WALLACE v. SUFFOLK COUNTY POLICE DEPARTMENT

could reasonably have found as evincing an intent to deter Plaintiff's exercise of his First Amendment rights. Accordingly, the jury could reasonably conclude that Abbott was the highest-ranking official intimately involved in most of the actions taken against Plaintiff, and the jury's finding that he retaliated against Plaintiff by failing to prevent, stop, or redress the violation of Plaintiff's First Amendment rights and engaged in a pattern of harassment against Plaintiff is reasonable and will not be overturned.

B. Defendant John Gallagher

The jury found that Defendant Gallagher subjected Plaintiff to four separate adverse employment actions: (1) the premature submission of Plaintiff's retirement papers; (2) the omission of and/or failure to correct certain information in the retirement papers; (3) the failure to correct Plaintiff's Injured Employee Report; and (4) the failure to investigate Plaintiff's complaints regarding training, equipment, staffing, supervision, morale, and/or other deficiencies in the Emergency Services Unit. With regards to the premature submission of Plaintiff's retirement papers, it is undisputed that Gallagher, as Commissioner, signed the application for involuntary retirement submitted by the Department on Plaintiff's behalf. Furthermore, while Defendants argue that the decision to submit the application was not caused by Plaintiff's protected speech, but was instead the result of the objective application of Departmental rules, the testimony at trial established that Defendants exercised discretion in deciding which officers should be involuntarily retired. There was also evidence that Plaintiff did not even meet the guidelines established by the Department. Based on this, and the discussion above regarding the common knowledge by Defendants regarding Plaintiff's protected speech and other concerns, the jury reasonably could have found that Defendant Gallagher retaliated against Plaintiff by prematurely submitting his retirement papers.

Similarly, the jury's finding that Gallagher retaliated against Plaintiff by omitting or failing to correct certain information in the retirement papers was reasonable, because it is undisputed that the retirement papers did, in fact, incorrectly list Plaintiff's injuries, and that this failure resulted in the ultimate rejection of the County-submitted retirement application by the State. The jury could reasonably have found both that the omission or failure to correct such information was intentional, and done to cause additional difficulties for Plaintiff. The jury could have found that such actions both caused Plaintiff emotional distress and ultimately resulted in actual damages as he was required to use additional sick days until his own (correct) retirement application was approved. Again, the jury could reasonably have found that a person of ordinary firmness would have been deterred from exercising their free speech rights by the threat of such harm, and so this finding will not be overturned.

With regards to the third and fourth adverse employment actions the jury found Gallagher to have taken, they will be upheld for the same reasons as discussed above with respect to Abbott. Both men occupied similar positions of authority in the Police Department, and Gallagher could reasonably be found equally to have known about the issues affecting Plaintiff's Injured Employee Report and his concerns regarding the training, equipment, staffing, supervision, morale, and/or other deficiencies in the Emergency Services Unit, yet to have done nothing. C. Defendant Phillip Robilotto

The jury found that Defendant Robilotto took four adverse employment actions against Plaintiff: (1) the premature submission of Plaintiff's retirement papers; (2) the determination that Plaintiff was fit for light duty; (3) the assignment of Plaintiff to the First Precinct; and (4) the failure to investigate Plaintiff's complaints regarding the training, equipment, staffing, supervision, morale, and/or other deficiencies in the Emergency Services Unit. The evidence showed that Robilotto collaborated with Gallagher on the decision to submit Plaintiff's involuntary retirement, and also that he was aware of Plaintiff's protected speech. The jury could also reasonably have found that Robilotto himself threatened Plaintiff in an attempt to deter him from exercising his free speech rights, or that he participated in a decision to retaliate against Plaintiff along with Defendants Abbott and Gallagher. Accordingly, the jury's finding that Robilotto retaliated against Plaintiff by prematurely submitting his retirement papers was reasonable and will not be overturned.

As to the determination that Plaintiff was fit for light duty, and his assignment to the First Precinct, Defendants argue that there was no evidence that Robilotto was involved in these decisions. However, the jury could reasonably have inferred, based on the testimony of threats by Robilotto (including specifically to change Plaintiff's duty status), the fact that the initial Police Surgeon finding of fitness for light duty occurred the same day that Plaintiff delivered another letter detailing his concerns to Commissioner Gallagher, and the fact that there was testimony that the Police Surgeon's examination was cursory and pretextual, that Robilotto had in fact instructed others in the Department to cause Plaintiff to be found fit for light duty in retaliation for his protected speech. Similarly, the assignment of Plaintiff to the First Precinct, which the jury reasonably could have found exposed Plaintiff to prisoner and public contact, which the Medscope evaluation specifically recommended against, could reasonably also be seen as retaliatory, and attributed to Robilotto, who, as Chief of Department, was ultimately responsible for staffing decisions.

There was testimony at trial indicating that Robilotto sometimes read letters addressed to Gallagher. ( See Trial Tr. 71-72.)

Finally, given the testimony that Robilotto was aware of Plaintiff's concerns regarding the training, equipment, staffing, supervision, morale, and/or other deficiencies in the Emergency Services Unit, his position with the Department, and the basis on which the jury could reasonably have found retaliatory motive, the jury's finding regarding Robilotto's failure to investigate Plaintiff's concerns will also be upheld.

IV. Defendants' Rule 59 Challenge to the Damages Award Is Granted in Part

As an alternative to their request for judgment as a matter of law, Defendants ask the Court to either vacate the damages award, and order a new trial limited to damages, or grant remittitur of the jury verdict awarding Plaintiff $200,000 in compensatory damages for emotional distress and $225,000 in punitive damages against each Individual Defendant. "It is well settled that the calculation of damages is the province of the jury." Waltz v. Town of Smithtown, 46 F.3d 162, 170 (2d Cir. 1995) (quoting Ismail v. Cohen, 899 F.3d 183, 186 (2d Cir. 1990)). However, "[a] trial judge has discretion under Rule 59 of the Federal Rules of Civil Procedure to overturn verdicts for excessiveness and order a new trial `without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur).'" Khan v. HIP Centralized Laboratory Servs., No. 04-CV-2411 (DGT), 2008 U.S. Dist. LEXIS 76721, at *17 (E.D.N.Y. Sept. 17, 2008) (quoting Rainone v. Potter, 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005)). 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 F2d 1320, 1328 (2d Cir. 1990). The decision as to whether remittitur is required is committed to the discretion of the trial judge. See Rangolan v. County of Nassau, 370 F.3d 239, 245 (2d Cir. 2004).

"In reviewing a claim that the jury awarded excessive damages, [the Court] `view[s] the evidence and draw[s] all factual inferences in favor of the [Plaintiff],' and . . . `accord[s] substantial deference to the jury's determination of factual issues.'" Scala v. Moore McCormack Lines, 985 F.2d 680, 683 (2d Cir. 1993) (citations omitted). A jury's award of damages should not be overturned unless it is "so high as to shock the judicial conscience and constitute a denial of justice." Ismail, 899 F.2d at 186. "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.'" Scala, 985 F.2d at 684 (quoting Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988)). Courts use the "`least intrusive standard for calculating a remittitur,' namely "remitting the jury's award only to the maximum amount that would be upheld by the district court as not excessive." Martinez v. Port Auth. of N.Y. N.J., 445 F.3d 158, 160 (2d Cir. 2006) (quoting Earl, 917 F.2d at 1330).

A. The Jury's Compensatory Damages Award for Emotional Distress Does Not "Shock the Conscience"

Defendants argue that Plaintiff's claim of emotional distress should be classified as "garden variety," for which, they argue, an award of between $5,000 and $35,000 would be appropriate. (Defs.' Mem. at 17 (citing Khan, 2008 U.S. Dist. LEXIS 76721, at *30-32).) Plaintiff responds that the jury's $200,000 award for emotional distress is supported by the evidence and within the range of acceptable awards so as to not shock the judicial conscience. The evidence in support of Plaintiff's claim for emotional distress here consists solely of Plaintiff's own testimony. No medical records or testimony from medical professionals was offered. Plaintiff testified that he experienced sleeplessness, anger, difficulty with his personal and family relationships, stress, tension, and emotional trauma. Plaintiff also testified that he attended a New York City Police Department self-support group, and attended therapy sessions with his daughter.

To support the compensatory damages award, Plaintiff cites to Meacham v. Knolls Atomic Power Laboratory, a Second Circuit case that upheld a distinction between emotional distress claims where "a plaintiff's emotional distress consisted of shock, sleepless nights, nightmares, moodiness, humiliation, upset and the like but the plaintiff did not require treatment," and claims where "either physical sequelae or professional treatment was established." 381 F.3d 56, 77-78 (2d Cir. 2004), vacated on other grounds sub nom. KAPL, Inc. v. Meacham, 544 U.S. 957 (2005). In Rainone v. Potter, Judge Spatt characterized emotional damages as "garden variety" "`where the evidence of harm was presented primarily through the testimony of the plaintiff, who describe[d] his or her distress in vague or conclusory terms and fail[ed] to describe the severity or consequences of the injury.'" 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005) (quoting Michelle Cucuzza, Evaluating Emotional Distress Damage Awards to Promote Settlement of Employment Discrimination Claims in the Second Circuit, 65 Brook. L. Rev. 393, 429 (1999)). Emotional damages are significant, or substantial, however, where "they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Id. Recent cases in this district have also applied this framework. See, e.g., Olsen, 615 F. Supp. 2d at 46-47; Khan, 2008 U.S. Dist. LEXIS 76721, at *29-40; Ruhling, 2008 U.S. Dist. LEXIS 38936, at *21-22.

Here, there is ample evidence to support the jury's award of compensatory damages for emotional distress. First, the conduct at issue is highly offensive, given that Plaintiff was subjected to multiple acts giving rise to retaliation over a period of time by the three highest-ranking officials in the Suffolk County Police Department after speaking out on important matters of public concern. These Defendants, at times acting in concert, abused their authority over a vulnerable subordinate. Moreover, the uncontroverted evidence presented by Plaintiff clearly demonstrated the physical sequelae and professional treatment found significant by the Second Circuit. Meacham, 381 F.3d at 77-78. Among other things, the record shows that Plaintiff suffered, virtually daily, from sleepless nights. His hair grayed and fell out. He became tense, agitated, worried about the personal and professional consequences of Defendants' retaliation, and quick-tempered, "flying off the handle" even over minor issues. Plaintiff's relationships with his wife, children and colleagues deteriorated. As the evidence showed, Plaintiff's emotional trauma continued even as of the time of the trial. To help heal from these issues, Plaintiff received various forms of therapy. He attended monthly sessions of the New York City Police Department's self-support group beginning in January 2000. In addition, he and his daughter attended at least fifteen private therapy sessions. Thus, there is ample evidence in the record to support the jury's award.

Meacham involved New York state law claims, in which the "deviates materially" standard applies; this case involves a federal claim, in which the more deferential "shocks the judicial conscience" standard applies, see Gasperini v. Center for Humanities, Inc., 149 F.3d 137, 139 (2d Cir. 1998).

Defendants argue that Plaintiff's "garden-variety" emotional distress award should be reduced to between $5,000 and $35,000; one court in this district, however, recently rejected that same assertion and found the appropriate range to be higher. Olsen, 615 F. Supp. 2d at 46 n. 4 (rejecting $5,000 to $35,000 range in favor of $30,000 to $125,000 range). Similarly, as noted above, the Second Circuit, in Meacham, upheld an award of $125,000 for "subjective distress" not accompanied by physical sequelae or professional treatment, and noted that the passage of time since that award (made in 2002) would support higher awards in future cases. 381 F.3d at 77-78; see also U.S. Dep't of Labor, U.S. Bureau of Labor Statistics, CPI Inflation Calculator, http://data.bls.gov/cgi-bin/cpicalc.pl ($125,000 in 2002 dollars converted into $150,000 in 2009 dollars). While at the upper ranges, the jury's award is in line with other cases with similar evidence of emotional distress, particularly in light of the rank held by these Defendants within the police department and the nature and scope of the offensive conduct. See, e.g., Patterson v. Balsamico, 440 F.3d 104, 120 (2d Cir. 2006) (approving award of $100,000 for emotional damages where the only evidence of harm was plaintiff's testimony and there was no evidence of medical treatment); Patrolmen's Benevolent Ass'n et al. v. City of New York, 310 F.3d 43, 55 (2d Cir. 2002) ("Evidence that a plaintiff has sought medical treatment for the emotional injury, while helpful, is not required."); Matson v. E.S. Sutton, Inc., No. 02 Civ. 2739 (KMW), 2005 U.S. Dist. LEXIS 31578, at *46-47 (S.D.N.Y. Sept. 26, 2005) ("The range of acceptable damages for emotional distress in adverse employment action cases lacking extraordinary circumstances seems to be from around $30,000 to $125,000."); Sulkowska v. City of New York, 129 F. Supp. 2d 274, 308-309 (S.D.N.Y. 2001) (collecting cases awarding emotional distress damages in cases of false arrest and other police misconduct).

Defendants also argue that the jury's award should be reduced because "a significant part of Plaintiff's emotional distress was caused by circumstances for which he cannot recover," that is, the investigation of Plaintiff for insubordination and conduct unbecoming an officer, which the jury was instructed to disregard. (Defs.' Mem at 18.) While the testimony on emotional distress does not tie specific retaliatory conduct to specific manifestations of Plaintiff's distress, the evidence does clearly show that Plaintiff was distressed over a long period of time, that the distress affected his lifestyle and personality, and that Defendants' egregious acts of retaliation was a principal source of his distress. Furthermore, the jury was instructed to disregard all evidence and testimony with respect to the Internal Affairs investigation, and was also reminded to only award damages that it found were "caused by the defendants' violation of plaintiff's First Amendment rights." (Trial Tr. 615.) "`[J]uries are presumed to follow their instructions.'" See, e.g., Creative Waste Mgmt., Inc. v. Capitol Entl. Servs., Inc., 495 F. Supp.2d 353, 361 (S.D.N.Y. 2007) (quoting United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998) (citation omitted)); see also TradeCard, Inc. v. S1 Corp., 509 F. Supp.2d 304, 327 (S.D.N.Y. 2007) ("Courts are entitled to presume that the jury followed the instructions given to it.") (citing Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir. 1996)). Defendants have offered no basis to rebut this presumption and allow the Court to conclude that the jury erred and awarded damages for emotional distress not resulting from Defendants' violations of Plaintiff's First Amendment rights. Thus, Defendants' argument provides no basis to set aside or reduce the jury's award. Cf. Ruhling, 2008 U.S. Dist. LEXIS 38936, at *19-20 (reaching a similar conclusion regarding the jury's decision to award emotional distress damages).

Defendants also argue that the award should be reduced because Plaintiff should not be permitted to recover for emotional distress related to the failure to investigate "the purported deficiencies in the Police Department," because this act was not truly adverse. (Defs.' Mem. at 18.) As this argument was rejected on Defendants' Rule 50(b) motion, it is unnecessary to discuss it further as it relates to Plaintiff's award for emotional damages.

Notably, a significantly higher award for emotional distress by the jury might have provided a reason to question this presumption, or might have led to an award that shocked the judicial conscience. See, e.g., Khan, 2008 U.S. Dist. LEXIS 76721, at *23-29 (finding that the jury's award should be reduced because it encompassed damages for which plaintiff could not recover); Ruhling, 2008 U.S. Dist. LEXIS 38936, at *23-27 (reducing emotional distress award to account for the contribution of claims that were rejected by the jury to plaintiff's distress).

B. The Punitive Damages Award Is Subject to Remittitur Reducing It to $100,000 as to Each Individual Defendant

"Punitive damages are available in a § 1983 action `when a defendant's conduct is shown to be motivated by an evil motive or intent or when it involved reckless or callous indifference to the federally protected rights of others.'" Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). The jury has wide discretion in granting an award of punitive damages. Id. Nevertheless, the 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.'" Id. (quoting Hughes v. Patrolmen's Benevolent Ass'n of New York Inc., 850 F.2d 876, 883 (2d Cir. 1988)). In determining whether a given 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.'" Id. at 809 (quoting Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992)). Thus the court should ensure "`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.'" Vasbinder, 976 F.2d at 121. The Supreme Court has articulated three guideposts to be used in determining whether a punitive damages award is excessive: "(1) the degree of reprehensibility of the tortuous conduct; (2) the ratio of punitive damages to compensatory damages; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases." Lee., 101 F.3d at 809 (citing BMW of N. Am. v. Gore, 517 U.S. 559, 575 (1996)).

"The Supreme Court in Gore noted that reprehensibility is `perhaps the most important" factor in assessing a punitive damage award.'" Id. (citing Gore, 517 U.S. at 575). Three "aggravating factors" identified by the Court that are "associated with particularly reprehensible conduct" include: "(1) whether a defendant's conduct was violent or presented a threat of violence, (2) whether a defendant acted with deceit or malice as opposed to acting with mere negligence, and (3) whether a defendant has engaged in repeated instances of misconduct." Id. (citing Gore, 517 U.S. at 576). Here, there was substantial evidence to support the jury's conclusion that the Individual Defendants sought to suppress Plaintiff's speech on matters of public concern by systematically retaliating against him over a period of time. These actions were not done negligently, but with malice, involving, as the jury reasonably found, separate acts over time by each Individual Defendant. Furthermore, as Plaintiff points out, the retaliation at issue in this case was "made worse by the fact that the actors were the three highest members of the Suffolk County Police Department, sworn with the duty to protect the public and uphold the laws of this state and country." (Pl.'s Mem. (Doc. No. 78) at 35.)

In considering the second Gore factor, the ratio of the punitive damage award to the actual harm inflicted, "the proper inquiry is whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred." Gore, 517 U.S. at 581. Here, the ratio between the compensatory damages award (after remittitur) and the punitive damages award is approximately 4:1, a ratio found acceptable by the Supreme Court. See Patterson, 440 F.3d at 121 ("[T]he Supreme Court has upheld a punitive damage award of `more than 4 times the amount of compensatory damages.'" (quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991))).

The final Gore factor, the relationship between the punitive damages awarded and the civil penalties authorized or imposed in comparable cases, also does not militate in favor of reducing the award. This factor demonstrates the Supreme Court's concern with according proper deference to "legislative judgments concerning appropriate sanctions for the conduct at issue." 517 U.S. at 583. "When penalties for comparable misconduct are much slighter than a punitive damages award, it may be said that the tortfeasor lacked `fair notice' that the wrongful conduct could entail a substantial punitive award." Lee, 101 F.3d at 811 (citing Gore, 517 U.S. at 584). In this case the Individual Defendants, high-ranking Police Department officials, should have appreciated the gravity of retaliating against a subordinate for speaking out on matters of public concern, and should have understood that such conduct could have adverse economic consequences. See id.

In these circumstances, the Court does not hesitate to find that the jury properly awarded punitive damages against the Individual Defendants. However, the Court is not convinced that the punitive damages awarded against each Individual Defendant were "reasonable in their amount." Vasbinder, 976 F.2d at 121. The Second Circuit has said that courts evaluating the reasonableness of a damages award should consider not only the Gore factors, but should compare the award at issue with those made in similar cases. See Lee, 101 F.3d at 812; Ismail, at 186. In doing so, the Court finds excessive as a matter of law the magnitude of the jury's punitive damages award.

Plaintiff cites to no cases upholding awards of such a size in similar First Amendment retaliation cases, while Defendants cite to a number of cases in which awards were reduced to $10,000 to $30,000. ( See Defs.' Mem. at 36-37 (citing Patterson, 440 F.3d 104 (reducing punitive damages award of $20,000 to $10,000); Vasbinder, 976 F.2d 118 (reducing $150,000 awards to $20,000 and $30,000); Stack v. Jaffee, 306 F. Supp. 2d 137, 142 (D. Conn. 2003) (reducing $200,000 award to $25,000)).) Nevertheless, the Court's research reveals other cases in which higher awards were upheld for emotional distress suffered as a result of retaliation in the law enforcement context. See, e.g., Hughes v. Patrolmen's Benevolent Ass'n, 850 F.2d 876, 883 (2d Cir. 1988) (declining to disturb jury's punitive damage award of $175,000 as against an individual police officer found liable for intentional infliction of emotional distress against a fellow officer); Moskowitz v. Coscette, 3 Fed. App'x 1 (2d Cir. 2001) (upholding $75,000 against police chief for First Amendment retaliation); Russo v. City of Hartford, 419 F. Supp. 2d 134 (D. Conn. 2006) (same); Schutts v. Feldman, No. 5:88-CV-449 (EBB), 1997 U.S. Dist. LEXIS 3428 (D. Conn. Feb. 18, 1997) (reducing punitive damages award in retaliatory failure to promote case from $300,000 to $150,000).

Defendants also argue that the punitive damages award should be reduced because the Court should consider the Individual Defendants' personal financial situations in determining whether the award of punitive damages is excessive. (Defs.' Mem. at 37 (citing Patterson, 4404 F.3d 104).) While Defendants are correct that the Court will not affirm punitive damages awards that "result in the financial ruin of the defendant" or "constitute a disproportionately large percentage of the defendant's net worth," Vasbinder, 976 F.2d at 121, Defendants at trial failed to offer any evidence as to the Individual Defendants' personal financial situations. Such a record cannot be a basis for reducing the punitive damages award, and any fault for the incompleteness of the record lies with Defendants. See Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 373-74 (2d Cir. 1988). Defendants could have offered such evidence at trial, or, if concerned about the potential prejudice of this type of evidence on liability, moved for bifurcation of the liability and damages phases of the trial. Id. They did neither. Nor did request any other procedure that would have preserved their ability to present timely evidence with respect to their financial condition. While Defendants, in their post-trial motions, have made a belated request for a hearing on this issue, they did not provide this Court with one shred of evidence, in the form of affidavits, documents or the like, to allow this Court to determine whether Defendants' financial circumstances might have any bearing on the issue of remittitur, or whether a hearing would even be necessary or helpful. Nonetheless, keeping in mind that "an award should not be so large as to constitute `a windfall to the individual litigant,'" Vasbinder, 976 F.2d at 121 (quoting Aldrich v. Thomson McKinnon Sec., Inc., 756 F.2d 243, 249 (2d Cir. 1985)), and considering the purposes of the punitive damages award, the factors set forth in Gore, and, particularly, the awards in comparable cases, this Court finds that the punitive damages award should be reduced to $100,000 against each Individual Defendant. This amount is squarely within the range of comparable cases involving First Amendment retaliation in the law enforcement context. See, e.g., cases cited at p. 19-20, supra. Moreover, this amount is properly and reasonably below the range of punitive damage awards for Section 1983 violations that involve police brutality. See, e.g., Ismail, 899 F.2d at 186 (upholding $650,000 in compensatory damages and $150,000 in punitive damages to Plaintiff who suffered displaced vertebrae, a cracked rib and serious head trauma at the hands of a police officer); O'Neill v. Krzeminski, 839 F.2d 9, 10 (2d Cir. 1988) (upholding punitive damages of $185,000 on claims of excessive force and denial of medical attention).

Defendants generally assert, without any support, that "two of the three individual Defendants [Abbott and Gallagher] may not be indemnified for punitive damages." Def. Br. Dated November 10, 2009 at pp. 22-23. While at times the Second Circuit has sustained higher punitive damage awards in arguably comparable cases, it has done so in circumstances where "the Defendants' financial circumstances were not at issue" or where "the defendant's municipal employer agreed to indemnify him." Patterson, 440 F.3d at 122 (citations omitted). Thus, any agreement to indemnify Robilotto could arguably support a higher award as to him. As to Abbott and Gallagher, Defendants cite no cases that suggest that the lack of an indemnification agreement constitutes grounds for reducing an award against an individual municipal employee. In any event, here, Defendants chose not to raise their financial circumstances until their post-trial motions, and as such, this Court does not consider issues of indemnification in reviewing the jury's punitive damage awards. See Smith, 861 F.2d at 373-74.

This is not to say that this Court condones Defendants' conduct or trivializes the harm that they caused. Indeed, these Defendants, often acting in concert, unlawfully wielded their rank and their considerable authority to retaliate against a vulnerable subordinate who sought to exercise his First Amendment rights to speak out on significant matters of public concern that directly affected the lives and safety of police officers performing their duties, and the public at large. "It was surely within the jury's discretion to send a message to [Defendants] and others that such retaliation is intolerable." Vasbinder, 976 F.2d at 119 (citation omitted). An award of $100,000 against each Defendant is reasonable under these circumstances and sufficient as a matter of law to send that message, to punish these Defendants for abusing their public trust, to deter other police officials from doing the same, and to otherwise satisfy the purposes behind an award of punitive damages.

CONCLUSION

For the foregoing reasons, Defendants' motion for judgment as a matter of law on Plaintiff's First Amendment retaliation claim pursuant to Federal Rule of Civil Procedure 50(b) is DENIED in its entirety. Defendants' motion, in the alternative, for a new trial limited to damages or a remittitur of the punitive damages awards pursuant to Federal Rule of Civil Procedure 59(a), however, is GRANTED. Because the punitive damages award is excessive, a new trial on damages will be ordered unless Plaintiff agrees no later than twenty (20) days from the date of this Memorandum and Order, in writing, filed electronically with the Court and served on Defendants, to accept a remittitur of the punitive damages awards to $100,000 per Individual Defendant.

SO ORDERED.

Dated: Brooklyn, New York September 24, 2010