MARGO K. BRODIE, District Judge:
Plaintiff Gary Sass filed the above-captioned action against his former employer Metropolitan Transportation Authority Bus Company ("MTA Bus") for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 ("NYCHRL"). After a jury trial, the jury found Defendant liable and awarded damages in the amount of $358,300. Four days after the jury verdict, on June 24, 2013, the Supreme Court of the United States issued a decision in University of Texas Southwestern Medical Center v. Nassar changing the standard of proof necessary to establish a retaliation claim pursuant to Title VII. 570 U.S. ___, ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). Based on Nassar, Defendant moved for judgment as a matter of law, or
The Court assumes familiarity with the underlying facts and procedural history of this case. See Sass v. MTA Bus Co., No. 10-CV-4079, 2012 WL 4511394 (E.D.N.Y. Oct. 2, 2012). According to Plaintiff, he was terminated from his position as a bus maintenance supervisor at MTA Bus in retaliation for telling MTA Bus investigators that he had reported to his supervisor finding a bus roster with Nazi symbols superimposed on it, and that his supervisor failed to take any action. On June 17, 2013, the Court commenced a jury trial on Plaintiff's retaliation claim and after presentation of all the evidence, Defendant moved pursuant to Rule 50 of the Federal Rules of Civil Procedure for judgment as a matter of law, on the basis that Plaintiff could not establish a causal connection between his termination and the protected activity. (Docket Entry No. 57, Trial Transcript ("Tr.") 405.) The Court denied the motion on the grounds that a reasonable jury could find that Defendant's reason for the termination was pretextual, based on the differential treatment accorded to a similarly situated employee. (Tr. 413-14.) The Court instructed the jury that in order to establish liability on the claim of retaliation, Plaintiff had to prove that "one or more of his protected activities played an important role in [D]efendant's decision to terminate [P]laintiff," and that "[P]laintiff's participation in protected activities were more likely than not a motivating factor in [D]efendant's termination of [P]laintiff." (Tr. 586:16-24.) On June 20, 2013, the jury returned a verdict in favor of Plaintiff. Plaintiff moved for reinstatement, pension contributions, back pay and for attorneys' fees.
On June 24, 2013, the Supreme Court of the United States issued a decision in Nassar holding that "Title VII retaliation claims must be proved according to traditional principles of but-for causation," expressly rejecting the motivating-factor standard. Nassar, 570 U.S. at ___, 133 S.Ct. at 2533. Based on the Supreme Court's Nassar decision, Defendant renewed its motion pursuant to Rule 50 for judgment as a matter of law and, in the alternative, moved pursuant to Rule 59 for an order vacating the verdict and granting a new trial.
Rule 50 of the Federal Rules of Civil Procedure allows a court to set aside a jury's verdict and grant judgment as a matter of law if the court finds that "a reasonable jury would not have a legally sufficient evidentiary basis to find" as it did. Fed.R.Civ.P. 50(a)(1). Under Rule 50(b), a party must initially move for judgment as a matter of law at the close of the presentation of all evidence in a trial, before the case is submitted to trial. If the motion is denied, the movant may file a renewed motion subsequent to the return of the jury verdict, within 28 days of the entry of judgment, and "may include an alternative or joint request for a new trial under Rule 59." Fed.R.Civ.P. 50(b); Carrion v. Agfa Const., Inc., 720 F.3d 382, 385 (2d Cir.2013). In ruling on the renewed motion, the Court retains discretion to allow judgment on the verdict, order a new trial, or direct entry of judgment as a matter of law in favor of the movant. Fed. R.Civ.P. 50(b). "The court must consider the evidence in the light most favorable to the non-movant and `give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence.'" Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.2012)
Pursuant to Rule 59 of the Federal Rules of Civil Procedure, "[a] court may grant a new trial `for any reason for which a new trial has heretofore been granted in an action at law in federal court....'" Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417 (2d Cir.2012) (quoting Fed.R.Civ.P. 59(a)(1)(A)), cert. denied, 568 U.S. ___, 133 S.Ct. 789, 184 L.Ed.2d 582 (2012). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Snyder v. N.Y.S. Educ. Dep't, 486 Fed.Appx. 176, 177 (2d Cir.2012) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir.1997)), cert. denied, 568 U.S. ___, 133 S.Ct. 653, 184 L.Ed.2d 483 (2012). Grounds for granting a new trial include verdicts that are against the weight of the evidence, Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir.2003), substantial errors in the admission or rejection of evidence, O & G Indus., Inc. v. Nat'l R.R. Passenger Corp., 537 F.3d 153, 166 (2d Cir.2008), and non-harmless errors in jury instructions, United States v. Kozeny, 667 F.3d 122, 130 (2d Cir.2011), and verdict sheets, Armstrong ex rel. Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., 425 F.3d 126, 136 (2d Cir.2005).
Defendant renews its motion made pursuant to Rule 50 of the Federal Rules of Civil Procedure for judgment as a matter of law on the basis that Plaintiff failed to present sufficient evidence to establish a causal connection between Plaintiff's protected activity and his termination. (Docket Entry No. 51, Def. Mem. 7.) Defendant argues that under the motivating factor standard on which the jury was instructed, Plaintiff did not met his burden
Defendant's argument that Plaintiff did not meet its burden under the less stringent motivating-factor standard on which the jury was instructed is the same argument that Defendant made in support of its motion for summary judgment, which motion was previously denied by the Court. See Sass, 2012 WL 4511394, at *8. In light of the evidence presented at trial, including the evidence that Plaintiff had been treated materially differently than a similarly situated employee who had not engaged in the protected activity, the Court cannot conclude that, under the motivating-factor standard, reasonable jurors could only have concluded that Plaintiff failed to meet his burden. See Izzarelli, 731 F.3d at 167.
In addition, assuming without deciding that the "but-for" standard announced in Nassar should be applied to assess Defendant's Rule 50 motion,
In support of its Rule 59 motion for a new trial, Defendant argues that the standard for establishing causation in a Title VII retaliation claim announced by the Supreme Court in Nassar is significantly more stringent than the "motivating-factor" charged to the jury at trial, and that the new standard must be given retroactive effect. A retroactive change in controlling law has been cited as a basis for granting a motion for a new trial. See Cassotto v. Potter, No. 09-CV1303, 2013 U.S. Dist. LEXIS 111752, at *2-3 (D.Conn. Aug. 8, 2013) (granting defendant's motion for a new trial on the issue of causation in a Title VII retaliation claim when the Supreme Court decided Nassar shortly after jury verdict for plaintiff); Lucas Hoist & Equip. Co. v. Eaton Corp., 76 F.R.D. 661 (W.D.Pa.1977) (exercising discretion under Rule 50(b) of the Federal Rules of Civil Procedure to grant a new trial, where, subsequent to trial, the Supreme Court overruled a case on which the jury instructions had been based); United States v. Bank of Am. Nat. Trust & Sav. Ass'n, 51 F.Supp. 751 (N.D.Cal.1943) (granting Plaintiffs motion for a new trial when two Supreme Court cases changed the controlling law subsequent to a jury verdict); but see LiButti v. United States, 178 F.3d 114, 119 (2d Cir.1999) (noting that "usually, an intervening change in controlling law is a basis for an amendment of the judgment, rather than a new trial" (citing 12 James Wm. Moore et al., Moore's Federal Practice § 59.30[5][a][ii] (3d ed. 1998))); Young v. Lukens Steel Co., 881 F.Supp. 962, 974 (E.D.Pa.1994) (denying defendant's Rule 50/59 motion for judgment as a matter of law or new trial on the basis of a post-verdict decision issued by the Third Circuit that changed the law on which the jury was instructed, noting that "[i]t is self-evident that a court should instruct a jury according to the controlling law at the time of the instruction.... Were a district court to order a new trial every time a higher Court vacated or reversed a case upon which the district court relied at the time it instructed a jury, the lower courts would be thrown into chaos."); Del Rio Distrib., Inc. v. Adolph Coors Co., 589 F.2d 176, 179 (5th Cir.1979) (affirming district court denial of new trial where, during the course of the trial, a Supreme Court decision changed the controlling law regarding a claim voluntarily waived by appellant).
Defendant argues that a new trial is required under Mitsui Sumitomo Ins. Co., Ltd. v. Evergreen Marine Corp., 621 F.3d 215, 220 (2d Cir.2010). In Mitsui, the Second Circuit held that "when the Supreme Court or this Court `applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review.'" Mitsui, 621 F.3d at 220 (quoting Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87, 91 (2d Cir.2009) and Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993)). In Mitsui, the district court, addressing a motion for summary judgment between a shipping company and its insurance provider and relying on the Second Circuit decision in Sompo Japan Insurance Co. of America v. Union Pacific Railroad Co. ("Sompo"), 456 F.3d 54 (2d Cir.2006), applied a federal statutory scheme imposing strict liability on shippers to rule in favor of the insurance company. Mitsui, 621 F.3d at 217. The district court entered judgment in favor of the insurance company. Id. Shortly thereafter, the Supreme Court's decision in Kawasaki
Thus, to the extent that this case remains open on direct review, if the Supreme Court decision changing the relevant law was applied to the parties in that decision, then under Harper and Mitsui the Court must apply that law to the pending action. Cf. Gill v. Calescibetta, 157 Fed.Appx. 395, 397 (2d Cir.2005) (remanding grant of summary judgment as to plaintiff's First Amendment retaliation claim, where intervening Second Circuit decision changed the standard for demonstrating retaliatory conduct). In Nassar, the Supreme Court articulated a new legal standard for analyzing causation in retaliation claims under Title VII, and applied that standard to the parties before it, vacating and remanding the Fifth Circuit's affirmation of the jury verdict for the plaintiff on his retaliation claim. Nassar, 570 U.S. at ___, ___, 133 S.Ct. at 2524, 2534. Thus, under Harper and Mitsui, the new standard for retaliation applies retroactively to all cases still open on direct review, including the case before this Court.
Plaintiff opposes Defendant's motion on the basis that Defendant failed to object to the jury charge that included the "motivating factor" standard. (Pl. Opp. Mem. 4.) Plaintiff argues that Rule 51, which provides that failure to object to a jury charge results in a waiver of objection, is dispositive and precludes Defendant's request. (Id.) Plaintiff concedes that "[w]here a charge accurately summarizes settled law, and the law is subsequently changed, Rule 51 does not preclude review, because the Court would have had no reason to alter the charge, even if the party had objected." (Id.) Plaintiff argues, however, that this principle is inapplicable, because the issue of causation was not settled law, and indeed was an "open issue" in the Second Circuit at the time of the trial. (Id.) Plaintiff further argues that the Supreme Court had already granted certiorari in Nassar to resolve the question, and had "given a clear signal as to its likely outcome," thereby placing Defendant on notice to object to the jury charge. (Pl. Opp. Mem. 4.)
"Under Federal Rule of Civil Procedure 51(c) and (d), in order to preserve an issue for appeal, a party must `object[] to an instruction ... on the record, stating distinctly the matter objected to and the grounds for the objection.'" Meisel v. Grunberg, 521 Fed.Appx. 3, 5 (2d Cir.2013) (quoting Fed.R.Civ.P. 51). However, "a party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made." Hawknet, 590 F.3d at 92 (quoting Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir.1981)).
The Court is not persuaded by Plaintiff's argument that the legal standard for showing causation in a Title VII retaliation
Because the language of the jury charge is precisely the language that was rejected by the Supreme Court in Nassar, and because the Supreme Court applied the "but-for" standard to the parties before it, the Court is required to apply Nassar to this case. See Cassotto, 2013 U.S. Dist. LEXIS 111752, at *2-3 (finding that Nassar should be given retroactive effect, and granting defendant's motion for a new trial on the issue of causation in a Title VII retaliation claim). The Court therefore grants Defendant's motion for a new trial.
Plaintiff moved for reinstatement, pension contributions, backpay and attorneys' fees. (Docket Entry No. 47.) In light of the Court's determination that a new trial is warranted, Plaintiff's motion is denied as moot.
For the foregoing reasons, the Court grants Defendant's motion for a new trial. The Court denies Defendant's motion for judgment as a matter of law, and denies Plaintiff's motion for damages and attorneys' fees as moot.
SO ORDERED.
While the Second Circuit has not directly addressed whether an intervening change in controlling law is a proper basis for relief in the form of judgment as a matter of law, it has recognized that "the very purpose of Rule 50(b)'s requiring a prior motion for a directed verdict is to give the other party an opportunity to cure the defects in proof that might otherwise preclude him [or her] from taking the case to the jury." Broadnax v. City of New Haven, 415 F.3d 265, 268 (2d Cir.2005) (alteration in original) (quoting Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir.1994)). This principle of fair notice suggests that, particularly on a fact-intensive determination, the better approach to accommodating a posttrial change in law is to grant a new trial, rather than decide the issue based on the evidence that was presented under the previous standard. Cf. Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 282 (5th Cir.1999) ("Of course, Supreme Court decisions apply retroactively and prospectively to all cases on direct appeal whenever applied to the litigants before the Court. When law changes in unanticipated ways during an appeal, however, this court will generally remand for a new trial to give parties the benefit of the new law and the opportunity to present evidence relevant to that new standard. The motivation of this rule is fairness: to prevent injustice to a party who had no reason to expect a changed rule at the time of trial." (citing Harper, 509 U.S. at 97, 113 S.Ct. 2510)); McGinty v. New York, 251 F.3d 84, 90 (2d Cir.2001) (finding that district court had "inappropriately" dismissed for lack of subject matter jurisdiction, sua sponte, after Supreme Court decision holding that Congress had not abrogated sovereign immunity against suits under the Age Discrimination in Employment Act, because "[t]he trial court gave the parties no advance notice that dismissal was contemplated and afforded them no opportunity to brief the question of subject matter jurisdiction"). The Court need not resolve this issue because Defendant is not entitled to judgment as a matter of law under either standard.