 (2d Cir. 2001)(quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535, 119 S. Ct. 2118,
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`144 L.Ed. 2d 494 (1999)). To establish malice or reckless indifference, "a plaintiff need not
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`show that the defendant committed egregious or outrageous acts" but rather "need only
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`demonstrate that the defendant had the 'requisite state of mind' of malice or reckless
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`indifference.,, Cush-Crawford v. Adchem Corp., 271 F.3d 352, 356 (2d Cir. 2001) (citing
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`Kolstad, 527 U.S. at 538).
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`The federal rights secured by the ADA were well-established before the events forming
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`the basis of this case. The Maxi-Aids handbook containing the company's policies regarding
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`compliance with the ADA includes a specific provision asserting the company's commitment to
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`not discriminating against an employee "because they are related to or associated with a person
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`with a disability." There is sufficient evidence ihat Zaretsky acted with reckless indifference to
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`rights provided under the ADA. As discussed above, there was evidence of numerous incidents
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`demonstrating Zaretsky' s cavalier attitude regarding the provision of health insurance to his
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`employees -- his practice of questioning interviewees on their need for coverage, his attitude
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`about Reiter's own issues, and his initial refusal to add Reiter to the company health plan
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`because he was "too sick." Reiter had previously raised the issue of discrimination with
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`Zaretsky when faced with the latter's first denial of the request to add him to the Maxi-Aids
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`health plan. In addition, there is evidence of Zaretsky's concern regarding the effect of a 'sick'
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`person on the company plan. Faced with Reiter's request to join the company plan, Zaretsky
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`immediately asked ifReiter had cancer. These incidents taken together paint a picture of
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`hostility towards the rights of employees that demonstrate, at the very least, a callous
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`indifference to those rights. The jury's determination that Reiter's termination was done with the
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`requisite state of mind of malice or reckless indifference is thus supported.
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`Defendants claim that there was absolutely no evidence supporting a finding that
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`Zaretsky acted with malice or reckless indifference specific to Reiter's associational disability
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`rights when he terminated Reiter's employment. Defendants essentially suggest that the jury was
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`required to disregard any evidence regarding Zaretsky's attitudes regarding employee health as
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`irrelevant as to the associational disability claim. Viewing the evidence in Plaintiff's favor,
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`however, his termination was not an isolated incident of discriminatory behavior in violation of
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`the ADA, but rather part of a pattern of discrimination and/or disregard for rights demonstrated
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`by Zaretsky. Additional evidence of Zaretsky's malice or reckless indifference could be found in
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`his conscious statement ofa pretextual reason for Reiter's termination. Crediting the jury's
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`verdict, the evidence supports the conclusion that Zaretsky was, at least, more than merely
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`negligent, and that he acted with knowledge or with reckless indifference to the fact that his
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`conduct would violate Reiter's rights.
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`2. Apo Ii cation of the Damages Cap
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`By statute, an award of punitive damages in intentional discrimination employment cases
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`is capped to specific amounts based upon the number of employees at the company. Plaintiff
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`concedes that if imposition of the cap is proper, damages in this case would be limited to
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`$50,000 under 42 U.S.C. §1981a(b)(3)(A). He argues, however, that defendants have waived
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`their right to assert the cap because they failed to raise it as an affirmative defense. Affirmative
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`defenses serve the purpose of putting a plaintiff on notice of legal defenses asserted by a
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`defendant. In this case, the damages cap is plainly set forth on the face of the statute and
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`application of its limitations cannot constitute any unfair surprise or prejudice to plaintiff. The
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`Court finds that the cap set forth in§ l 98.la(b)(3) "is not an affirmative defense and is not
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`waivable." Oliver v. Cole Gift Ctrs, Inc., 85 F. Supp. 2d 109, 112 (D. Conn. 2000).2
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`The damages-capping statute "envisions that the level of punitive damages to be awarded
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`will initially be set by the jury" and then reduced if necessary by the court to ensure that it
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`conforms to the "relevant cap for an employer of the defendant's size." Luciano v. Olsten Corp.,
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`110 F.3d 210, 221 (2d Cir. 1997). Accordingly, the Court finds that any punitive damages award
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`in this case is capped at $50,000.
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`3. Remittitur
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`Having determined that any punitive damages award is capped at $50,000, the Court
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`turns to defendants' argument that punitive damages of any amount are not supported by the
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`evidence. They claim that since the since the jury awarded no compensatory damages, the
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`punitive damages award should be remitted in total and set aside.
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`The amount of a punitive damages award must be reasonable and "rational in light of
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`their purpose to punish what has occurred and to deter its repetition." Vasbinder v. Scott, 976
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`F.2d 118, 121 (2d Cir. 1992)(quoting Pacific Mui. Life Ins. Co. v. Haslip, 499 U.S. 1, 21, 111 S.
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`Ct. 1032, 113 L.Ed. 2d 1 (1991)). A punitive damages award should only be reversed if is "so
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`high as to shock the judicial conscience and constitute a denial of justice." Hughes v.
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`Patrolmen 's Benevolent Ass 'n, 850 F.2d 876, 88.3 (2d Cir. 1988) (internal quotation and citation
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`2 The Court further notes that the issue of the statutory cap was discussed with counsel duringjury
`deliberations as part of a discussion of a jury question posed by note. At that time, Plaintiff's counsel did
`not dispute the applicability of the cap, but rather expressed only that the jury not be told about it.
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`omitted). The Court must also keep in mind the purpose of punitive damages, which "'are given
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`to the plaintiff over and above the full compensation for the injuries, for the purpose of punishing
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`the defendant, of teaching the defendant not to do it again, and of deterring others from following
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`the defendant's example."' Stampfv. Long Island R.R. Co., 761 F.3d 192, 209 (2d Cir. 2014)
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`(quoting Prosser and Keeton on the Law of Torts§ 2, at 9 (5th ed.1984)). The Court may
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`consider several factors in assessing the reasonableness of an award. See generally BMW of N.
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`Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S. Ct. 1589, 134 L.Ed. 2d 809 (1996) (suggesting
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`"guideposts" for consideration such as the degree of reprehensibility of the conduct, the disparity
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`between harm suffered and the award, and the difference betvieen the award and civil penalties
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`imposed in comparable cases).
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`Although the disparity in the amounts of compensatory and punitive damages may be
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`considered when assessing a punitive damages award, the jury's decision to award no
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`compensatory damages is not dispositive in an employment discrimination context. The Second
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`Circuit has found that in Title VII cases, "[a]n award of actual or nominal damages is not a
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`prerequisite for an award of punitive damages." Cush-Crawford, 271 F.3d at 357. The
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`reasoning set forth in that decision is equally applicable in the ADA employment discrimination
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`context. The Second Circuit further observed that "[t]here is some unseemliness for a defendant
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`who engages in malicious or reckless violations of legal duty to escape either the punitive or
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`deterrent goal of punitive damages merely because either good fortune or a plaintiff's unusual
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`strength or resilience protected the plaintiff from suffering harm." Id. at 359. Furthermore, in
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`light of the testimony about Zaretsky's apparent disregard of his employees' rights, the jury
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`could well have found that punitive damages were warranted to meet the deterrence goal of such
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`an award.
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`As to the amount of the award, Plaintiff has provided citations to ADA cases in which
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`punitive damages awards in far greater amounts were.awarded. See, e.g., Brady v. Wal-Mart
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`Stores, Inc., 531 F.3d 127, 132 (2d Cir. 2008) (affirming reduction of punitive damages from $5
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`million to statutory cap amount of$300,000). Defendants do not provide any case law
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`suggesting that $50,000 is an unreasonable amount, relying instead upon their argument that a
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`punitive damages award of any amount is unsustainable in the face of the jury,s failure to award
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`compensatory damages. Upon review of the record and the cases, the Court finds that an award
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`of the statutory cap amount of $50,000 does not shock the conscience or violate due process, and
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`is supported by the evidence.
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`III. RULE 59 MOTION FOR A NEW TRIAL
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`Defendants move alternatively under Rule 59, which allows the court to grant a new trial
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`on all or.some of the issues "for any reason for which a new trial has heretofore been granted in
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`an action at law in federal court.', FED. R. C1v. P. 59 (a)(l)(A). This standard is "less stringent',
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`than that required for relief under Rule 50. Olsen v. Cnty. of Nassau, 615 F. Supp. 2d 35, 39
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`(E.D.N.Y. 2009). "In comparison to a Rule 50 motion, the Second Circuit has held that the
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`standard for a Rule 59 motion is less onerous for the moving party in two ways: first, '[u]nlike
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`judgment as a matter of law, a new trial may be granted even if there is substantial evidence
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`supporting the jury's verdict.' Second, in deciding a Rule 59 motion 'a trial judge is free to weigh
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`the evidence himself, and need not view it in the light most favorable to the verdict winner."'
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`Welch v. United Parcel Serv., Inc., 871 F. Supp. 2d 164, 174 (E.D.N.Y. 2012)(quoting DLC
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`Mgmt. Corp., 163 F.3d at 134). While the court may independently weigh the evidence, a
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`motion for a new trial should only be granted if the court is convinced that the jury reached a
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`seriously erroneous result or that the verdict is a miscarriage of justice and that the verdict is
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`against the weight of the evidence. Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d Cir.
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`2003).
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`Weighing the evidence, the Court cannot conclude that the jury's verdict constituted a
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`seriously erroneous result or a miscarriage of justice. In particular, the Court found Zaretsky's
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`testimony lacked credibility. Much of his testimony at trial stretched believability and often
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`conflicted with prior sworn testimony given by him. Finding no reason to disturb the jury's
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`verdict, the motion for a new trial is denied.
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`IV. CONFIDENTIAL TRIAL MATERIAL
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`Defendants seek an order "maintaining the confidenti