MENDEZ v. STARWOOD HOTELS RESORTS WORLDWIDE, INC. (S.D.N.Y. 9-30-2010)

mplained about it. He believes that Westin "put a hidden camera over my station so — to spy on me" in retaliation for his numerous complaints, including his filings with the New York State Division on Human Rights. (Tr. 554:14-555:24.)

A timeline of the formal complaints Mendez filed is below, and it includes the installation of the camera: Timeline of Formal Complaints and Camera Installation Feb. 27, 2006 Letter of complaint to HR Manager Derrick Carlo regarding harassment and threatening conduct by co-workers (PX 203 (SM_01104)) Apr. 21, 2006 Police report filed regarding harassment and death threat by Melvin Morales (PX 49) May 5, 2007 Letter of complaint by Mendez and eight co-workers to HR Department regarding harassment by Fernando Tello (DX 164 (SM_02172)) May 18, 2007 Starwood Nat'l EthicsPoint Hotline report of complaint regarding "misconduct"/"possible racial discrimination" (PX 8) May 21, 2007 Discrimination charge filed with State Division of Human Rights (PX 75) June 28, 2007 Letter of complaint to Assistant Director of HR Maria Lavides regarding harassment and threats by Chef Rotolo (PX 11) June 28, 2007 Retaliation charge filed with State Division of Human Rights (PX 76) Aug. 15, 2007 Retaliation charge filed with State Division of Human Rights (PX 14) Sept. 8, 2007 Starwood Nat'l Ethics Point Hotline report of complaint regarding "discrimination or harassment" (PX 13) Sept. 11, 2007 Complaint to Ms. Kiska regarding race/national origin discrimination following vandalism to oven (PX 17) Feb. 6, 2008 Letter of complaint to HR Manager Derrick Carlo regarding harassment and threatening conduct by co-workers (PX 203 (SM_01104)) Late March 2008 Hidden camera is installed and operational for 8 days May 29, 2008 The complaint in this action was filed June 17, 2008 Complaint Letter sent to HR Department regarding being punched in face by Mark Kleinman (PX 22) Kiska testified that she made the decision to install a hidden camera in the kitchen in March of 2008 (Tr. 1269:17-20) "to follow up on his [Mendez's] complaints." (Tr. 1270:7.) She testified that she conferred with Union Representative Hazel Hazzard before installing the camera and obtained permission from senior management at the hotel. (Tr. 1455:13-22; 1642:1-1643:25.)

Kiska testified that the camera was installed "over the lockers and the oven where he [Mendez] said he was vandalized." (Tr. 1272:19-20.) Urrutia testified that "where the camera was pointed was right at Moises actually because he's secluded away from the main kitchen as far as like a camera and it was on that side." (Tr. 190:3-6.) Blanco testified that the camera was not "right over" Mendez's workstation, but it was nearby. (Tr. 355:12-17.)

The evidence indicated that the camera was operational for just 8 days (see PX 44) — until, as Kiska testified, some cooks in the kitchen found the camera, "reached up and were able to pull part of it out and they pulled some of the wires out." (Tr. 1456:13-15.) Kiska could not recall whether they "were able to take out the whole camera," but noted that "they took out a good part of the camera." (Tr. 1456:13-16.)

Mendez was asked "how did you feel . . . when you learned that there was a hidden camera installed in the kitchen?" (Tr. 556:24-25.) He responded, "I feel that they invaded on my privacy, that they were watching me, that they were spying on me to cause me more harm. They don't investigate my complaints but they were causing me more harm." (Tr. 557:1-4.) This was the only testimony Mr. Mendez gave about any emotional distress or other damage caused by the installation of the camera.

Mendez's expert witness, Dr. Carlos Ortiz, began treating Mr. Mendez in June 2008, after the camera incident. Dr. Ortiz testified that Mendez "was severely depressed, anxious, having a lot of anxiety attacks and he was very upset" (Tr. 817:14-19); and that plaintiff was in a "daily depressed mood. He felt hopeless. He was having anxiety attacks. He felt lethargic." (Tr. 836:17-20.) However, neither Dr. Ortiz nor Mendez's treating physician, Dr. Andrew Chun, testified that Mendez complained of suffering any distress as a result of the installation of the camera. In fact, neither doctor mentioned the word "camera" at all during his testimony. Dr. Ortiz's testified about distress Mendez felt because of "being called names" and having "notes written and left on locker" — all of which happened before the hotel installed a camera above his workstation. (See, e.g., Tr. 821:18-22; see also Tr. 823:24-824:1; 824:24-825:2; 837:17-18; 825:3-8; 836:15-17). Dr. Ortiz also testified that Mendez felt humiliated about the placement of homosexual pornography at his work station. (Tr. 822:24-824:1.) Not a scintilla of professional testimony connected any of Mendez's mental distress to the installation of the surveillance camera.

DISCUSSION

I will begin by addressing defendant's motion for judgment as a matter of law and then turn to the Court's sua sponte consideration of whether to order a new trial on the issues of race and/or national origin discrimination.

I. JUDGMENT AS A MATTER OF LAW

A. Standard of Review

"If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may . . . resolve the issue against the party." Fed R. Civ. P. 50. In determining whether there was a legally sufficient evidentiary basis for the jury's conclusion, the Court must "defer [] to the jury's assessment of the evidence and all reasonable inferences the jurors could draw from that evidence," and "may not itself weigh the credibility of witnesses or consider the weight of the evidence." Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001) (internal quotation marks omitted).

"A movant's burden in securing Rule 50 relief is particularly heavy after the jury has deliberated in the case and actually returned its verdict." Cross v. N.Y. City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005). "Under such circumstances, the district court may set aside the verdict only where 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 there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him." Id. (citations, alterations, and internal quotation marks omitted).

Defendant has moved for judgment as a matter of law on plaintiff's retaliation claim on four grounds: (1) the secret surveillance of defendant does not constitute retaliation as a matter of law (Def.'s Br. at 5-6); (2) plaintiff's complaints about harassment in the workplace were not protected activity (Def.'s Br. at 6-7); (3) the installation of a hidden surveillance camera and the ensuing surveillance were not sufficiently "serious" to constitute actionable retaliation (Def.'s Br. at 8-9); and (4) plaintiff failed to rebut the Westin's legitimate, non-retaliatory reason for installing the camera (Def.'s Br. at 13-14).

To establish a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity known to defendants; (2) an employment action that disadvantaged him; and (3) a causal connection between the protected activity and the adverse employment action. Richardson v. Comm'n on Human Rights Opportunities, 532 F.3d 114, 123 (2d Cir. 2008). Once a plaintiff establishes prima facie retaliation, applying the burden-shifting analysis set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the defendants must come forward with a "legitimate, nonretaliatory reason for the challenged employment decision." At that point, the burden shifts back to the plaintiff to demonstrate that defendants' rationale is "merely a pretext for [the] impermissible retaliation." Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001).

B. Adverse Actions

Conduct is actionable as retaliation under Title VII only if it is adverse to the plaintiff when judged objectively and in the workplace context. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006). Prior to the Supreme Court's decision in Burlington, there is little question that the installation of a security camera and the ensuing surveillance would not have constituted an "adverse action" for retaliation purposes, since it did not alter any term or condition of plaintiff's employment (his salary or benefits, job duties, perquisites, etc.). However, in Burlington, the Supreme Court held that several circuits, including our own Second Circuit, had defined "adverse action" too narrowly in the context of Title VII retaliation. The Court ruled that Title VII's "anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 63-64 (citations omitted). But the Court also held that, "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm," id. at 64, so that "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id. at 68 (quoting Rochon v. Gonzalez, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (internal citation omitted)). "Petty slights [and] minor annoyances" in the workplace are not actionable as retaliation.Id.

The standard for what qualifies as an adverse action under the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. ("NYCHRL"), is substantively identical to the federal standard. Retaliatory conduct under the NYCHRL need "not result in an ultimate employment action," but must "be reasonably likely to deter a person from engaging in protected activity." Id.

Defendant argues that "being surveilled by a hidden camera — simply is not, standing alone, an actionable adverse action either under Burlington or the City HRL." (Def.'s Br. at 9) (citations omitted).) In making this argument, defendant relies in part on an unpublished case from the United States District Court for the District of Connecticut: Billue v. Praxair, Inc., No. 05 Civ. 170, 2007 WL 1231841 (D. Conn. Apr. 26, 2007), which in turn relied on a case from this district — Nicastro v. Runyon, 60 F. Supp. 2d 181, 186 (S.D.N.Y. 1999) — in which a court had held that "surveillance" and "excessive scrutiny" were not "adverse employment actions," and therefore, could not serve as the basis for a Title VII retaliation claim. Billue, at *7 (citation omitted). Billue was affirmed by the Second Circuit, but by summary order, see Billue v. Praxair, Inc., No. 07 Civ. 2359, 2008 WL 4950991 (2d Cir. Nov. 20, 2008) (summary order); that summary order has no precedential effect on any court, although it has to be deemed some indication of how the Court of Appeals might rule were it to decide the issue in a binding opinion.

The case on which Billue relied — Nicastro v. Runyon — was decided before the Supreme Court decided Burlington and significantly expanded the definition of actionable retaliation that had historically been employed in the Second Circuit. After Burlington, Title VII retaliation covers any "employer actions that would have been materially adverse to a reasonable employee or job applicant" — not just those actions that are related to employment, like firing or granting leave. Burlington, 548 U.S. at 67. Since Burlington, the Eight Circuit has held that "placing an employee under constant surveillance could be evidence of retaliation." Fercello v. County of Ramsey, No. 09 Civ. 2587, 2010 WL 2945312, at *8 (8th Cir. July 29, 2010) (citation omitted). The Eighth Circuit's holding comports with the plain language of Burlington, in which the Court wrote that an adverse action is one that "well might have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id. (citation omitted). For that reason, I do not believe that Billue bars a finding that the secret surveillance of Mendez constituted an adverse employment action.

Neither of the other two cases cited in support of defendant's argument renders its position compelling. Constance v. Pepsi Bottling Co. of N.Y., No. 03 Civ. 5009, 2007 WL 2460688 (E.D.N.Y. Aug. 24, 2007) does not, as defendant states, hold that installation of a hidden camera can never constitute actionable retaliation. Rather, the portion of Constance on which defendant relies states that: "Related to this concern is whether surveillance on the job constitutes an adverse employment action, an issue not raised by defendants. However, it is questionable under the facts of this case whether the use of the investigator `affect[s] employment or alter[s] the conditions of the workplace.'" 2007 WL 2460688, *36 n. 15 (emphasis added). Likewise, Scott v. Cellco Partnership, No. 06 Civ. 7245, 2007 WL 1051687 (S.D.N.Y. Apr. 3, 2007), an unpublished disposition from another court in this District, says only that the "excessive scrutiny" plaintiff alleged she received in that case (the nature of which was not specified) was insufficient to state a cause of action under Title VII. Id. at *3. There is no mention in the opinion of a camera having been installed over an employee's workstation after he complained repeatedly about discrimination.

Because Kiska's testimony about obtaining the Union's permission before installing the camera was unrebutted, Defendant also cites Richardson v. Comm'n on Human Rights Opportunities, 532 F.3d 114, 124-25 (2d Cir. 2008), to argue that an "employer's exercise of rights allowed under [a] labor agreement with respect to handling of discrimination complaints cannot be retaliation," as a matter of law. (Def.'s Br. at 12.) In Richardson, the Second Circuit was asked to decide whether Title VII "forbids an election-of-remedies provision in a collective bargaining agreement," or "in the alternative, whether adherence to that provision constitutes discrimination." 532 F.3d at 116-17. The court (Walker, J.) answered both questions in the negative. The union contract in Richardson had authorized the "adverse" action in that case (adherence to the election-of-remedies clause in the contract). Richardson followed the Circuit's holding in United States v. N.Y. City Transit Auth., 97 F.3d 672, 677 (2d Cir. 1996), where the Court of Appeals found that "reasonable defensive measures do not violate the antiretaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment." Id. at 677. Nothing in Richardson suggests that employer action that would deter a reasonable employee from complaining about discrimination is not retaliatory simply because the action was, as defendant argues, an "exercise of rights allowed under a labor agreement."

I thus reject Starwood's contention that the installation of a hidden surveillance camera to surveil an employee who has complained of discrimination can never be retaliatory as a matter of law, because surveillance can never be deemed an adverse employment action.

However, the fact that surveillance can be an adverse employment action does not mean that it must be found to be an adverse employment action. Unless being secretly surveilled for eight days (and so knowing that the employer was keeping an eye on him) "well might" dissuade a reasonable employee from exercising his right to complain about discrimination, the surveillance is not actionably adverse, even under Burlington.

I do not doubt that different triers of fact could reach different answers to this question, based on the facts in different cases. The complication we encounter in this case is that Mendez himself was not dissuaded by the secret surveillance from exercising his right to complain about discrimination. He filed his June 17, 2008 complaint with HR concerning the Kleinman incident, and he filed this lawsuit, after he learned that his employer was spying on him.

Of course, in Burlington, the Supreme Court set forth an objective standard — whether the action is one that would likely deter a reasonable employee from exercising his right to complain about discrimination. It did not select a subjective standard — one that focuses on the defendant's actual response to the allegedly retaliatory conduct. However, as the Second Circuit explained in Hicks v. Baines:

The [ Burlington] standard may be objective, but [c]ontext matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. . . . And of course context can diminish as well as enlarge material effect.

593 F.3d 159, 165 (2d Cir. 2010) (internal citations and quotations omitted). In several post-Burlington cases, district courts in this Circuit have granted judgment to an employer in cases where the employee filed complaints after an allegedly retaliatory act. For example, in McWhite v. N.Y. City Hous. Auth., No. 05 CV 09912008 WL 1699446, at *14 (E.D.N.Y. Apr. 10, 2008), the purported retaliation consisted of (1) wrongfully accusing plaintiff of stealing documents and (2) permitting others to use equipment that the plaintiff had reserved. Despite these acts, which were allegedly undertaken to retaliate against the plaintiff, she complained to the EEOC and filed a charge. Judge Buchwald concluded for this reason that the actions about which plaintiff complained did not amount to an adverse action.

Similarly, in Vasquez v. Southside United Hous. Dev. Fund Corp., No. 06-CV-5997, 2009 WL 2596490 (E.D.N.Y. Aug. 21, 2009), Judge Gershon concluded that the alleged retaliatory comments made by the plaintiff's boss did not rise to the level of a materially adverse employment action:

The Burlington Northern inquiry is highly fact-specific. As the Court explained, "[c]ontext matters" and "the significance of any given act of retaliation will often depend upon the particular circumstances." The heart of the inquiry is whether, under the particular circumstances, the challenged actions "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Vasquez has presented no evidence that Cipriani's comments chilled her support of Bonano, or caused her to actually fear reprisal. The supervisor with ultimate authority to terminate Vasquez, David Pagan, was not implicated in these threats. The courts find that while these comments fit within a pattern of highly inappropriate behavior by Ciprian, there is insufficient evidence for a reasonable finder of fact to conclude that the comments would dissuade a reasonable worker from making or supporting a charge of discrimination. In fact, there is no evidence that Ciprian's comments served to dissuade Vasquez, as she ultimately filed her own complaint with the Equal Employment Opportunity Commission and eventually pursued this action.

Id. at * 13 (internal citations omitted).

In both of these cases, the courts concluded that the alleged acts of retaliation were not adverse without regard to the plaintiff's behavior; the fact that, in each case, the plaintiff herself was not deterred was simply icing on the cake. Precisely because Burlington sets an objective standard, subjective evidence about the plaintiff's reaction to the allegedly retaliatory action can never be more than some evidence that the action is not adverse. However, I agree with Judges Gershon and Buchwald that a plaintiff's own behavior in the face of purported retaliation has to be considered as part of the Burlington "context." And in this case, Mendez's post-surveillance behavior cuts against the jury's verdict.

Nonetheless, there is nothing unreasonable about the jury's concluding that secret surveillance by an employer well might (which is the phrase used by the Supreme Court used inBurlington) dissuade a reasonable employee from continuing to complain about discrimination — especially in the context of the apparent lack of a sympathetic response from management to complaints. The fact that Mr. Mendez is a strong and resilient man, who has persevered at his job for years despite what must be described as singularly unpleasant working conditions, might well affect his damages (about which more will be said below). But it cannot, without more, defeat his claim for retaliation if the jury concluded (as it did) that reasonable employees who lacked Mr. Mendez's backbone might have been deterred by such surveillance from exercising their rights under Title VII and the NYCHRL.

C. No Protected Activity

Defendant's next argument — that Mendez's filing of complaints of discrimination with both the company and the New York State Division of Human Rights was not protected activity — is so obviously silly as to warrant no further discussion.

D. Failure to Rebut Legitimate Explanation

Defendant contends that judgment should be entered in its favor because Plaintiff failed to "rebut Defendant's legitimate, non-retaliatory reason for installing the camera." (Def.'s Br. at 13.) Specifically, Defendant argues that under the Second Circuit's precedent in Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), Plaintiff failed to come forward with sufficient evidence to rebut the Westin's explanation for the camera — namely, that it was trying to catch the individual who was vandalizing Mendez's locker. (See Def.'s Br. at 13.)

Van Zant does not carry the day for defendant, because in that case the plaintiff had come forward with no evidence to support her contention. For that reason, the Second Circuit found that "there was no material issue of fact for a jury to consider." Id. at 714. Here, there is at least some evidence that supports plaintiff's position that Kiska installed the camera to retaliate for his repeated complaints. For example, Kiska falsely claimed in correspondence to the union that the camera was installed on April 1, 2008 — suggesting that the camera was only operational for one day — when in fact it had been installed earlier, on March 26. The jury could reasonably have concluded that Kiska's attempted concealment of the duration of surveillance was an attempt to mask her retaliatory intent. Kiska also testified that the passage of five days or more between an incident and the commencement of an investigation "greatly hinders" that investigation.

(Tr. 1469:25-1470:5.) Nevertheless, the hidden camera — purportedly installed to investigate Mendez's discrimination claims — was not operational until several months after Mendez's workstation was vandalized. The jury could reasonably interpret this delay as evidence of pretext. The fact that one witness (Urrutia) testified that the camera was pointed directly at Mendez could suggest that Mendez, rather than his secret tormentor(s), was the target of the surveillance. And while most of plaintiff's complaints were not temporally proximate to the installation of the camera — a point defendant makes (Def.'s Br. at 7) — the sheer number of Mendez's complaints, plus the fact that one of them came very shortly before the camera was installed, overcomes what would otherwise be the presumption in this Circuit that the passage of more than three months between the protected activity and the purported instance of retaliation negates any inference of retaliation.

Finally, it was Kiska who installed the camera and Kiska who explained to the jury why she installed the camera — and as discussed above, Kiska was not the most credible of witnesses. Her handling of employee complaints rendered her testimony questionable. In most instances, Kiska's idea of an investigation was to ask Mendez to identify witnesses who would corroborate his claim. If he could not, Kiska closed the investigation without making more than a cursory effort to interview other employees or further investigate the matter on her own. (See, e.g., Tr. 1223:23-1232:5.) Even when Mendez produced corroborating evidence it was not "evidence;" for example, Kiska testified that her investigation of the alleged physical assault on Mendez by Mark Kleinmann resulted in a determination that Mendez's complaints could not be corroborated by witnesses, although she received a written statement from a co-worker of Mendez, who recalled seeing Kleinmann with his "fist in the bowl going to smash Moises Mendez a little bit in the face with fist in the bowl." (Tr. 1201:18-1203:11.) The jury could (and obviously did) reasonably find that Kiska's failure to engage in any meaningful investigation of Mendez's many complaints rendered her explanation for why she installed the camera incredible. I cannot fault the jurors for rejecting Kiska's explanation for why she installed the camera, even if I would not have done so myself.

The evidence in support of a finding of retaliation is far from overwhelming. I freely admit that if I were the trier of fact, I would have reached a different result. But it cannot be said that no evidence supports the jury's decision to reject Kiska's explanation for why she installed the camera. Therefore, nothing in Van Zant compels me to grant the motion for JMOL.

E. Seriousness

The "seriousness" argument as briefed by Westin does no more than belittle the plaintiff's contention that he was harmed by the installation of the camera. The short answer is that the jury decided that the installation of the camera was serious, because it was done for the purpose of retaliating against plaintiff for his many complaints.

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

For these reasons the defendant's motion for judgment as a matter of law pursuant to Rule 50 is denied.

II. REMITTUR

Remittitur is the "process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2nd Cir. 1990) (quoting Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2nd Cir. 1984)) (internal quotations omitted). Before a court orders a plaintiff to make this choice, it must first determine whether the verdict is excessive. In a federal question case, as here, if the Court determines the award shocks the judicial conscience, it should remit the jury's award to the maximum amount that would not be excessive. Earl, 917 F.2d at 1330; see also Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 18 (2nd Cir. 1996).

Defendant argues that if the court denies its motion for judgment as a matter of law, both the compensatory and punitive damages awards granted by the jury must be remitted, because (1) the compensatory damages verdict is excessive (Def.'s Br. at 16-19), (2) plaintiff failed to show malice or recklessness by Westin management, as required before punitive damages may be awarded (Def.'s Br. at 19-23), and (3) even if plaintiff had made such a showing, the punitive damages verdict was "grossly excessive" (Def.'s Br. at 23). I agree with defendant.

While it is properly within the province of the jury to calculate damages, there is "an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable [persons] may differ, but a question of law." Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2nd Cir. 1961) (citation omitted). Moreover, although a jury has broad discretion to award damages as it feels appropriate, "it may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket." Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2nd Cir. 1993) (citation omitted).

In this case, I have no difficulty concluding that the jury awarded damages (both compensatory and punitive) on the basis of sympathy, and that they must be substantially reduced.

A. Compensatory Damages

Under Title VII, NYSHRL and NYCHRL, a plaintiff's recovery of damages for mental anguish is limited to compensation for actual and proven injury. In determining whether a particular award is excessive, courts have reviewed awards in other cases involving similar injuries, "bearing in mind that any given judgment depends on a unique set of facts and circumstances." Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988).

Courts will often remit "garden variety" non-economic damage awards when evidence of actual emotional injury is limited, and few details of the duration, severity or consequences of the condition are presented. For example, in Kinneary v. City of New York, 536 F. Supp. 2d 326 (S.D.N.Y. 2008), rev'd on other grounds, 601 F.3d 151 (2d Cir. 2010), the district court held that a $125,000 jury award for non-economic damages was excessive, and remitted the damages award to $25,000. There, plaintiff was a sludge boat captain who suffered from "shy bladder syndrome." The condition left him unable to urinate on demand, which eventually led to his termination for failing to submit to a drug test. After prevailing in his suit against the city for discrimination based on his disability, plaintiff was awarded $100,000 in back pay and $125,000 for emotional distress.

In evaluating the reasonableness of the jury's damage award, the court noted that plaintiff's was a run of the mill mental anguish claim, defined as one where the evidence is limited to the testimony of the plaintiff and there is little or no medical documentation of any injuries. The court noted that in such cases, awards tend to hover in the range of $5,000 to $30,000," and "emotional damages awards exceeding this range generally involve particularly egregious conduct on the part of defendants, such as deliberate, highly offensive, wanton, or violent actions and threats, or situations where the plaintiff's emotional distress is so severe that he exhibits multiple objective physical manifestations ordinarily substantiated by expert testimony." Id. at 331 (citations omitted). In Kinneary, the court concluded that plaintiff's embarrassment and disappointment over losing his job did not warrant a damages award in excess of $25,000.

Other "garden variety" cases have included the reduction of a $140,000 award to $10,000 where plaintiff was laterally transferred to a job in a less desirable department but retained the same salary and benefits, Reiter v. Metro. Transp. Auth. of N. Y., No. 01 Civ. 2762, 2003 WL 22271223 (S.D.N.Y. Sept. 30, 2003) (Koeltl, J.), and the reduction of a $219,428 award to $20,000 where plaintiff suffered from "mental anguish" after being fired in retaliation for complaining of discrimination,McIntosh v. Irving Trust Co., 887 F. Supp. 662 (S.D.N.Y. 1995).

Of course, a court is not required to remit a large non-economic damage award, even where evidence of emotional damage consists solely of plaintiff's testimony. See, e.g.,Osorio v. Source Enterprises, Inc., No. 05 Civ. 10029, 2007 WL 683985 (S.D.N.Y. Mar. 2, 2007). However, when a court is convinced that the jury's award is entirely out of proportion to the plaintiff's injury, and was motivated by sympathy rather than by evidence of harm, remitittur is the appropriate remedy.

In this case, there is no evidence — even from plaintiff — that he suffered any significant damage because of the installation of the camera and the eight days of secret surveillance that followed. Asked how he felt when he learned about the camera, Mendez testified that Starwood's invasion of his privacy added insult to the injury of thec company's refusal to investigate his complaints. But Plaintiff did not attribute depression, anxiety or any other indicium of non-economic damage to the presence of the camera or the fact that he was surveilled at work for eight days. Neither of his physicians attributed any damage to the secret surveillance. As noted above, Plaintiff was not actually dissuaded from taking steps to protect his rights after he learned about the secret surveillance. The testimony of Mendez and his doctors simply does not support an award of $1 million in compensatory damages for the act of retaliation that plaintiff proved.

The court is convinced that the jury felt sorry for plaintiff — as, indeed, the court felt sorry for the plaintiff. Mendez endured an abusive workplace and got very little sympathy or assistance from either his employer or his union. The jury concluded that the hostility in Mendez's work environment was not attributable to any sort of actionable discrimination, and after reviewing the record, I cannot say that this conclusion was incorrect (see below). As we all know, Title VII is not a civility code. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998); only discriminatory harassment can support a viable claim under any anti-discrimination law, including the HYCHRL. However, a non-discriminatory but uncivil workplace can certainly make a person miserable. The court is convinced that the jurors concluded that Mendez was miserable at work, having found some basis on which to hold Westin liable, awarded damages that were entirely out of proportion to any injury that was or could have been

attributed to the retaliatory surveillance — but that were perfectly in proportion to the teasing and rudeness Mendez endured at the hands of his fellow workers and his chefs, and to the frustration he felt when his employer and his union failed to respond to his complaints in a way that he found adequate.

This is exactly what the jurors were told they could not do. The jurors were clearly instructed that they could only award non-economic damages that were caused by defendant's actionable misconduct — i.e., misconduct that was occasioned by one of the factors prohibited by the various anti-discrimination statutes — and the only actionable misconduct they found was the installation of the camera in retaliation for Mendez's complaints. The jury was not permitted to demonstrate its disapproval of conditions in the Westin kitchen by awarding Mendez damages for conduct that had nothing to do with the camera — especially when the jury, after extensive deliberation, concluded that this conduct did not to violate any antidiscrimination law.

In the circumstances, the court remits the award of compensatory damages to $10.000.

B. Punitive Damages

The court also remits the jury's award of punitive damages.

Defendant first argues that punitive damages must be dismissed in their entirety because Kiska did not act with the requisite malice or reckless indifference to Mendez's federally protected rights by installing the hidden camera, relying on Kolstad v. American Dental ass'n, 527 U.S. 526 (1999). This argument, which relies on accepting Kiska's testimony, has no merit, because the jury obviously did not accept her testimony.

Alternatively, defendant argues that the punitive damage award in this case is excessive, in that it "shocks the judicial conscience." The Court agrees.

In Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996), the Second Circuit held that a trial court "may refuse to uphold a punitive damage award when the amount is so high as to shock the judicial conscience and constitute a denial of justice." To determine whether an award is excessive, the Court must:

keep in mind the purpose of punitive damages: to punish the defendant and to deter him and others from similar conduct in the future. Thus, [the court's] task is to make certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.

Id. at 809 (internal quotations and citations omitted). When deciding whether an award of punitive damages shocks the judicial conscience, a court examines three factors: (1) the degree of reprehensibility of the conduct; (2) the ratio of punitive damages to compensatory damages; and (3) the difference between this penalty and comparable penalties authorized by law or imposed by judges and juries. Id. at 809 (citation omitted). After weighing these factors, a court should compare the instant damage award with other awards in comparable cases, Id. at 812, and examine the record to determine whether the award is supported by the evidence. Id. at 813.

In BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), the Supreme Court identified the first Lee factor — the degree of reprehensibility — as the most important, and said that three aggravators would make some conduct more reprehensible than others. The aggravating factors include: (1) whether the defendant's conduct was violent or threatened violence; (2) whether a defendant acted with deceit or malice and not merely negligence; and (3) whether a defendant has repeatedly engaged in the misconduct. Id. at 575-76.

The Lee factors do not militate in favor of a $3 million punitive damages award.

Turning to the all-important factor of reprehensibility, there is no evidence in this case of either violence or repeated acts of retaliation by defendant. While it is true that installation of a hidden camera involves an element of deceit, the duration of the surveillance of plaintiff's workplace was brief (eight days), and the actual damage caused by the secret surveillance was miniscule. Also, the fact that plaintiff's union was consulted in conjunction with the installation of the camera undercuts any suggestion of malice.

The second Lee factor fades into insignificance on the peculiar facts of this case. The obviously outsized award of compensatory damages, which led to remitittur, makes the 3:1 ratio between the jury's award of compensatory and punitive damages meaningless. The ratio between the remitted award of $10,000 and $3 million — 300:1 — is so far out of proportion as to make the award of punitive damages unconstitutionally excessive. In State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003), the Supreme Court held that a 145:1 ratio was unconstitutional, noting that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." Id. at 425. The Court had previously held that a 4:1 ratio "might be close to the line of constitutional impropriety."Id. (Citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991)). While a ratio higher than 4:1 may comport with due process in cases where a particularly egregious act resulted in nominal compensatory damages, See Lee at 811, the remitted compensatory damage award of $10,000 in this case is not nominal. Therefore, I find that the 300:1 ratio between the $3 million punitive damage award and the $10,000 in compensatory damages is unconstitutionally excessive.

If the Court had remitted damages to $1 — which it considered doing — the resulting ratio of 3,000,000:1 would without question be unconstitutional.

As for the third Lee factor, it is instructive to look at the civil or criminal penalty that would be imposed for comparable conduct. The installation of the hidden camera is analogous to a violation of New York General Business Law § 395-b, which, inter alia, prohibits a business from installing a video surveillance device in order to surreptitiously observe a person in a "fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn." N.Y. Gen. Bus. Law § 395-b(2). Those are places where people engage in deeply private actions that expose the most private portions of their bodies. Yet a violation of that law is punishable by no more than 15 days in jail, and a maximum fine of $300. Id. § 395-b(5). A $3 million award of punitive damages for engaging in secret surveillance in a workplace — which is a far more public place, but one where an employer has a legitimate right to be present — is wholly out of line with the punishment that would be imposed for comparable, but arguably more egregious, conduct.

In short, applying the Lee factors, the award of punitive damages is so excessive that it shocks the judicial conscience and denies the defendant justice.

The award is shocking for another reason. This is a rare case in which the court actually explained to the parties why it was charging punitive damages, and it had nothing to do with the installation of the camera or the secret surveillance. I told counsel, at the charging conference, that the evidence, if believed by the jury, painted a picture of a work environment more hostile than in any case the court had ever seen. (Tr. 2420:2-2422:15). If the jury had concluded that the hostility toward the plaintiff was the result of discrimination on the basis of some prohibited factor — whether race, national origin, or disability — then it could rationally have concluded that Mendez's employer should be liable for punitive damages. Such a finding would have been perfectly appropriate in a case where the jurors heard that there was "no evidence" to substantiate Plaintiff's repeated complaints of untoward behavior by the chefs and by his fellow kitchen workers; where Plaintiff's own statements were apparently not deemed to be "evidence" as long as the person who allegedly harassed him denied doing so; and where the HR representatives plainly did not view it as within their province to delve further into such complaints or to resolve discrepancies, but instead automatically gave the denier the benefit of the doubt.

The court never had an opportunity to assess whether it would have submitted the question of punitive damages to the jury if the only issue in the case had been retaliation based on the installation of the camera and the subsequent secret surveillance. I suspect that I would not have submitted the issue to the jury. However, I did not tell the jurors that it could only award punitive damages if they found for the plaintiff on the hostile work environment claim. I must, therefore, respect the jury's determination that Kiska's conduct with respect to the camera was particularly reprehensible. But that does not mean I can sustain the amount of punitive damages that the jurors assigned to her conduct.

For the reasons explained above, the punitive damage award is remitted to $300 — the maximum fine available for a single violation of New York's "secret surveillance" law.

III. MOTION FOR NEW TRIAL

A. Standard of Review

Federal Rule of Civil Procedure 59 provides that a Court may order a new 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)(1)(A). Granting a new trial is appropriate where "the jury has reached a seriously erroneous result or its verdict is a miscarriage of justice." Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir. 2005) (internal quotation marks and citations omitted). "Unlike judgment as a matter of law, a new trial may be granted even if there is substantial evidence supporting the jury's verdict. Moreover, a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998).

B. Discussion

On April 26, 2010, the Court alerted the parties to the possibility that it might sua sponte order a new trial on the issues of race and national origin discrimination (but not disability discrimination). I had a very strong reaction to the testimony at trial and I wanted an opportunity to review the record at length, in order to ascertain whether the

jury had reached a seriously erroneous result on plaintiff's claims of racial/national origin discrimination.

While the court's sua sponte order was motivated principally by its own reaction to the evidence, the verdict sheet revealed that the jurors originally found in plaintiff's favor on the issue of hostile work environment, but then unanimously changed their minds on the issue. A copy of the relevant pages of the verdict sheet is attached to this opinion. The jury's change of heart played some part in my thinking.

Having conducted that review, I cannot say that the jury reached a seriously erroneous result, or that its verdict is a miscarriage of justice. Therefore, I am not ordering a new trial on the issue of hostile work environment based on race or national origin discrimination.

Title VII provides, in relevant part, that "It shall be unlawful for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has interpreted Title VII to reach, among other conduct, "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (emphasis added). This particular form of harassment is actionable "when 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." Id. (citations and internal quotation marks omitted; emphasis added).

While there is no bright-line test about what type of conduct is required to give rise to a hostile work environment claim against an employer, courts should consider the following non-exclusive factors: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 22-23. As a general matter, "isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive." Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n. 5 (2d Cir. 1995) (citations omitted); see Carrero v. N.Y. City Hous. Auth., 890 F.2d 569, 577-78 (2d Cir. 1989) (to be actionable, the alleged incidents "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive"). However, where the conduct is sufficiently severe, it may alter the plaintiff's conditions of employment without repetition: "[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII liability."Tomka, 66 F.3d at 1305 (emphasis added; footnote and citations omitted).

I begin by acknowledging what had to be obvious to anyone who sat through the trial: the kitchen at the Westin Hotel can be a most unpleasant place to work. Among plaintiff's supervisors and employees are mean-spirited individuals, who have no compunction about picking on those who are perceived as weak. Insults and teasing are commonplace — several employees credibly testified as much. And management is largely unsympathetic. In that sense — in the "incivility" sense — the kitchen at the Westin could certainly feel "hostile."

However, to be actionably hostile, a workplace must be rendered hostile by workplace-altering conduct attributable to some statutorily prohibited factor (race and national origin are the relevant factors for our purposes here) — not simply incivility or nastiness. When we say that Title VII, and corresponding state and local laws, are not a civility code, See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998), we are saying even if mean-spiritedness or bullying render a workplace environment abusive, there is no violation of the law unless that mean-spiritedness or bullying is rooted in race or national origin discrimination. An abusive workplace that is not discriminatory does not violate the law. For purposes of this case, harassment at the Westin that was not based on Plaintiff's race or national origin is not illegal, even if it was offensive.

Furthermore, a hostile work environment is one that so that is so permeated with discriminatory insult and ridicule (i.e., insult and ridicule that violates Title VII and corresponding state and local statutes) that it alters the work environment, rendering it abusive. Incidents of discriminatory intimidation, ridicule and insult have to be sufficiently continuous and concerted that they could be called pervasive. While there is no minimum number of incidents or any rigid formula for determining pervasiveness, isolated remarks or occasional episodes of harassment are not enough to create a hostile work environment. Jurors (including the jurors in this case) are told to ask themselves: How frequent was the behavior? How severe was it? Was it physically threatening or humiliating? Did it consist only of offensive remarks? Did the behavior unreasonably interfere with an employee's work performance?

The court's review of the record is summarized above. Ridicule and harassment were unquestionably pervasive, but only a handful of incidents over a period of four years could even arguably be attributed to plaintiff's protected status as a Latino or a native of Ecuador. Viewing the evidence most favorably to plaintiff, he was called offensive names with an Ecuadorian or Latino twist on an unspecified number of occasions by Charlie Blanco or by various co-workers, like Kyle Craddock and Anthony Monetta. There was little or no evidence about when or how often these name-calling incidents took place. Some of the specific name-calling incidents about which plaintiff testified were overtly racial in nature, but some were not. Plaintiff's co-workers (especially, it seems, other Hispanics) repeatedly called Mendez by various sexual or scatological names (faggot, prostitute), but there was absolutely no evidence that those remarks were predicated on either plaintiff's race or his national origin. In fact, there is evidence that these and similar terms were used often in the kitchen, by numerous persons and without regard to a person's race or background. This undercuts plaintiff's contention that he was subjected to verbal harassment for a reason prohibited by law.

The same is true of the several discrete instances when plaintiff was the recipient of pornography at his work station. The offensiveness of such incidents is patent, but there is no evidence that Mendez was singled out for the receipt of pornography because of his race or his national origin — except in one instance, when references to plaintiff's origins were written in an offensive manner on the picture.

The other matters about which plaintiff testified were highly sporadic:

two instances when notes containing overtly racist statements were left where plaintiff would find them (three notes in January 2005 and one note in June 2007),

Three threats over a span of four years, (one in 2004, one in 2006, one in 2007),

the damage to plaintiff's locker, and

the Kleinman assault.

Neither the damage to plaintiff's locker nor the Kleinman assault had any racial or nationalistic overtone to it; there is no evidence at all that either incident was motivated by race or national origin. Neither is there any evidence that the perceived "threats" in 2006 and 2007 were motivated by plaintiff's race or national origin. Put more positively, only (1) the notes left in plaintiff's locker in January 2005 and June 2007 and (2) Francisco Rodriguez's threatening behavior, which took place in 2004, could be ascribed to racial or ethnic prejudice.

Looking at the record in its entirety, and solely with a view to whether the testimony demonstrates a severe and pervasive pattern of hostility to plaintiff based on his race or national origin, the court is simply not convinced that the jury's verdict worked a substantial miscarriage of justice.

I was horrified during the trial by the very factors that appear to have driven the jury's irrationally high award of damages for a single incident of retaliation that caused plaintiff only negligible injury — the obvious incivility and offensiveness that were rampant in Mendez's workplace, and what I perceived as management's lack of diligent inquiry into his complaints. Nonetheless, it would be wrong for me to set aside the jury's considered conclusion — reached, as the verdict sheet reveals, after consideration and reconsideration of the evidence — that much of the abuse of plaintiff was not directed at him because of his race or nationality, and/or that the incidents of demonstrably anti-Hispanic/Latino or anti-Ecuadorian prejudice were not sufficiently severe or pervasive to create an actionably hostile work environment.

CONCLUSION

Defendant's motion for judgment dismissing the retaliation claim as a matter of law is denied. Defendant's motion for a new trial on the issue of retaliation is granted unless plaintiff accepts compensatory and punitive damages in the remitted amounts. Plaintiff has 14 days from the date of this order to make an election. The verdict returned by the jury otherwise stands.

Plaintiff's counsel has made a motion for an award of attorneys' fees. In view of the disposition of the remittitur motion, that motion is denied as moot, without prejudice to renewal (1) if the plaintiff accepts the remitted amounts; or (2) if plaintiff prevails at the retrial of the retaliation claim. Any renewed motion should reflect the fact that plaintiff can only recover attorneys' fees for work performed on claims on which he prevailed — not for work performed in connection with claims on which he did not prevail.

The Clerk of the Court is directed to close the motions at Docket # 117 and 121 and to strike them from the court's list of open motions. SECTION II. Hostile Work Environment Employment Discrimination 2-A. Did plaintiff prove by a preponderance of the evidence that defendant subjected him to a hostile work environment, by subjecting him to discriminatory intimidation, ridicule and insult as a result of his membership in a protected group? YES X NO IF YOUR ANSWER TO QUESTION 2-A IS "YES," ANSWER THE NEXT THREE QUESTIONS (2-B, 2-C, 2-D); OTHERWISE PROCEED TO SECTION III OF THIS VERDICT SHEET. 2-B. What prohibited factor or factors were the basis on which defendant subjected plaintiff to a hostile work environment? [] Race (Hispanic) [] National Origin (Ecuadorian) [] Disability (Diverticulitis) 2-C. Was plaintiff subjected to a hostile work environment by supervisory employee(s) at the Westin Times Square? YES X NO___ 2-D. Was plaintiff subjected to a hostile work environment by co-worker(s) at the Westin Times Square? YES X NO___ IF YOUR ANSWER TO QUESTION 2-D IS "YES," ANSWER THE NEXT QUESTION (QUESTION 2-E); OTHERWISE PROCEED TO QUESTION 2-F. 2-E. Did defendant prove by a preponderance of the evidence all of the following: (1) Starwood had a meaningful and responsive procedure for investigating complaints of discrimination; (2) Starwood effectively communicated a firm policy against discrimination to its employees; (3) Starwood had a program to educate employees about discrimination under city, state and federal law; (4) Starwood had procedures for the supervision of employees specifically directed at preventing and detecting of discriminatory practices; and (5) Starwood had a record of no, or relatively few, prior incidents of discriminatory conduct by the employees who subjected plaintiff to a hostile work environment? YES_____ NOX 2-F. Was the hostile work environment to which plaintiff was subjected severe or pervasive on the basis of: (1) race? YES___ NO___ (2) national origin? YES___ NO___ (3) disability? YES___ NO___ ANSWER THE NEXT QUESTION (QUESTION 2-G) ONLY IF YOU ANSWERED "YES" TO ANY PORTION OF QUESTION 2-F; OTHERWISE, PROCEED TO SECTION III. 2-G. Did defendant prove by a preponderance of the evidence all of the following: (1) Starwood had an anti-discrimination policy; (2) plaintiff knew about the policy; and (3) plaintiff unreasonably failed to avail himself of the complaint procedures set forth in the policy? YES X NO_____ THE DEFENDANT IS LIABLE TO PLAINTIFF IF: (I) YOU ANSWERED "YES" TO QUESTIONS 2-A AND 2-C; OR (II) YOU ANSWERED "YES" TO QUESTIONS 2-A, "NO" TO QUESTION 2-C, "YES" TO QUESTION 2-D, AND "NO" TO QUESTION 2-E; OR (III) YOU ANSWERED "YES" TO QUESTIONS 2-A, "YES" TO ANY PORTION OF 2-F, AND "NO" TO QUESTION 2-G. ***PROCEED TO SECTION III OF THIS VERDICT SHEET***