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February 7, 1997

Massoumeh G. Nyman, Plaintiff,
Chairman, Federal Deposit Insurance Corporation, Defendant.

The opinion of the court was delivered by: URBINA

 Denying Defendant's Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial; Granting Defendant's Motion for a Remittitur; Concluding that Plaintiff was not Entitled to a Jury Trial on her Equal Pay Act Claim; Finding for Plaintiff on Her Equal Pay Act Claim; Finding for the Defendant on Plaintiff's 1990 Gender Discrimination Claim; Entering a Remedial Order; and Scheduling a Status/Settlement Conference *fn1"

 This matter comes before the court upon defendant's motion for judgment as a matter of law or, in the alternative, for a new trial. The defendant also moves for a remittitur. There are five issues the court must address. First, the court must determine whether certain of the court's evidentiary rulings warrant the granting of defendant's motion for judgment as a matter of law or, in the alternative, for a new trial. Second, the court must decide whether the evidence introduced at trial is sufficient to sustain a damage award of $ 300,000. Third, is the issue of whether the plaintiff was entitled to a jury trial on her Equal Pay Act claim. If not, the court must render its findings of fact and conclusions of law as to this claim. Fourth, the court must issue its findings of fact and conclusions of law vis-a-vis plaintiff's 1990 Title VII discrimination claim. Finally, the court will enter a remedial order.

 For the reasons more fully discussed below, the court concludes that the challenged evidentiary rulings do not warrant the granting of the defendant's motion. The court further concludes that the damage award cannot stand. Accordingly, plaintiff will have to elect between accepting a remittitur from the $ 300,000 damage award to $ 175,000 or having a new trial on the issue of damages. The court further holds that plaintiff was not entitled to a jury trial on her Equal Pay Act claim. Consequently, the jury's verdict as to this claim is only advisory. The court, however, finds for the plaintiff on this claim. As to plaintiff's 1990 discrimination claim, the court finds for the defendant.

 II. Background

 Ms. Massoumeh G. Nyman (Ms. Nyman) is a U.S. citizen of Iranian origin. Since 1977 she has worked for the Federal Deposit Insurance Corporation (FDIC). In 1985 she became Chief of the Call Reports Analysis Unit, one of two units in the Bank Financial Reporting Section at the FDIC. Her grade is GG-14. Ms. Nyman's unit is responsible for processing call reports, which are financial statements that thousands of federally insured banks are legally required to file with the FDIC on a quarterly basis. These reports contain information that permit the FDIC to monitor the banks.

 The jury in this case entertained four claims. First, Ms. Nyman claimed that beginning in 1992, she was subjected to retaliation after she complained about discrimination in violation of Title VII; second, she claimed that she was paid less than her male counterparts because of her gender in violation of Title VII; third, she claimed that the FDIC violated the Equal Pay Act by denying her equal pay for work that was substantially equal to that of male supervisors; and lastly, Ms. Nyman claimed that she was unlawfully denied a promotion to Section Chief of the Financial Reporting Section, grade 15, in January 1990, in violation of Title VII.

 The jury rendered a verdict finding that the FDIC had retaliated against Ms. Nyman in violation of Title VII. Specifically, the jury found that the retaliation included a refusal to upgrade Ms. Nyman's Unit to a Section and to promote her to grade 15. In addition, the jury found that Ms. Nyman was unlawfully refused a merit salary increase and that she was not removed from her supervisor Mr. Michael Hovan's chain of command in retaliation for engaging in protected activity. The jury concluded that the FDIC's discriminatory actions harmed Nyman's health and awarded her $ 350,000 in compensatory damages.

 The jury further found that the FDIC violated the Equal Pay Act by denying Ms. Nyman equal pay for work she performed that was substantially equal to that of male supervisors who served in the Division of Supervision under Mr. Hovan. In addition, the jury found that the FDIC's failure to provide Ms. Nyman with equal pay was not the result of a good faith decision based on a reasonable belief that the FDIC was obeying the law. Finally, the jury rendered an advisory verdict in favor of the FDIC on Ms. Nyman's 1990 sex discrimination claim under Title VII.

 The FDIC has moved for judgment as a matter of law or, in the alternative, for a new trial; it has also moved for a remittitur of the jury damage award. The court will address each motion seriatim. In addition, the court will render its findings of fact and conclusions of law on Ms. Nyman's Equal Pay Act claim and 1990 sex discrimination claim. Lastly, consistent with the jury's verdict on Ms. Nyman's retaliation claim, the court will enter a remedial order.

 III. Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial *fn2"

 Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, a motion for judgment as a matter of law may be renewed if it has been previously denied by the trial court. In considering a motion for judgment as a matter of law, the trial court, viewing the evidence in the light most favorable to the prevailing party, must consider whether "the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict." Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1227 (D.C. Cir. 1984); see also McNeal v. Hi-lo Powered Scaffolding, Inc., 266 U.S. App. D.C. 473, 836 F.2d 637, 641 (D.C. Cir. 1988); Bennett Enterprises, Inc. v. Domino's Pizza, Inc., 310 U.S. App. D.C. 192, 45 F.3d 493, 497 (D.C. Cir. 1995). Moreover, a post-trial motion for judgment as a matter of law may be granted only upon grounds advanced in the pre-verdict motions. U.S. Indus., Inc. v. Blake Const. Co., 217 U.S. App. D.C. 33, 671 F.2d 539, 548 (D.C. Cir. 1982); see also Whelan v. Abell, 310 U.S. App. D.C. 396, 48 F.3d 1247, 1251 (D.C. Cir. 1995); Kutner Buick, Inc. v. American Motors Corp., 868 F.2d 614, 617 (3d Cir. 1989) (internal citations omitted).

 A motion for judgment as a matter of law should be denied unless "there can be but one reasonable conclusion drawn from the evidence viewed in the light most favorable to the [plaintiff] ..., giving [her] the advantage of every fair and reasonable inference that the evidence may justify." Metrocare v. Washington Metropolitan Area Transit Authority, 220 U.S. App. D.C. 104, 679 F.2d 922, 924-25 (D.C. Cir. 1982) (internal citation omitted). A court may neither assess witness credibility nor weigh the evidence. Mackey v. United States, 303 U.S. App. D.C. 422, 8 F.3d 826, 829 (D.C. Cir. 1993) (internal citations omitted). In evaluating the evidence, the court should not decide the motion based on which side it believes has the "better of the case." Duncan-Huggins, Ltd., 727 F.2d at 1227 (citing Bohrer v. Hanes Corp., 715 F.2d 213, 218 (5th Cir. 1983)). These functions are the domain of the jury. Because the granting of a Rule 50 motion intrudes upon the jury's province, Duncan-Huggins, Ltd., 727 F.2d at 1217, Rule 50 motions "should be cautiously and sparingly granted." 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2524, at 541-45 (1971).

 The FDIC's motion for judgment as a matter of law is not well-founded. The evidence in this case was not so one-sided that a reasonable jury could have only reached one determination: That the FDIC did not retaliate against Ms. Nyman. Ms. Nyman presented substantial evidence of retaliation. The jury heard unrebutted and damaging testimony concerning her supervisor Mr. Hovan's admonition that as a result of Ms. Nyman's complaints of discrimination she was going "to draw blood." In fact, the FDIC admitted that Mr. Hovan told an EEO counselor to advise Ms. Nyman that "if she pushes against a needle, she will draw blood." Testimony was also introduced showing that after Mr. Hovan learned of plaintiff's participation in an EEO hearing, he stated that "he was going to straighten her out." Ms. Nyman presented sufficient evidence to support the jury's finding that Mr. Hovan executed his threats. Specifically, the jury permissibly found that the retaliation included, a refusal to upgrade Ms. Nyman's Unit and to promote her, a refusal to approve a merit salary increase, and a refusal to remove Ms. Nyman from Mr. Hovan's command. The jury also found that this retaliatory conduct harmed Ms. Nyman's health.

 Under Rule 59, a "new trial may be granted to all ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States[.]" The standard for a new trial is less onerous than the one applicable to a Rule 50 motion. Lewis v. Elliott, 628 F. Supp. 512, 516 (D.D.C. 1986). A trial judge should grant a new trial if the verdict is against the weight of the evidence, damages are excessive, for other reasons the trial was not fair, or substantial errors occurred in the admission or rejection of evidence or the giving or refusal of instructions. 11 C. Wright, A. Miller & Cooper, Federal Practice and Procedure § 2805 (1973). A new trial "should be granted only where the court is convinced the jury verdict was a 'seriously erroneous result' and where denial of the motion will result in a 'clear miscarriage of justice.'" Sedgwick v. Giant Food, Inc., 110 F.R.D. 175, 176 (D.D.C. 1986). "The standard for granting a new trial is not whether minor evidentiary errors were made but rather whether there was a "clear miscarriage of justice." Dickerson v. HBO & Co. et al., 1995 U.S. Dist. LEXIS 19213. 1995 WL 767177 (D.D.C.) (citing Segwick, 110 F.R.D. at 176).

 Regardless of the way a party characterizes a motion, a post-judgment filing challenging the correctness of the judgment falls within the perimeter of Rule 59(e). Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978); 9 Moore's Federal Practice P 204.12[1] at 4-67 (1987). Motions for a new trial "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986) (internal citations omitted). "These motions cannot be used to raise arguments which could, and should have been made before the judgment issued." Id. Finally, "in deciding whether to grant a new trial, the court should be mindful of the jury's special function in our legal system and hesitate to disturb its finding." Lewis, 628 F. Supp. at 516 (internal citations omitted).

 The FDIC premises its motion on the grounds that the court impermissibly permitted the admission of evidence that was racially charged. The FDIC also argues that the court erroneously excluded evidence of plaintiff's allegedly poor working relationships with her co-workers, deficient management ability, and her lack of credibility. The FDIC argues that the court should not have permitted Ms. Nyman to introduce evidence concerning Henry Newport's experiences with Michael Hovan. *fn3" This evidence, the FDIC argues, was inflammatory. The FDIC states that Mr. Newport's testimony concerning Mr. Hovan's remarks and actions toward the former was not relevant; and further, that any probative value such testimony may have possessed was outweighed by the unfair prejudice it sustained.

 Under Federal Rule of Evidence 401, evidence is relevant if it has any tendency to make the fact to be proved more or less likely than if the evidence were not introduced. Rule 401 provides:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 Similarly, the FDIC's other challenges to the court's evidentiary rulings must be rejected. The FDIC complains about the court's decision to exclude an arbitrator's decision that held that Ms. Nyman engaged in discrimination with respect to three of her subordinates. The court excluded the written decision as hearsay. The FDIC, however, was permitted to introduce evidence that three subordinates of Ms. Nyman were given arbitration awards as a result of conflicts they had with Ms. Nyman.

 The FDIC also challenges the court's decision to limit the testimony of Ms. Elizabeth Coll, the Chief Steward of the Union that represents FDIC employees. The court limited Ms. Coll's elaboration relating to nine grievances that employees had filed against Ms. Nyman. Ms. Coll, however, was given an adequate opportunity to testify about these grievances. In addition, Mr. Murray Hines' grievance was fully developed at trial by the FDIC. *fn4" Moreover, the court did not prohibit the FDIC from calling Ms. Nyman's subordinates as witnesses. The FDIC, however, chose not to do so.

 The FDIC further asserts that the court's decision to exclude a memorandum from Ms. Coll to Mr. Hovan regarding the Murray Hines incident was in error, as was the court's decision to exclude a prior performance evaluation of Ms. Nyman. The court disagrees. These items were excluded pursuant to an agreement that had been previously reached by the FDIC and Ms. Nyman regarding the matter. Accordingly, the FDIC's Rule 59 motion for a new trial is denied.

 IV. Remittitur

 The jury in this case awarded Ms. Nyman $ 350,000 in compensatory damages. The amount of compensatory damages that Ms. Nyman could recover in this case is, however, limited by 42 U.S.C. Section 1981a(b)(3)(D) to a maximum of $ 300,000. *fn5" The FDIC submits that even that figure is excessive and that a further reduction is appropriate. Specifically, the FDIC moves this court to reduce the jury award to $ 50,000.

 It is impossible to accurately assess the quantum of suffering sustained by a victim of retaliation. Such assessments are by their nature subjective and arbitrary. As the Second Circuit eloquently stated:

We must recognize that compensation for suffering can be accomplished only in a symbolic and arbitrary fashion. There are at least two serious shortcomings to the endeavor. First, money awards do not make one whole; they do not alleviate pain. Second, there is no rational scale that justifies the award of any particular amount, as opposed to some very different amount, in compensation for a particular quantum of pain.

 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. *fn6" 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. *fn7" 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. *fn8"

  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.

 29 U.S.C. § 206(d)(1) (1978).

 A. Entitlement to Jury ...

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