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Crimmins v. Consolidated Edison Co. of New York

1989 WL 101915

United States District Court, S.D. New York.

Lynn D. CRIMMINS, Plaintiff,



No. 87 CIV. 6971 (RPP).

Aug. 25, 1989.As Amended Sept. 28, 1989.

Attorneys and Law Firms

Lewis, Greenwald, Kennedy, Lewis, Clifton & Schwartz by Arthur Z. Schwartz, New York City, for plaintiff, Lynn Crimmins.

Charles E. McTiernan, Jr., Consolidated Edison Co. of New York, New York City, for defendant, Consolidated Edison Co. of New York; Jonathan Fields, of counsel.


ROBERT P. PATTERSON, JR., District Judge.

*1 On February 2, 1989, a jury returned a verdict in favor of Lynn D. Crimmins for one claim under the equal pay for equal work provision of the Fair Labor Standards Act, and for four claims under the provisions of that statute prohibiting retaliation against employees for complaints about such discrimination. The jury also awarded Crimmins $175,000 for mental anguish on her pendent claim under the New York State Human Rights Law, after a separate trial on the issue of damages under that statute which the jury heard after it had found in Crimmins’s favor on the liability issues. Consolidated Edison has now moved for judgment notwithstanding the verdict on each of the jury’s findings. The motion is denied; however, the amount of the award for mental anguish appears excessive.

The Second Circuit standard for considering motions for judgment n.o.v. is well established.

In ruling on a motion for … judgment notwithstanding the verdict, the court [must decide] whether there is a complete absence of evidence to support a verdict or “such an overwhelming amount of evidence in favor of the movant that reasonable and fairminded jurors could not arrive at a verdict against him.”

Matthews v. CTI Container Transport Int’l Inc., 871 F.2d 270, 276 (2d Cir.1989) (quoting Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 132 (2d Cir.1986)); see also Mallis v. Bankers Trust Co., 717 F.2d 683, 688–89 (2d Cir.1983). Contrary to Con Edison’s assertions, the record contains sufficient evidence upon which the jury could have relied to reach its verdict on each of Crimmins’s equal pay and retaliation claims.

Thus, the jury had sufficient evidence upon which to find, on the basis of Donald Riggio’s testimony, that he and Crimmins performed “substantially equal” work within the meaning of the statute, but cf. Usery v. Columbia University, 568 F.2d 953, 958–59 (2d Cir.1977), and that the reasons Con Edison offered to explain the pay differential between them were merely pretextual. There was also sufficient evidence for the jury to find that Crimmins had engaged in a “protected activity”; that her engaging in protected activity inspired anger on the part of her superiors; that that anger led to her transfer and to her being passed-over for three job openings; and that the explanations Con Edison gave for each of those actions were pretextual as well. Cf. Manorahan v. Columbia University, 842 F.2d 590, 593 (2d Cir.1988). Finally, there was also sufficient evidence to support the jury’s finding that Con Edison’s acts caused Crimmins mental anguish that brought on physical injuries: her unrebutted testimony was that she suffered from sleeplessness, and was treated for high blood pressure, migraine headaches, and hives that resulted from her experiences at Con Edison.

Nevertheless, although the jury had sufficient evidence upon which to find Con Edison liable for causing the plaintiff mental anguish, the amount the jury awarded Crimmins seems excessive. As the Second Circuit has written, “a judgment cannot be upheld where the damages awarded are so excessive ‘as to shock the conscience.’ ” Martell v. Boardwalk Enters., Inc., 748 F.2d 740, 751 (2d Cir.1984) (quoting United States ex rel. Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir.1975)). The governing principles of law in this circuit are as follows:

*2 In determining whether an award is so excessive as to shock the judicial conscience, we look, as a court sitting in diversity, to other jury awards condoned by the courts of the state whose substantive law governs the rights of the parties, in this case New York State. While there are difficulties inherent in comparing one personal injury award to another because differentiating facts in each case “limit the precedential value of a court’s treatment of awards in other apparently similar cases,” we nonetheless have the responsibility to ensure “that the damage award does not exceed that which could be sustained were the case before the highest court of the state whose substantive law gives rise to the claim.”

New York appellate courts regard prior awards as not binding but instructive. Jury verdicts and judicial opinions approving or disapproving them, when considered over a period of time, provide “some indication of the consensus of opinion of jurors and courts as to the proper relation between the character of the injury and the amount of compensation to be awarded.”

Id. (citations omitted).

Con Edison argues that New York courts only award between $250 and $5000 for claims of mental anguish resulting from discharge, and that in this case, the jury’s award should be reduced accordingly. In one recent decision the Appellate Division found a $25,000 award for mental anguish resulting from a sexually motivated wrongful discharge to be “grossly excessive, since ‘in the light of all the circumstances, [it was] shocking to one’s sense of fairness’ ”; the court reduced the award to $5000. Unitel Video, Inc. v. State Div. of Human Rights, 537 N.Y.S.2d 543, 544 (1st Dep’t 1989) (citation omitted). In Board of Education v. State Division of Human Rights, 109 A.D.2d 988, 486 N.Y.S.2d 469 (3d Dep’t 1985), the State Division of Human Rights awarded a woman $10,000 for mental anguish that resulted when she was passed over for a teaching job because of her sex. Even though the plaintiff had suffered from migraine headaches, the Appellate Division reduced her award by half, to $5000. See also Domino Supermarket, Inc. v. State Div. of Human Rights, 538 N.Y.S.2d 265 (1st Dep’t 1989) (award in action for wrongful discharge based on race reduced from $50,000 to $5000); Cosmos Forms, Ltd. v. State Div. of Human Rights, 541 N.Y.S.2d 50 (2d Dep’t 1989) (award in action for wrongful discharge based on sex reduced from $35,000 to $5000); cf. Sheriff’s Dep’t v. State Div. of Human Rights, 129 A.D.2d 789, 514 N.Y.S.2d 779 (2d Dep’t 1987) (award in action for failure to hire based on applicant’s prior arrest record reduced from $35,000 to $7500).

Crimmins distinguishes Con Edison’s precedents on the basis that those cases involved mental anguish without accompanying injuries to physical health requiring medical treatment, whereas Crimmins did suffer physical discomfort that required medical treatment. The Court is unable to determine whether the Con Edison cases can be distinguished on that basis, but finds it difficult to accept, since proof of physical symptoms is essential to any recovery, that the precedents do not evince some showing of medical treatment for physical symptoms. Crimmins also points to a recent award by the New York State Division of Human Rights, Nash v. New York City Transit Authority, Case No. ID–E–S–77268–81E (Oct. 21, 1988).1 In Nash, a doctor had recommended that a pregnant bus driver not continue driving a bus and be placed on restricted duty status. Nevertheless, the driver was denied such status for no apparent reason. The complainant then suffered a miscarriage. She returned to work, and became pregnant again. Nash was again refused a recommended restricted duty status, and to protect against another miscarriage she took a leave of absence without pay. The Division of Human Rights then awarded Nash $450,000 in damages for mental anguish.2

*3 The injuries Crimmins suffered were not nearly as severe as those suffered by Nash. As the Administrative Law Judge who heard the Nash case wrote, “In my twenty years as an Administrative Law Judge with the Division this matter is the most shocking instance of abuse of an employee by an employer…. By its unlawful discriminatory acts Respondent created a situation leading Complainant to have to live with the thought that her foetus was destroyed because she was a pregnant worker for an employer who would not deign to grant what the Human Rights Law provided and required…. Respondent’s … conduct brought [Complainant] callously and wantonly to a decision, to continue working as a bus driver, the consequences of which caused and most likely will continue to cause her feelings of guilt, feelings of resentment, and other mental anguish about her lost child, to the end of her days.”

Crimmins also cites SUNY College of Environmental Science & Forestry v. State Div. of Human Rights, 144 A.D.2d 962, 534 N.Y.S.2d 270 (4th Dep’t 1988), in which the Appellate Division reduced an award for mental anguish from $150,000 to $100,000. In that case, the complainant, an assistant to the director of the affirmative action office, suffered through four months of continual sexual harassment, bordering on molestation, and upon resisting such harassment was unlawfully terminated. According to the findings of fact in the opinion issued by the Division of Human Rights, although both parties were married, the complainant’s supervisor continuously made comments about her clothing and her body, inquired about her contraceptive practices and invited her on overnight trips during which he suggested they use a single hotel room. He also tried to embrace the complainant in her office and in public, and he once had a telephone operator interrupt a personal call being made from the complainant’s home. Finally, after she made clear her rejection, the director assigned the complainant to do menial work, wrote an evaluation critical of her work, and ultimately fired her. When she complained to the college, the authorities did little to resolve the situation. The complainant suffered from irritability, nervousness, headaches, and hives.

The Court, having reviewed the cases provided, and having due regard for the jury’s evaluation of the evidence on damages for mental anguish, concludes that the amount the jury awarded Crimmins is excessive. Although the physical symptoms from which Crimmins suffered are similar to those suffered by the complainant in the SUNY College of Environmental Science case, that case involved an unlawful discharge, and the type of sexual harassment in that case, and therefore the mental anguish, was probably more severe than it was here. Furthermore, the amount awarded in the SUNY case was several times more than the amount permitted by the Appellate Division in any other New York suit for mental anguish that resulted from discriminatory discharge. A New York court reviewing the jury’s determination here would probably not permit the amount of the award for mental anguish in this case to stand. See Martell v. Boardwalk Enters., Inc., supra. Accordingly, the Court finds the defendant is entitled to a new trial on the issue of damages, unless the plaintiff is willing to accept a remittitur of $87,500.


*4 The defendant’s motion for judgment notwithstanding the verdict is denied. However with respect to plaintiff’s claim under the New York State Human Rights Law, the defendant is entitled to a new trial on the issue of damages unless plaintiff accepts a remittitur in the amount of $87,500 on that claim within twenty days from the date of the entry of this order.


All Citations

Not Reported in F.Supp., 1989 WL 101915, 112 Lab.Cas. P 35,261, 112 Lab.Cas. P 35,269


It is important to note that Nash is not a court or jury award, but a decision by a New York State administrative agency, and it either has not been affirmed by a New York state court or has yet not been appealed.

Crimmins also cites a recent decision by the Second Circuit, Petramale v. Local No. 17 of Laborers’ Int’l Union of N. Am., 847 F.2d 1009 (2d Cir.1988), in which the court halved an award for $200,000 for mental anguish in a claim under the Labor Management Reporting and Disclosure Act, 29 U.S.C. §§ 401 et seq. Because Petramale was decided on the basis of federal, not state, law, the case is not directly relevant.

The facts of Nash are as follows. On June 2, 1981, Nash learned that she was pregnant, and her doctor told her not to continue driving a bus. Nash then applied for restricted duty status. A doctor in the transit authority’s filled out a form that recommended restricting Nash’s assignments, and she began working on a restricted basis. After one week, however, the transit authority restored Nash to full road service. Without reexamining Nash, the same doctor who had originally recommended limited responsibilities filled out a form directly contradicting the earlier form, and indicating that he had examined her and found her medically qualified to assume full duty status. The doctor changed his diagnosis from “pregnant” to “cramps-nausea.” No one explained the change. When Nash complained, the dispatcher told her “her options were to drive the bus or be without her paycheck.”

Nash decided that she needed her salary, and she returned to driving a bus. Her personal physician then wrote to the transit authority: “The above named patient … is now pregnant, with on and off cramps and spotting, and is constantly in fear of losing her expected child. Driving a bus would definitely expose her to the possibility of a miscarriage. There can be no guarantee that driving a bus would not cause that to occur…. Should the patient then abort, and a legal factor arises, who would be responsible?” Nash miscarried on July 16, 1981; on July 22 the transit authority placed her on leave without pay.

Nash returned to work in September, after evaluation by a psychiatrist, and drove a bus from September 8, 1981 to January 13, 1982. In December 1981 she learned that she was pregnant again, and her doctor wrote her another letter requesting that she not be assigned to drive. The transit authority doctor, however, decided to classify Nash “no work” status. Although Nash actively sought to obtain restricted duty assignments, and although she was medically capable of limited work, the dispatchers told her “I either worked, drove a bus, or I was no-work.” Nash then left work for seven months without pay or other benefits.

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