Pamela J. PHILLIPS, Plaintiff-Appellee, v. James BOWEN, individually and in his capacity as Sheriff of the County of Saratoga, M.T. Woodcock, individually and in his capacity as Chief Deputy Sheriff of the County of Saratoga, William S. Baker, individually and in his capacity as personnel director of the County of Saratoga, and the County of Saratoga, Defendants-Appellants, 278 F.3d 103

POOLER, Circuit Judge. Defendants James Bowen and M.T. Woodcock appeal from the March 31, 2000, judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge) in favor of plaintiff Pamela J. Phillips. A trial jury found that defendants, who were plaintiffs work supervisors, retaliated against Phillips after she exercised her First Amendment rights, but the same jury rejected Phillips’ claims of sexual harassment. On her retaliation claim, Phillips had to show, among other things, that she suffered an adverse employment action at the hands of defendants.

While we acknowledge that the trial proof on this issue was close, we hold that the evidence before the jury was sufficient. We thus do not disturb the jury’s factual findings regarding liability. We also hold that the jury’s award of $400,000 in damages was not excessive. BACKGROUND Beginning in 1978, Phillips worked in the Saratoga County Sheriffs Department, where she held different jobs, including that of civil deputy. Bowen was Saratoga County sheriff, which is an elected position, and Woodcock was chief deputy sheriff.

In a lawsuit filed on April 2, 1996, Phillips claimed that defendants violated 42 U.S.C. §§ 1983 and 1988 when they harassed her at work because she supported the 1993 election campaign of Christopher Morrell, who contested for Bowen’s job and lost. Phillips also alleged in her complaint that defendants discriminated against her on the basis of her gender in violation of Title VII. In a memorandum-decision and order dated February 9, 1998, the district court granted partial

summary judgment to defendants regarding plaintiffs claims that they denied her promotional opportunities and certain economic benefits in retaliation for her political support of Morrell. A jury heard Phillips’ remaining allegations during a two-week trial in February 1998. The jury ruled in favor of defendants on the sex discrimination claims, which are not part of this appeal. We therefore discuss here the evidence that the jury heard in support of Phillips’ claims of retaliation. In early 1993, Phillips decided to support the campaign of Morrell for sheriff.

She informed Bowen of her decision, and shortly thereafter Bowen stated during an office meeting that “for those of you gathering [nominating] petitions, there is only one politician in this department, and that’s me.” Phillips took this comment as a direction from Bowen for her to stop her political activity in favor of Morrell, and when she asked Bowen about it, he responded by asking if she had a “guilty conscience.” During the campaign, a news story appeared indicating that the department failed to issue a bullet-proof vest to Phillips, contrary to Bowen’s claim that all of his deputies had the equipment.

In mid-October, Bowen and Woodcock made efforts to order Phillips a bullet-proof vest, which arrived in March 1994. By this time, Morrell had lost the election, and Bowen'retained his office. The vest that Phillips received lacked a “carrier” allowing it to be worn outside of her shirt, so defendants ordered her to wear it under her shirt even though it did not fit comfortably under the uniform.

According to Phillips, for two weeks — until she could order and receive larger uniform shirts— defendants forced her to wear the vest under her shirt irrespective of the fact that she couldn’t fasten the center button of her shirt and had to appear in public in that way. At one time, defendants cited Phillips for not wearing her vest under her shirt. Plaintiff did not receive a carrier for her vest until two years later. In September 1993, Phillips’ supervisors directed her to make an unusual warrant arrest in which Phillips was to transfer a prisoner to Albany County for processing. Phillips made the arrest.

But when Phillips called her office twice for help in making necessary calls to Albany officials, Bowen indirectly and then directly refused to assist her and told Phillips “to do [her] goddamn job and stop calling and ... bothering the women [in his office].” Phillips ultimately had to release the prisoner. Also after the election, in December 1994, Phillips testified that she responded to a dispatcher’s call and a citizen who flagged her down to help subdue a man who was having an adverse reaction to medication. While she was at the scene, however, Woodcock ordered her to leave, which she did.

Afterwards, a sergeant told her for the first time that she was not supposed to “handle calls.” Phillips asked Bowen to explain what this new directive meant, and he first told her not to handle calls and then told her to “use [her] head” in deciding whether to respond to a call. In addition to these specific instances, Phillips testified that she endured additional retaliation. For example, she stated that other members of the department with whom she had been friendly before the 1993 election “shunned” her because they were afraid of Bowen’s potential retaliation.

As a result of this conduct, Phillips was cut off from social interaction with her peers. On another occasion in December 1994, defendants initially denied her overtime pay because she had not obtained prior approval, which they had not required previously. A short time later, in January 1995, Woodcock yelled at Phillips, calling her “insubordinate” and “stupid,” because she punched her time card at 2:02 instead of 2 p.m.

During this incident, which took place in front of Phillips’ coworkers, “he proceeded to demonstrate the workings of a clock, where the little hand had to be and the big hand had to be.” In January 1996, Woodcock and a lieutenant conducted a “counseling session” with Phillips during which they admonished her for, among other things, not using a radio to sign in and out of service even though she had told the lieutenant that the radio in the car to which defendants assigned her was broken and irreparable.

Phillips’ co-workers testified that they observed a change for the worse in the way the department administration treated Phillips and testified that the treatment took a toll on Phillips such that “she’s basically a different person.” Phillips herself said that defendants’ conduct made her feel like a fool and that she could not depend on Bowen to make decisions necessary for her to perform her job. Plaintiff testified that the pressure and stress she experienced even affected her ability to shoot and possibly pass firing range certifications, which were required for her to keep her job.

Phillips said that defendants’ conduct caused her stress so that she cried excessively, was sick to her stomach, had diarrhea, and avoided going to work.

Phillips’ boyfriend testified that plaintiff came home from work crying many nights, was ill in the bathroom two or three hours every night, found it difficult to handle the pressure of dealing with her work superiors, and “there’s a lot of things that we were doing before that we really can’t do now because a lot of times she doesn’t feel good, upset stomach and just nervous.” The jury ruled in favor of plaintiff on her retaliation claim and awarded damages of $400,000 by assessing $200,000 each against Bowen and Woodcock.

The district court denied defendants’ motions for judgment as a matter of law and a new trial, and defendants now appeal. We review de novo the district court’s decision regarding a motion for judgment as a matter of law, and we review the district court’s decision regarding a motion for a new trial for abuse of discretion. Song v. Ives Labs., Inc., 957 F.2d 1041, 1046-47 (2d Cir.1992). DISCUSSION I.

Retaliation Defendants principally argue that Phillips failed to prove a violation of her First Amendment rights as a matter of law because her complaints and allegations concern her subjective beliefs of mistreatment and trivial incidents not amounting to actionable retaliation or harassment. According to defendants, the treatment that Phillips experienced “can be deemed incidents that normally occur in a working environment.” We disagree.

Although defendants have attempted to minimize and isolate the experiences about which Phillips testified, the jury was entitled to conclude that Phillips adequately described a pattern of nearly constant harassment by her supervisors that took place over a period of several years. As is so often the case, the standard of review plays a critical role in our assessment of the record. As noted, we review de novo the district court’s decision regarding a motion for judgment as a matter of law, applying the same Fed.R.Civ.P. 50 standard as the district court below. Song, 957 F.2d at 1046.

Under that stringent standard, we do not weigh the credibility of witnesses or the evidence and grant judgment as a matter of law only where 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 ... [there is] such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Id. (quotation marks and citation omitted).

In order to prove her First Amendment retaliation claim, plaintiff must show that (1) her speech was constitutionally protected; (2) she suffered from an adverse employment action; and (3) her speech was a motivating factor in the adverse employment determination regarding her. See Morris v. Lindan, 196 F.3d 102, 110 (2d Cir.1999). Defendants only challenge the sufficiency of plaintiffs evidence on the second element of her claim and do not reach issues of protected speech or motive. “Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.” Id.

We also have held that lesser actions may meet the adversity threshold, but we have not explicitly defined what quantum of lesser actions constitutes an adverse employment action. Id; see also Bernheim v. Litt, 79 F.3d 318, 325 (2d Cir.1996). We are extremely mindful that a merely discourteous working environment does not rise to the level of First Amendment retaliation. However, we do not believe that is what took place in this case. Our precedent allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass.

See Bernheim, 79 F.3d at 324-25. Importantly, in this case the district court’s instruction to the jury would not permit a verdict in favor of plaintiff merely for minor incidents. The district court instructed the jury that: [t]o prove that harassment constitutes an adverse employment action, plaintiff must demonstrate that the actions allegedly taken by defendants created a working environment unreasonably inferior to what would be considered normal for that position.

A position may become unreasonably inferior if there are repeated and severe incidents of harassment that, taken as a whole, would probably deter an average person from the exercise of their First Amendment rights. This instruction borrows heavily from the First Circuit’s decision in Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218-19 (1st Cir.1989) (en banc). In that case, the First Circuit too recognized the need for plaintiffs to demonstrate a certain severity of harm so that minor incidents or changes in working conditions would not form the basis for a constitutional claim. Id. at 1217-20.

Defendants cite favorably the legal standard in Agosto-de Feliciano, and we find that the case is generally consistent with Second Circuit precedent. Thus, we hold that in order to prove a claim of First Amendment retaliation in a situation other than the classic examples of discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand, plaintiff must show that (1) using an objective standard; (2) the total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace.

Although this standard borrows some language from the First Circuit’s opinion in Agosto-de Feliciano, it merely clarifies the principles that we applied in Bemheim. Incidents that are relatively minor and infrequent will not meet the standard, but otherwise minor incidents that occur often and over a longer period of time may be actionable if they attain the critical mass of unreasonable inferiority. Based on our review of the trial transcript, we hold that Phillips presented sufficient evidence of harassment, adverse working conditions and retaliatory incidents to support the jury’s verdict.

While the incidents — such as defendants’ failure to provide her with an adequate bulletproof vest or proper instruction regarding transfer of a prisoner, or defendants’ humiliating instruction to plaintiff about use of a time clock — may seem minor when viewed in isolation, a finder of fact looking at them collectively over a period of several years reasonably could find that they rise to the level of actionable harm. The jury heard the evidence and assessed the witnesses in person and was in the best position to judge the severity of defendants’ conduct and the motives for their actions.

Indeed, although we have before us only the dry record, we believe that defendants’ animosity permeated plaintiffs work environment and their actions directly and adversely affected her daily working conditions in a substantial way. Because we find that adequate evidence supports the jury’s verdict and nothing in the record leads us to believe that the jury’s findings were the result of “sheer surmise and conjecture,” we affirm the district court. See Song, 957 F.2d at 1046 (citation omitted).

We do not engage in a detailed rebuttal of the dissent, but we note that its arguments rest on its view of the trial evidence rather than the jury’s. While conceding that we have applied the correct legal standard on review and that the district court correctly charged the jury, the dissent claims that the result in this case unduly extends the concept of First Amendment retaliation. This claim criticizes by implication the evidentiary inferences and credibility assessments that only the jury can make.

The dissent labels plaintiffs complaints as “trivial” and states that no “reasonable person” would have experienced the reactions that plaintiff did, but the dissent does not contest that the district court’s instructions demanded the jury to consider an “average person” and permitted a finding of liability only in the case of “repeated and severe incidents of harassment.” The dissent speculates about a compromise verdict and about the effect of evidence that even appellants do not contend was erroneously before the jury.

Finally, the dissent asserts that “[ajffirmance in this case leaves the parameters of a judicially created constitutional claim to the subjective judgment of shifting groups of citizens who are called to jury service.” Of course, leaving judgments of fact within the province of properly charged jurors is precisely the foundation of our legal system. In a related argument, on their motion for a new trial defendants challenge the district court’s instructions to the jury, which we review as whole to determine if they provide “a misleading impression or inadequate understanding of the law.” BAII Banking Corp. v.

UPG, Inc., 985 F.2d 685, 696 (2d Cir.1993) (quotation marks and citation omitted). Specifically, defendants contend that the district court improperly charged the jury that plaintiff had to prove her allegations by a preponderance of the evidence rather than by clear and convincing evidence. Defendants rely on Agosto-de Feliciano, which adopted the higher standard of proof regarding a detrimental change in plaintiffs working conditions but retained the preponderance standard on the issue of defendant’s discriminatory motive. See Agosto-de Feliciano, 889 F.2d at 1220.

Plaintiffs fail to cite any Second Circuit case law adopting a more stringent burden of proof in these circumstances. See Morris, 196 F.3d at 110 (citing preponderance standard). On this issue, we decline to follow the First Circuit, which believed that the higher burden of proof was “consistent with the First Amendment interest of the governmental employer” perhaps because the case dealt solely with the association clause of the First Amendment and political hires. Agosto-de Feliciano, 889 F.2d at 1214, 1220.

We believe that the standard we adopted above, coupled with an instruction such as the one that the district court gave here, adequately protects the employer’s own free speech or association interests. In another challenge to the district court’s instructions, defendants argue that Judge Kahn improperly described the substantive law because he failed to give the jury illustrations or examples of actionable conduct to guide its deliberations. Again, defendants rely on out-of-circuit precedent, but even that case cautioned that its hypothetieals were of limited use. Id. at 1218.

While the district court’s charge incorporated some of the First Circuit’s descriptive language, the instruction as a whole comported with our precedent. See Bernheim, 79 F.3d at 325-26. We therefore reject defendants’ challenges to the jury charge and find that no new trial was warranted. II. Evidentiary ruling Defendants contend next that a new trial is necessary because the district court abused its discretion in admitting the testimony of Sandra Gansevoort, who testified about sexual harassment she experienced while working at the Saratoga County sheriffs office.

Bowen and Woodcock claim that this testimony was irrelevant to plaintiffs retaliation claims and prejudiced the jury against them. “[W]e will not grant a new trial unless we find that the introduction of inadmissible evidence was a clear abuse of discretion and was so clearly prejudicial to the outcome of the trial that we are ‘convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.’ ” Luciano v. Olsten Corp., 110 F.3d 210, 217 (2d Cir.1997) (quoting Hygh v.

Jacobs, 961 F.2d 359, 365 (2d Cir.1992)). “We measure prejudice by assessing error in light of the record as a whole.” Id. Assuming arguendo that the district court improperly admitted Gansevoort’s testimony, any potential prejudice against defendants would have arisen in the context of Phillips’ sexual discrimination claim. However, the record taken as a whole, reveals that defendants did not suffer clear prejudice.

Indeed, the jury returned a split verdict — rejecting plaintiffs cause of action for sexual discrimination but accepting her retaliation claims— and accordingly displayed its ability to distinguish evidence. The district court’s evidentiary and post-verdict rulings do not provide grounds for a new trial. III. Damages Finally, defendants argue that the jury award of $400,000 was excessive because plaintiff failed to prove economic damages or physical injury and presented minimal evidence of emotional distress.

We review the district court’s refusal to reduce a jury award for abuse of discretion, but we cannot uphold an award that is so excessive that it shocks the judicial conscience. Raucci v. Town of Rotterdam, 902 F.2d 1050, 1058 (2d Cir.1990). The district court, after hearing all of the evidence at trial, declined to overturn the award. We see no abuse of discretion in that decision. Plaintiff submitted evidence of ongoing harassment by each defendant over a five-year period.

Phillips and her boyfriend testified in detail about her emotional distress, physical illness, and the effects of defendants’ conduct on her lifestyle and relationships. Phillips’ coworkers testified about the deterioration they observed in Phillips. Other less direct indicia of plaintiffs damages came from the defendants themselves, who una-pologetically described their treatment of plaintiff. Those hearing this evidence at trial and in the best position to evaluation witness credibility — the trial jury and Judge Kahn himself — each determined that $400,000 was a fair assessment of plaintiffs damages.

On this record the award was not excessive. CONCLUSION For the forgoing reasons, we affirm the judgment of the district court. . In support of their position, defendants improperly cite Garber v. New York City Police Dep’t, 159 F.3d 1346 (2d Cir.1998), a

summary order that parties may not cite as prece-dential authority. Defendants' citation to Diesel v. Town of Lewisboro, 232 F.3d 92, 109 (2d Cir.2000), also is incorrect because that case specifically did not concern an adverse employment action.