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May 2, 1994

MELINDA C. FRANK, Plaintiff,
HOWARD R. RELIN, Individually and in his official capacity as the Monroe County District Attorney, Defendant.

The opinion of the court was delivered by: DAVID G. LARIMER


 Plaintiff, Melinda C. Frank, commenced this action pursuant to 42 U.S.C. § 1983 against her former employer, Howard R. Relin, Monroe County District Attorney. Plaintiff alleged that she was terminated from her position as Victim Witness Coordinator in retaliation for exercising her First Amendment right to speak on matters of public concern. The matter was tried to a jury and the jury determined that plaintiff's speech was a substantial or motivating factor in defendant's decision to terminate her. The jury awarded back pay in the sum of $ 142,170.00.

 In light of the jury verdict, there are several remaining issues that must be decided by the Court. These issues include:

 (1) Whether, in light of the jury's factual determination, Relin is entitled to qualified immunity in his individual capacity;

 (2) Whether plaintiff is entitled to an award of prejudgment interest on the back pay award made by the jury; and,

 (3) Whether the Court should order plaintiff reinstated to her former position or, in lieu thereof, enter an award of front pay.


 I. Qualified Immunity

 "The affirmative defense of qualified immunity shields government officials performing discretionary functions from liability for civil damages 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Bieluch v. Sullivan, 999 F.2d 666, 670 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 219, 114 S. Ct. 926 (1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). See also Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); P.C. v. McLaughlin, 913 F.2d 1033, 1039 (2d Cir. 1990); Dube v. State Univ. of N.Y., 900 F.2d 587, 586 (2d Cir. 1990), cert. denied, 111 S. Ct. 2814 (1991).

 "The threshold issue is whether the relevant law was clearly established at the time the alleged violation occurred." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991) (citing Harlow, 457 U.S. at 818). See also Ying Jing Gan v. City of N.Y., 996 F.2d 522, 531 (2d Cir. 1993). The Second Circuit has already determined that plaintiff's First Amendment right to speak on matters of public concern was clearly established prior to 1985, the year that plaintiff was terminated. Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir. 1993), cert. denied, 126 L. Ed. 2d 569, 114 S. Ct. 604 (1994).

 The remaining issue is whether it was objectively reasonable for defendant to believe that his acts did not violate plaintiff's rights. Kaminsky, 929 F.2d at 925; Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990); Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). The Second Circuit, in Frank, stated that defendant's reasons for terminating plaintiff affected the qualified immunity defense. Frank, 1 F.3d at 1329. By its verdict, the jury determined that a motivating factor in defendant's decision to terminate Frank was her protected speech.

 In light of this factual determination, I find that it was not objectively reasonable for defendant, the Monroe County District Attorney and an attorney, to believe that his termination of plaintiff did not violate her First Amendment rights. Therefore, defendant is not entitled to the defense of qualified immunity as to the claim against him in his individual capacity.

 II. Prejudgment Interest

 Plaintiff claims that she is entitled to compounded, prejudgment interest on the sums awarded by the jury as back pay. Although recognizing that prejudgment awards are often made in employment discrimination cases, defendant contends that no award should be made in this case.

 Defendant's challenge to an entry of prejudgment interest is quite narrow. Defendant contends that because the issue of back pay was submitted to the jury, plaintiff should have also submitted the matter of prejudgment interest to the jury. Having failed to request prejudgment interest from the jury, defendant contends that plaintiff has waived any claim for prejudgment interest from the Court.

 Federal statutes that provide remedies for discrimination and other matters often do not specifically address whether or not prejudgment interest should be awarded to a prevailing plaintiff. Nevertheless, the Supreme Court and other federal courts recognize that under certain conditions prejudgment interest may be awarded in favor of a prevailing plaintiff. Loeffler v. Frank, 486 U.S. 549, 557-58, 100 L. Ed. 2d 549, 108 S. Ct. 1965 (1988); Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 145 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994); Clarke v. Frank, 960 F.2d 1146, 1153-54 (2d Cir. 1992).

 The Second Circuit has repeatedly acknowledged a district court's discretion to award prejudgment interest. Mendez v. Teachers Ins. & Annuity Ass'n & College Retirement Equities Fund, 982 F.2d 783, 790 (2d Cir. 1992); Rolf v. Blyth, Eastman Dillon & Co., 637 F.2d 77, 86 (2d Cir. 1980).

 The Second Circuit has also recognized that prejudgment interest is appropriate on an award of back pay entered by the court in an action commenced under 42 U.S.C. § 1983. Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993).

 Interest on back pay awards for those who have been terminated because of discrimination are routine. Although Title VII does not specifically provide for prejudgment interest, the Supreme Court and the Second Circuit have recognized that that statute authorizes the granting of prejudgment interest on a back pay award. See Loeffler, 486 U.S. at 557-58; Saulpaugh, 4 F.3d at 145. In fact, it is ordinarily an abuse of discretion not to include prejudgment interest in a back pay award. Saulpaugh, 4 F.3d at 145 (citing, Clarke, 960 F.2d at 1146). Of course, until recently, all Title VII cases were tried to the Court.

 Although there is older Second Circuit authority to the contrary, *fn1" as well as contrary First Circuit authority, *fn2" I believe the recent Second Circuit case of Wickham Contracting Co. v. Local Union No. 3, Int'l Bhd. of Electrical Workers, 955 F.2d 831 (2d Cir.), cert. denied, 121 L. Ed. 2d 302, 113 S. Ct. 394 (1992), and a recent district court case decided in this Circuit, provide ample authority for the Court to award prejudgment interest after the jury has determined the back pay award.

 In Wickham Contracting, the Second Circuit discussed at length the circumstances under which prejudgment interest was appropriate. Damages were awarded by the jury under § 303(b) of the Labor Management Relations Act. The matter concerning prejudgment interest was not submitted to the jury but the district court, after return of the jury verdict, nonetheless awarded an amount of prejudgment interest which was affirmed in a lengthy decision by the Second Circuit. The Second Circuit held that "it was not an abuse of discretion for the district court to determine that prejudgment interest was necessary to compensate [the plaintiff] fairly under the circumstances . . ." 955 F.2d at 837.

 Therefore, Wickham Contracting acknowledged that an award of prejudgment interest was within the sound discretion of the district court judge in the absence of a statutory directive and irrespective of whether the case was tried before a jury. See also Bingham v. Zolt, 810 F. Supp. 100, 101 (S.D.N.Y. 1993) (district court judge considering an award of prejudgment interest on a jury award under the Racketeer Influenced and Corrupt Organizations Act).

 Judge William M. Skretny, a member of this Court, squarely faced this same issue concerning prejudgment interest in a case decided after Wickham Contracting. In River Oaks Marine, Inc. v. Town of Grand Island, 1992 WL 373533 (W.D.N.Y. Nov. 24, 1992), Judge Skretny awarded prejudgment interest on a jury award in a civil rights action brought pursuant to 42 U.S.C. § 1983. In an exhaustive and carefully crafted decision, Judge Skretny discussed the issue now before the Court. I find his reasoning persuasive.

 First of all, I agree that prior Second Circuit law, has effectively been superseded and overruled by the recent Wickham Contracting case. In spite of the earlier Second Circuit authority, and some First Circuit authority to the contrary, I agree with Judge Skretny that the proper course is "to follow the weight of the Second Circuit decisions which favor such an award as in the discretion of the district court and awardable by a district court judge." River Oaks Marine, 1992 WL 373533, *5 Judge Skretny cites several cases in various contexts where district courts have award prejudgment interest after a jury verdict. Id. Those courts were not deterred from entering an award of prejudgment interest simply because the jury had initially determined issues of liability and compensatory damages.

 Therefore, the fact that plaintiff did not request prejudgment interest from the jury, does not preclude me from exercising my discretion to award prejudgment interest. Among the factors to consider when determining if there should be an award of prejudgment interest are: "(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) ...

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