and promotions earned as a result. Included in that calculus would be the jury's evaluation of the credibility of the witnesses. That finding in turn would support a jury conclusion that but for such retaliatory hostility, plaintiff would have been picked for the job that went to Norma Cavanaugh.
In September 1981, after plaintiff filed this action, Franklin W. Henley, a supervisor within Texaco Europe sent to Ambler a memorandum suggesting that plaintiff could no longer be trusted with sensitive information in view of the disloyalty to Texaco shown by her lawsuit. (PX 120) Although Ambler apparently disputed the conclusion that plaintiff should thenceforth be treated as a security risk (Tr. 785,927), he did not caution Henley against retaliation or otherwise discourage Henley from expressing the views espoused in his memorandum. (Tr. 786-88)
There was ample evidence from which the jury could have found that the Henley memorandum was simply the written manifestation of a view that pervaded Texaco after plaintiff filed her lawsuit, apart from whatever damage, if any, the memorandum itself may have caused. Thus, Matthews testified that when he approached one of plaintiff's former supervisors for help in finding her a position, he was told "no, there is nothing he could do." (Tr. 432)
James Knights, a retired Texaco employee, testified that Henley raised the issue of her lawsuit in 1981 and 1983, and questioned her suitability for sensitive work because of the lawsuit. (Tr. 400-01) He testified that in 1985 he called William Chukas of Texaco's Middle East/Far East Group in an effort to find a job for plaintiff, and was told initially that Chukas would review plaintiff's file. Thereafter, Chukas told Knights that in view of the lawsuit he would not consider plaintiff for a position within his group and advised Knights as follows: "a word to the wise, I wouldn't get your nose in Ms. Malarkey's problems." (Tr. 405) Although that incident followed by two years the retaliation the jury found with respect to the Eleonore Coronel position, it could have been taken by the jury to show the generality and intensity of the feeling within Texaco with respect to plaintiff and her lawsuit. That evidence was echoed in the testimony of other witnesses outside Texaco Europe, where plaintiff had worked. Ralph Mandia testified that he had heard "scuttlebutt" about plaintiff's "problem" and "complaints" in the early or mid-1980's. (Tr. 562-63) It was echoed as well in plaintiff's own testimony to the effect that she was told on more than one occasion that her lawsuit was impeding her career at Texaco. (Tr. 122-23, 955) The people alleged to have made those statements denied doing so (Tr. 914, 935, 985), but it was the jury's prerogative to believe plaintiff.
Plaintiff's qualifications were at least comparable to those of Eleonore Coronel, if not superior. In July 1983 Coronel was a grade 10 secretary who had been with Texaco for 10 years and had a college degree; plaintiff was a grade 11 secretary who had been with the company for about 20 years, although she did not have a college degree. (PX 257A)
Peter Bijur, the supervisor who hired Eleonore Coronel to be his secretary in July 1983, denied any recollection of plaintiff or knowledge of her lawsuit at the time he made his decision, and testified that plaintiff was not even among those considered for the job. (Tr. 691-98) Although mere disbelief of testimony by a fact finder is not enough to support an inference that the opposite is true, Moore v. Chesapeake & Ohio Railway, 340 U.S. 573, 576, 95 L. Ed. 547, 71 S. Ct. 428 (1951), there was a good deal more than disbelief to support the jury's finding that Bijur retaliated, if the jury so found. Alternatively, as discussed above, there was also ample evidence from which the jury could infer that pervasive and purposeful retaliation kept plaintiff from being considered for the job, and that had she been considered she would have gotten it. Moreover, the evidence of persistent animus against plaintiff and her continued inability to find work within Texaco, with no evidence that anyone in authority intervened in her behalf, supports the conclusion that Texaco acted willfully.
Defendant argues that the Sixth Circuit's opinion in Cesaro v. Lakeville Community School Dist., 953 F.2d 252 (6th Cir. 1992) and this court's opinion in Sorlucco v. New York City Police Dep't., 780 F. Supp. 202 (S.D.N.Y. 1992) support a contrary result. They do not. The Cesaro court reversed a finding of Title VII liability because, unlike this case, the findings of the lower court established conclusively that the discrimination, if any, occurred before the process that resulted in the selection of another candidate and at a time when it was still possible for plaintiff to be selected by the final decision maker, a board that had no connection to or knowledge of the discriminatory decision. Cesaro, 953 F.2d at 255. In Sorlucco, the court found that there was no evidence to support the inference that those who decided to discharge plaintiff were aware that she had accused a male police officer of assaulting her. Sorlucco, 780 F. Supp. at 209. Both of those cases differ markedly from the case at hand, where there was evidence to support a finding of widespread antagonism against plaintiff within Texaco that admittedly had reached one decision maker and likely had reached another.
Defendant insists also that the damage award was without basis. First, defendant requested no greater specificity as to damages than was provided in the verdict form, and should not be heard at this point to complain that it is difficult to see how the jury reached its damage computation. See United States v. Maniktala, 934 F.2d 25, 29-30 (2d Cir. 1991) (failure to object to charge waives alleged defect, absent plain error). Second, defense counsel will recall that the jury's last note before it announced that a verdict had been reached included a request for a calculator, which was provided; this jury did not simply pluck a number from the air. Finally, plaintiff's counsel has provided a perfectly cogent hypothesis supporting the jury's award, based on a comparison of plaintiff's salary and Norma Cavanaugh's as disclosed by Plaintiff's Exhibit 257A, with appropriate percentages added for thrift plan contributions and pension benefits. (Plaintiff's Mem. in Opposition to Defendant's Motion for Judgment, pp. 15-18) That is enough to sustain the result here. See Wickham Contracting Co. v. Local Union No. 3, IBEW, 955 F.2d 831, 840 (2d Cir. 1992) (sustaining jury verdict based on plausible calculation not explicit in jury verdict).
On this record, I cannot say that a verdict in defendant's favor as to the two positions in question is the only result a reasonable and fair minded fact finder could have reached, or that the paucity of evidence to support either the verdict as to liability or the damage award compels the conclusion that the jury relied on mere surmise and conjecture in reaching it. Those findings would be necessary in order to grant defendant's motion. Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 103 L. Ed. 2d 230, 109 S. Ct. 1095 (1989). Accordingly, defendant's motion for judgment must be denied.
Defendant may be correct when it argues that prejudgment interest is not compulsory in a case such as this where the statute is silent on the subject, EEOC v. County of Erie, 751 F.2d 79, 81 (2d Cir. 1984), but it is at least within this court's discretion to award such interest if that is necessary to fulfill the mandate of a statute intended to make plaintiff whole for the wrong she suffered. Geller v. Markham, 635 F.2d 1027, 1036 (2d Cir. 1980), cert. denied, 451 U.S. 945, 68 L. Ed. 2d 332, 101 S. Ct. 2028 (1981). Indeed, the Second Circuit has reminded us recently that "'it is ordinarily an abuse of discretion not to include prejudgment interest in a back-pay award. . . .'" Clarke v. Frank, 960 F.2d 1146 (2d Cir. 1992) (quoting Donovan v. Sovereign Security, Ltd., 726 F.2d 55, 58 (2d Cir. 1984) (emphasis in Clarke). The award of prejudgment interest generally is governed by a four-part test recently articulated by the Second Circuit as follows:
(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court.