Consorti v. Armstrong World Industries, Inc., 72 F.3d 1003, 1009 (2nd Cir. 1995). There are, however, certain principles that the judiciary has developed to evaluate damage awards. Thus, "in reviewing the amount of the jury's award, [the court] ... need not -- and indeed cannot -- reconstruct the precise mathematical formula that the jury adopted. Nor need [the court] explore every possible quantitative analysis or compute the basis of each penny and dollar amount. [The court's] inquiry ends once [it is] satisfied that the award is within a reasonable range and that the jury did not engage in speculation or other improper activity." Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1239-40 (D.C. Cir. 1984). Compensable damage must, however, be proven and cannot be presumed. Carey v. Piphus, 435 U.S. 247, 263-64, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978). The injury in civil rights cases may be intangible as in this case. It need not be financial or physical but may include damages for humiliation and emotional distress. Id. at 263-64 & n.20.
In Jeffries v. Potomac Dev. Corp., 261 U.S. App. D.C. 355, 822 F.2d 87 (D.C. Cir. 1987), the D.C. Circuit set out two tests for determining whether a jury verdict is so excessive as to warrant the remedy of remittitur: (1) "whether the verdict is 'beyond all reason; or ... is so great at to shock the conscience;'" or (2) "whether the verdict 'is so inordinately large as to obviously exceed the maximum limit of a reasonable range within which the jury may properly operate.'" 822 F.2d at 96. The burden of establishing that the jury award is so excessive as to warrant a remittitur rests with the FDIC. Carter, 234 U.S. App. D.C. 126, 727 F.2d 1225 at 1240.
In this circuit, a court may remit a jury verdict only if the reduction "permit[s] recovery of the highest amount the jury tolerably could have awarded." Carter v. District of Columbia, 254 U.S. App. D.C. 71, 795 F.2d 116, 135 n.13 (D.C. Cir. 1986). A court must be hesitant to disturb a jury's determination of damages in cases involving intangible and non-economic damages. Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991).
The court's independent research establishes that in discrimination and retaliation cases the range of jury awards is generally between $ 10,000 and $ 150,000. See Appendix, infra at 28-34. The court is aware that Title VII cases are fact-specific and that comparisons between cases are difficult to make. Nairn v. National R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988). Moreover, the court recognizes that other decisions are merely instructive and not binding. Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir. 1984). Thus, in arriving at a figure the court should rely primarily upon the evidence introduced at trial. Hurley v. Atlantic City Police Dept., 933 F. Supp. 396, 425 (D.N.J. 1996). Comparisons, however, are useful in helping the court determine whether or not a given damage award falls within a permissible range. See Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1425 (7th Cir. 1986); In re Innovative Construction Systems, Inc., 793 F.2d 875, 887 n. 11 (7th Cir. 1986); Johnson v. Hale, 13 F.3d 1351, 1353 & n. 3 (9th Cir. 1994); Abrams v. Lightolier, 841 F. Supp. 584, 593 (D.N.J. 1994), aff'd, 50 F.3d 1204 (3d Cir. 1995); Hurley v. Atlantic City Police Dept., 933 F. Supp. 396 (D.N.J. 1996).
After careful deliberation, the court concludes that the jury's award cannot stand in its current amount. In reaching this determination, the court considered several factors. First, the court has relied foremost on the evidence introduced at trial. Second, to establish a point of reference, the court has referred to the cases cited in the Appendix. All these cases involved non-economic intangible damages, as does this case.
Third, the court has given due regard to Congress' view that plaintiffs should be able to recover compensatory damages under Title VII so that plaintiffs would be appropriately compensated and to provide for more effective deterrence of unlawful behavior on the part of employers.
Fourth, the court recognizes that in this case a $ 300,000 statutory cap applies. In this court's view, the maximum amount recoverable under the applicable cap, therefore, should be reserved for the most egregious cases of unlawful conduct. Fifth, the court has considered the physical harm Ms. Nyman sustained as a result of the defendant's actions. See Spence v. Board of Education of the Christina School District, 806 F.2d 1198, 1201 (3d Cir. 1986). Sixth, the court has considered Ms. Nyman's evidence of medical treatment. Id. Seventh, the court has noted the evidence presented by the FDIC. Finally, the court has given due deference to the jury's belief that, in this case, a large award is warranted. See Hurley, 933 F. Supp. at 425.
The following is a review of the evidence presented at trial. Ms. Nyman did not lose her employment as a result of the FDIC's retaliatory conduct. Moreover, the challenged award arises exclusively from the successful retaliation claim. The award is compensation for only non-economic intangible injuries sustained by Ms. Nyman. As to her claim of retaliation, however, the FDIC did not seriously attempt to rebut Ms. Nyman's extensive evidence of retaliation. See discussion, supra Section III, A at 4-5. Moreover, Ms. Nyman presented substantial evidence of the harmful effect that this unlawful conduct had on her health. Specifically, Ms. Nyman provided expert testimony which established that she developed hypertension as a result of the stress that the FDIC's conduct inflicted upon her. She was forced to cease working for a substantial period of time as a result of her medical condition. She is now required to take medication. In addition, Ms. Nyman introduced evidence which showed that she had endured several episodes in which her blood pressure reached dangerous levels. Furthermore, she introduced evidence showing that her life expectancy has been diminished as a result of the FDIC's actions. Consequently, Ms. Nyman successfully established that there was a causal relation between the defendant's actions and the physical symptoms she endured. Additionally, Ms. Nyman presented evidence of the humiliation she suffered as a result of Mr. Hovan's actions, which the jury found, were in retaliation for her discrimination complaints.
After carefully evaluating all the factors outlined above and noting the severe and uncontroverted consequences that the FDIC's actions had on Ms. Nyman; but yet recognizing that Ms. Nyman's injuries do not warrant the highest recoverable damage award under Title VII, it is the court's conclusion that under the law, the maximum amount the jury could have reasonable awarded Ms. Nyman is $ 175,000.
A district court that finds a verdict amount to be excessive does not, however, have the power to simply reduce the damage award. Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93, 96 (2nd Cir. 1995); see also Vasbinder v. Scott, 976 F.2d 118, 122 (2d Cir. 1992); Phelan v. Local 305, 973 F.2d 1050, 1064 (2d Cir. 1992), cert. denied, 507 U.S. 972, 122 L. Ed. 2d 785, 113 S. Ct. 1415 (1993); Spence v. Board of Education, 806 F.2d 1198, 1201 (3d Cir. 1986). The court can order a new trial limited to the issue of damages. Tingley Systems, 49 F.3d at 96. In the alternative, the court may grant the motion for a remittitur by conditioning the denial of a motion for a new trial on the plaintiff's acceptance of the reduced damage award. Id. Remittitur is therefore "the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984). Accordingly, Ms. Nyman will be afforded 45 days from the date of this memorandum opinion and order to inform the court and the FDIC, in writing, of her decision.
III. Equal Pay Act Claim
The Equal Pay Act of 1963, 29 U.S.C. § 206(d), which is part of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., prohibits discrimination in rates of pay paid to employees on the basis of gender. The purpose of the Act is to ensure that employees of both sexes are paid equally for the same job. Specifically the Act provides:
No employer having employees ... shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.