United States District Court, Southern District of New York
January 29, 1991
FRANCES DANNA, PLAINTIFF
NEW YORK TELEPHONE COMPANY, DEFENDANT.
The opinion of the court was delivered by: Motley, District Judge.
Plaintiff submits application for award of backpay, equitable
relief in the form of reinstatement, prejudgment interest
pursuant to this court's Findings of Fact and Conclusions of
Law, dated November 17, 1990,*fn1 holding defendant New York
Telephone liable for sex discrimination, in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et.
seq., in its demotion of Danna and for sexual harassment in
forcing Plaintiff to work in a hostile environment. Familiarity
with the facts of this case are assumed.
Today, the court awards Plaintiff a judgment of $58,499.00 in
backpay and $18,472.00 in prejudgment interest for a total
award of $76,971.00. Plaintiff is also awarded reinstatement to
the position of Service Technician. 42 U.S.C. § 2000e-5(g).
Application for attorneys fees and costs shall be submitted by
February 28, 1991. See 42 U.S.C. § 2000e-5(k). The court's
calculation of damages was determined as follows.
Plaintiff and Defendant agree on the amounts earned by Fran
Danna in the period following her discriminatory demotion from
November 10, 1986 through the present. However, they disagree
as to which average salaries Danna's "interim" earnings should
be offset. See 42 U.S.C. § 2000e-5(g) ("Interim earnings . . .
by the person . . . discriminated against shall operate to
reduce the back pay otherwise allowable.")
At the time of the discriminatory treatment in this case,
Plaintiff Danna was employed at New York Telephone as a Service
Technician in the Special Services Department at JFK Airport.
The JFK facility employed Service Technicians in two
capacities: Repair and Installation. The training in the two
respective units was the same. See Opinion, Finding of Fact #
83. In fact, because of the similarities of skills, Service
Technicians could be easily moved from one unit to the other
depending upon need. This could be accomplished because Repair
and Installment were part of the same Department, Special
Services. See Opinion, Finding of Fact # 15. One chief
difference between the two positions is that Repair technicians
worked far more overtime, and therefore earned larger salaries,
than Installation technicians.
Plaintiff submits, and this court agrees, that the
computation of Danna's damages should be based upon the average
salary of all Service Technicians at JFK Airport during
the applicable period, those in Repair and in Installation.
Defendant objects and argues that damages should be based upon
the average salary of Service Technicians in the Installation
unit only. Plaintiff argues that since Danna was known to seek
out overtime work and worked on average more overtime hours
than other technicians, she should have the benefit of damages
calculated based on these overtime salaries. See Tr. 350. This
court agrees. Since the positions were generally
interchangeable, and the record showed that Danna sought out
overtime work, it is reasonable for the court, in its
discretionary capacity, to determine damages based on the
broader array of salaries. See Pettway v. American Cast Iron
Pipe Co., 494 F.2d 211 (5th Cir.), reh. and reh. en banc denied
(1974) (to ascertain damages "unrealistic exactitude is not
required" and "uncertainties" regarding employee damages may be
"resolved against the discriminating employer." Id. at
260-61.). The record showed that Danna had been moved (loaned)
to different units in the company when a need arose, as they
sometimes did. Management had the discretion to do this. See
Opinion, Finding of Fact # 95.
The following graph illustrates, as numbered, 1) the average
salary for Service Technicians employed in Special Services at
JFK Airport; 2) Danna's actual salary during the periods; and
3) the difference between 1) and 2), which totals Danna's
1986*fn2 1987 1988 1989 1990
--------- ---- ---- ---- ----
1) 7,036 50,440 53,677 36,483 57,163
2) 4,497 34,008 39,950 27,419 40,426
------ ------ ------ ------ ------
3) 2,539 16,432 13,727 9,064 16,737
The cumulative backpay award totals $58,499.00. Prejudgment
interest is added and compounded yearly for a total damage
award of $76,971.00.*fn3
Prejudgment interest can be granted at the discretion of the
trial judge. E.E.O.C. v. Wooster Brush Co, Employees Relief
Ass'n, 727 F.2d 566 (6th Cir. 1984) (approving prejudgment
interest at the adjusted prime rate in Title VII suit); see
also E.E.O.C. v. County of Erie, 751 F.2d 79, 82 (2d Cir. 1984)
(prime lending rate is appropriate to assess prejudgment
interest in suit under the FLSA and Equal Pay Act). "[E]xpress
statutory provision for the award of prejudgment interest is
unnecessary." 751 F.2d at 81 (citing Rodgers v. United States,
332 U.S. 371, 373, 68 S.Ct. 5, 7, 92 L.Ed. 3 (1947)). The
purpose of awarding prejudgment interest is to make the
Plaintiff whole. E.E.O.C. v. County of Erie, 751 F.2d at 80.
"Prejudgment interest serves at least two purposes: (1) it
helps compensate plaintiffs for the true cost of money damages
they have incurred, and (2) where liability and the amount of
damages are fairly certain, it promotes settlement and deters
an attempt to benefit unfairly from the inherent delays of
litigation." General Facilities, Inc. v. National Marine
Service, 664 F.2d 672, 674 (8th Cir. 1981) (court upheld
prejudgment interest rate of 15.75%, average prime lending
rate, as reasonable and no abuse of discretion). This court
holds that prejudgment
interest is warranted to make Plaintiff whole and that backpay
is "reasonably capable of being ascertained." See Behlar v.
Smith, 719 F.2d 950, 954 (8th Cir. 1983). This court further
finds the federal short-term rates to be reasonable.
Plaintiff asserts she is due an additional sum based upon an
"historical multiplier." This multiplier adjusts the damages to
be received by Plaintiff to the historical amount by which her
salary typically surpassed the salaries of her co-workers; that
is, she alleges that her award should be increased by yet
another factor because she typically worked significant amounts
of overtime. She accomplishes this by dividing her 1985 salary
by the average Service Technician salary in 1985 thus creating
a "multiplier" which she then multiplies by the total damage
award (after adjusting it for prejudgment interest). This court
is unconvinced. Plaintiff cites no case law which supports such
an award and this court sees no rationale which would justify
it. Therefore, Defendant must pay Plaintiff a damage award
totalling $76,971.00. Any petition which Plaintiff's counsel
wishes to submit for attorneys fees and costs will be received
by this court no later than February 28, 1991. There will be a
hearing on the matter of attorneys fees on March 15, 1991 at
11:00 A.M. in Courtroom 906.