FILED: ONONDAGA COUNTY CLERK 11/06/2017 09:28 PM
`FILED: ONONDAGA COUNTY CLERK 11m2017 09:28 PM
`NYSC 3F DOC. NO. 195
`NYSCEF DOC. NO. 195
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`EXHIBIT D
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`FILED: ONONDAGA COUNTY CLERK 11/06/2017 09:28 PM
`FILED: ONONDAGAVCOUNTY CLERK 11m2017 09:28 PM
`NYSC 3F DOC. NO. 195
`NYSCEF DOC. NO. 195
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`INDEX NO.
`2007EF7035
`INDEX NO. 2007EF7035
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`RfiCfiIVfiD NYSCEF:
`11/06/2017
`RECEIVED NYSCEF: 11/06/2017
`
`@ Positive
`As of: November 6, 2017 6:47 PM Z
`
`Lee v. City; of Syracuse
`
`United States Court of Appeals for the Second Circuit
`
`October 27, 2011, Decided
`
`10-3206-cv(L); 10-3304-cv(XAP); 10—3308—cv(XAP)
`
`Reporter
`
`446 Fed. Appx. 319 *; 2011 US App. LEXIS 21801 **
`
`KATHERINE J. LEE, Plaintiff-AppelIee-Cross—Appellant,
`-v.- CITY OF SYRACUSE, MICHAEL HEENAN, in his
`individual and official capacity, RICHARD DOUGLAS, in
`his individual and official capacity, MICHAEL
`RATHBUN, in his individual capacity, THOMAS
`GALVlN, CAPTAIN, in his individual and official
`
`capacity, MICHAEL KERWIN, in his individual and
`
`official capacity, STEVEN THOMPSON, in his individual
`capacity, GARY MIGUEL, CHIEF OF POLICE, in his
`individual and official capacity, CITY OF SYRACUSE
`POLICE DEPARTMENT, Defendants-Appel[ants-Cross-
`Appellees,
`
`Notice: PLEASE REFER TO FEDERAL RULES OF
`APPELLATE PROCEDURE RULE 32.1 GOVERNING
`THE CITATION TO UNPUBLISHED OPINIONS.
`
`Subsequent History: US Supreme Court certiorari
`denied by City of Syracuse v. Lee, 132 S. Ct. 2113, 182
`L. Ed. 2d 870, 2012 U.S. LEXIS 3287 (U.S., 2012)
`
`Costs and fees proceeding at Lee v. City ofSyracuse.
`
`Disposition:
`
`[**1]AFFiRMED.
`
`Core Terms
`
`
`
`
`
`and plaintiff employee appealed from the US. District
`Court for the Northern District of New York, where a jury
`found that the department had a custom and practice of
`retaliating against employees who complained about
`discrimination and awarded damages to the employee
`in her 42 U.S.C.S. § 1983 action. Summary judgment
`was granted to defendants on the employee's sex
`discrimination claim.
`
`Overview
`
`The city argued that the jury's finding that the deputy
`chief--the only individual defendant before the jury-- did
`not
`violate
`the
`employee's
`constitutional
`rights
`precluded Monell liability, and that therefore, the district
`court improperly denied the city's motion for judgment
`as a matter of law. Affirming, the court noted that the
`employee pleaded and proved numerous retaliatory acts
`by other individuals, and that these acts were the result
`
`of the department's custom and practice of retaliating
`against
`employees
`who
`complained
`about
`discrimination. Since the deputy chief was not the only
`wrongdoer, the jury's finding that he did not violate the
`employee's constitutional rights did not shield the City
`from Monell liability. The court also ruled that the jury's
`award of $400,000 for the employee's Title VII and
`Monell retaliation claims was not excessive. Viewing the
`evidence in the light most favorable to the employee,
`she demonstrated that
`the defendants engaged in
`numerous acts of
`retaliation of varying degrees of
`severity over a period of several years, causing plaintiff
`intense emotional distress.
`
`damages, retaliation, district court, duplicative, custom,
`emotional, municipal, distress, jury's, matter of law,
`complaining, defendants', disciplined, gender
`
`Outcome
`
`The court affirmed the judgment.
`
`
`
`Case Smmary
`
`
`
`
`
`Procedural Posture
`
`Defendants, a police department and police officials,
`
`Civil Procedure > Appeals > Standards of
`
`Anthony Fernicola
`
`

`

`FILED: ONONDAGA COUNTY CLERK 11/06/2017 09:28 PM
`FILED: ONONDAGA COUNTY CLERK 11m2017 09:28 PM
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`NYSC 3F DOC. NO.
`195
`NYSCEF DOC. NO. 195
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`INDEX yo. 2007EF7035
`INDEX NO. 2007EF7035
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`RaCaIVaD NYSCEF: 11/06/2017
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`Page 2 of 5
`
`446 Fed. Appx. 319, *319; 2011 US. App. LEXIS 21801,**1
`
`Review > De Novo Review
`
`Civil Procedure > Trials > Judgment as Matter of
`Law > General Overview
`
`HN1[;§;] Standards of Review, De Novo Review
`
`The United States Court of Appeals for the Second
`Circuit reviews a district court’s denial of a motion for
`
`judgment as a matter of law de novo and draws all
`
`reasonable inferences in favor of the nonmoving party.
`
`Civil Rights Law >
`
`> Section 1983
`
`Actions > Scope > Government Actions
`
`Evidence > Burdens of Proof > Allocation
`
`Governments > Local Governments > Claims By &
`Against
`
`HN2[S§'L] Scope, Government Actions
`
`liability pursuant to 42
`in order to establish municipal
`U.S.C.S. § 1983, a plaintiff must demonstrate an injury
`caused by a municipal policy, custom, or practice.
`
`Procedure > Remedies > Damages > Compensator
`y Damages
`
`Civil Rights Law > Protection of Rights > Section
`1983 Actions > Scope
`
`Evidence > Burdens of Proof > Allocation
`
`HN4[.;Ԥ;.] Damages, Compensatory Damages
`
`that a constitutional deprivation has
`The mere fact
`occurred does notjustify the award of emotional distress
`damages; the plaintiff must establish that she suffered
`
`an actual injury caused by the deprivation.
`
`Civil Procedure > Trials > Judgment as Matter of
`Law > General Overview
`
`HN5lfi] Trials, Judgment as Matter of Law
`
`A motion for judgment as a matter of law must be
`sufficiently specific to alert the opposing party to the
`supposed deficiencies in her proof.
`
`> Costs & Attorney
`Civil Procedure >
`Fees > Attorney Fees & Expenses > Reasonable
`Fees
`
`Civil Rights Law >
`
`> Section 1983
`
`Actions > Scope > Government Actions
`
`HN6[.§..] Attorney Fees 8. Expenses, Reasonable
`Fees
`
`Governments > Local Governments > Claims By 8
`Against
`
`Civil Rights Law > Protection of Rights > Section
`1983 Actions > Scope
`
`An award of $210 per hour for an experienced civil
`rights attorney in the Northern District of New York is
`located within the range of permissible decisions and
`does not rest on an erroneous View of the law.
`
`HN3[$] Scope, Government Actions
`
`A jury's
`finding
`that
`no
`individual
`committed
`a
`constitutional violation precludes municipal
`liability for
`that
`individual’s
`acts. Municipal
`liability under 42
`U.S.C.S. § 1983 can only be predicated on individual
`wrongdoing that
`is carried out
`in accordance with a
`
`the
`or practice. Thus,
`custom,
`policy,
`municipal
`dispositive issue is whether the plaintiff pleads an injury
`caused by individual wrongdoing that is in accordance
`with a municipal policy, custom, or practice.
`
`Counsel: FOR APPELLANTS: JESSICA MCKEE,
`Assistant Corporation Counsel, for Juanita Perez
`
`Williams, Corporation Counsel, City of Syracuse Office
`of the Corporation Counsel, Syracuse, NY.
`
`FOR APPELLEES: A.J. BOSMAN, Bosman Law Firm,
`L.L.C.. Rome, NY.
`
`Judges: PRESENT: GUIDO CALABRESI, RICHARD C.
`
`WESLEY, GERARD E. LYNCH, Circuit Judges.
`
`Opinion
`
`Civil
`
`Anthony Fernicola
`
`

`

`FILED: ONONDAGA COUNTY CLERK 11/06/2017 09:28 PM
`FILED: ONONDAGA COUNTY CLERK 11m2017 09:28 PM
`NYSC
`3F DOC. NO.
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`NYSCEF DOC. NO. 195
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`INDEX V0.
`2007EF7035
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`Page 3 of 5
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`446 Fed. Apr. 319, *319; 2011 US. App. LEXIS 21801,**1
`
`[*322] SUMMARY ORDER
`
`with
`along
`Defendants-Appellants-Cross-Appellees,
`from
`Plaintiff—Appellee—Cross-Appellant,
`appeal
`judgment of the United States District Court for the
`
`Northern District of New York (Hurd, J.) following a jury
`trial
`that
`found in
`favor of Plaintiff-Appellee-Cross-
`Appellant Katherine Lee in part, and in
`favor of
`Defendants-AppelIants—Cross-Appellees
`("defendants")
`in part. We assume the parties'
`familiarity with the
`underlying facts, the procedural history, and the issues
`presented for review.
`
`lS HEREBY
`lT
`UPON DUE CONSIDERATION,
`ORDERED, ADJUDGED, AND DECREED that
`the
`judgment is AFFIRMED.
`
`The defendants make a cavalcade of arguments. First,
`they argue that the district court erred by denying the
`City's motion for judgment as a matter of law on Lee‘s
`Mona/l claim.
`1 w[¥] We review a district court's
`denial of a motion for judgment as a matter of law de
`novo and [**2] draw all reasonable inferences in favor
`
`of the nonmoving party. Mammal/o v. City of New
`
`York 612 F.3d 149. 161 (2d Cir. 2010[. Here, the jury
`found that
`the Syracuse Police Department had a
`custom and practice of retaliating against employees
`who complained about discrimination. The City argues
`that the jury’s finding that Deputy Chief Heenan - the
`only individual defendant before the jury - did not violate
`Lee's constitutional rights precludes Mane/l liability, and
`that therefore, the district court improperly denied the
`City‘s motion for judgment as a matter of law. See City
`of Los Angeles v. Heller. 475 US. 796. 799. 106 S. Ct.
`
`1571, 59,”1,,” Ed. 2d 806 (1986].
`
`watt] A jury's finding that no individual committed a
`constitutional violation precludes municipal
`liability for
`that individuals acts. Heller. 475 US. at 799. Municipal
`liability under § 1983 can only be predicated on
`individual wrongdoing that is carried out in accordance
`
`[**3] or practice. Thus,
`with a municipal policy, custom,
`the dispositive issue is whether the plaintiff pleads an
`injury caused by individual wrongdoing that
`is
`in
`accordance with a municipal policy, custom, or practice.
`
`Viewing the evidence in the light most favorable to Lee,
`
`the Supreme
`1in Mane/l v. Department of Social Services,
`Court held that wfiyj in order to establish municipal liability
`pursuant to 42 U.S.C. § 1983, a plaintiff must demonstrate an
`injury caused by a municipal policy, custom, or practice. gag
`US. 658 69091. 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
`
`is clear that Lee pleaded and proved numerous
`it
`retaliatory acts by individuals other than Heenan, and
`
`that these acts were the result of the Syracuse Police
`Department's custom and practice of retaliating against
`employees who complained about discrimination. As the
`district court explained, the City "concede[d] there were
`other decision-makers who took action against [Lee]
`after her protected activity." Since Heenan was not the
`only wrongdoer, the jury's finding that he did not violate
`
`Lee’s constitutional rights does not shield the City from
`Mone/I liability. There was a legally sufficient evidentiary
`basis for the jury to conclude that an individual within
`the Syracuse
`Police Department
`violated Lee's
`constitutional
`rights
`by retaliating against her
`for
`complaining about discrimination, and that the retaliation
`
`was caused by a City custom or practice.
`
`Second, defendants argue that plaintiff failed to present
`sufficient evidence that the emotional [“4] distress and
`reputational harm damages she claimed were caused
`by their retaliatory conduct. See ,EQLLCL/mgfljgfigfiiflefll
`
`Asst? v. CitmeLfiizflfiemXork. 31.Q...E.§d11§1.§§.1.2g
`QILQQQZj (5M[$] "[Tjhe mere fact that a constitutional
`deprivation has occurred does not justify the award of
`[emotional
`distress]
`damages;
`the
`plaintiff must
`establish that she suffered an actual injury caused by
`the deprivation"). However, in their motion forjudgment
`as a matter of law,
`the defendants asked the district
`
`court to dismiss plaintiff's claims only "to the extent [she]
`seeks
`economic damages." Defendants‘
`causation
`challenge to plaintiff‘s emotional distress and reputation
`damages is therefore waived. See ,QafligiL/ngrgsinjfiy
`Ala:7.1.flee/1y.:3}..1Dev.....-.Qare.........___i,3.§1E..3.<i..,;f—?Z§._.2§Z_CZQ£51..
`1925] (holding that flflfij’ffw] a motion for judgment as a
`matter of law must be "sufficiently specific to alert the
`opposing party to the supposed deficiencies in her
`proof").
`
`the court abused its
`Third, defendants argue that
`discretion by admitting testimony by other
`female
`Syracuse Police Department officers regarding their
`own experiences of being retaliated against after
`complaining about gender discrimination. Defendants
`argue that the testimony [“5] of two of the witnesses
`was unhelpful to plaintiff‘s Mane/l claim because those
`officers were not disciplined after complaining about
`gender discrimination, but rather were retaliated against
`in other ways. However, the jury was not instructed that
`to find against the City on the Mone/I claim it had to find
`
`a policy of retaliation by discipline. Rather, the charge
`correctly asked the jury to determine whether
`the
`
`Department "has a pervasive and widespread custom or
`policy of retaliating against police officers who complain
`
`Anthony Fernicola
`
`

`

`FILED: ONONDAGA COUNTY CLERK 11/06/2017 09:28 PM
`FILED: ONONDAGA COUNTY CLERK 11m2017 09:28 PM
`NYSC
`3F DOC. NO.
`195
`NYSCEF DOC. NO. 195
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`INDEX V0.
`2007EF7035
`INDEX NO. 2007EF7035
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`RaCaIVaD NYSCEF:
`11/06/2017
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`Page 4 of 5
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`446 Fed. Appx. 319, *323; 2011 US. App. LEXIS 21801, **5
`
`of discrimination." Similarly, the jury instruction defining
`a
`"materially adverse employment action" was not
`limited to disciplinary actions. Accordingly,
`the district
`court did not err by admitting this testimony.
`
`the
`that
`Similarly, we reject defendants‘ argument
`district court abused its discretion by admitting another
`officer's testimony that her supervisor allowed male
`employees
`to watch
`pornography at work. This
`testimony was necessary background for the officer's
`subsequent testimony that after she filed a complaint
`about the pornography she was disciplined by Captain
`Rathbun for conduct for which other officers were not
`
`disciplined — testimony that was clearly [**6] relevant to
`plaintiffs Mons/I claim.
`
`the jury‘s award of
`Fourth, defendants argue that
`$400,000 for plaintiff's Title VII and Monel/ retaliation
`claims was excessive. However, viewing the evidence in
`the
`light most
`favorable
`to
`plaintiff,
`plaintiff
`demonstrated that the defendants engaged in numerous
`acts of retaliation of varying degrees of severity over a
`period of
`several years,
`causing plaintiff
`intense
`emotional distress. As long ago as 2002, we sustained a
`$400,000 verdict in a retaliation case brought by another
`
`female police officer on similar facts. See amps v.
`Bowen. 278 F.3d 103 110-12 {2d Cir. 2002) (noting
`evidence of ongoing harassment by defendants over
`five years, testimony about plaintiff‘s emotional distress,
`and defendants’ unapologetic defense of their treatment
`of plaintiff). Accordingly, we reject defendants’ argument
`that the verdict in this case was excessive.
`
`Fifth, defendants claim that the jury's damages award of
`$200,000 for plaintiff’s Title Vll
`retaliation claim and
`$200,000
`for
`her Monel/
`retaliation
`claim was
`
`duplicative, and that the district court therefore erred by
`denying their motion to reduce the jury's award by half.
`See Bender v. City of New Yorig 78 F.3d 787. 793 (2d
`Cir. 19962 [“7] ("If two causes of action provide a legal
`theory for compensating one injury, only one recovery
`may
`be
`obtained“).
`However,
`as
`defendants
`
`in their post-argument letter to
`acknowledged [*324}
`this court, they never requested a duplicative damages
`instruction. While defendants did challenge the district
`court's proposed verdict form, they argued only that the
`form created a substantial risk of duplication amongst
`"three potential damages under each cause of action"
`(i.e.,
`(1) emotional distress damages,
`(2) reputational
`damages, and (3) economic damages). Defendants
`made no objection to the form’s duplication of causes of
`action, which is the argument that defendants now press
`on appeal. Thus,
`this argument was not properly
`
`preserved.
`
`To the extent
`
`that defendants claim that
`
`the district
`
`court's failure to use a duplicative damages instruction
`or an alternative verdict form amounted to plain error,
`we disagree. Unlike the verdict in Bender, where we did
`
`find plain error, the damages award in this case was (as
`noted above) not excessive, undercutting any inference
`that the award was "highly likely to have been artificially
`inflated by duplication of awards among causes of
`mm..,_..-_..._w_..__~._.,_. !
`
`The Port Aurh. of NY & N.J.. 445 F.3d 158. 161 {2d Cir.
`2995) (rejecting duplicative damages argument where
`defendants "failed to establish with any degree of
`certainty that such double~counting actually or likely
`occurred in
`this particular case" (internal quotation
`marks omitted». Under these circumstances, we cannot
`conclude that
`the district court's failure to use a
`
`duplicative damages instruction or an alternative verdict
`form was plain error.
`
`that plaintiff‘s
`Sixth, we reject defendants‘ argument
`counsel
`improperly sought punitive damages - which
`were not available in this action — by telling the jury
`during her closing argument to "send a message" to the
`Syracuse Police Department that it should not retaliate
`
`gender
`about
`complain
`against women who
`
`discrimination. See Ramirez v. N.Y.C. Off-Track Betting
`Corp,
`112 F.3d 38, 40 {2d Cir.
`1997)
`(rejecting
`argument that use of the phrase "send a message"
`amounts to de facto request for punitive damages).
`
`We also reject piaintiff's arguments on cross-appeal.
`Plaintiff suggests that
`the district court abused its
`
`discretion by awarding attorneys’ fees at an hourly rate
`of $210,
`rather
`than $275. However, as we have
`[”9] recently held, Mfif] an award of $210 per hour
`for an experienced civil rights attorney in the Northern
`District of New York "is located within the range of
`permissible decisions
`and does
`not
`rest
`on
`an
`
`erroneous view of the law.“ Bergerac/1 v. NY. State
`.mefigemgLMeataJ.....deem._._6_§.ZHE13_Q~2.ZZL-.ZQ.Q.....£2.91...sz1
`2911,! (internal quotation marks omitted).
`
`in granting summary
`Nor did the district court err
`judgment on plaintiff's sex discrimination claims. First,
`all of plaintiff's evidence that she herself was denied
`
`overtime assignments on the basis of her gender
`occurred outside of the statute of limitations period for
`her second lawsuit. Second, while plaintiff may have
`been
`denied
`the
`opportunity
`to
`attend medical
`
`failed to
`appointments during work hours, plaintiff
`present any evidence that men who work for
`the
`
`Anthony Fernicola
`
`

`

`FILED: ONONDAGA COUNTY CLERK 11/06/2017 09:28 PM
`FILED: ONONDAGA COUNTY CLERK 11m2017 09:28 PM
`
`T
`NYSCEF DOC. NO. 195
`NYSC__.F DOC. NO. 195
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`INDEX NO. 2007EF7035
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`INDEX VO~ 20073F7035
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`RaCaIVaD NYSCEF: 11/06/2017
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`446 Fed. Appx. 319, *324; 2011 US. App. LEXIS 21801, “9
`
`department were allowed to go to medical appointments
`during work hours. Finally,
`the district court correctly
`determined that plaintiff's evidence (including her own
`deposition
`testimony)
`suggested
`that
`she was
`disciplined because the defendants sought to retaliate
`against her, not because the defendants sought
`to
`discriminate against her on the basis of her gender.
`
`[**1 0] of the parties' remaining
`We have considered all
`arguments and find them to be without merit.
`
`AFFIRMED.
`
`“mm—“W
`End of Document
`
`Anthony Fernicola
`
`