
    Ian NOEL, Plaintiff-Appellee, v. NEW YORK STATE OFFICE OF MENTAL HEALTH CENTRAL NEW YORK PSYCHIATRIC CENTER, Defendant-Appellant.
    No. 08-2985-cv.
    United States Court of Appeals, Second Circuit.
    Jan. 15, 2010.
    Andrew Cuomo, Attorney General, State of New York Barbara D. Underwood, Solicitor General, State of New York Andrea Oser, Deputy Solicitor General, State of New York Andrew B. Ayers, Assistant Solicitor General, State of New York, for Appellant.
    A.J. Bosman, Esq., Rome, NY, for Ap-pellee.
    Present: ROSEMARY POOLER, JON 0. NEWMAN, and WALKER, Circuit Judges.
   SUMMARY ORDER

Defendant-Appellant New York State Office of Mental Health Central New York Psychiatric Center (“Central New York” or “defendant”) appeals the district court’s decision dated April 11, 2008 denying defendant’s motion under Rule 50 of the Federal Rules of Civil Procedure to set aside the jury award of emotional distress damages to Plaintiff-Appellee Ian Noel (“Noel” or “plaintiff’). We assume the parties’ familiarity with the underlying facts, procedural history, and issues in the case.

Defendant argues that the district court should have set aside the jury award of $120,000 in emotional distress damages because plaintiff failed to introduce any evidence of emotional distress. Plaintiff does not dispute that he failed to introduce any such evidence. Rather, he argues that defendant waived this argument by failing to raise it in its pre-verdict motion for judgment as a matter of law. Defendant, in turn, argues that plaintiff has waived this waiver argument by not raising it in response to defendant’s post-verdict motion for judgment as a matter of law.

Plaintiff is correct that defendant waived the argument relating to plaintiffs failure to introduce evidence of his emotional distress when it failed to raise the argument at the close of evidence at trial. “Where a party has failed to move for [judgment as a matter of law before the verdict], a court generally may only consider a [post-verdict judgment as a matter of law] motion to prevent manifest justice.” Gibeau v. Nel- lis, 18 F.3d 107, 109 (2d Cir.1994). Defendant has failed to present a sufficient reason why manifest injustice would result from finding this argument waived.

However, defendant is correct that plaintiff waived the waiver argument by not raising it in response to defendant’s post-verdict motion for judgment as a matter of law. “Where a party has failed to raise an argument in the district court, an appellate court may only consider the argument where necessary to serve an ‘interest of justice.’ ” Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 109 (2d Cir.2002). We find no such interest here given the fact that plaintiffs only argument in support of the damages award is defendant’s waiver. In short, the parties’ waiver arguments cancel each other out and we are left to decide whether the emotional distress award should have been set aside by the district court.

While courts may award emotional distress damages in employment discrimination cases, “the mere fact that a constitutional deprivation has occurred does not justify the award of such damages.” Patrolmen’s Benevolent Ass’n v. City of New York, 310 F.3d 43, 55 (2d Cir.2002). Rather, “the plaintiff must establish that [he] suffered an actual injury caused by the deprivation.” Id.

Here, plaintiff failed to introduce any evidence whatsoever concerning the emotion distress he may have suffered. Indeed, while other witnesses testified about the emotional distress they suffered while working for Central New York, plaintiffs testimony is entirely devoid of any mention of how he suffered emotionally because of the discriminatory actions of his employer. The testimony of plaintiffs other witnesses, including plaintiffs longtime romantic partner and mother of his child, was similarly lacking.

“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 [his] favor.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998). Here, because there was no evidence to support the jury award of emotional distress damages, “the jury’s finding could only have been the result of sheer surmise and conjecture.” Id. Thus, the district court should have set aside the award of emotional distress damages.

Accordingly, we VACATE the award of damages for emotional distress and AFFIRM the judgment as modified.  