## Facts

- Dr. Judith Piesco worked for New York City’s Department of Personnel administering civil service examinations and initially received excellent evaluations and merit increases.
- Piesco helped develop and administer a New York City police officer entrance examination that drew public criticism as overly difficult and potentially discriminatory and was later simplified.
- A New York State Senate committee held hearings concerning police hiring examinations and standards.
- Piesco testified at the hearing in her professional capacity and criticized the revised examination as too easy, stating that “any moron could pass” and that even a “functionally illiterate” person might pass.
- After her testimony, her relationship with supervisors deteriorated; she received a reprimand and her evaluations shifted from excellent to marginal.
- Piesco alleged additional adverse actions, including denial of promotion and eventual termination, and claimed the negative treatment began only after her testimony.
- Piesco sued city and supervisory officials under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment.
- After a remand from an earlier appeal, a jury found she was fired in retaliation for protected speech and awarded approximately $1.8 million in damages.
- Defendants moved for judgment as a matter of law and, alternatively, a new trial; the district court denied both, stating it believed the verdict was clearly wrong but thought a new trial required an “egregious” verdict.

## Issues

1. Whether a Rule 59(a) new trial may be granted only when a verdict is “egregious,” or whether a court may grant a new trial when the verdict is seriously erroneous, against the weight of the evidence, or a miscarriage of justice.
2. Whether the evidence was sufficient to sustain the jury’s First Amendment retaliation verdict such that judgment as a matter of law was properly denied.

## Decision

- The Second Circuit affirmed the denial of judgment as a matter of law.
- The Second Circuit vacated the denial of the new-trial motion and remanded for reconsideration under the correct Rule 59(a) standard.
- The court held the district court misapprehended its Rule 59 discretion by treating “egregiousness” as a required threshold.
- The court concluded sufficient evidence permitted a rational jury to find that Piesco’s testimony addressed a matter of public concern and that retaliation was a motivating factor in the termination.

## Legal Principles

- Under Rule 59(a), a district court may grant a new trial when the verdict is against the weight of the evidence, the result is seriously erroneous, or the verdict constitutes a miscarriage of justice; “egregious” is not a required standard.
- In deciding a Rule 59 motion, the trial court may weigh evidence and assess witness credibility, unlike on a Rule 50 motion for judgment as a matter of law.
- For public-employee speech retaliation claims under § 1983, the plaintiff must show: (1) speech on a matter of public concern; (2) the employee’s interest outweighs the employer’s efficiency interests (Pickering balancing); and (3) protected speech was a substantial or motivating factor in the adverse action, subject to the employer’s same-decision defense.
- Evidence such as abrupt shifts in evaluations and close temporal proximity between speech and adverse actions can support an inference of retaliatory motive sufficient to defeat judgment as a matter of law.

## Conclusion

The Second Circuit held that the district court applied an improperly restrictive Rule 59(a) standard by requiring an “egregious” verdict, vacated the denial of a new trial motion, and remanded for reconsideration, while affirming that the evidence was sufficient to uphold the jury’s First Amendment retaliation verdict against a Rule 50 challenge.


Piesco v. Koch, 12 F.3d 332 (2d Cir. 1993)