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Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 1 of 26
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`Plaintiffs,
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`1:09-CV-550
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`___________________________________________________
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`ANN MARIE LEGG, NANCY REYES, and
`PATRICIA WATSON,
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`v.
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`ULSTER COUNTY; PAUL J. VANBLARCUM,
`in his official capacity as Sheriff of the County of
`Ulster and individually; RICHARD BOCKELMANN,
`in his official capacity as Sheriff of the County of Ulster
`and individually; BRADFORD EBEL, in his official
`capacity as Superintendent of the Ulster County Jail and
`individually; and RAY ACEVEDO, in his official capacity
`as Deputy Superintendent of Ulster County Jail and
`individually,
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`Defendants.
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`__________________________________________________
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`APPEARANCES
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`KLAPROTH LAW PLLC
`406 5th Street, NW
`Suite 350
`Washington, D.C. 20001
`Attorneys for Plaintiffs
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`RANNI LAW FIRM
`148 North Main Street
`Florida, New York 10921
`Attorneys for Plaintiffs
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`OF COUNSEL
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`BRENDAN J. KLAPROTH, ESQ.
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`JOSEPH J. RANNI, ESQ.
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 2 of 26
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`STEPHEN BERGSTEIN, ESQ.
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`EARL T. REDDING, ESQ.
`MATTHEW J. KELLY, ESQ.
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`BERGSTEIN & ULRICH, LLP
`5 Paradies Lane
`New Paltz, New York 12561
`Attorneys for Plaintiffs
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`ROEMER WALLENS GOLD &
`MINEAUX LLP
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`13 Columbia Circle
`Albany, New York 12203
`Attorneys for Defendants
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`SCULLIN, Senior Judge
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`MEMORANDUM-DECISION AND ORDER
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`I. INTRODUCTION
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`Pending before the Court is Defendant Ulster County's motion for judgment as a matter
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`of law or, in the alternative, for a new trial with regard to Plaintiff Watson's hostile work
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`environment claims. See Dkt. No. 138.1
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`II. BACKGROUND
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`Plaintiff Watson and three other female corrections officers at the Ulster County Jail filed
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`this lawsuit on May 11, 2009, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"),
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`New York State Human Rights Law ("NYSHRL"), and 42 U.S.C. § 1983.
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`On January 7, 2011, Defendants filed a motion for summary judgment, arguing that
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`Plaintiffs' claims failed for various reasons. See Dkt. No. 29. In a Memorandum-Decision and
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`1 Defendant has effectively filed two briefs regarding this motion. See Dkt. Nos. 121, 138.
`However, the Court has only considered Defendant's most recent brief, see Dkt. No. 138, filed in
`accordance with the Court's May 31, 2015 Text Order.
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 3 of 26
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`Order dated November 21, 2013, the Court dismissed several of Plaintiffs' claims. However, the
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`Court determined that a trial was necessary to adjudicate, among others, Plaintiff Watson's Title
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`VII hostile work environment claim against Defendant County and her § 1983 hostile work
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`environment claim against Defendant County. See generally Dkt. No. 55.
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`After Plaintiffs presented their case-in-chief, Defendants moved for a directed verdict on
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`several of Plaintiffs' claims, including Plaintiff Watson's hostile work environment claims.
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`Defendants' counsel generally argued that "the proof ha[d] been insufficient to set forth the prima
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`facie case[.]" See Dkt. No. 137-8 at 602:16-17. The Court reserved its decision on the hostile
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`work environment claims. The jury then returned a verdict on August 19, 2014, finding no cause
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`of action for all of Plaintiffs' remaining claims with the exception of Plaintiff Watson's Title VII
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`and § 1983 hostile work environment claims. See Dkt. No. 98. The jury awarded Plaintiff
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`Watson $200,000 in compensatory damages for her Title VII claim and $200,000 in
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`compensatory damages for her § 1983 claim. See id.
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`After the Court excused the jury, the Court discussed post-trial motions with counsel.
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`The Court averred that it would give the parties two weeks after the date that the trial record was
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`prepared to file their post-trial motions. See Dkt. No. 166 at 71. The Court entered judgment on
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`August 20, 2014. See Dkt. No. 102.
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`Defendant2 originally filed its motion for judgment as a matter of law or, in the
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`alternative, for a new trial regarding Plaintiff's hostile work environment claims on November 5,
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`2014. See Dkt. No. 121. However, pursuant to Rule 50(b) and Rule 59(b), these motions had to
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`be filed no later than 28 days after the entry of judgment. See Fed. R. Civ. P. 50(b), 59(b). The
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`2 The term "Defendant" when used alone refers exclusively to Ulster County, and the term
`"Plaintiff" when used alone refers exclusively to Ms. Watson.
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 4 of 26
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`Court noted that, "[g]enerally, a court may extend the time to act for good cause; however, Rule
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`6(b)(2) of the Federal Rules of Civil Procedure explicitly provides that '[a] court must not
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`extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).'" See
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`Dkt. No. 122 at 2 (quoting Fed. R. Civ. P. 6(b)(2) (emphasis added)). Thus, on November 6,
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`2014, before Plaintiff responded to Defendant's motion, the Court denied Defendant's motion as
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`untimely because it was filed beyond the 28-day window.
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`On the same day, November 6, 2014, Defendant filed a letter motion asking the Court to
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`reconsider its decision to deny its Rule 50/59 motion as untimely. See Dkt. No. 123. For
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`support, Defendant argued that the Court had previously granted its request to delay filing post-
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`trial motions until two-weeks after the parties had received the trial record. See id. Further,
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`Defendant's attorney stated that he had received the trial transcript on October 22, 2014, and filed
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`the motion less than two-weeks after that. See id.
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`The Court denied Defendant's motion for reconsideration. See Dkt. No. 124. In doing
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`so, the Court reasoned that "Rule 6(b)(2) renders the deadlines for filing motions pursuant to
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`Rule 50(b) and Rule 59(b) jurisdictional. Therefore, the Court lacked the authority to extend
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`those deadlines." See id. at 2 (citations omitted). Thus, "[t]he fact that the Court instructed
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`Defendants that they had two weeks from the time they received the trial transcript to file their
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`post trial motions did not change the fact that, under Rules 50(b) and 59(b), Defendants were
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`required to file any such motions '[]no later than 28 days after the entry of judgment . . . .'" See
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`id. (quoting Fed. R. Civ. P. 50(b)).
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`Defendant appealed this Court's ruling to the Second Circuit. See Dkt. No. 127. In
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`reversing this Court's decision, the Second Circuit first explained that "[a] time limitation is
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`jurisdictional only if it is prescribed by statute." Legg v. Ulster Cty., 820 F.3d 67, 78 (2d Cir.
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 5 of 26
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`2016). However, "procedural rules which have no statutory analogue, although 'mandatory' in
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`the sense that a party may insist upon their enforcement, do not affect the power of the courts
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`and are subject to waiver or equitable exception." Id. at 78-79 (citation omitted). The Second
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`Circuit concluded that Rule 6(b)(2) was not jurisdictional. See id. at 79 (citations omitted).
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`Accordingly, the Second Circuit held that, "even though the district court was without authority
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`to grant an extension under Rule 6(b)(2), it retained the power to consider whether the plaintiffs
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`had waived compliance with the rule or whether an equitable exception applied." Id. (citation
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`omitted). Thus, the Second Circuit remanded the case to this Court with instructions to consider
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`"whether the plaintiffs waived objection to the court's improper grant of an extension of time or
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`whether an equitable exception to the prohibition of such extensions applied on the facts of this
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`case." Id.
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`After reviewing the Second Circuit's decision, this Court held a conference with counsel
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`and directed the parties to submit briefs regarding the waiver/equitable exception issue and the
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`merits of the underlying motion. The parties did so, see Dkt. Nos. 136, 138; and each filed a
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`reply brief, see Dkt. Nos. 170, 172.
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`A. Waiver
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`III. DISCUSSION
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`With respect to waiver, the important consideration is axiomatically whether the
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`opposing party timely objected to the motion. See Art Attacks Ink, LLC v. MGA Entm't Inc., 581
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`F.3d 1138, 1143 (9th Cir. 2009) (stating that the plaintiff "never objected to the timeliness of [the
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`defendant's] Rule 50(b) motion for summary judgment before the district court[; a]ccordingly,
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 6 of 26
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`[the plaintiff] has forfeited its untimeliness objection"); see also Dill v. Gen. Am. Life Ins. Co.,
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`525 F.3d 612, 618 (8th Cir. 2008) (stating that the timeliness requirements in Rule 50(b) and 6(b)
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`"may be forfeited if they are not timely raised" (citations omitted)). Therefore, the Court must
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`consider "whether [Plaintiff] timely raised the untimeliness of [Defendant]'s Rule 50(b) [and
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`Rule 59] motion[s]. If [s]he did, [s]he is 'assure[d] relief.''' Dill, 525 F.3d at 618-19 (quoting
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`Eberhart, 546 U.S. at 19, 126 S. Ct. 403). On the other hand, if Plaintiff "'wait[ed] too long to
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`raise the point,' . . . as [Defendant] asserts, the defense was forfeited. . . ." Id. (quoting Kontrick,
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`540 U.S. at 456, 124 S. Ct. 906); see also Wilburn v. Robinson, 480 F.3d 1140, 1147 (D.C. Cir.
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`2007) (stating that "[a] party indisputably forfeits a timeliness objection based on a claim-
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`processing rule if he raises the issue after the court has issued a merits decision"). Indisputably,
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`Plaintiff is objecting to Defendant's untimely motion for the first time in this filing. Thus, the
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`Court must determine whether Plaintiff, having waited until now to object, has waived her
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`objection.
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`The common principle in the above-cited cases is that whether a party has waived its
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`objection to the timeliness of an opposing party's motion turns on whether that party has objected
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`before the court rules on the underlying motion. See Dill, 525 F.3d at 618; see also Nat'l
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`Ecological Found. v. Alexander, 496 F.3d 466, 476 (6th Cir. 2007) (finding that the party
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`forfeited its timeliness argument because it raised that argument for the first time on appeal).
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`Similarly, in Advanced Bodycare, the court held that the defendant had waived its right to object
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`to an untimely Rule 50/59 motion because the defendant had failed to do so until after the district
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`court issued a decision disposing of the motion. See Advanced Bodycare Sols., LLC v. Thione
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`Int'l, Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010). In this case, the Court dismissed
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`Defendant's Rule 50 and Rule 59 motion before Plaintiff objected; thus, it would follow that
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 7 of 26
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`Plaintiff waived her right to object to Defendant's untimely motion.3 See, e.g, Knox v.
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`Countrywide Bank, 673 F. App'x 31, 33 (2d Cir. 2016) (summary order) (finding that the
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`defendant had waived its untimeliness argument because it did not make any such argument).
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`Admittedly, this case is in a unique procedural posture. It is unlike Dill because Plaintiff
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`never had an opportunity to object in her opposition papers to Defendant's original motion. It is
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`also unlike Advanced Bodycare because the Court did not rule on the merits of the motion but
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`rather dismissed it on timeliness grounds before Plaintiff could respond. However, based on the
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`circumstances of this case, the Court finds that Plaintiff constructively waived her right to object
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`as soon as the Court issued an Order dismissing the motion (regardless of whether she had a
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`chance to do so). See e.g., Advanced Bodycare, 615 F.3d at 1359. Accordingly, the Court will
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`consider Defendant's motion.4
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`B.
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`Defendant's Rule 50 and Rule 59 motions
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`1. Standard of review
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`In considering a motion for judgment as a matter of law, a court "'must draw all
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`reasonable inferences in favor of the non moving party, and it may not make credibility
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`3 Plaintiff argues, generally, that, because the Court never ruled on the merits of Defendant's
`motion but instead disposed of it on procedural grounds, she never waived her timeliness
`objection. However, a clearer cut-off point is simply whether the court has rendered a decision
`on the underlying motion, regardless of the reason for its disposition.
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` Arguably, finding that Plaintiff waived her objection to the untimely filing is a harsh result in
`this case because she was never afforded an opportunity to object. However, the Court will not
`speculate on whether Plaintiff would have so objected had she been given a chance to do so.
`Moreover, finding in Plaintiff's favor would produce an equally harsh result because Defendant
`detrimentally relied on the Court's representation that it had two weeks after it received the trial
`transcript to file its post-trial motions. Thus, on balance, the appropriate outcome in this case is
`for the Court to consider the motion's merits.
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 8 of 26
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`determinations or weigh the evidence.'. . ." Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir.
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`2007) (quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150[], 120 S. Ct. 2097, 147 L. Ed.
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`2d 105 (2000) (emphasis [added])). "'Credibility determinations, the weighing of the evidence,
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`and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'"
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`Id. (quotation omitted). Moreover, a court "must disregard all evidence favorable to the moving
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`party that the jury is not required to believe." Id. (quotation omitted). In sum, a court may grant
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`a motion for judgment as a matter of law "'only if it can conclude that, with credibility
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`assessments made against the moving party and all inferences drawn against the moving party, a
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`reasonable juror would have been compelled to accept the view of the moving party.'" Id. at 370-
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`71 (quoting Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993) (emphasis added)). Accordingly, a
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`court must not set aside a judgment unless
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`"(1) there is 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
`(2) there is such an overwhelming amount of evidence in favor of the movant that
`reasonable and fair minded [persons] could not arrive at a verdict against [it]."
`Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir. 2004) (quotation omitted).
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`Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure provides that "[t]he court may,
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`on motion, grant a new trial on all or some of the issues – and to any party – as follows: (A) after
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`a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in
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`federal court[.]" Fed. R. Civ. P. 59(a)(1)(A). As a general matter, "[a] motion for a new trial
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`should be granted when, in the opinion of the district court, 'the jury has reached a seriously
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`erroneous result or . . . the verdict is a miscarriage of justice.'" Song v. Ives Labs., Inc., 957 F.2d
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`1041, 1047 (2d Cir. 1992) (quotation and other citations omitted). A court may grant a new trial,
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`"therefore, when the jury's verdict is against the weight of the evidence." DLC Mgmt. Corp. v.
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`Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (citations omitted).
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 9 of 26
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`The standards governing a Rule 59 motion for a new trial on the ground that the verdict
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`was against the weight of the evidence differs in two important ways from the standards
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`governing a Rule 50 motion for judgment as a matter of law. "Unlike judgment as a matter of
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`law, a new trial may be granted even if there is substantial evidence supporting the jury's
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`verdict." Id. Additionally, a court "is free to weigh the evidence . . ., and need not view it in the
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`light most favorable to the verdict winner." See id. (citation omitted). Nonetheless, a court
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`should only grant a Rule 59 motion when the jury's verdict is "'egregious."' Id. (citation
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`omitted). "Accordingly, a court should rarely disturb a jury's evaluation of a witness's
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`credibility." Id. (citations omitted).
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`2. Hostile work environment -- Title VII and § 19835
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`a. Plaintiff's hostile work environment
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`"'[T]o establish a hostile work environment claim under Title VII [or § 1983], a plaintiff
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`must produce enough evidence to show that "the workplace is permeated with discriminatory
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`intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
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`the victim's employment and create an abusive working environment."'" Rivera v. Rochester
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`Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (quotation and footnote omitted).
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`In that regard, a plaintiff must show "both 'objective and subjective elements: the misconduct
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`shown must be "severe or pervasive enough to create an objectively hostile or abusive work
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`5 Although the standards for whether a hostile work environment exists are the same for claims
`pursuant to Title VII and § 1983, see Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006), the
`rules regarding whether such an environment may be imputed to the employer differ markedly
`under Title VII and § 1983. Thus, the following discussion will first consider whether a hostile
`work environment exists and then whether it may be imputed to Defendant under both Title VII
`and § 1983.
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`environment," and the victim must also subjectively perceive that environment to be abusive.'"
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`Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (quotation omitted). Furthermore, when
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`evaluating a hostile work environment claim, courts "'examin[e] the totality of the circumstances,
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`including: the frequency of the discriminatory conduct; its severity; whether it is physically
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`threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
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`with the victim's [job] performance.'" Rivera, 743 F.3d at 20 (quoting Hayut v. State Univ. of
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`N.Y., 352 F.3d 733, 745 (2d Cir. 2003)). "'As a general rule, incidents must be more than
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`"episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."'"
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`Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (quoting Alfano, 294 F.3d at 374 (quoting
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`Perry, 115 F.3d at 149)).
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`In Terry, the Second Circuit advised that,
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`[w]hile the standard for establishing a hostile work environment is high, we have
`repeatedly cautioned against setting the bar too high, noting that "while a mild,
`isolated incident does not make a work environment hostile, the test is whether
`'the harassment is of such quality or quantity that a reasonable employee would
`find the conditions of her employment altered for the worse.'" . . . The
`environment need not be "unendurable" or "intolerable." Nor must the victim's
`"psychological well-being" be damaged. . . . "'In short, the fact that the law
`requires harassment to be severe or pervasive before it can be actionable does not
`mean that employers are free from liability in all but the most egregious cases.'" . .
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`Id. (internal quotations omitted).
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`Furthermore, Terry explicitly instructed that a plaintiff need not show that each incident on its
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`own was severe, because "'a work environment may be actionable if the conduct there is either
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`so severe or so pervasive as to alter the working conditions of a reasonable employee.'" Id. at
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`149 (quoting Richardson, 180 F.3d at 440). To that extent, the complained of conduct need not
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`"be both severe and pervasive to be actionable under a hostile work environment theory[.]" Id.
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`With these standard in mind, the Court's first task is to lay-out the factual basis for
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`Plaintiff's claims as described in her trial testimony.
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`Magazines and screensavers. Plaintiff stated that, "[f]rom the day that I started working
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`in the jail, pornography, magazines -- Playboy, Hustler, Maxim -- they were all over the jail."
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`See Dkt. No. 137-8 at 547:22-24. Furthermore, Plaintiff testified that "[t]here were magazines in
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`the drawers that were being looked at, there were screen savers on these supervisors' computers
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`in their offices[.]" See id. at 546:7-9. Specifically, Plaintiff testified that "Corporal Statenburg
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`[who was] in charge of the in-take department had a screen saver of a woman with just a black
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`sash going across her chest and her vagina area. Corporal Wranovics also had a screen saver of a
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`half-naked woman on his computer in his own office." See id. at 549:9-13. Moreover, Divorl
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`"would take [pornographic] magazines out and as he looked through them, he would comment
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`on the women in those magazines. Talking about their breasts, what he would like to do with
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`them." See id. at 552:25-553:1-3. Plaintiff testified that Divorl did this "on more than one
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`occasion." See id. at 553:4. Finally, Plaintiff testified that, although supervisors in the jail at one
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`time removed the magazines, they would return. See id. at 562.
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`Sexual comments. Plaintiff testified that, "[o]n one occasion, Officer Hedrick would
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`make reference to the size of my chest[.]" See id. at 546:16-19. Moreover, she stated that other
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`officers "would make references to my butt, they would make references to my chest and what
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`they would like to do sexually." See id. at 549:4-6.
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`Divorl. Plaintiff testified that, in 2005,6 when she started to work in-take she expressed
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`to Corporal Ferro and others that she "couldn't work with [Divorl], he made me feel very
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`6 Defendant makes a cursory argument that the Court cannot consider Divorl's 2005 conduct
`because it occurred beyond Title VII's 300-day statute of limitations. To the contrary, Plaintiff
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`uncomfortable the way he would look at me, the way he would watch me, and I asked and I
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`expressed many times please don't do that. I cannot work with him." See id. at 550:1-5.
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`Furthermore, she testified that, during training in 2005, Divorl "would come up behind me, put
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`his hand around my -- around my chair and have his head right next to mine, breathing down my
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`neck continuously and he would come up behind me all the time." See id. at 550:7-11. Plaintiff
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`asserted that she "asked him to stop, it didn't stop. I said something to Corporal Ferro and he
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`said he talked to [Divorl] and he said that he was training and he needed to watch you[.]" See id.
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`at 550:11-14. Moreover, in February 2007, Plaintiff again reiterated to co-workers that she did
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`not want to work alone with Divorl. See id. at 557. In addition, Plaintiff described the following
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`interaction that took place in October 2007:
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`Divorl brought in a chair, a massaging chair. He asked me if I wanted to sit in
`that chair and I said no. So he sat in the chair. As he sat in the chair, he kept
`moaning and he kept saying, "Oh, I can feel my balls vibrating." At that point I
`got up and I left the in-take area because I couldn't be with him.
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`See id. at 550:18-23.
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`Plaintiff testified that she reported this interaction to Corporal Toolan who told Sergeant Polacco
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`who then brought it to Lieutenant Becker. See id. at 551. Plaintiff then had a meeting with
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`Lieutenant Becker, Sergeant Polacco, and Divorl. See id. She described the meeting as follows:
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`contends "[c]laims for a hostile work environment . . . may properly include acts outside the 300-
`day period '[p]rovided that an act contributing to the claim occurs within the filing period[.]'"
`Trinidad v. N.Y. City Dep't of Correction, 423 F. Supp. 2d 151, 165 (S.D.N.Y. 2006) (quotation
`and other citations omitted). As the Court previously discussed, "[a] plaintiff, . . . may base her
`hostile work environment claim on events outside the limitations period as long as (1) the acts
`occurring before the 300-day period expired are 'part of the same actionable hostile work
`environment practice,' and (2) at least one act contributing to the claim occurs within the
`limitations period." See Dkt. No. 55 at 6-7 (quoting [Natl. R.R. Passenger Corp. v. Morgan, 536
`U.S. 101,] 120 [(2002)]). The Court finds that the 2005 incidents are part of the same actionable
`hostile work environment as the events that took place during the limitations period; and,
`therefore, it will consider the 2005 events when deciding whether a hostile work environment
`exists.
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 13 of 26
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`Lieutenant Becker asked me what happened, I told him the story, at which point
`he handed me a letter and he asked me -- he said, "What do you want me to do
`with him? Do you want him fired?" I said, "I -- I can't do that. I don't want him
`fired, I don't want any repercussions for his wife and his child. No, I don't want
`him fired but I can't do that. I don't have the power to do that." He had a letter
`already drafted on his desk and said, "So this matter is resolved? You don't want
`him fired?" I really didn't think I had a choice. They're all sitting there. He had
`me in a room by myself. I had nobody else with me. I didn't know what I was
`going into. I had no idea. The letter was already done. So I signed the letter.
`See id. at 551:12-25.
`
`On cross-examination, Plaintiff later explained that she felt "intimidated" at this meeting. See id.
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`at 558:14, 19; 567:11, 23. Plaintiff testified that she left the meeting crying. See id. at 568.
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`After this meeting, "on rare occasions" Plaintiff would have to work with Divorl until he was
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`eventually taken off in-take because of an argument with another officer. See id. at 552.
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`According to Plaintiff, no one ever followed up with her after her meeting with Lieutenant
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`Becker. See id.
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`
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`Plaintiff's mental state. Plaintiff testified that she found "the comments, the magazines,
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`the physical conduct" offensive. See id. at 554:1-4. Moreover, Plaintiff testified that, after she
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`began to work with Divorl "five nights a week, [she] began to withdraw from [her] life, [her]
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`children. [She] began having marital issues because [she] couldn't talk to [her] husband. [She]
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`became very depressed, very anxious, and [she] had a hard time going to -- day-to-day life and
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`[she] hated coming to work." See id. at 554:10-15.
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`
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`In addition to Plaintiff's testimony, former-Plaintiffs Reyes and Legg corroborated
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`Plaintiff's account regarding the pornography and sexually explicit screen savers. See id. at 100-
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`01; 505-10.
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`
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`Viewing the totality of the evidence, the jury could have fairly concluded that Plaintiff
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`was consistently exposed to offensive pornographic materials and screensavers as well as
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`- 13 -
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 14 of 26
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`inappropriate comments describing these images. The pervasiveness of the illicit material in the
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`jail, although insufficient in and of itself to establish a hostile work environment, counsels in
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`favor of finding that a hostile work environment existed. Furthermore, Plaintiff was subjected to
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`several sexually offensive encounters with Divorl. First, Plaintiff testified that Divorl would
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`comment about her physical features in a suggestive way. Second, Plaintiff had to hear Divorl
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`describe the pornographic images that he was viewing in front of her. Finally, Divorl
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`commented that he "could feel his balls vibrating" while seated on a massage chair. These
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`comments and actions have obvious sexual overtones and are both objectively and subjectively
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`offensive. Furthermore, Plaintiff complained that Divorl came up behind her and breathed down
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`her neck and would always stare at her and make her feel very uncomfortable. Although these
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`incidents are not obviously sexually based, the Court may still consider them when deciding
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`whether Plaintiff suffered a hostile work environment.
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`
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`Defendant argues, in essence, that, because former-Plaintiffs Reyes and Legg failed to
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`obtain a favorable jury verdict, the jury must have concluded that the pornographic magazines
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`and screensavers did not contribute to a hostile work environment. However, Plaintiff presented
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`additional and different evidence from which the jury could have concluded that Plaintiff, but not
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`former-Plaintiffs Legg and Reyes, suffered from a hostile work environment. In that regard,
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`Plaintiff was the only person who had to suffer Divorl's conduct, and she also had to deal with an
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`intimidating meeting after she complained about Divorl's massage chair comments.7 The sum
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`7 Defendant argues that courts have rejected the argument that "'a failure adequately to remediate
`sexual harassment itself constitutes an act that may contribute to a hostile work environment.'"
`See Dkt. No. 138 at 24 (quoting Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712,
`724 (2d Cir. 2010)). However, the jury could have considered the meeting, not as a failure to
`mitigate the sexual harassment, but rather as an attempt to strong-arm Plaintiff into rejecting the
`option to move forward with formal charges and forcing her to confront her harasser in an unsafe
`environment.
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`Case 1:09-cv-00550-FJS-RFT Document 198 Filed 08/24/17 Page 15 of 26
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`and substance of Plaintiff's evidence was simply more substantial than that of former-Plaintiffs
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`Legg and Reyes.
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`
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`Moreover, "[t]he Court's task on a Rule 50 motion is not to examine different aspects of
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`the jury's verdict to determine whether they can be logically reconciled with one another." In re
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`Vivendi Universal, S.A. Sec. Litig., 765 F. Supp. 2d 512, 546 (S.D.N.Y. 2011), aff'd sub nom. In
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`re Vivendi, S.A. Sec. Litig., 838 F.3d 223 (2d Cir. 2016). Instead, the court "is to look at the trial
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`evidence and assess whether that evidence was sufficient to support the verdict." Id. (citing Fed.
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`R. Civ. P. 50(a) ("If a party has been fully heard on an issue during a jury trial and the court finds
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`that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party
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`on that issue, the court may . . . grant a motion for judgment as a matter of law. . . .")) (other
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`citation omitted). Thus, to the extent that Defendant asserts that the verdict was inconsistent, this
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`argument cannot form the basis for the granting of judgment as a matter of law. Based on these
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`well-established standards governing such motions, the Court denies Defendant's motion for
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`judgment as a matter of law because Plaintiff presented sufficient evidence to support the jury's
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`finding.
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`
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`Unlike Defendant's motion for judgement as a matter of law, a court may grant "'a new
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`trial . . . even if there is substantial evidence supporting the jury's verdict.'" DLC Mgmt. Corp.,
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`163 F.3d at 134. Additionally, a court "is free to weigh the evidence . . ., and need not view it in
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`the light most favorable to the verdict winner." Id. (citation omitted). Nonetheless, a court
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`should only grant a Rule 59 "motion when the jury's verdict is 'egregious."' Id. (quotation
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`omitted).
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`Plaintiff clearly presented sufficient evidence from which a reasonable juror could have
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`concluded that Plaintiff suffered a hostile work environment. In other words, it cannot be said
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`- 15 -
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`Case 1:09-cv-00550-FJS-R

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