Full opinion text
MEMORANDUM OPINION AND ORDER PAUL G. GARDEPHE, District Judge. In this action, Plaintiff Leslie Mugavero seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and New York law for alleged retaliation by her former employer, Arms Acres, Inc. (“Arms Acres”) and her former supervisor, Dr. Frederick Hesse. (Cmplt. Counts I, II, III, IV) Mugavero alleges that after she supported a co-worker’s sexual harassment complaint, Defendants retaliated against her by, inter alia, issuing her written disciplinary warnings, reporting her to New York State’s Office of Professional Discipline for professional misconduct, and ultimately terminating her employment. (Id.) Following an eight-day trial, a jury rendered a verdict in Mugavero’s favor against both defendants, and awarded Mugavero a total of $764,183 in compensatory damages and $350,000 in punitive damages. The Defendants have moved for judgment as a matter of law, for a new trial, for discovery sanctions and to vacate or reduce the damage awards. (Docket Nos. 105, 108, 110, and 112). For the reasons stated below, Defendants’ motions for judgment as a matter of law and for a new trial (Docket Nos. 105, 108) are DENIED; Defendants’ motion to vacate or reduce the damage awards (Docket No. 110) is GRANTED IN PART and DENIED IN PART; and Defendants’ motion for discovery sanctions (Docket No. 112) is GRANTED, insofar as attorneys’ fees and costs are awarded. DISCUSSION I. BACKGROUND Defendant Arms Acres is a drug and alcohol rehabilitation facility. (Tr. 97:20-23) During the relevant time period, Mugavero was employed at Arms Acres as a nurse practitioner and was supervised by Defendant Hesse, who was Arms Acres’ medical director. (Tr. 68:23-25, 69:14-16, 299:20-300:10, 302:6-9) Mugavero asserts that Hesse began retaliating against her in a variety of ways after she informed him in late April 2002 that Marie McArdle, an Arms Acres nurse, was going to make a sexual harassment complaint against the facility’s Director of Psychiatry, Dr. Omar Gutierrez — a complaint that Mugavero formally supported with a written statement on May 1, 2002. (Tr. 108:21-109:21, 687:17-688:2, 950:7-10, 952:2-25) Mugavero claims that Hesse’s retaliation escalated over time and included (1) reporting her to the New York State Office of Professional Discipline (“OPD”) for alleged professional misconduct in July 2002; and (2) instigating the termination of her Arms Acres employment in October 2002. (Tr. 1903:12-20,1907:18-24) The Court granted Defendants summary judgment on certain of Mugavero’s claims in March 2009. Mugavero v. Arms Acres, Inc. et al., No. 03-Civ.-5724(PGG), 2009 WL 890063 (S.D.N.Y. Mar. 31, 2009). The case then proceeded to trial on Mugavero’s claims that the following actions constituted unlawful retaliation under federal and New York law: (1) the removal of her on-call duties on the evening of April 24, 2002; (2) a May 2002 written warning; (3) an August 2002 written warning; (4) Hesse’s oral and written requests in July and August 2002 that the OPD investigate her for professional misconduct; (5) Arms Acres placing her on administrative leave on October 1, 2002; and (6) Arms Acres terminating her employment effective October 25, 2002. (See Tr. 154:25-155:18, 191:21-192:2, 585:21-24, 1966:6-15; JX 60 (May 2002 written warning); JX 62 (August 2002 written warning); JX 109 (written complaint to OPD)) The jury found that Mugavero proved all elements of her retaliation claim against both defendants with respect to each of the alleged adverse actions. (Tr. 2016:16-2017:14, 2018:12-2019:3, 2019:20-2020:16) The jury also found, however, that Arms Acres — but not Hesse — had proven an affirmative defense with respect to the removal of Mugavero’s on-call duties and the two written warnings' — ie., Arms Acres had proven that it would have taken the adverse actions regardless of any retaliatory motive. (Tr. 2017:15-2018:11, 2019:4-2019:19) The jury found that Hesse was directly liable under state law for the first four adverse actions and liable as an aider and abettor under state law for Mugavero’s placement on administrative leave and the termination of her employment. (Tr. 2018:12-2019:3, 2019:20-2020:16) With respect to damages, the jury found that Mugavero had not proven that she was entitled to compensation for the removal of her on-call duties or for the two written warnings. (Tr. 2020:17-2021:3) It awarded her the following compensatory damages for emotional distress relating to the three later adverse actions: $75,000 for Hesse’s request that the OPD investigate Mugavero; $75,000 for placing Mugavero on administrative leave; and $100,000 for the termination of her employment. (Tr. 2021:8-2021:23) The jury also awarded Mugavero $468,183 in lost wages and $46,000 in lost fringe benefits. (Tr. 2021:24-2022:2) Finally, the jury awarded $850,000 in punitive damages with respect to the OPD investigation claim. (Tr. 2022:7-2022:24) II. DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW OR TO A NEW TRIAL ON PLAINTIFF’S RETALIATION CLAIMS Defendants seek judgment as a matter of law with respect to Mugavero’s claims that they unlawfully retaliated against her by placing her on administrative leave and terminating her employment. (Def. JMOL Br. (Docket No. 107) at 4-13) In addition, Arms Acres argues that it is entitled to judgment as a matter of law on Mugavero’s retaliation claim concerning Hesse’s report to OPD. (Id. at 13-14) Defendants argue that, in the alternative, they are entitled to a new trial on those retaliation claims. (Def. New Trial Br. (Docket No. 109) at 3-6) The standard for granting judgment as a matter of law under Rule 50 is “well established”: Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence. Thus, judgment as a matter of law should not be granted unless (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]. Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 288 (2d Cir.1998); see also Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133-34 (2d Cir.2008) (same). In order for the Court “to order a new trial under Rule 59(a), it must conclude that the jury has reached a seriously erroneous result or ... [that] the verdict is a miscarriage of justice, i.e., it must view the jury’s verdict as against the weight of the evidence.” Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir.2003) (internal quotations omitted). The Rule 59(a) standard is “less stringent” than the standard for granting judgment as a matter of law under Rule 50 “in two significant respects: (1) a new trial under Rule 59(a) may be granted even if there is substantial evidence supporting the jury’s verdict, and (2) a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.” Id. at 244-45 (internal quotations omitted). In weighing the evidence, however, the Court “should not ordinarily ignore the jury’s role in resolving factual disputes” and assessing witness credibility. Mac-Master v. City of Rochester, No. 05-Civ.-06509, 2009 WL 63045, at *6 (W.D.N.Y. Jan. 6, 2009). A. Mugavero’s Retaliatory Termination Claim To prove a retaliation claim at trial under federal or state law, a plaintiff must show: by a preponderance of the evidence that: (1) [the plaintiff] participated in a protected activity, (2) the defendant knew of the protected activity; (3) [the plaintiff] experienced an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001). The McDonnell Douglas burden shifting analysis applies to retaliation claims brought pursuant to Title VII. See Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir.2003). Accordingly, if a plaintiff properly alleges a prima facie case of retaliation, and the employer proffers a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence that would be sufficient to permit a rational jury to conclude that the employer’s explanation is merely a pretext for impermissible retaliation. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001) (citations omitted). Jackson v. New York City Transit, 348 Fed.Appx. 666, 669 (2d Cir.2009) (emphasis in original). Defendants argue that they are entitled to judgment as a matter of law or a new trial on Plaintiffs retaliatory termination claim because: (1) the evidence was insufficient for a jury to find that Hesse had retaliatory animus toward Plaintiff; and (2) even if the jury could have found that Hesse had retaliatory animus, the evidence did not show that Hesse played a sufficiently significant role in the decision to terminate Plaintiffs employment such that his retaliatory animus tainted that decision. (Def. JMOL Br. at 4; Def. New Trial Br. at 3) The record, however, contains ample evidence to support the jury’s findings on both issues. Indeed, Defendants’ post-trial motions merely re-argue contested issues of fact and credibility determinations that the jury resolved against the Defendants. 1. Hesse’s Retaliatory Intent The evidence concerning Hesse’s retaliatory animus was three-fold: first, there was evidence supporting a finding that Hesse began taking adverse action against Mugavero within a few days of her complaining about an Arms Acres doctor’s sexual harassment of nurse Marie McArdle; second, there was evidence that the stated reasons for the adverse actions were pretextual or that the actions were taken in bad faith; and third, there was evidence that Hesse felt “threaten[ed]” (Tr. 500:23-501:9) by Mugavero’s decision to support McArdle’s harassment complaint and solicited unfounded complaints against both Mugavero and McArdle. a. Timing As the jury was instructed — without objection from Defendants — retaliatory intent may be inferred when the plaintiffs protected activity is “followed closely in time” by an adverse action. (Tr. 1969:12-14; see also Tr. 1692-1713) (no objection from Defendants at charge conference; Tr. 1988:2-4 (no objection from Defendants after jury was charged)) Here, Mugavero’s testimony indicated that she first engaged in protected activity early in the week of April 21, 2002, when she told Hesse that (1) McArdle was going to report Dr. Omar Gutierrez for sexual harassment; and (2) Mugavero had witnessed Gutierrez kissing McArdle at Arms Acres. (Tr. 687:17-688:2, 950:7-10, 952:12-25) Dr. Gutierrez reported to Hesse and was the only other doctor employed at Arms Acres. (J.X. 1) It was undisputed that three days later, on April 24, 2002, Hesse relieved Mugavero of her on-call duties, which the jury found was a material adverse action. Such a close temporal connection between a plaintiffs protected activity and an adverse action is sufficient to give rise to an inference of retaliatory intent. See Feingold v. New York, 366 F.3d 138, 156-7 (2d Cir.2004) (holding that the “requirement that ... [the plaintiff] show a causal connection between his complaints and his termination is satisfied by the temporal proximity between the two,” which was two weeks); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996) (plaintiff established fourth element of retaliation claim where adverse action occurred twelve days after protected activity). Defendants argue that any inference of retaliatory intent created by the timing of Mugavero’s first protected activity and the first adverse action cannot, as a matter of law, be extended to the adverse actions that occurred months later, including her placement on administrative leave and termination in October 2002. (Def. JMOL Br. at 9-10) Their argument, however, is not supported by the case law. The cases Defendants cite arise in the summary judgment context and indicate that, where there is a gap of three or more months between the protected activity and the adverse action, the timing — standing alone— is insufficient to give rise to an inference of retaliation. (See Def. Br. at 10) Such cases are inapplicable here because, as discussed below, there was evidence other than timing to support such an inference. (See infra pp. 7-19) Moreover, as the Court held in its summary judgment opinion, the six-month gap between Plaintiffs first protected activity and her termination is not fatal to her retaliation claim where there is evidence that Plaintiffs termination was the culmination of a series of retaliatory adverse actions that began within days of her protected activity. Mugavero, 2009 WL 890063, at *12-13. Mugavero presented such evidence at trial. During the trial, it was undisputed that Hesse and Mugavero’s relationship changed dramatically on or about April 24, 2002. Prior to that time, Hesse and Mugavero had a longstanding, close working relationship and personal friendship. There was substantial evidence — corroborated by several of their co-workers — that immediately following April 24, 2002, Hesse’s “attitude changed” and he was “cold” toward Mugavero. (Tr. 1501:23— 1502:8 (testimony of co-worker Steven Herzenberg); see also Tr. 1460:8-13 (testimony of co-work Sofia Umali that after April 24, Hesse and Mugavero’s relationship became “very formal,” “almost terse and cold”)) After April 24, Hesse and Mugavero also stopped socializing. (Tr. 523:1-17,1502:13-21) According to Mugavero, after April 24, 2002, Hesse also stopped informally discussing patient issues with her and began routinely criticizing her medical discharge summaries, an important part of her duties. (Tr. 667:12-668:7, 669:18-670:8, 313: 8-10) In contrast, Hesse’s July 2001 written evaluation of Mugavero states that she had “excellent discharge summaries.” (Tr. 612:7-613:2) The evidence also demonstrates that Hesse was involved in a series of adverse actions that followed the April 24, 2002 removal of Mugavero’s on-call duties: • Hesse began drafting Mugavero’s first written warning on April 30 and issued it to her on May 3, 2002 (see Tr. 125:9-22; JX 59 (April 30, 2002 draft warning); Tr. 130:4-7; JX 60 (May 3, 2002 final warning)); • Hesse first reported Mugavero’s alleged professional misconduct to OPD in mid-July 2002 and sent a letter to OPD on August 19, 2002, formally asking the agency to investigate her (Tr. 571:16-573:25, 574:1-9, 585:21-24; JX 68) (draft letter to OPD dated July 25, 2002); JX 109 (final letter to OPD dated August 19, 2002); • Hesse began drafting Mugavero’s second written warning on July 25 and issued it to her soon after August 6, 2002 (Tr. 575:1-13; JX 62) (draft warning dated July 25, 2002); and • Hesse reported to his supervisor, Executive Director Patrice Wallace-Moore in October 2002 (Tr. 64:4-9, 68:21-25) that Mugavero had made an error in responding to a patient’s positive pregnancy test and assisted in the investigation of the alleged error, which led to Mugavero being placed on administrative leave and then terminated. (See Tr. 268:2-25, 269:1-12, 276:7-277:4) Given the evidence that Hesse took adverse action against Mugavero three days after her first protected activity; that their close friendship and good working relationship ended at the time of her first protected activity; and that Hesse was responsible for or was involved in all of the adverse actions that were taken against Mugavero during the next six months, culminating in her termination, a rational jury could have inferred from the timing alone that the adverse actions were motivated at least in part by retaliatory intent. b. Pretext In addition to proximity between protected activity and an adverse action, a jury may infer retaliatory intent from evidence that the employer’s stated reasons for adverse actions were pretextual, or that the employer took the actions in bad faith or exaggerated the seriousness of the conduct that allegedly justified the adverse action. (See, e.g., Ebanks v. The Neiman Marcus Group, Inc., 414 F.Supp.2d 320, 331 (S.D.N.Y.2006)) (judgment as a matter of law inappropriate because there were genuine factual disputes as to whether employer’s reasons for the adverse employment actions “were in part pretextual”); Rooney v. Capital Dist. Transp. Auth., 109 F.Supp.2d 86, 98-99 (N.D.N.Y.2000) (judgment as a matter of law inappropriate because there was “a sufficient basis for a trier of fact to conclude ... that the reasons defendant offered for plaintiffs dismissal were at least partially pretextual”). The jury was instructed in accordance with the above case law, without objection from the Defendants. (Tr. 1969:8-16, 1970:19-1971:1; see also Tr. 1692-1713, 1988:2-4 (no objection from Defendants at charge conference or after jury was instructed)) There was sufficient evidence at trial for the jury to find both pretext and bad faith. i. The Early Adverse Actions As to pretext, Defendants argued at trial, as they do now, that Hesse’s first adverse actions against Mugavero — beginning on April 24, 2002 with the removal of her on-call duties and continuing through the two written warnings — were a response to Executive Director Wallace-Moore’s increasing pressure on Hesse to discipline Mugavero. (Def. JMOL Br. at 5) The jury heard evidence that Wallace-Moore had been urging Hesse since early 2001 to supervise Mugavero more closely and to take action with respect to repeated complaints Wallace-Moore had received about Mugavero’s interactions with nurses and patients. (See, e.g., Tr. 78:25-79:22, 87:3-9; JX 39 (Wallace-Moore’s notes from supervision meetings with Hesse)) There was also undisputed evidence, however, that despite WallaceMoore’s pressure, Hesse took no disciplinary action against Mugavero until April 24, 2002. In early 2001, Wallace-Moore told Hesse that he needed to address complaints regarding Mugavero’s interactions with patients and staff, but as of October 2001, he had not done so. (Tr. 87:3-9; JX 39) In December 2001, Wallace-Moore told Hesse that if he “did not address [Mugavero’s] professionalism [Wallace-Moore] would.” (Tr. 87:25-88:7; JX 39 at Bates 497) Wallace-Moore’s supervisory notes indicate that in January 2002 Hesse “[s]till struggle[d]” with supervising Mugavero, and he did not provide a requested log of Mugavero’s behavior. (Tr. 89:12-23; JX 40 at Bates 498) Finally, on April 11, 2002, Wallace-Moore noted that while Mugavero’s “work has been relatively] good,” “her attitude towards other staff and patients ha[s] been questionable” and still “require[s] corrective action[].” (Tr. 91:7-15; JX 40 at Bates 500) Because of the undisputed evidence that Hesse had essentially ignored Wallace-Moore’s instructions for more than a year, the jury could reasonably have concluded that when he did begin taking disciplinary action against Mugavero on April 24, 2002, he was not motivated by Wallace-Moore’s concerns. ii. The OPD Report There was also evidence from which the jury could have found that Hesse acted vindictively, maliciously, and in bad faith in asking the OPD to investigate Mugavero, in that he purposely misrepresented the facts to the OPD in order to portray Mugavero in a more negative light. Because the OPD is the state agency responsible for licensing nurses (Tr. 572: 11-23), Hesse’s report that Mugavero had engaged in professional misconduct threatened her license and her ability to perform her profession. After a year-long investigation, the OPD closed its file concerning Hesse’s complaint with no disciplinary action against Mugavero. (Tr. 595: 14-24) With respect to Hesse’s misrepresentations, it was undisputed that when Hesse first contacted the OPD by telephone and drafted his letter to the agency, he had not given Mugavero any written warning concerning the alleged errors discussed in the letter. (Tr. 200:1-3, 571:20-573:25, 575:1-13; PX 62 (draft warning); PX 68 (letter to OPD dated July 25, 2002)) In the letter he drafted, however, Hesse wrote that Arms Acres had “completed investigation and discipline with a written warning,” and that Mugavero had “not accepted supervision, and ha[d] been negative in her responses.” (PX 68 at Bates 306) None of this was true. Hesse’s letter also stated that he was requesting an investigation because he believed Mugavero’s errors were part of “an increasing pattern of numbers and severity.” (JX 109 at Bates 2189; JX 62 at 438-39 (referring repeatedly to an “increasing pattern” of errors)) The evidence, however, does not support this allegation of an “increasing pattern” of errors — W allace-Moore’s supervisory notes state that any pre-May 2002 errors by Mugavero had “never been noticed,” allegedly because of Hesse’s poor supervision. (JX 40 at Bates 505 (“NP has however, been found to have many mistakes on her work. Such has never been noticed due to Dr. H’s admittedly sporadic if any supervision of NP’s work.”)) Similarly, the jury could have inferred bad faith and malice from Hesse’s description of a June 26, 2002 incident in which Mugavero allegedly abandoned a suicidal patient. (JX 109 at Bates 2188-89 (Hesse’s August 19, 2002 letter to OPD)) Hesse’s letter states that Mugavero left for lunch without taking steps to make sure that the patient was attended while she was gone, and that Mugavero merely “mentioned in passing in the hallway to nursing staff that she [had] examined a suicidal patient....” (JX 109 at Bates 2188) It was undisputed, however, that the “nursing staff’ Mugavero spoke to was nursing supervisor Cindy Lipton, the charge nurse who, under Arms Acres’ policy concerning suicidal patients, was responsible for assigning one-on-one care to such patients. (JX 15 (policy); Tr. 162:2-4, 163:23-164:4, 1346:7-11) Psychiatric nurse practitioner Sofia Umali was also disciplined for her role in the suicidal patient incident — because she had not returned promptly from lunch to evaluate the patient (DX CC) — but Umali received her written warning two days after the incident, on June 28, 2002, whereas Mugavero was not given a written warning concerning the incident until nearly six weeks later, on August 6, 2002. While the prompt discipline imposed on Umali supported an inference that her misconduct was at least as serious as Mugavero’s (Tr. 583:3-21; DX CC), only Mugavero, and not Umali, was reported to the OPD. iii. Plaintiff’s Termination There was also evidence from which the jury could have concluded that the decisions to place Mugavero on administrative leave and later to terminate her employment were not made in good faith. According to Human Resources Director Beverly Berkowitz, who conducted the investigation and recommended Mugavero’s termination, Mugavero had erred when she: (1) signed off on a lab report showing that a patient was pregnant without stopping the patient’s opiate withdrawal protocol; and (2) later extended the protocol. (Tr. 268:19-21, 287:14-15; see also JX 70 (October 25, 2002 memo by Berkowitz stated that Mugavero had signed the lab report and later re-ordered the opiate withdrawal protocol without notifying anyone that the patient was pregnant)) Mugavero was placed on administrative leave on October 1, 2002, allegedly so that Berkowitz could investigate whether Mugavero in fact made errors that resulted in the pregnant patient taking opiate withdrawal medication after the medication should have been stopped. (Tr. 268:2-19, 269:10-12) The jury could reasonably have found, however, that Berkowitz’s investigation was conducted in an unfair manner that undermined Mugavero’s ability to respond and explain what had happened. On October 1, Berkowitz did not tell Mugavero why she was being placed on leave, except to say that Berkowitz needed to do an investigation. (Tr. 269:16-25) During her first investigative interview of Mugavero, Berkowitz asked about the general policy or protocol for treating a pregnant patient, but did not tell her about the particular patient whose treatment Berkowitz was investigating or provide the medical chart for that patient. (Tr. 273:11-275:16) During a second interview, Berkowitz gave Mugavero excerpts of the patient’s chart that Hesse had selected. (Tr. 276:7-277:4) Mugavero testified that it was not until after this litigation ensued — when she obtained the patient’s full chart — that she realized that she had probably given the patient’s lab report to nurse practitioner Joanne Callahan, who had — as the full chart revealed — initially examined the patient and ordered that she be placed on the opiate withdrawal protocol. (Tr. 725:18-726:12; see also Tr. 1170:5-10) Mugavero testified that it was her practice to review all lab reports when they were delivered in the morning, and to give any non-urgent reports concerning patients initially seen by Joanne Callahan to Callahan for followup. (Tr. 656:1-21) While Mugavero raised with Berkowitz the possibility that she had given Callahan the report, Berkowitz disregarded Mugavero’s remark because there was no support for this claim in the medical records Berkowitz had consulted. (Tr. 290:16-23) There was also evidence suggesting that Mugavero was less culpable than Defendants portrayed. While Berkowitz testified that Mugavero was terminated in part because she had re-ordered the pregnant patient’s opiate withdrawal protocol, it was undisputed that Mugavero had extended the protocol by giving a voice order in response to a request from a nurse, without looking at the patient’s chart. (Tr. 1153:19-1154:12) Physician Assistant Steven Herzenberg testified that it was standard practice at Arms Acres to give a voice order to extend a protocol at a nurse’s request without looking at the chart, on the assumption that the protocol would not have been ordered in the first place if it was inappropriate. (Tr. 1500:13-23, 1528:14-20) Indeed, the medical records showed that Joanne Callahan had initially placed the pregnant patient on the opiate withdrawal protocol with a voice order given over the telephone at the request of a nurse. (Tr. 1769:23-1771:1) Hesse also testified that if a patient was admitted in the evening, the patient could receive medication on the basis of a voice order given to a nurse prior to being examined the following day. (Tr. 453:1-13, 457:14-458:5) c. Other Circumstantial Evidence of Retaliatory Intent Finally, Plaintiffs claim that Hesse had acted out of retaliatory intent was supported by evidence that Hesse: (1) viewed Mugavero’s report of Gutierrez’s misconduct as a threat; and (2) solicited unfounded complaints against both Mugavero and McArdle after Mugavero told him that McArdle intended to report Dr. Gutierrez for sexual harassment. With respect to Hesse’s reaction to Mugavero’s report concerning Dr. Gutierrez, Hesse testified that Mugavero “seemed to be threatening” him with the possibility of McArdle reporting Dr. Gutierrez for sexual harassment. (Tr. 500: 23-501:9) With regard to Hesse’s attempt to generate complaints against Mugavero and McArdle, Nurse Michelle DeMarco testified that almost immediately after Mugavero told him about McArdle’s harassment complaint, Hesse asked DeMarco to “write up a statement stating that [she] observed ... Mugavero take a picture at the nursing station,” which Hesse told DeMarco “was a breach of ... patient confidentiality.” (Tr. 1341:7-11) DeMarco refused, and reminded Hesse of two other occasions when employees had taken photos at the nursing station, including recently for “Take Your Daughter to Work Day.” (Tr. 1341:12-1342:4) She also mentioned to Hesse that she had kept “for many years” a photo of herself, Hesse and several other nurses taken at the nursing station in the area of the board with patients’ names written on it. (Tr. 1342:5-14) As she spoke, Hesse got “redder and redder” and “bec[ame] more irate” (Tr. 1343:17-19), and told her that if she refused to prepare the statement, she “was being insubordinate.” (Tr. 1342:16-18) DeMarco told him that she did not want to be involved in a “vendetta” against Mugavero. (Tr. 1343:2, 20-22) Hesse responded, in substance, that: “[If] this makes you so anxious maybe you shouldn’t be working here.” (Tr. 1343:22-25) At that point, DeMarco’s supervisor, who was also present, told DeMarco that she could leave, and Hesse apologized for upsetting her. (Tr. 1341:3-5,1344:8, 21-22) The second incident involved Hesse soliciting a complaint against McArdle. Hesse testified that on September 6, 2002, he saw McArdle take a patient’s blood pressure in an unusual way- — with her leg between his legs (Tr. 478:24-479:10, 480:6-8) — and alerted the nursing supervisor, Cindy Lipton. (Tr. 479:12-19) Although he was not McArdle’s supervisor, Hesse returned to the patient’s room four or five hours later, to ask the patient if he “had any concerns” about how his blood pressure had been taken. (Tr. 482:6-16, 484:7-13) According to Hesse, the patient responded that “now that he mentioned it it was very odd.” (Tr. 482:13-16) Hesse testified that he asked the patient if he “wantfed] to write something about it,” and the patient “said yes.” (Tr. 483:1-3) The patient then wrote a short statement, which Hesse took from him. (Tr. 485: 13-20) The patient subsequently told WallaeeMoore, however, that he was not comfortable with what he had written about the incident (Tr. 489:20-490:5), and Wallace-Moore instructed Hesse to apologize to the patient and to McArdle, and to return the statement to the patient. (Tr. 490:21-491:6) :|: * * As discussed above, there was substantial evidence supporting the jury’s finding that Hesse was motivated by retaliatory intent, including the dramatic change in Hesse’s behavior toward Mugavero after she told him about McArdle’s sexual harassment complaint (and subsequently supported the complaint with a written letter); Hesse’s statement that he felt Mugavero “threaten[ed]” him with the complaint; Hesse’s skewing of the facts concerning Mugavero’s job performance; and Hesse’s efforts to solicit complaints against both Mugavero and McArdle. Defendants are neither entitled to judgment as a matter of law nor to a new trial on this issue. 2. Hesse’s Role In Plaintiff’s Termination Defendants also argue that regardless of Hesse’s retaliatory intent, he did not play a sufficient role in the decision to terminate Plaintiffs employment for his retaliatory intent to have tainted that decision. (Def. JMOL Br. at 6-9) Defendants are not entitled to judgment as a matter of law on this ground. The Second Circuit has recognized that “the impermissible bias of a single individual at any stage of the ... [decision making] process may taint the ultimate employment decision in violation of Title VII.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir.1999). Therefore, “even absent evidence of illegitimate bias on the part of the decision maker,” a plaintiff may establish that an adverse action was taken because of unlawful intent by showing that an “individual shown to have the impermissible bias played a meaningful role in the ... [decision making] process.” Id.; see also Back v. Hastings On Hudson Union Free Sch. Hist., 365 F.3d 107, 126 (2d Cir.2004) (holding that lack of bias on the part of the ultimate decision maker was not dispositive where the decision to deny tenure was based on the recommendation of biased individuals, whose “numerous accusations of poor performance ... were overblown and pretextual”); Owens v. New York City Hous. Auth., 934 F.2d 405, 410 (2d Cir.1991) (discriminatory comments by individuals who had “substantial influence over [plaintiffs] employment” were sufficient to “raise a genuine issue of fact on the issue of pretextuality” with respect to defendant’s stated reason for terminating plaintiffs employment). Here, there was ample evidence that Hesse played a “meaningful role” in the decision to terminate Plaintiffs employment. As described above, it was Hesse who brought Mugavero’s alleged error to Berkowitz and Wallace-Moore’s attention, and it was Hesse who selected the excerpts of the patient’s medical chart that Mugavero was permitted to see during the investigatory intervention. (See supra pp. 561, 564) Indeed, Berkowitz testified that she placed Mugavero on leave “as a result” of what Hesse told her about Mugavero’s treatment of the pregnant patient on October 1, 2002. (Tr. 269:10-12) Neither Wallace-Moore nor Berkowitz have a medical background and both testified that they relied on Hesse for their understanding of the medical issues presented by Mugavero’s treatment of the pregnant patient.. (Tr. 65:6-18, 210:1-8, 269:1-7) Given that Arms Acres allegedly terminated Mugavero because of an alleged medical error, and that Hesse provided the information concerning that alleged medical error to the purported decisionmakers — Wallace-Moore and Berkowitz — it was not unreasonable for the jury to find that Hesse played a “meaningful role” in the decision to place Mugavero on leave and terminate her employment. B. Mugavero’s Claim Concerning Administrative Leave Defendants argue that in any event, they are entitled to judgment as a matter of law with respect to Mugavero’s administrative leave claim on the ground that Mugavero failed to show that being placed on administrative leave with pay was a materially adverse action. (Def. JMOL Br. at 11) Citing Joseph v. Leavitt, 465 F.3d 87 (2d Cir.2006), Defendants argue that the jury could not find in Plaintiffs favor on this issue unless it found that Mugavero “establish[ed that] it was an unreasonable deviation from Arms Acres’ regular policies and procedures to place her on administrative leave with pay.” (Def. JMOL Br. at 12) Defendants assert that Plaintiff did not offer sufficient evidence to support such a finding. (Id. at 12-13) The jury, however, was instructed on the requirement that Mugavero must prove a material adverse action, and Defendants neither objected to that instruction nor proposed a more specific instruction. (See Docket No. 86 (Defendants’ Proposed Jury Charge) at 5; Tr. 1966:16— 1967:7 (materiality instruction); see also Tr. 1692-1713 (charge conference, where Defendants raised no objection), 1988:2-M (Defendants stating they had no objection after jury was charged)) The jury is presumed to have followed the Court’s instruction and to have found that the placement of Plaintiff on administrative leave with pay was a materially adverse action. See Britt v. Garcia, 457 F.3d 264, 272 (2d Cir.2006). In any event, Leavitt provides no basis for overturning the jury’s verdict. In that case, the Second Circuit held that placement on administrative leave with pay in the discrimination context is not a “materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.” Id. at 91. Here, neither side offered evidence as to whether placing an employee on administrative leave with pay was — under the circumstances — normal procedure under Arms Acres’ disciplinary policies. Even if such evidence had been offered, however, there was sufficient evidence for the jury to find that Defendants’ actions were unreasonable. Defendants did not offer any explanation as to why they placed Mugavero on leave during the investigation of her alleged error with respect to a pregnant patient in October 2002, but had not placed her on leave during investigations of previous alleged errors — e.g., those detailed in the July 25, 2002 draft warning. (See JX 62) In addition, Mugavero was not told why she was being placed on leave, and indeed was not given any information concerning the particular patient at issue until the second and final investigative interview with Beverly Berkowitz. Even then, Berkowitz shared with Mugavero only a portion of the relevant medical records. (See supra p. 567) On this factual record, the jury could reasonably have concluded that Defendants’ placement of Mugavero on administrative leave in October 2002 was not merely due to the reasonable enforcement of pre-existing policies. C. Hesse’s Liability for the Administrative Leave and Termination Retaliation Claims Hesse argues that he is entitled to judgment as a matter of law on Mugavero’s retaliation claims concerning her termination and placement on administrative leave. (Def. JMOL Br. at 15-17) The jury found Hesse liable for these claims under a state law aiding-and-abetting theory. (Tr. 2018:12-2019:3, 2019:20-2020:16) That finding was supported by the evidence. If an employer’s liability has been established under the NYSHRL, an individual employee may be liable under Section 296.6 of the NYSHRL for aiding and abetting the employer’s violation if he “actually participate^ in the conduct giving rise to [the claim].” Feingold, 366 F.3d at 157 (internal quotation omitted); see also Sowemimo v. D.A.O.R. Sec., Inc., 43 F.Supp.2d 477, 490 (S.D.N.Y.1999) (“[B]efore an individual may be considered an aider and abettor” under the NYSHRL, the employer’s liability “must first be established.”). As described above, Hesse’s participation in Arms Acres’ investigation of Plaintiffs conduct in October 2002 was sufficient for the jury to find that his retaliatory animus tainted the decision to place Plaintiff on administrative leave and terminate her employment. (See supra p. 567) Thus, the jury could reasonable have found Hesse liable under an aiding-and-abetting theory. D. Mugavero’s Claim Concerning the OPD Complaint 1. Defendants Are Not Entitled to a New Trial Defendants argue that they are entitled to a new trial on Mugavero’s retaliation claim concerning Hesse’s report to the OPD because that report cites the same alleged errors discussed in Mugavero’s second written warning, and the jury-found that Arms Acres proved its affirmative defense with respect to that warning — i.e., the jury found that Arms Acres would have given Mugavero a written warning concerning the alleged errors regardless of any retaliatory motive. (Def. New Trial Br. at 3-6) The jury might rationally have found, however, that there is a material difference between giving an employee a written warning — which at most could lead to the termination of employment — and asking the state licensing authority to investigate the employee for professional misconduct, which could result in the employee losing not only her job but her licenses as well. Thus, the jury could reasonably have found that while Arms Acres would have disciplined Mugavero for the incidents listed in the second written warning absent any retaliatory motive, Hesse would not have taken the fxxrther step of reporting her to the OPD absent such a motive. Such a conclusion would have been supported by the language of the written warning and the letter to the OPD: as discussed above (see supra pp. 563-64), the jury could have found that the OPD letter was drafted to make Mugavero’s conduct appear worse than it was. Many of Hesse’s most inflammatox*y allegations were not included in the warning. (Compare JX 109 (OPD letter) with JX 62 (second written warning)) The warning, for example, did not refer to an “increasing pattern of [] errors,” “acts of incompetence or negligence,” “abandonment or neglecting a patient,” “intentional[ ]” failure to correct an error, or “a callous indifference for [] patient[] safety and her professional responsibilities,” nor did it state that Mugavero had “not accepted supervision.” (Compare JX 109 (OPD letter) with JX 62 (second written warning)) For all of these reasons, the Court cannot find that the jxiry’s liability verdict with respect to the OPD retaliation claim was against the weight of the evidence. 2. Arms Acres Is Not Entitled to Judgment as a Matter of Law Arms Acres argues that it is entitled to judgment as a matter of law on the OPD retaliation claim because it “did not review, approve or condone [the OPD complaint] in any way” and because Hesse “acted solely in his capacity as Plaintiffs collaborating physician when he filed his complaint.” (Def. JMOL Br. at 13-14) Because neither the law nor the evidence supports Arms Acres’ argument, it is not entitled to judgment as a matter of law on this claim. First, a company is ordinarily vicariously liable for the unlawful retaliatory actions of its high-level executives. See, e.g., Abreu v. Suffolk County Police Dep’t, No. 3 Civ. 5927(JFB) (WDW), 2007 WL 608331, at *12 (S.D.N.Y. Feb. 23, 2007); Muraj v. UPS Freight Servs., No. 04 Civ. 6563(CJJ), 2006 WL 2528538, at *2 (W.D.N.Y. Aug. 31, 2006); Dawson v. County of Westchester, 351 F.Supp.2d 176, 187-89 (S.D.N.Y.2004). Arms Acres offers no case law support for its theory that a company can avoid vicarious liability by identifying some independent statutory obligation that a manager asserts suppoxxts his decision to take retaliatory action. Second, Mugavero offered evidence refuting Arms Acres’ factual contentions that it “did not review, approve or condone [the complaint] in any way” and that Hesse did not make the complaint on Arms Acres’ behalf. (Def. JMOL Br. at 13-14) Wallace-Moore’s notes from her meetings with Hesse show that Hesse told her that he intended to report Plaintiff to the OPD before he filed the written complaint (JX 40 at Bates 506), and there was no evidence that Wallace-Moore disagreed with or attempted to dissuade Hesse from pursuing that course of action. Thus, the jury could reasonably have inferred that Wallace-Moore implicitly approved of Hesse’s decision. The jury also could have inferred from the language of Hesse’s letter to the OPD that, while he was Mugavero’s “supervising physician in N.Y. state,” he was acting on behalf of Arms Acres. On the cover sheet of the complaint form, Hesse listed Arms Acres as his address, and he reported in the complaint that “[w]e have completed investigation and discipline” for the incidents listed in the letter. (JX 109 at Bates 2186-87) (emphasis added). III. DEFENDANTS ARE NOT ENTITLED TO A NEW TRIAL ON THEIR AFTER-ACQUIRED EVIDENCE DEFENSE Defendants have also moved for a new trial on their after-acquired evidence defense, arguing that the jury’s failure to find in their favor with respect to this defense is against the weight of the evidence. (Def. New Trial Br. at 7-19) There is no basis to order a new trial on this issue. A. The After-Acquired Evidence Doctrine The Supreme Court has held that “evidence that the employee would have been terminated for lawful reasons will make certain remedies, such as reinstatement and front pay, unavailable,” Greene v. Coach, Inc., 218 F.Supp.2d 404, 412 (S.D.N.Y.2002) (citing McKennon v. Nashville Banner Pub’g Co., 513 U.S. 352, 362, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)), and that an award of back pay would properly “be limited [in such cases] to salary lost from the date of the unlawful discharge until the date the employer discovered the information which would have led to discharge on lawful grounds,” Flores v. Buy Buy Baby, Inc., 118 F.Supp.2d 425, 432-33 (S.D.N.Y.2000) (citing McKennon, 513 U.S. at 361-62, 115 S.Ct. 879). To show that a plaintiffs damages should be limited under this theory, “an employer must establish that the wrongdoing was of such severity that the employee would have been terminated on such ground alone if the employer had known of it at the time of discharge.” Greene, 218 F.Supp.2d at 412 (emphasis added). It is not enough for the employer to show that the employee’s misconduct could have been sufficient grounds for termination; the employer must show that the misconduct “would actually [have been a] ... basis for termination.” Greene, 218 F.Supp.2d at 413 (emphasis added). B. The Evidence At Trial The evidence demonstrated that Mugavero took notes on confidential patient records for use in this litigation and surreptitiously recorded her interviews with Berkowitz in October 2002. (See infra p. 571) Wallace-Moore testified that had she known of this conduct, she would have terminated Mugavero’s employment. (Tr. 1810:25-1811:3) Therefore, in accordance with the above-cited case law, the Court instructed the jury that it should not award lost wages and fringe benefits for the period after April 15, 2004, if it found “that Arms Acres would have terminated plaintiffs employment if it had known of her taking notes on medical charts for personal use,” and should not award such damages for the period after August 13, 2004, if it found “that Arms Acres would have terminated plaintiffs employment if it had known of her tape recording, or because of the combination of the tape recording and note taking.” (Tr. 1980:23-1981:7) 1. Plaintiff’s Conduct The evidence concerning Mugavero’s alleged misconduct consisted of the following: • Notes concerning patient treatment: Mugavero testified that she took notes on approximately six or seven patients’ medical charts that she believed showed “the same acts of not doing things appropriately” or “worse [acts]” than what she had allegedly done. (Tr. 1320:19-25) She began taking these notes in May 2002 when Hesse began conducting frequent supervision meetings with her. (Tr. 1281:2-5) The notes consisted of “little scraps of paper” on which she wrote patients’ “initials” and “unit numberfs],” and also “j'ot[ted] ... a diagnosis ... so ... [she] could remember what it was about.” (Tr. 1277:20-1278:2) For example, Mugavero’s notes about one patient concerned a lab report that addressed the patient’s hemoglobin and hematocrit levels. (Tr. 1310:15-24) Mugavero gave these notes to her attorney for use in this litigation. (Tr. 1295:3-5, 1298:1-2) • Recording of investigative interviews: Mugavero surreptitiously tape-recorded the two investigative interviews in October 2002, which included discussion of the pregnant patient’s name, medical condition, and treatment. Mugavero provided these tapes to her attorney. (Tr. 1137:20-1138:17, 1147:3-8, 1148:15-1149:8 (second interview)) • List of other pregnant patients: While Mugavero was at Arms Acres for one of her investigative interviews, an Arms Acres employee gave her a piece of paper with patients’ first or last names, unit numbers and an indication that the patient had a positive pregnancy test. (Tr. 1287:1-1288:6) Perhaps two of the patients were identified by first and last name. (Tr. 1288:7-8) 2. Whether Plaintiff Violated Arms Acres’ Policies Arms Acres offered evidence that it had numerous policies in place to protect patient confidentiality. These policies prohibited the disclosure of patient-identifying information to anyone outside Arms Acres and the disclosure of such information for any purpose other than treating the patient. {See, e.g., JX 3 at Bates 572 (Arms Acres Code of Ethics, stating that employees “have the responsibility to ... [r]espect patient’s right to privacy and to protect the confidentiality of the patient and of all information obtained in the course of professional service”); JX 4 (Confidentiality Policy, stating: “It is Arms Acres’ policy that the identity or any information regarding a patient will not be disclosed outside the facility without the appropriate release forms. Confidential patient information will be discussed or shared within the facility only for the purposes of patient treatment.”)) Wallace-Moore testified that Mugavero’s sharing of recorded confidential patient information with her attorney was “the worst [violation of confidentiality policies] that had occurred” in Wallace-Moore’s tenure at Arms Acres, and was “definitely a pretty ... egregious act.” (Tr. 1810:22-24) The testimony of other Arms Acres employees, however, did not fully support Wallace-Moore’s statement that Mugavero’s conduct clearly violated Arms Acres’ confidentiality policies. Mugavero’s co-workers testified that unless the patient could be identified — for instance, because the patient’s full name was disclosed — they would not understand Arms Acres’ confidentiality policies to have been breached. (Tr. 1428:17-25 (DeMarco testimony), 1488:14-21 (Umali testimony), 1581:16-1532:3 (Herzenberg testimony)) As described above, the evidence suggested that Mugavero had disclosed to her attorney the full names of, at most, two or three patients. 3. Evidence That Arms Acres Would Have Terminated Plaintiff’s Employment Arms Acres’ evidence that it would have fired Mugavero for disclosing patient information consisted of Wallace-Moore’s testimony that, had she known about Plaintiffs acts during her employment, “[Mugavero] would have been terminated immediately.” (Tr. 1810:25-1811:3) Weighing against this evidence was: (1) WallaceMoore’s admission that no employee had ever been fired for disclosing patient identifying information (Tr. 1816:13-22); and (2) documents offered by Mugavero showing that at least four Arms Acres employees had violated Arms Acres’ confidentiality policies by disclosing patient identifying information to individuals outside the facility, but had not been fired (PX 17) (Interrogatory # 20 at Bates 2152-55). This Court cannot conclude that the jury’s resolution of this issue was “against the weight of the evidence” and constituted a “seriously erroneous result.” Manley, 337 F.3d at 245 (internal quotation omitted). Given that Arms Acres had no record of firing employees for breaches of confidentiality, the jury’s verdict on this issue turned on the jury’s assessment of Wallace-Moore’s credibility. The jury could reasonably have concluded — despite Wallace-Moore’s testimony — 'that Mugavero’s violation of Arms Acres’ confidentiality policies was relatively limited and would not have resulted in any different discipline than that received by other employees who had violated those policies. Considering the entirety of the evidence, it would not have been “seriously erroneous” for the jury to find that Arms Acres had not proven that it would “actually ” have terminated Mugavero on the basis of her tape-recording and/or her note-taking. Greene, 218 F.Supp.2d at 412. Therefore, Arms Acres is not entitled to a new trial on this issue. IV. DEFENDANTS ARE NOT ENTITLED TO A NEW TRIAL AS A DISCOVERY SANCTION BUT ARE ENTITLED TO REASONABLE ATTORNEYS’ FEES AND COSTS Defendants argue, pursuant to Fed.R.Civ.P. 37 and the Court’s inherent powers, that they are entitled to a new trial because Mugavero and her counsel withheld — during discovery — the notes Mugavero took of Arms Acres patients’ medical records. Arms Acres claims that Plaintiffs abuse of the discovery process undermined Arms Acres’ preparation of its after-acquired evidence defense. Alternatively, Defendants argue that Mugavero and her attorney should reimburse Arms Acres for attorneys’ fees and costs it incurred in addressing Mugavero’s discovery abuses. (Def. Sanctions Br. at 2) While Defendants present no evidence of prejudice sufficient to warrant a new trial, they are entitled to discovery sanctions in the form of attorneys’ fees and costs for intentional discovery abuses discussed in this Court’s June 30, 2009 Order. In that Order, this Court found that Plaintiff and her counsel had intentionally withheld notes Mugavero had made of Arms Acres patients’ medical records: Plaintiff should have produced her notes [concerning the treatment of the patients whose charts she requested] in response to Defendants’ initial discovery requests ... which were served on February 23, 2004 and require[d] Plaintiff to: (1) “[i]dentify all documents, including ... notes, ... maintained ... by Plaintiff relevant to or which would tend to lead to the discovery of relevant information concerning the allegations in each paragraph of Plaintiffs Complaint,” and (2) produce documents supporting her claims.... If the notes did not exist in April 2004 when Plaintiff responded to Defendants’ discovery requests, or in January 2005 when her deposition was taken, Plaintiff should have produced them in the ordinary course of discovery pursuant to her duty to supplement her discovery responses. (6/30/09 Order at 2-3) The Court also found that “Plaintiff offered no valid reason for her failure to disclose her notes,” and that “as of March 16, 2005, Plaintiffs counsel was aware that Plaintiffs notes existed, but deliberately chose not to disclose them to Defendants.” (Id. at 3-4 (emphasis added)) After precluding Plaintiff from offering or utilizing the aforementioned notes at trial, the Court denied Defendants’ request for sanctions without prejudice to renewal after a Court-ordered deposition of Plaintiff concerning this issue. (Id. at 5) 1. Whether Arms Acres is Entitled to a New Trial Defendants argue that they should be granted a new trial because Mugavero’s failure to produce her notes “thwarted Defendants’ preparation of their after-acquired evidence defense.” (Def. Sanctions Br. at 2) The cases cited by Defendants (Def. Sanctions Br. at 13 n. 10), however, are inapposite, as they involve significantly more egregious conduct than failing to produce documents. See Miller v. Time-Warner Communications, Inc., No. 97 Civ. 7286, 1999 WL 739528 (S.D.N.Y. Sep. 22, 1999) (complaint dismissed when plaintiff admitted that she had attempted to destroy certain of her handwritten notes to prevent their discovery by defendants, and court found that plaintiff and her counsel both committed perjury at the spoliation hearing); Lipin v. Bender, 193 A.D.2d 424, 597 N.Y.S.2d 340 (1st Dep’t 1993) (affirming dismissal of complaint where plaintiff surreptitiously took defendants’ counsel’s notes and summaries of witness interviews off table during a discovery conference and copied them for her own use). Most importantly, Defendants received the notes prior to trial and have not identified any way in which they were prejudiced in presenting their after-acquired evidence defense. Absent such prejudice, Mugavero’s discovery misconduct does not warrant a new trial. 2. Whether Defendants are Entitled to an Attorneys’ Fee Award Defendants argue that they are entitled to an attorneys’ fee award because Plaintiffs and Plaintiffs counsel’s discovery abuses caused them to incur “significant expenses,” including writing five letters to this Court concerning the undisclosed information, taking Mugavero’s videotaped deposition on July 6, 2009, and briefing the instant motion for sanctions. (Def. Sanctions Br. at 12) Rule 37 “provides a spectrum of sanctions” for discovery abuses, “[t]he mildest [of which] is an order to reimburse the opposing party for expenses caused by the failure to cooperate.” Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir.1979); see also Aetna Life Ins. Co. v. Licht, No. 03 Civ. 6764, 2005 WL 180873, at *1 (S.D.N.Y. Jan. 27, 2005). This rule “places the burden on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust,” and “expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court.” 1970 Advisory Committee Notes. Numerous district court opinions make clear that the losing party on a motion to compel generally “must pay reasonable expenses, barring extenuating circumstances.” Creative Res. Group of New Jersey, Inc. v. Creative Res. Group, Inc., 212 F.R.D. 94, 103 (E.D.N.Y.2002) (emphasis in original), see also, In re Omeprazole Patent Litig., No. M-21-81, No. MDL 1291, 2005 WL 818821 at * 15 (S.D.N.Y. Feb. 18, 2005); Envirosource, Inc. v. Horsehead Res. Dev. Co., 981 F.Supp. 876, 880 (S.D.N.Y.1998); Fund Comm’n Serv., II, Inc. v. Westpac Banking Co., No. 93 Civ. 8298, 1996 WL 469660, at *5 (S.D.N.Y. Aug. 16, 1996). This Court may also impose discovery sanctions “under its inherent power to manage its own affairs,” and where the “breach of a discovery obligation is the non-production of evidence, a district court has broad discretion in fashioning an appropriate sanction.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir.2002). Unlike Rule 37, which does not require bad faith for the imposition of sanctions, when a court acts under its inherent powers a showing of bad faith is required. There must be “clear evidence” that the challenged actions “are entirely without color” and that they were taken for “reasons of harassment or delay or for other improper purposes.” United States v. International Brotherhood of Teamsters, 948 F.2d 1338, 1345 (2d Cir.1991); see also DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 136 (2d Cir.1998). The Court’s June 30, 2009 finding that Plaintiffs counsel deliberately failed to produce notes that were responsive to Defendants’ discovery requests amounts to a finding of bad faith, and thus this Court can impose sanctions according to both its inherent powers and Rule 37. The Court has broad discretion in determining whether and in what manner to impose sanctions. See Aetna Life Ins. Co., 2005 WL 180873, at *1; Ashkinazi v. Sapir, 02 Civ. 002, 2005 WL 937597, at *4 (S.D.N.Y. Apr. 20, 2005). Given that Plaintiff has offered no valid reason for her failure to disclose her handwritten notes, and that Plaintiffs counsel intentionally failed to produce these notes although she knew of them prior to March 16, 2005, Defendants are entitled to sanctions in the form of reasonable attorneys’ fees and costs associated with (1) this sanctions motion; (2) certain correspondence with this Court concerning this issue (see Defendants’ letters of June 1, 2009, June 15, 2009, June 18, 2009, and June 19, 2009); and, (3) one lawyer taking Plaintiffs deposition on July 6, 2009. The amount of attorneys’ fees and costs awarded to Defendants will be addressed in a separate opinion addressing attorneys’ fees as a whole. “Sanctions imposed pursuant to ... Rule 37(a) may be imposed upon either the attorney or the party or both.... ” Imperial Chems. Indus., PLC v. Barr Labs., Inc., 126 F.R.D. 467, 473 (S.D.N.Y.1989); see also 7 Moore’s Federal Practice § 37.23[4][a]. Given that the relative culpability of Plaintiff and her counsel in perpetrating these discovery abuses is not clear, Plaintiff and Plaintiffs counsel will be held equally liable for the attorneys’ fee award ultimately imposed. V. COMPONENTS OF THE COMPENSATORY DAMAGES AWARD WILL BE VACATED Defendants have moved for vacatur of or a reduction in the compensatory damages award. (Def. Damages Br. at 7-23) Because there is no evidence that Plaintiff suffered emotional distress as a result of being placed on administrative leave, the $75,000 award arising from that claim will be vacated. Similarly, the lost wages award must be reduced by $46,526.05, representing five and a half months during which Plaintiff concededly was not available to work. Finally, as discussed below, Plaintiff offered evidence justifying no more than $11,658.22 of her lost fringe benefits award. To the extent the award exceeds that amount, it will be vacated. The compensatory award will otherwise not be disturbed. A. Emotional Distress Damages The jury awarded Mugavero a total of $250,000 as compensation for emotional distress — $75,000 relating to the OPD complaint, $75,000 relating to being placed on administrative leave, and $100,000 relating to the termination of her employment. (Tr. 2021:8-23) Defendants argue that these awards were excessive in light of the evidence offered at trial, and assert that the award should be remitted to “no more than $50,000.” (Def. Damages Br