19-127 (L)
Emamian v. Rockefeller Univ.

                           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 TO 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of August, two thousand twenty.

Present:    DEBRA ANN LIVINGSTON,
            MICHAEL H. PARK,
                  Circuit Judges,
            STEFAN R. UNDERHILL,
                  District Judge.*
_____________________________________

EFFAT S. EMAMIAN,

                         Plaintiff-Appellant-Cross-Appellee,

                 v.                                                         19-127
                                                                            19-168

ROCKEFELLER UNIVERSITY,

                  Defendant-Appellee-Cross Appellant.
_____________________________________


For Plaintiff-Appellant-Cross-Appellee:            JONATHAN C. MOORE (Luna Droubi and David B.
                                                   Rankin, on the brief), Beldock Levine & Hoffman
                                                   LLP, New York, NY.


*
  Chief Judge Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting
by designation.


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For Defendant-Appellee-Cross-Appellant:      ELISE M. BLOOM (Keisha-Ann G. Gray, Harris M.
                                             Mufson, Bettina Plevan, on the brief), Proskauer
                                             Rose LLP, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Batts, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant-Cross-Appellee Dr. Effat Emamian (“Emamian”) appeals from a final

judgment entered by the U.S. District Court for the Southern District of New York (Batts, J.),

following a jury trial, which awarded Emamian $250,000 in back pay and $200,000 in emotional

distress damages on her claim of intentional discrimination on the basis of race or national origin

under the New York City Human Rights Law (“NYCHRL”) brought against her former employer,

Defendant-Appellee-Cross-Appellant Rockefeller University (“Rockefeller”). Rockefeller filed

a cross-appeal. We assume the parties’ familiarity with the underlying facts and the procedural

history of the case, which are set forth in detail in the opinion issued simultaneously with this

summary order.    The opinion addresses the parties’ arguments regarding the jury instructions,

verdict form, and verdict, while this summary order addresses the parties’ remaining arguments.

Emamian’s Appeal

       Emamian contends that the district court erred in (1) remitting the jury’s $2,000,000

emotional distress damages award to $200,000; (2) denying several requests to reopen discovery;

and (3) limiting the testimony of her statistical expert with respect to her gender discrimination

claim. None of these arguments has merit.




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1. Remittitur of Emotional Distress Damages

       Emamian argues that the district court erred by ordering a new trial as to emotional distress

damages unless Emamian accepted a remitted emotional distress damages award of $200,000.

This Court “review[s] a district court’s ruling on remittitur for abuse of discretion.” Zeno v. Pine

Plains Cent. Sch. Dist., 702 F.3d 655, 672 (2d Cir. 2012). Furthermore, where, as here, “the

district court applies the least intrusive standard to calculate remittitur—granting remittitur ‘only

to the maximum amount that would be upheld by the district court as not excessive,’” this Court’s

“review is particularly deferential.” Id. (quoting Earl v. Bouchard Transp. Co., Inc., 917 F.2d

1320, 1330 & n.8 (2d Cir. 1990)).

       We detect no abuse of discretion in the district court’s reduction of the $2,000,000 award

to $200,000. Emamian’s first argument—that the district court incorrectly employed the federal,

rather than New York, standard for remittitur—is belied by the record. The court explicitly

acknowledged that New York law was applicable and discussed how the New York standard for

remittitur differs from the federal standard. See Special App’x 66–67 (stating that New York law

applied, setting forth the New York standard, and observing that “[t]his standard requires a more

exacting review than the ‘shocks the conscience’ standard generally applied by federal courts”).

While the court later also noted that the analysis of the extent of Emamian’s emotional distress

pursuant to New York law “appear[ed] similar to the federal, ‘significant emotional distress’

standard,” id. at 67, that observation does not suggest that the court failed to apply the correct

standard in evaluating the ultimate appropriateness of the jury’s award.

       Nor can Emamian demonstrate more broadly that the district court abused its discretion in

determining that remittitur was warranted. The court engaged in a careful, thorough survey of

comparable cases, correctly determining that even cases involving far more egregious conduct


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culminated in awards of far less than $2,000,000 and that comparable cases resulted in awards in

the low six-figure range. Accordingly, we uphold the district court’s remittitur determination for

substantially the reasons stated in its well-reasoned opinion.

2. Discovery Rulings

       Emamian next argues that the district court abused its discretion in denying Emamian’s

multiple requests to reopen discovery to supplement the record with respect to her damages.      This

Court will reverse a district court’s ruling regarding discovery only “upon a clear showing of an

abuse of discretion.”    In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir. 1998).           Under

Federal Rule of Civil Procedure 16(b)(4), a discovery schedule set by the court may be modified

only for “good cause,” which “depends on the diligence of the moving party.”               Parker v.

Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).

       Emamian falls far short of demonstrating an abuse of discretion.    As for the district court’s

denials of Emamian’s requests in January and March of 2010, Emamian failed to raise any

argument with respect to those rulings in her opening brief, which focused solely on the district

court’s denials of her requests to reopen discovery on the basis that the eight-year delay prior to

trial required supplementation of the record as to damages.         These arguments are therefore

waived.   See Niagara Mohawk Power Corp. v. Hudson River–Black River Regulating Dist., 673

F.3d 84, 107 (2d Cir. 2012) (“It is a settled appellate rule that issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).

       Emamian’s challenges to the district court’s subsequent rulings fare no better.          First,

Emamian cannot demonstrate any error with respect to the denials of her requests to reopen

discovery in October 2012 and January 2017 following two separate withdrawals of counsel. The

desire by new counsel to reopen discovery for the purposes of pursuing new damages theories does


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not amount to “good cause” necessitating a reversal of the district court’s rulings, particularly in

light of the prejudice to Rockefeller that would have ensued from additional delay in the already-

protracted case.    See Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962) (noting that a party

who voluntarily chooses his attorney “cannot . . . avoid the consequences of the acts or omissions

of this freely selected agent”); see also Hussain v. Nicholson, 435 F.3d 359, 363–64 (D.C. Cir.

2006) (concluding no “good cause” existed to extend Rule 16 deadline despite the court’s

“sympath[y]” for the plaintiff, who was “the victim of [the former attorney’s] negligence,” and

sympathy for the new counsel, “who has tried hard to salvage her client’s case”).

       The district court likewise did not abuse its discretion in rejecting Emamian’s attempts to

reopen discovery on the eve of trial and again in anticipation of retrial.    Emamian’s request to

have her statistical expert testify as to damages, denied by the court on December 20, 2017, was

yet another attempt to introduce new damages theories that was properly denied for the reasons

stated above.      Finally, the denial of Emamian’s post-trial requests to reopen discovery to

supplement the record regarding damages was a proper exercise of discretion in light of the court’s

ruling that any jury verdict above $200,000 would necessitate remittitur. Given the limited scope

of its grant of Rockefeller’s motion for a new trial, the court properly cabined the issues on retrial

to those that were previously presented to the jury.   We therefore conclude that the district court

acted well within its discretion in denying Emamian’s requests to reopen discovery.

3. Evidentiary Rulings

       Emamian’s final contention is that the district court improperly limited the testimony of

her statistical expert, Dr. Elias Grivoyannis (“Grivoyannis”), with respect to her gender

discrimination claim, which was rejected by the jury. We need not address the merits of this claim

on appeal because Emamian does not request any relief that could redress the alleged error.        To


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the extent that Emamian intended to argue that the district court’s limitations were prejudicial and

that the jury would have otherwise found in her favor as to gender discrimination, the applicable

remedy would be a new trial as to liability.    However, Emamian does not seek a retrial of that

scope, requesting only “a new trial ordered on the issue of punitive damages” or “a new trial

ordered on damages only.”      Br. of Plaintiff-Appellant-Cross-Appellee at 41.      At any rate, we

review a district court’s rulings on the admissibility of expert testimony for abuse of discretion and

will sustain such rulings unless they are manifestly erroneous.     Restivo v. Hessemann, 846 F.3d

547, 575 (2d Cir. 2017).    Here, the district court’s limitations on Grivoyannis’s testimony were

eminently reasonable. Emamian has not demonstrated error, much less manifest error.

Rockefeller’s Appeal

       Rockefeller argues that (1) the district court erred by declining to dismiss Emamian’s

complaint as a sanction for her failure to comply with discovery obligations and (2) the evidence

was insufficient to support the jury’s verdict. We are unpersuaded.

1. Dismissal Sanction

       Rockefeller argues that the district court abused its discretion by failing to dismiss

Emamian’s complaint as a sanction for her failure to produce evidence regarding a recent

psychiatric examination and eighteen prior medical providers.        According to Rockefeller, the

district court’s sanction—namely, precluding Emamian from introducing certain evidence at retrial

and permitting Rockefeller to use the materials in cross-examination at retrial—was inadequate

because it did not address the irreparable prejudice to Rockefeller caused by Emamian’s failure to

comply with her discovery obligations.

       District courts have the authority to impose sanctions, including “dismissing the action,”

for failing to obey a discovery order or for failing to supplement an earlier response under Federal


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Rule of Civil Procedure 26(e).    Fed. R. Civ. P. 37(b), (c). “A district court has wide discretion

in imposing sanctions, including severe sanctions, under Rule 37(b)(2), and will only be reversed

if its decision constitutes an abuse of discretion.” Daval Steel Prods. v. M/V Fakredine, 951 F.2d

1357, 1365 (2d Cir. 1991).     In reviewing the exercise of discretion, “[w]e afford considerable

deference to the district court’s familiarity with the proceedings.”    Friends of Animals Inc. v. U.S.

Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997) (per curiam).         “[D]ismissal under Fed. R. Civ.

P. 37 is a drastic remedy that should be imposed only in extreme circumstances, usually after

consideration of alternative, less drastic sanctions.”   John B. Hull, Inc. v. Waterbury Petroleum

Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) (internal quotation marks and citations omitted).

       In the circumstances of this case, the district court acted within its discretion in imposing

lesser sanctions than the “drastic remedy” of dismissal.       Waterbury, 845 F.2d at 1176.        The

record reflects that the court gave due consideration to Rockefeller’s complaints of chicanery and,

with the benefit of over a decade of experience with the case, took a more charitable view of some

of Emamian’s conduct than the version of events set forth by Rockefeller. See, e.g., Joint App’x

2976 (“[I]t [is] . . . conceivable for a reasonable person to read the Federal Rules 26(e) and

26(a)(2)(e) to require that there has to be some difference or some change for the rule to require

some sort of penalty.”).    Bearing in mind the “considerable deference” owed to “the district

court’s familiarity with the proceedings” in this context, we decline to disturb the district court’s

determination that sanctions falling short of the most extreme possible remedy were appropriate.

Friends of Animals, 131 F.3d at 334.

2. Sufficiency of the Evidence

       Finally, Rockefeller contends that there was insufficient evidence for a reasonable jury to

find in Emamian’s favor on her claim of intentional discrimination on the basis of race or national


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origin and that, accordingly, the district court erred in denying its motion to set aside the verdict.

This Court reviews de novo a district court’s ruling on a motion for judgment as a matter of law.

Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007). A district court “may grant a motion for

judgment as a matter of law only if it can conclude that, with credibility assessments made against

the moving party and all inferences drawn against the moving party, a reasonable juror would have

been compelled to accept the view of the moving party.” Id. at 370–71 (internal quotation marks

omitted). “In ruling on such a motion, the court must bear in mind that the jury is free to believe

part and disbelieve part of any witness’s testimony.” Id. at 371. Judgment as a matter of law

should be granted only when “(1) there is such a complete absence of evidence supporting the

verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or

(2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and

fair minded [persons] could not arrive at a verdict against [it].” Cruz v. Local Union No. 3 of Int’l

Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994) (quoting Bauer v. Raymark Indus., Inc.,

849 F.2d 790, 792 (2d Cir. 1988)).

       Rockefeller falls short of this demanding standard. Considering, as we must, the “totality

of the circumstances” and the “overall context in which the challenged conduct occurs,” the trial

record contains sufficient evidence to support the jury’s verdict.       Mihalik v. Credit Agricole

Chevreux North Am., Inc., 715 F.3d 102, 111 (2d Cir. 3013) (internal quotation marks, alterations,

and citation omitted). Under the capacious NYCHRL standard, which is generously construed

to facilitate its “uniquely broad and remedial purposes,” id. at 109, “the plaintiff need only show

differential treatment—that she is treated ‘less well’—because of a discriminatory intent,” id. at

110.   Here, Emamian introduced ample evidence of being “treated less well” in the lab of Dr.

Greengard (“Greengard”), including being paid a lower salary, being subjected to harsher criticism


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and ridicule, and being denied office space and resources relative to non-Iranian employees.

Moreover, there was sufficient evidence at trial to permit a reasonable jury to conclude that this

differential treatment was caused at least in part by a discriminatory motive.   The jury could have

concluded that Greengard harbored such a motive based on testimony regarding a conversation

between Greengard and Emamian during which, according to Emamian, Greengard aggressively

questioned her about her headscarf in a hostile manner. Moreover, Greengard testified that he

had been informed by his secretary, whom Greengard described as a “highly educated woman who

grew up in Tehran, as did Dr. Emamian,” that Emamian’s headscarf indicated her submissiveness

to men and that Greengard should not have hired her.          Joint App’x 2161–62.   In addition, the

jury could have found probative the email sent to the entire lab by Dr. Marc Flajolet (“Flajolet”),

another scientist in the lab, which contained language that, according to Emamian’s testimony,

constituted a racist slur directed specifically at her. Rockefeller’s attempt to discount the Flajolet

email as irrelevant because it was not sent by Greengard is unavailing, particularly in light of our

obligation to consider the totality of the circumstances in determining whether Emamian was

treated less well at least in part because of her race or national origin and given Greengard’s

subsequent testimony, upon reviewing the email in the course of litigation, that he found “nothing

objectionable in it.”   Id. at 2163.

       At bottom, drawing all possible inferences against the moving party and considering the

broad standard of the NYCHRL, we conclude that judgment as a matter of law in favor of

Rockefeller was properly denied.

                                          *       *       *




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       We have considered the parties’ remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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