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BLAKEY v. CONTINENTAL AIRLINES

January 30, 1998

CAPTAIN TAMMY S. BLAKEY, Plaintiff,
v.
CONTINENTAL AIRLINES, INC., a foreign corporation, Defendant.



The opinion of the court was delivered by: BASSLER

 BASSLER, DISTRICT JUDGE:

 After a five-week trial, the jury found Defendant Continental Airlines, Inc. liable for sexual harassment and awarded Plaintiff Tammy S. Blakey a total of $ 875,000. Defendant now moves for a new trial on damages, or alternatively, a remittitur of the jury award in favor of Plaintiff.

 I. BACKGROUND

 Plaintiff Tammy S. Blakey ("Blakey") has been employed as a pilot with Defendant Continental Airlines, Inc. ("Continental") since 1984. *fn1" She was Continental's first female captain on the A300 Airbus aircraft. In 1993, Blakey filed suit alleging 1) hostile work environment sexual harassment in violation of Title VII of the Civil Rights Act of 1984, 42 U.S.C. § 2000e et seq., and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq.; 2) disparate treatment sex discrimination in violation of Title VII and LAD; 3) retaliation in violation of Title VII, LAD, and the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. ("CEPA"); and 4) defamation. She testified that pornographic pictures were placed in the cockpits of aircraft and that obscene and harassing comments were directed toward her. Evidence at trial supported her claim that she informed Continental managers of these problems, but that no effective action was taken to eliminate the pornography or the comments.

 Blakey also alleged that she was punished for leaving early when on "reserve position" at Newark, while male pilots on reserve were allowed to leave early with no adverse consequences. Blakey also alleged that after she complained about the unfair treatment and the sexual harassment, Continental retaliated against her by, among other things, denying her a leave of absence and requiring her to undergo a psychiatric examination and a flight simulation test before allowing her to fly. Blakey's defamation claims were based on allegedly offensive statements made about her by other pilots on a Continental pilots' computer forum.

 The Court granted summary judgment for Continental on Blakey's defamation claim on March 9, 1997. The remaining claims were tried for five weeks in September and October 1997. At the close of her case, Blakey voluntarily dismissed her CEPA claim. On October 16, 1997, the jury returned a verdict in favor of Blakey on her sexual harassment claim, but rejected her claims of disparate treatment sex discrimination and retaliation. The jury awarded Blakey $ 480,000 in back pay, $ 15,000 in front pay, and $ 500,000 for emotional distress, pain and suffering, but did not award any punitive damages. The jury also found that Blakey had failed to mitigate damages, and subtracted $ 120,000 from her back pay award of $ 480,000. The Court entered judgment on the jury's verdict on November 5, 1997.

 Pursuant to Fed. R. Civ. P. 59, Continental now moves for a new trial on the damages award only, or in the alternative for remittitur.

 II. DISCUSSION

 A. Standard for New Trial or Remittitur

 The standards governing a motion for a new trial or remittitur are easy enough to articulate but not always so easy to apply -- particularly after a long trial such as this one. There are for the trial judge, as often is the case, competing considerations: one is respect for the fact finding function of the jury; the other is the trial judge's responsibility to make sure the evidence supports the award of damages. The criteria governing the trial court's evaluation are articulated in a number of ways. A new trial is warranted only where the verdict is grossly excessive and bears no rational connection to the evidence. Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 773 (3d Cir. 1987). The court should order a new trial or remittitur if "a miscarriage of justice would result if the verdict were to stand." Delli Santi v. CNA Insurance Companies, 88 F.3d 192, 201 (3d Cir. 1996) (quoting Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir. 1992)). Some courts hold that the verdict stands unless it "cries out to be overturned or shocks the conscience." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3rd Cir. 1991).

 In reviewing a jury verdict, the court's "obligation is to uphold the jury's award, if there exists a reasonable basis to do so.... [A] court may not vacate or reduce the award merely because it would have granted a lesser amount of damages." Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989) (emphasis in original). On a motion for a new trial, the court is permitted to consider the credibility of witnesses and to weigh the evidence, however the court must "exercise restraint to avoid usurping the jury's primary function." Hurley v. Atlantic City Police Dept., 933 F. Supp. 396, 403 (D.N.J. 1996). Therefore, a judge's mere belief that the jury was unduly generous is not sufficient to warrant a new trial. Dunn v. HOVIC, 28 V.I. 526, 1 F.3d 1362, 1367 (3d Cir. 1993).

 On the other hand, on the issue of whether a damages award is excessive, this Circuit has on more than one occasion instructed that the trial court "should be alert to its responsibility to see that jury awards do not extend beyond all reasonable bounds." Walters v. Mintec/International, 758 F.2d 73, 82 (3d Cir. 1985); Gumbs, 823 F.2d at 773. The increased willingness of appellate courts to review damage awards "is a response to the increasingly outrageous amounts demanded by plaintiffs and awarded by juries." Gumbs, 823 F.2d at 773. If the verdict is a result of passion or prejudice by the jury, a new trial, rather than remittitur, is the appropriate remedy. Dunn, 1 F.3d at 1363. Damage awards that are merely excessive or so large as to appear contrary to reason, however, are subject to remittitur rather than a new trial. Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 178 (5th Cir. 1992). Keeping in mind the criteria and concerns of Third Circuit law, the court turns to an evaluation of the defendant's argument that an award of $ 500,000 for pain and suffering on this record is so excessive that a new trial or remittitur is warranted. *fn2"

 B. Emotional Distress Award

 Continental argues that the jury's $ 500,000 award for emotional distress and pain and suffering "bears no relationship whatsoever to the 'evidence' regarding the plaintiff's alleged injuries." Defendant's Brief at 13. The argument is overstated. There is a relationship, but the evidence of injury cannot support an award of $ 500,000.

 The only testimony on emotional distress came from Blakey herself and from her expert witness, Dr. Robert Sadoff, a forensic psychiatrist who met with Blakey once for two hours and reviewed her medical records for 90 minutes. Dr. Sadoff testified that Blakey suffered some emotional distress from her work environment but that other events in her life unrelated to work -- particularly the volatile relationship with her boyfriend's ex-wife -- contributed to this mild emotional distress.

 Plainly Blakey was subjected to stress from factors other than sexual harassment. She testified that

 
being a pilot in and of itself is stressful. ...I mean it's a technical job. I have at times, you know, 200 to 272 passengers, you know, lives in my hands. It's like operating a mini-corporation right there. You're dealing with mechanics, you're dealing with fuelers, caterers, the flight attendants, weather people. It's -- sometimes you're dealing with emergency situations, the weather. It's a stressful job.

 Tr. 9/12/97, 86:23-87:4; Bernstein Cert., Exh. C.

 Blakey also conceded that her personal life was stressful, particularly the events arising out of her romantic relationship with Andy Floe. Andy Floe's estranged wife, Kelly Floe, obtained a restraining order against Blakey and physically threatened Blakey with a shovel. Tr. 9/19/97, 23:17-21; 24:10-13; 26:1-2; Bernstein Cert., Exh. F. Kelly Floe also harassed Blakey by parking in her driveway and repeatedly honking her horn. Id. at 26:12-23. Blakey was even arrested in July 1992 in connection with the dispute with Kelly Floe. Id. at 25:4-10. Finally, as part of the bitter divorce proceedings between the Floes, a guardian ad litem for the Floe children issued a report criticizing Blakey and recommending that she have no contact with the children. Blakey testified that she was upset because she felt the report's findings were untrue. Id. at 37:15-18. These incidents occurred in 1992 and early 1993, at the same time that Blakey was flying and experiencing emotional distress from work-related sexual harassment.

 Blakey, argues, correctly, that she is not required to introduce expert testimony to recover for emotional distress. But Blakey is looking for the kind of damages that are rarely awarded without expert testimony. Significantly, she did not seek psychological counseling (and later, medical treatment) until February 1993, nearly three years after the harassing incidents began. The evidence also indicated that her psychological counseling alleviated the symptoms of anxiety and depression that she had attributed to her stressful work environment. ...


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