The opinion of the court was delivered by: Roberts, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant CVS has moved for judgment as a matter of law, a new
trial, or a remittitur to decrease the amount of plaintiffs
emotional distress damage award. Because there was sufficient
evidence, although just barely, for a reasonable jury to have
found in plaintiffs favor, defendant's motion for judgment as a
matter of law, or for a new trial, will be denied. However,
because the jury's emotional distress damage award was
excessive, defendant's motion for remittitur will be granted.
Plaintiff was employed by CVS in 1980 as a pharmacist and
later served as pharmacy department manager at the Thomas Circle
store in the District of Columbia until the time of his
termination.*fn1 From 1991 through February 1993, CVS
underwent renovations at the Thomas Circle store. During that
time, Liberatore became increasingly concerned that the
prescription medications in defendant's pharmacy were being
stored in violation of controlled temperature requirements,
possibly causing adulteration of the drugs. Liberatore raised
his concerns verbally on several occasions with Nita Sood, the
store pharmacy supervisor, with Jon Roberts, the pharmacy
regional manager, and with Larry Merlo, the Area Vice President
According to Liberatore, during one discussion with Merlo on
July 29, 1993, Liberatore told Merlo that he (Liberatore) might
bring the temperature problem to the attention of a neighbor who
was a ranking official at the FDA, if the issue were not
resolved. Merlo's demeanor changed. His face turned white and he
On July 29, 1993 — the same day that Liberatore claimed he
made his whistleblowing threat — Merlo, Roberts, and Carlos
Ortiz, the director of professional and government relations at
CVS, decided to conduct a drug reclamation, whereby the store's
drug stocks were returned to their respective manufacturers as
defective. Although Liberatore normally would have directed such
a reclamation, in this instance, Roberts and Merlo ordered Sood
to direct the reclamation and not to tell Liberatore about it.
Ortiz testified during his deposition that the reclamation was
ordered to avoid a public relations concern.
In a separate incident, CVS initiated an investigation into
Sood's claim that drugs had been missing from Liberatore's
pharmacy for over a month. According to CVS store protocol,
Ortiz was to be informed whenever such an investigation was
initiated, and Ortiz's records first reported this particular
investigation on the same day that Liberatore said he made the
whistleblowing threat. In addition, CVS policy required audit
records to be kept whenever pharmacy products were alleged to
have been missing or stolen, but CVS produced no audit records.
Instead, Sood produced a written theft form only after
Liberatore allegedly made the whistleblowing threat. On August
2, 1993, CVS's Loss Prevention Department interviewed Liberatore
as a suspect in the missing drugs investigation.
CVS fired Liberatore on August 6. He later pled guilty to
knowingly practicing pharmacy in D.C. without a license. He also
resigned from a part-time pharmacist's job he held in Maryland
where he had practiced for years without a valid license.
Thereafter, Liberatore worked intermittently in a succession of
lesser jobs in this area and in Arizona, lost his home, and
endured periods of separation from his family. He was fired from
one pharmacist position in Arizona for practicing without a
valid license. He was fired from two more positions and demoted
in a fourth for reasons including lying to conceal his
conviction and a prior termination. Liberatore testified at
trial that he had also concealed his conviction and termination
history from his then-current employer.
Plaintiff argued to the jury that his treatment between July
29, 1993, when he made the whistleblowing threat, and August 4,
1993, before CVS management discovered his lapsed pharmacy
license, shows that Merlo and Roberts were motivated by
Liberatore's whistleblowing threat in their decision to
terminate him. CVS denied that Liberatore made the threat. It
contended that when management discovered that Liberatore had
failed to renew his pharmacy license, Liberatore was terminated
for knowingly practicing pharmacy without a renewed license and
misrepresenting his status to CVS management.
I. Motion for Judgment as a Matter of Law or, in the
Alternative, for a New Trial
CVS has filed a motion for judgment as a matter of law, or, in
the alternative, for a new trial. Pursuant to Fed.R.Civ.P.
50(b), this Court may direct entry of judgment as a matter of
law if there is no legally sufficient evidentiary basis for a
reasonable jury to find for the plaintiff. When deciding a
motion for judgment as a matter of law, a court "should review
all of the evidence in the record." Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000). "In doing so, however, the court must draw
all reasonable inferences in favor of the nonmoving party, and
it may not make credibility determinations or weigh the
evidence." Id. "Thus, although the court should review the
record as a whole, it must disregard all evidence favorable to
the moving party that the jury is not required to believe."
Id. at 151, 120 S.Ct. 2097. The court "should give credence to