The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANN MARIE LEGG, NANCY REYES, and
PATRICIA WATSON,
Plaintiffs,
v. 1:09-CV-550
(FJS)
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,
Defendants.
APPEARANCES OF COUNSEL
KLAPROTH LAW PLLC BRENDAN J. KLAPROTH, ESQ.
2141 Wisconsin Avenue, NW
Suite M3
Washington, D.C. 20007
Attorneys for Plaintiffs
RANNI LAW FIRM JOSEPH J. RANNI, ESQ.
148 North Main Street
Florida, New York 10921
Attorneys for Plaintiffs
BERGSTEIN & ULLRICH, LLP STEPHEN BERGSTEIN, ESQ.
5 Paradies Lane
New Paltz, New York 12561
Attorneys for Plaintiffs
ROEMER WALLENS GOLD & EARL T. REDDING, ESQ.
MINEAUZ LLP MATTHEW J. KELLY, ESQ.
13 Columbia Circle
Albany, New York 12203
Attorneys for Defendants
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION AND BACKGROUND
Plaintiffs were female corrections officers at the Ulster County Jail, who commenced
this lawsuit in 2009 alleging, among other things, that they suffered hostile work environments
under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. See generally Dkt. No. 1.
At this time, the only remaining issues before the Court relate to Plaintiff Watson, who alleged
that other officers and her superiors made sexual comments toward her, discussed sexual acts
around her, and viewed pornographic content that was visible around the workplace. See id. at
¶¶ 140-150; Dkt. No. 164 at 141-143. Specifically, Plaintiff Watson recalled various incidents
in which a colleague, Kevin Divorl, made her uncomfortable by watching her, putting his body
next to and around her, breathing down her neck, commenting on women's bodies in
inappropriate magazines, and – on one occasion – bringing a massage chair into the office and
using it in front of Plaintiff Watson while moaning and making vulgar remarks. See Dkt. No. 1
at ¶¶ 140-150; Dkt. No. 164 at 143-145; Dkt. No. 210 at 8. Following a five-day trial in 2014,
the jury found in favor of Defendants on all counts except for Plaintiff Watson's Title VII and
§ 1983 hostile work environment claims. See Dkt. No. 102. The jury awarded Plaintiff Watson
$200,000 for each of those claims, totaling $400,000. See id.
After the jury announced its verdict, the Court granted the parties an extension of time
longer than the Federal Rules of Civil Procedure allowed to file post-trial motions. See Dkt.
No. 166 at 71. Within that timeframe, but outside of the period allotted by the Federal Rules,
Defendant Ulster County (hereinafter "Defendant") moved for judgment as a matter of law, or,
in the alternative, for a new trial on both of Plaintiff Watson's claims. See Dkt. No. 121. The
Court denied that motion as untimely. See Dkt. No. 122. In 2016, the Second Circuit vacated
the Court's order denying the motions, finding that they may have been subject to waiver or
equitable exception that kept them from being untimely, and it remanded so that the Court could
consider in the first instance whether Plaintiff Watson waived her right to object to the
untimeliness of Defendant's motions. See Dkt. No. 129.
On remand, the Court ruled that Plaintiff Watson constructively waived her right to
object and then turned to deciding Defendant's motions. See Dkt. No. 198, Memorandum-
Decision and Order dated August 24, 2017. With respect to Plaintiff Watson's Title VII hostile
work environment claim, the Court denied Defendant's motion for judgment as a matter of law
and sustained the jury's verdict; however, the Court found that the jury's award of $200,000 in
damages was "clearly excessive." See id. at 5-7. Because the award was excessive, the Court
granted Defendant's motion for a new trial on Plaintiff Watson's Title VII claim unless she
agreed to a remittitur reducing the award to $75,000. See id. at 19, 25. She ultimately agreed to
that remittitur. See Dkt. No. 200.1 As to Plaintiff Watson's § 1983 claim, the Court granted
Defendant's motion for judgment as a matter of law, concluding that Plaintiff Watson "did not
present sufficient evidence that the hostile work environment was a result of a municipal policy
1 Defendant has satisfied the judgment and paid Plaintiff Watson the $75,000 award on her Title
VII claim, plus interest. See Dkt. No. 217.
or custom." See Dkt. No. 198 at 22. As such, the Court denied Defendant's motion for a new
trial on Plaintiff Watson's § 1983 claim as moot. See id. at 26. Both parties appealed. See Dkt.
Nos. 204, 205.
On appeal, Plaintiff Watson argued that the original $400,000 judgment on her two
hostile work environment claims should be reinstated because the Court erred in finding that
she "constructively waived" her objections to Defendant's post-trial motions. See Dkt. No. 210,
Second Circuit Certified Order, at 13. Alternatively, she asserted that the Court erred in
granting Defendant's motion for judgment as a matter of law with respect to her § 1983 claim.
See id. Defendant argued that Plaintiff Watson could not proceed with her appeal after
accepting the remittitur on her Title VII claim. See id. Defendant also contended that the Court
erred in denying its motion for judgment as a matter of law on that Title VII claim. See id.
In 2020, the Second Circuit concluded that the Court appropriately found that Plaintiff
Watson constructively waived her objections to Defendant's post-trial motions and that the
remittitur on her Title VII claim did not preclude her from appealing with respect to her § 1983
claim. See id. at 17-18. The Second Circuit then concluded that the Court properly denied
Defendant's motion for judgment as a matter of law on Plaintiff Watson's Title VII claim. See
id. at 20-21. However, the Second Circuit reversed the Court's grant of judgment as a matter of
law on Plaintiff Watson's § 1983 claim because – although there was insufficient evidence to
show a "custom, policy, or usage" to satisfy Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)
– a reasonable jury could have concluded that the pervasiveness of pornographic material in the
workplace created a hostile work environment under § 1983. See id. at 23-25.
Because the Court granted Defendant's Rule 50 motion for judgment as a matter of law
with respect to Plaintiff Watson's § 1983 claim and did not address Defendant's Rule 59 motion
for a new trial, the Second Circuit remanded this matter for the Court to consider in the first
instance Defendant's Rule 59 motion. See id. at 25. The Second Circuit cautioned, however,
that "'jury verdicts should be disturbed with great infrequency'" and stated that it was "doubtful
whether this [was] a case in which disturbing the verdict would be justified." See id. (quoting
Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012)). Additionally, finding
that Plaintiff Watson provided "minimal testimony about the emotional distress caused by her
working environment," the Second Circuit remanded the matter for the Court to consider in the
first instance whether remittitur was appropriate under Rule 59(e) as to Plaintiff Watson's
§ 1983 claim. See id. at 25-26. With respect to that issue, the Second Circuit noted that,
although the Title VII and § 1983 hostile work environment claims were separate and distinct,
the amount of damages "'should bear some resemblance to each other.'" See id. at 26 (quoting
Negron v. Ulster Cty., No. 08-CV-692 (FJS), 2012 WL 3597398, at *7 (N.D.N.Y. Aug. 20,
2012)). The parties have filed supplemental memoranda to aid the Court in considering these
issues. See Dkt. Nos. 214, 215.
II. DISCUSSION
A. Whether the Court should order a new trial on Plaintiff Watson's § 1983 hostile
work environment claim
Rule 59(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that "[t]he
court may, on motion, grant a new trial on all or some of the issues . . . (A) after a jury trial, for
any reason for which a new trial has heretofore been granted in an action at law in federal court
. . . ." Fed. R. Civ. P. 59(a). However, a motion for a new trial is not "'a vehicle for relitigating
old issues, presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a second bite at the apple.'" Lundstedt v. Deutsche Bank Nat'l Tr. Co., No.
3:13-cv-01423 (JAM), 2020 U.S. Dist. LEXIS 22435, *5 (D. Conn. Feb. 10, 2020) (quoting
Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
When analyzing a motion for a new trial, the court "'may weigh the evidence and the
credibility of witnesses and need not view the evidence in the light most favorable to the verdict
winner.'" Id. at *4-*5 (quoting Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir.
2012) (citation omitted)). Nonetheless, this "is not a permission slip to 'ignore the jury's role in
resolving factual disputes and assessing witness credibility.'" Am. Tech. Ceramics Corp. v.
Presidio Components, Inc., 490 F. Supp. 3d 593, 616-17 (E.D.N.Y. 2020) (quoting Mugavero,
680 F. Supp. 2d at 558-59 (citation omitted)) (other citation omitted). Thus, "[a] trial judge
'may not freely substitute his or her assessment of the credibility of witnesses for that of the jury
simply because the judge disagrees with the jury.'" Id. at 617 (quoting Raedle, 670 F.3d at 418
(citation omitted)). In sum, a court "may only grant a motion for [a] new trial 'if the jury has
reached a seriously erroneous result or [its] verdict is a miscarriage of justice[.]'" Lundstedt,
2020 U.S. Dist. LEXIS 22435, at *5 (quoting Stampf v. Long Island R.R. Co., 761 F.3d 192,
202 (2d Cir. 2014)).
As the Second Circuit stated in this case, "Section 1983 authorizes private suits against
any 'person who, under color of any statute, ordinance, regulation, custom, or usage of any State
. . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws." See Dkt. No. 210 at
22 (quoting 42 U.S.C. § 1983). "Sex-based discrimination in public employment is actionable
under § 1983 as a violation of the Equal Protection Clause of the Fourteenth Amendment,
which protects 'public employees from various forms of discrimination, including hostile work
environment . . . on the basis of gender.'" Id. (quoting Demoret v. Zegarelli, 451 F.3d 140, 149
(2d Cir. 2006)). "The threshold standard for proving a hostile work environment claim is
generally the same for both Title VII and § 1983." Id. (citation and parenthetical omitted). "To
establish a hostile work environment claim . . . a plaintiff must show that the 'workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive working
environment.'" Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (internal citations
and quotation marks omitted)).
The Court finds that the jury did not reach a seriously erroneous result in rendering a
verdict in favor of Plaintiff Watson on her § 1983 hostile work environment claim. As the
Court discussed in its decision upholding Plaintiff Watson's Title VII hostile work environment
claim, there were three relevant groups of facts about which the jury learned during the trial: (1)
the 2005 allegations regarding Divorl's conduct during training; (2) general complaints
regarding pornographic magazines and screensavers; and (3) Divorl's 2007 comments involving
the massage chair. See Dkt. No. 198 at 18. With respect to the 2005 allegations, Plaintiff
Watson testified that Divorl made her feel uncomfortable when he came up behind her, breathed
down her neck, and stared at her. Plaintiff Watson complained to Corporal Ferro, who refused
to take any action. Notably, Defendant did not rebut Plaintiff Watson's account of her 2005
complaints.
Next, all Plaintiffs testified regarding the inappropriate material that was present in the
Ulster County Jail, which included pornographic magazines, such as Playboy, Maxim, and
Hustler, and that at least four supervisors had sexually explicit screensavers. Plaintiff Reyes
also testified regarding vulgar music that other officers played and that her supervisor brushed
off her complaints. As the Second Circuit pointed out, it "has specifically recognized that the
mere presence of pornography in a workplace can alter the 'status' of women therein and is
relevant to assessing the objective hostility of the environment." Patane v. Clark, 508 F.3d 106,
114 (2d Cir. 2007) (citing Wolak v. Spucci, 217 F.3d 157, 160-61 (2d Cir. 2000)); accord Dkt.
No. 210 at 24. Additionally, Plaintiffs complained about repeated sexual comments that other
officers and supervisors made about them or others while in their presence, including about the
women in the explicit magazines. Officers also allegedly touched Plaintiff Legg
inappropriately. The Court finds that such sexual comments and touching are more than a
"mere offensive utterance" and instead reveal a "pattern in which female employees . . . could
expect sexual remarks and other harassment at any time." Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 103 (2d Cir. 2010) (internal quotation marks omitted).
Finally, Plaintiff Watson testified with respect to the massage chair incident in which
Divorl brought the chair to work, asked her to sit in it, and when she refused, he sat in the chair
and began moaning and making vulgar comments about how it felt to him. Plaintiff Watson
explained that she complained to Corporal Toolan, who relayed that information up the chain of
command until it reached Lieutenant Becker, who had a meeting with Plaintiff Watson and
Divorl. She testified that Lieutenant Becker asked her if she wanted Divorl fired, and she did
not, so she signed a letter stating that the matter was resolved even though it was not. Plaintiff
Watson explained that she was alone, in a room by herself with two superiors and Divorl, and
she felt she did not have a choice but to sign the letter. As the Court explained previously,
Plaintiff Watson's "testimony paints a picture of a meeting where she was intimidated into
agreeing that she did not want to pursue a formal complaint and was not given any option
between having Divorl fired and proceeding informally." See Dkt. No. 198 at 19.
"Furthermore, including Divorl, the alleged harasser, in the meeting to address a sexual
harassment complaint appears to have directly contradicted Defendant's own policy of handling
claims with 'the utmost discretion.'" See id. (citing Dkt. No. 137-1 at 7).
Thus, based on the foregoing evidence, the Court finds that Plaintiff Watson sufficiently
showed that the workplace was permeated with intimidation, ridicule, and insult to such an
extent that a jury could properly conclude that it constituted a hostile work environment.
Accordingly, the Court denies Defendant's motion for a new trial on Plaintiff Watson's § 1983
claim.
B. Whether remittitur is appropriate as to Plaintiff Watson's § 1983 claim
"It is well established that the trial judge enjoys 'discretion to grant a new trial if the
verdict appears to [the judge] to be against the weight of the evidence,' and that '[t]his discretion
includes overturning verdicts for excessiveness and ordering a new trial without qualification,
or conditioned on the verdict winner's refusal to agree to a reduction (remittitur).'" Lore v. City
of Syracuse, 670 F.3d 127, 176-77 (2d Cir. 2012) (quoting Gasperini v. Center for Humanities,
Inc., 518 U.S. 415, 433, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996) (internal quotation marks
omitted)). "A conditional order of remittitur, requiring a plaintiff to choose either a new trial or
a reduced verdict, may be granted where, inter alia, 'the award is intrinsically excessive in the
sense of being greater than the amount a reasonable jury could have awarded, although the
surplus cannot be ascribed to a particular, quantifiable error.'" Id. at 177 (quoting Shu-Tao Lin
v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984) (internal quotation marks
omitted)); (citing Kirsch v. Fleet Street, Ltd., 148 F.3d at 165). "'Where there is no particular
discernable error, [the Second Circuit] ha[s] generally held that a jury's damage award may not
be set aside as excessive unless "the award is so high as to shock the judicial conscience and
constitute a denial of justice[.]"'" Lore, 670 F.3d at 177 (quoting [Kirsch, 148 F.3d at 165]
(quoting O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) (other internal quotation marks
omitted))). "In determining whether a compensatory damage award is excessive, courts
consider 'amounts awarded in other, comparable cases.'" EEOC v. United Health Programs of
Am., Inc., No. 14-CV-3673 (KAM)(JO), 2020 U.S. Dist. LEXIS 39587, *36 (E.D.N.Y. Mar. 6,
2020) (quoting DiSorbo, 343 F.3d at 183 (citing Mathie v. Fries, 121 F.3d 808, 813 (2d Cir.
1997)) (other citation omitted).
"In the Second Circuit, non-economic damages can fall into one of three categories—
garden-variety, significant, or egregious." Lewis v. Am. Sugar Ref., Inc., 325 F. Supp. 3d 321,
364 (S.D.N.Y. 2018). "Awards compensating garden-variety emotional distress or mental
anguish in the Second Circuit range from $30,000 to $125,000." Id. (collecting cases); see
United Health Programs of Am., Inc., 2020 U.S. Dist. LEXIS 39587, at *45; MacCluskey v.
Univ. of Conn. Health Ctr., No. 3:13-cv-1408 (MPS), 2017 U.S. Dist. LEXIS 23520, *48-*49
(D. Conn. Feb. 21, 2017). Courts in this District have recently found awards of $40,000 or
$50,000 to be appropriate for garden variety emotional distress claims resulting from a hostile
work environment where the plaintiff's emotional distress did not require medical treatment or
result in physical manifestation. See White v. New York State Office of Children & Family
Servs., No. 5:11-CV-309 (FJS/ATB), 2021 U.S. Dist. LEXIS 16061, *14 (N.D.N.Y. Jan. 28,
2021) (Scullin, S.J.) (denying new trial on condition that the plaintiff accepts $50,000 remittitur
on hostile work environment claim); Dotson v. City of Syracuse, No. 5:04-CV-1388
(NAM/GJD), 2011 U.S. Dist. LEXIS 20374, *61 (N.D.N.Y. Mar. 2, 2011) (Mordue, C.J.)
(same); Negron v. Ulster Cty., No. 1:08-CV-692 (FJS/RFT), 2012 U.S. Dist. LEXIS 117142,
*23 (N.D.N.Y. Aug. 20, 2012) (Scullin, S.J.) (finding $40,000 remittitur appropriate to
compensate Plaintiff's Title VII hostile work environment claim). Finally, "the amount of
damages awarded for [Title VII and § 1983] claims should bear some resemblance to each
other." Negron, 2012 U.S. Dist. LEXIS 117142, at *22 (footnote omitted).
At trial, Plaintiff Watson testified that, after she started working with Divorl five nights
per week, she "began to withdraw from [her] life" and from her children. See Dkt. No. 164 at
148. She testified that she began having "marital issues" because she "couldn't talk to [her]
husband." See id. Plaintiff Watson further explained that she "became very depressed, very
anxious," had a hard time with "day-to-day life," and hated going to work. See id. On cross-
examination, Plaintiff Watson testified that she had "emotional problems" unrelated to her work
as well. See id. at 149. She was prescribed Pristiq and Xanax because of her emotional distress
related to work, and she stated that she received those medications "in relation to what was
going on with [her] husband and [her] as a result of what was going on with [her]." See id.
Notably, Plaintiff Watson did not submit any medical evidence to support these claims nor did
any family members or friends testify to her condition. The jury awarded her $200,000 as
compensation for her emotional distress on her § 1983 hostile work environment claim. See
Dkt. No. 98.
Based on this testimony regarding Plaintiff Watson's emotional distress, the Court finds
that her emotional injuries were "garden variety," thus falling within the $30,000 to $125,000
range for appropriate compensation. As such, the Court further finds that the jury's $200,000
verdict for her emotional distress was excessive and shocks the judicial conscience. Defendant
requests that Plaintiff Watson receive de minimis compensation for her emotional injuries
amounting to no more than $30,000. See Dkt. No. 214. Plaintiff Watson, on the other hand,
argues that the Court should not reduce the award any lower than $75,000, which is the amount
that she accepted on remittitur on her Title VII claim. See Dkt. No. 215. Considering Plaintiff
Watson's emotional injuries, the lack of corroborative support, her $75,000 award on her nearly
identical Title VII claim, and awards in this District to similar plaintiffs alleging § 1983 hostile
work environment claims, the Court conditionally grants Defendant's motion for a new trial
limited to the issue of compensatory damages with respect to this claim unless Plaintiff Watson
agrees to a remittitur reducing the award to $75,000.
III. CONCLUSION
After carefully considering the entire file in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion for a new trial pursuant to Rule 59 of the Federal
Rules of Civil Procedure, see Dkt. No. 121, is DENIED; and the Court further
ORDERS that Defendant's motion for a new trial limited to the issue of compensatory
damages is CONDITIONALLY GRANTED unless Plaintiff Watson agrees to a remittitur of
the compensatory damages award to $75,000 on her § 1983 hostile work environment claim.
Plaintiff Watson shall notify the Court and opposing counsel in writing
within twenty (20) days of the date of this Memorandum-Decision and Order whether she
will accept this remittitur. If Plaintiff Watson does not accept this remittitur, the Court will
schedule a new trial limited to the issue of compensatory damages.”
IT IS SO ORDERED.
Dated: March 29, 2022 Freder& ki Jr.
Syracuse, New York Senior United States District Judge
* Tf Plaintiff Watson intends to accept the remittitur, then, within 14 days of her notifying the
Court and opposing counsel of that intent, Defendant shall file its response in opposition to her
pending motion for counsel fees, see Dkt. No. 201. If Plaintiff Watson deems it necessary, she
shall file her reply memorandum in further support of her motion for counsel fees within 7 days
of Defendant filing its response.
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