is a large organization with many managers, and offices in all five boroughs of New York City; as will be seen, there is ample possibility of employment without animosity. Further, Ms. Zerilli's reliance upon Padilla v. Metro-North Commuter R.R., 92 F.3d 117 (2d Cir. 1996) is misplaced. There, front pay was awarded because the plaintiff "had no reasonable prospect of obtaining comparable alternate employment." Id. at 126 (quotation omitted).
Assuming that promotion is an appropriate remedy, the parties do not agree as to what position Ms. Zerilli should be awarded. Ms. Zerilli argues that there are only two appropriate positions: 1) Director of Administrative Support and Analytic Services or 2) Manager of Surface Transit Business Planning. I disagree.
The Director position has been eliminated, and the Manager position is currently filled. Awarding Ms. Zerilli the latter position will require "bumping" its current occupant, a person who is innocent of any wrongdoing as regards Ms. Zerilli, an act which is highly disfavored. See, e.g., Hicks v. Dothan City Bd. of Ed., 814 F. Supp. 1044, 1050 (M.D. Ala. 1993); Daines v. City of Mankato, 754 F. Supp. 681, 703 (D. Minn. 1990).
Fortunately, bumping need not be considered here because the TA has offered Ms. Zerilli promotion to a position, Manager, Analytical Support in the Department of Buses, which I find to be an appropriate position for her. This is a newly created position which, the TA has confirmed, has recently been fully funded. The position is suitable for Ms. Zerilli's skills, requiring three years of supervisory or managerial experience and an undergraduate degree or its equivalent. The job will entail the supervision of staff analysts, assistance with the TA's budget process and representation of the Department at certain meetings. There will be one such Manager in each borough, and Managers will report to the Assistant General Manager of Strategic Planning in the borough in which they work. There has been no showing that in this position Ms. Zerilli will be supervised by any of the individuals who directly subjected her to discrimination or retaliation. Transcript of April 1, 1997 Hearing at 35-38, 51-53. Based on these representations of the TA regarding the position, I find that Ms. Zerilli should be promoted to Manager, Analytical Support in the Department of Buses at the earliest practicable date. Until the date that the TA places Ms. Zerilli in this managerial position, it is ordered that she be awarded front pay in an amount equal to the difference between her current salary and the salary she will receive in her new position, see, e.g., King v. Staley, 849 F.2d 1143 (8th Cir. 1988), a salary that the TA has acknowledged will not be less than the salary for the position of Manager, Surface Transit Business Planning, which she is being awarded here as backpay.
III. Injunctive Relief.
It was established at trial that Ms. Zerilli was subjected not only to the retaliatory performance evaluation of April 1993, but also to negative written commentary by individuals who were found to have engaged in retaliatory and discriminatory conduct toward her. I therefore order that Ms. Zerilli's personnel file be purged of the April 1993 evaluation and of any evaluations, comments or notes made by George Governale, Fred Herman or Carmine Corebello, or references to same. This should preclude "further retaliatory conduct by preventing any reliance on discriminatory evaluations and records." McIntosh v. Irving Trust Co., 873 F. Supp. at 880.
The parties are directed to settle a form of judgment within 15 days of the date of this Memorandum and Order. The judgment must incorporate both the jury's award of compensatory damages and the equitable relief awarded here. Ms. Zerilli is awarded her costs. The bill of costs should be directed to the Clerk of the Court within 30 days after the entry of the judgment. See Local Civil Rule 54.1.
United States District Judge
Dated: May 30, 1997
Brooklyn, New York.