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. 

, 690-91 (1978).

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Manganiello v. City of New York, 

, 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, 

, 799 (1986).

    A jury’s finding that no individual committed a

constitutional violation precludes municipal liability for

that individual’s acts.   

.    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, 

, 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


                              4
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., 

, 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, 

, 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, 

, 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


                              7
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 

; see also Martinez v. The Port Auth. of N.Y &

N.J., 

, 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., 

, 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, 

, 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

                             9
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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