10-3206-cv(L)
Lee v. City of Syracuse, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27th day of October, two thousand eleven.
PRESENT: GUIDO CALABRESI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
KATHERINE J. LEE,
Plaintiff-Appellee-Cross-Appellant,
-v.- 10-3206-cv(L);
10-3304-cv(XAP);
10-3308-cv(XAP)
CITY OF SYRACUSE, MICHAEL HEENAN, in his individual and
official capacity, RICHARD DOUGLAS, in his individual and
official capacity, MICHAEL RATHBUN, in his individual
capacity, THOMAS GALVIN, CAPTAIN, in his individual and
official capacity, MICHAEL KERWIN, in his individual and
official capacity, STEVEN THOMPSON, in his individual
capacity, GARY MIGUEL, CHIEF OF POLICE, in his individual
and official capacity, CITY OF SYRACUSE POLICE DEPARTMENT,
Defendants-Appellants-Cross-Appellees.
FOR APPELLANTS: JESSICA MCKEE, Assistant Corporation
Counsel, for Juanita Perez Williams,
Corporation Counsel, City of Syracuse
Office of the Corporation Counsel,
Syracuse, NY.
FOR APPELLEES: A.J. BOSMAN, Bosman Law Firm, L.L.C.,
Rome, NY.
Defendants-Appellants-Cross-Appellees, along with
Plaintiff-Appellee-Cross-Appellant, appeal from judgment of
the United States District Court for the Northern District
of New York (Hurd, J.) following a jury trial that found in
favor of Plaintiff-Appellee-Cross-Appellant Katherine Lee in
part, and in favor of Defendants-Appellants-Cross-Appellees
(“defendants”) in part. We assume the parties’ familiarity
with the underlying facts, the procedural history, and the
issues presented for review.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED.
The defendants make a cavalcade of arguments. First,
they argue that the district court erred by denying the
City’s motion for judgment as a matter of law on Lee’s
Monell claim.1 We review a district court’s denial of a
motion for judgment as a matter of law de novo and draw all
reasonable inferences in favor of the nonmoving party.
1
In Monell v. Department of Social Services, the Supreme
Court held that in order to establish municipal liability
pursuant to 42 U.S.C. § 1983, a plaintiff must demonstrate an
injury caused by a municipal policy, custom, or practice. 436
U.S. 658, 690-91 (1978).
2
Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir.
2010). Here, the jury found that the Syracuse Police
Department had a custom and practice of retaliating against
employees who complained about discrimination. The City
argues that the jury’s finding that Deputy Chief Heenan –
the only individual defendant before the jury – did not
violate Lee’s constitutional rights precludes Monell
liability, and that therefore, the district court improperly
denied the City’s motion for judgment as a matter of law.
See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
A jury’s finding that no individual committed a
constitutional violation precludes municipal liability for
that individual’s acts. Heller, 475 U.S. at 799. Municipal
liability under § 1983 can only be predicated on individual
wrongdoing that is carried out in accordance with a
municipal policy, custom, or practice. Thus, the
dispositive issue is whether the plaintiff pleads an injury
caused by individual wrongdoing that is in accordance with a
municipal policy, custom, or practice.
Viewing the evidence in the light most favorable to
Lee, it is clear that Lee pleaded and proved numerous
retaliatory acts by individuals other than Heenan, and that
these acts were the result of the Syracuse Police
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Department’s custom and practice of retaliating against
employees who complained about discrimination. As the
district court explained, the City “concede[d] there were
other decision-makers who took action against [Lee] after
her protected activity.” Since Heenan was not the only
wrongdoer, the jury’s finding that he did not violate Lee’s
constitutional rights does not shield the City from Monell
liability. There was a legally sufficient evidentiary basis
for the jury to conclude that an individual within the
Syracuse Police Department violated Lee’s constitutional
rights by retaliating against her for complaining about
discrimination, and that the retaliation was caused by a
City custom or practice.
Second, defendants argue that plaintiff failed to
present sufficient evidence that the emotional distress and
reputational harm damages she claimed were caused by their
retaliatory conduct. See Patrolmen’s Benevolent Ass’n v.
City of New York, 310 F.3d 43, 55 (2d Cir. 2002) (“[T]he
mere fact that a constitutional deprivation has occurred
does not justify the award of [emotional distress] damages;
the plaintiff must establish that she suffered an actual
injury caused by the deprivation.”). However, in their
motion for judgment as a matter of law, the defendants asked
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the district court to dismiss plaintiff’s claims only “to
the extent [she] seeks economic damages.” Defendants’
causation challenge to plaintiff’s emotional distress and
reputation damages is therefore waived. See Galdieri-
Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 287
(2d Cir. 1998) (holding that a motion for judgment as a
matter of law must be “sufficiently specific to alert the
opposing party to the supposed deficiencies in her proof”).
Third, defendants argue that the court abused its
discretion by admitting testimony by other female Syracuse
Police Department officers regarding their own experiences
of being retaliated against after complaining about gender
discrimination. Defendants argue that the testimony of two
of the witnesses was unhelpful to plaintiff’s Monell claim
because those officers were not disciplined after
complaining about gender discrimination, but rather were
retaliated against in other ways. However, the jury was not
instructed that to find against the City on the Monell claim
it had to find a policy of retaliation by discipline.
Rather, the charge correctly asked the jury to determine
whether the Department “has a pervasive and widespread
custom or policy of retaliating against police officers who
complain of discrimination.” Similarly, the jury
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instruction defining a “materially adverse employment
action” was not limited to disciplinary actions.
Accordingly, the district court did not err by admitting
this testimony.
Similarly, we reject defendants’ argument that the
district court abused its discretion by admitting another
officer’s testimony that her supervisor allowed male
employees to watch pornography at work. This testimony was
necessary background for the officer’s subsequent testimony
that after she filed a complaint about the pornography she
was disciplined by Captain Rathbun for conduct for which
other officers were not disciplined – testimony that was
clearly relevant to plaintiff’s Monell claim.
Fourth, defendants argue that the jury’s award of
$400,000 for plaintiff’s Title VII and Monell retaliation
claims was excessive. However, viewing the evidence in the
light most favorable to plaintiff, plaintiff demonstrated
that the defendants engaged in numerous acts of retaliation
of varying degrees of severity over a period of several
years, causing plaintiff intense emotional distress. As
long ago as 2002, we sustained a $400,000 verdict in a
retaliation case brought by another female police officer on
similar facts. See Phillips v. Bowen, 278 F.3d 103, 110-12
6
(2d Cir. 2002) (noting evidence of ongoing harassment by
defendants over five years, testimony about plaintiff’s
emotional distress, and defendants’ unapologetic defense of
their treatment of plaintiff). Accordingly, we reject
defendants’ argument that the verdict in this case was
excessive.
Fifth, defendants claim that the jury’s damages award
of $200,000 for plaintiff’s Title VII retaliation claim and
$200,000 for her Monell retaliation claim was duplicative,
and that the district court therefore erred by denying their
motion to reduce the jury’s award by half. See Bender v.
City of New York, 78 F.3d 787, 793 (2d Cir. 1996) (“If two
causes of action provide a legal theory for compensating one
injury, only one recovery may be obtained.”). However, as
defendants acknowledged in their post-argument letter to
this court, they never requested a duplicative damages
instruction. While defendants did challenge the district
court’s proposed verdict form, they argued only that the
form created a substantial risk of duplication amongst
“three potential damages under each cause of action” (i.e.,
(1) emotional distress damages, (2) reputational damages,
and (3) economic damages). Defendants made no objection to
the form’s duplication of causes of action, which is the
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argument that defendants now press on appeal. Thus, this
argument was not properly preserved.
To the extent that defendants claim that the district
court’s failure to use a duplicative damages instruction or
an alternative verdict form amounted to plain error, we
disagree. Unlike the verdict in Bender, where we did find
plain error, the damages award in this case was (as noted
above) not excessive, undercutting any inference that the
award was “highly likely to have been artificially inflated
by duplication of awards among causes of action.” 78 F.3d
at 794-95; see also Martinez v. The Port Auth. of N.Y &
N.J., 445 F.3d 158, 161 (2d Cir. 2006) (rejecting
duplicative damages argument where defendants “failed to
establish with any degree of certainty that such
double-counting actually or likely occurred in this
particular case” (internal quotation marks omitted)). Under
these circumstances, we cannot conclude that the district
court’s failure to use a duplicative damages instruction or
an alternative verdict form was plain error.
Sixth, we reject defendants’ argument that plaintiff’s
counsel improperly sought punitive damages – which were not
available in this action – by telling the jury during her
closing argument to “send a message” to the Syracuse Police
8
Department that it should not retaliate against women who
complain about gender discrimination. See Ramirez v. N.Y.C.
Off-Track Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997)
(rejecting argument that use of the phrase “send a message”
amounts to de facto request for punitive damages).
We also reject plaintiff’s arguments on cross-appeal.
Plaintiff suggests that the district court abused its
discretion by awarding attorneys’ fees at an hourly rate of
$210, rather than $275. However, as we have recently held,
an award of $210 per hour for an experienced civil rights
attorney in the Northern District of New York “is located
within the range of permissible decisions and does not rest
on an erroneous view of the law.” Bergerson v. N.Y. State
Office of Mental Health, 652 F.3d 277, 290 (2d Cir. 2011)
(internal quotation marks omitted).
Nor did the district court err in granting summary
judgment on plaintiff’s sex discrimination claims. First,
all of plaintiff’s evidence that she herself was denied
overtime assignments on the basis of her gender occurred
outside of the statute of limitations period for her second
lawsuit. Second, while plaintiff may have been denied the
opportunity to attend medical appointments during work
hours, plaintiff failed to present any evidence that men who
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work for the department were allowed to go to medical
appointments during work hours. Finally, the district court
correctly determined that plaintiff’s evidence (including
her own deposition testimony) suggested that she was
disciplined because the defendants sought to retaliate
against her, not because the defendants sought to
discriminate against her on the basis of her gender.
We have considered all of the parties’ remaining
arguments and find them to be without merit.
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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