OPINION AND ORDER
Plaintiff Leonard Vernon ("Vernon") commenced this action
against his former employer, The Port Authority of New York and
New Jersey ("Port Authority"), alleging violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq
(2001) ("Title VII") and the Age Discrimination in Employment
Act of 1967 ("ADEA"), 29 U.S.C. § 623(a), (d) (2001) ("ADEA").
Following a trial on the merits and a finding in favor of
Vernon, Vernon's attorney submitted an application for
attorney's fees and an economic report detailing both an award
of back pay and an award of front pay owed to Vernon. The
Court will address these submissions in seriatim.
On May 24, 2002 the jury returned a verdict in favor of
Vernon. See Trial Transcript, Vernon v. Port Authority of New
York and New Jersey ("Tr."), at 1222-25. With regard to the
first instance of alleged discrimination, the downgrade of
Vernon's Performance Planning and Review ("PPR") in January
1995, the jury found that the Port Authority discriminated
against Vernon on the basis of national origin, thus violating
Title VII, but that age was not a motivating factor in the Port
Authority's decision to downgrade Vernon's PPR ratings, and
therefore there was no ADEA violation on this ground. See id.
at 1223. The jury did find, however, that the Port Authority's
motivation to downgrade Vernon's PPR ratings was founded in
retaliation for Vernon filing a complaint with the Port
Authority's Office of Equal Opportunity. See id. This
retaliatory action violated both Title VII and the ADEA.
In addition, with regard to the issue of "Failure to Promote"
in March of 1995, the jury found that the Port Authority
violated Title VII by discriminating against Vernon on account
of his race and national origin, but that there was no ADEA
violation because age was not a motivating factor for its
decision. See id. The jury did find that retaliation was a
motivating factor in the Port Authority's decision not to
promote Vernon, and thus violated both Title VII and the ADEA.
See id. at 1223-24. Further, the jury awarded Vernon $1.5
million in compensatory damages and found that he was entitled
to back pay. See id. at 1224-25.*fn1
On June 21, 2002 Vernon submitted to the Court an application
for attorney's fees and an economic report regarding back pay
and front pay that is owed to Vernon. See Analysis of Economic
Loss of Leonard A. Vernon prepared by Leonard R. Freifelder,
Ph.D. ("Economic Report"). Vernon seeks $78,250 in compensation
for the work of his attorney, Thomas F. Bello, Esq. on this
matter. See Letter dated June 21, 2002, written by Thomas F.
Bello, Esq. to Judge Leisure ("Letter of June 21"). In response,
the Port Authority has submitted its economic report regarding
back pay and front pay owed to Vernon and its opposition to the
award of attorney's fees.
I. Attorney's Fees
A. Applicable Law
An attorney for a prevailing plaintiff is eligible to seek
attorney's fees and costs under both Title VII and the ADEA.
See 42 U.S.C. § 2000e-5(k); Lightfoot v. Union Carbide
Corp., 110 F.3d 898, 913 (2d Cir. 1997) (citing Hagelthorn v.
Kennecott Corp., 710 F.2d 76, 86 (2d Cir. 1983)); Bridges v.
Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996) (McLaughlin,
J.). Plaintiffs are entitled to recover taxable costs, pursuant
to 28 U.S.C. § 1920, and all expenses normally charged to the
client. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763
(2d Cir. 1998). However, costs do not include overhead or items
normally incorporated within the attorney's fee. See id.
Attorney's fees are determined using the "lodestar" method,
which is calculated by multiplying the number of hours spent on
the litigation by a reasonable hourly rate. See Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983). The attorney, in his application for fees,
should submit a record of the hours worked, such that the Court
can verify the amount of fees requested. See id. If such
records are inadequate the Court may reduce the award
accordingly. See id. Moreover, the Court has a great deal of
discretion in determining attorney's fees. Thus, if it feels the
hours charged are superfluous or unreasonable, it may deduct
these hours from the lodestar calculation. See Luciano v.
Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997) (deducting hours
from the lodestar calculation because found to be excessive).
In determining the fees to be charged, the Court should use a
rate that is reasonable for the district in which it sits. See
Polk v. New York State Dep't of Corr. Servs., 722 F.2d 23, 25
(2d Cir. 1983). Moreover, the rate should be compatible with
rates of attorneys of "comparable skill, experience, and
reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104
S.Ct. 1541, 79 L.Ed.2d 891 (1984). In addition, submissions
should be made in accordance with Rule 54(d)(2)(B), which
requires that a motion for attorney's fees be filed no later
than 14 days after entry of judgment, unless otherwise provided
by statute or order of the court. See Fed.R.Civ.P.
The fee may be adjusted upward or downward depending on the
circumstances of the case. The Court may adjust the fee upward
if the case presents a novel or difficult question, or if the
skill required to present the case is of a great magnitude. See
Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (citing Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir.
1974)). The Supreme Court has noted, however, that only in rare
situations are these factors not accounted for in both the
billable hours spent on the case and the hourly fee that is
charged, and therefore an adjustment often amounts to a double
counting of these factors. See Blum, 465 U.S. at 898, 104
Likewise, the Court may adjust the fee downward. For example,
in suits comprised of multiple claims, the attorney may only
charge for hours spent on meritorious claims, and therefore the
fee can be adjusted accordingly. See Reed v. A.W. Lawrence &
Co., Inc., 95 F.3d 1170, 1183 (2d Cir. 1996). Downward
adjustment should not occur, however, when the claims are
"inextricably intertwined" and "involve a common core of facts
or [are] based on related legal theories." Id. (quoting
Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1259 (2d
1. Hours Worked
The law is clear that while an attorney does not have to
account for every minute of his time, the records should be
accurate enough for a court to make a genuine determination of
the actual hours spent on the litigation. See Hensley, 461
U.S. at 437 n. 12, 103 S.Ct. 1933. After reviewing the record
summary submitted herein, it is apparent that there is a great
deal of discrepancy between the actual hours reported by Mr.
Bello and the hours he charged his client. This may be a result
of unclear time charts or simple miscalculations. In either
case, Mr. Bello has failed to comply adequately with the
applicable case authorities, and submit time sheets that allow
the Court to make an accurate determination of the time spent on
specific matters. See Stratton v. Department for Aging for City
of New York, No. 91 Civ. 6623, 1996 WL 352909, at *4 (S.D.N.Y.
June 25, 1996) (citing Hensley, 461 U.S. at 433, 103 S.Ct.
1933) (holding that detailed records of all hours billed must be
submitted to the court). The Port Authority has specifically
challenged the hours Mr. Bello has submitted in conjunction with
the depositions and trial
preparation, See Letter Submitted by The Port Authority of Now
York and New Jersey, dated July 19, 2002 ("Port Authority
Letter"), at 4.*fn2
Chart of Hours Worked Presented By Thomas Bello
Matter Who/Hours Reported Billable Time
Depositions Bello/9.83 Hours 37 Hours
Associate/12.5 Hours 15 Hours
Trial Prep. Unspecified/104.5 Hours 124 Hours
Mr. Bello actually reports 9.83 hours for depositions. The
Port Authority, however, has consented to the fact that Mr.
Bello spent 25.6 hours. The Court finds 9.83 hours to be
extremely low and likely a mistake in reporting; therefore
pursuant to the Port Authority's stipulation, the hours charged
for depositions will be noted as 25.6 hours. The hours charged
for Mr. Bello's associate's work on depositions and for Mr.
Bello's trial preparation will be 12.5 hours and 104.5 hours,
2. Hourly Rates
Mr. Bello invoiced his client at a rate of $200 per hour.
See Invoices Billed to Leonard Vernon by Thomas Bello,
submitted to this Court on July 8, 2002. A rate of $200 per hour
is well within the reasonable range for an attorney with Mr.
Bello's experience. See Marisol A. v. Giuliani, 111 F. Supp.2d 381,
386-87 (S.D.N.Y. 2000) (holding that $375 was a reasonable
amount for a lead attorney and $350 was a reasonable amount for
an attorney with 15 years experience or more); Ward v. New York
City Transit Auth., No. 97 Civ. 8550, 1999 WL 446025, at *10
(S.D.N.Y. June 28, 1999) (holding that $300 was a reasonable
rate in a civil rights action). Surprisingly, however, in his
submission to this Court, Mr. Bello requests that an hourly rate
of $250 be used in the lodestar calculation. Though $260 per
hour also would be a reasonable rate, Mr. Bello only charged his
client a rate of $200 per hour, and the Court finds that it
would be inappropriate for an attorney to seek from an adversary
a greater sum than what would have been charged to his client.
Cf. Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. 1933
(holding that hours charged to one's adversary must not exceed
what would have been charged to the client). Accordingly, the
$200 hourly rate will be used to determine attorney's fees,
because that is the rate at which Mr. Bello invoiced his client.
Within the context of these considerations, the Court finds
that the rate of $175 that Mr. Bello charges for his associate's
work is relatively high. See Lawson ex rel. Torres v. City of
New York, No. 99 Civ. 10393, 2000 WL 1617014, at *4 (S.D.N.Y.
Oct. 27, 2000) (awarding a rate of $135 per hour, after
determining that the rate for associates in the Southern
District of New York is $105-$180). Other courts in the Southern
District have awarded $125-$150 for associates depending on
their experience level. See Ward, 1999 WL 446025, at *10;
Williams v. New York City Hous. Auth., 975 F. Supp. 317, 323
(S.D.N.Y. 1997). Accordingly, the associate's billable rate is
reduced to $150 per hour. In addition, Mr. Bello has charged $75
per hour for paralegal work. Courts in the Southern District
have determined that the rate of $75 per hour for a paralegal is
reasonable, and therefore the Court need not adjust the
submission. See, e.g., Marisol A., 111 F. Supp.2d at 388.
3. The Lodestar Calculation
Chart of Time to Hours Used in the Lodestar Calculation
Matter Who/Hours Rate
Depositions Bello/25.6 $200
Trial Prep. Bello/104.5 Hours $200
Letters Bello/15.5 $200
CMR (Paralegal)/4.25 $75
Phone Conversations Bello/11 Hours $200
CMR/.25 Hours $75
Work Prod./Services Rendered Bello/34.25 $200
Conferences Bello/10.5 $200
Meetings w. Client Bello/3.5 $200
In accordance with the above figures, the lodestar calculation
renders attorney's fees in the grand total of $43,632.50.
In addition to his submission for attorney's fees, Mr. Bello
seeks "an additional enhancement pursuant to the Federal Rules
in the sum of twenty-five percent of the total legal services."
Letter of June 21.*fn4 After careful consideration of this
case, the Court finds that neither an upward adjustment nor a
downward adjustment seems appropriate. As the Supreme Court
noted in Blum, the difficulty of the issue and the skill
required to undertake such a case is likely already incorporated
into the billable hours and billable rate set forth by Mr.
Bello.*fn5 See 465 U.S. at 898, 104 S.Ct. 1541. Further,
the instant situation cannot be categorized as one of the rare
exceptions to the foregoing rule. See id. In addition, a
downward adjustment because Vernon did not succeed on all of his
claims does not seem in order. Like most employment
discrimination cases, this case was brought on several different
grounds seemingly "inextricably intertwined" with each other.
Reed, 95 F.3d at 1183 (quoting Dominic v. Consolidated
Edison Co., 822 F.2d 1249, 1269 (2d Cir. 1987)). Therefore, no
downward adjustment shall be made.
In addition to the previously discussed fees, Mr. Bello
submits a list of costs. The list includes parking fees, subway
fees, copying fees, fees for court transcripts, postage, fees
for the court reporters, service fees, additional paralegal
cost, and fees for picking up a transcript. See Letter of June
21 and exhibits attached thereto. Each of these items
constitutes a compensable cost. However, the inclusion of a
"preparation for next day-restaurant charge" of $36.80 is not
compensable because this cost could have been avoided by simply
preparing at the office. See In re Towers Fin. Corp.
Noteholders Litig., No. 93 Civ. 0810, 1997 WL 5904, at *1 n. 2
(S.D.N.Y. Jan. 8, 1997) (holding that including a restaurant
charge as a cost was excessive); Bulkmatic Transport Co., Inc.
v. Pappas, No. 99 Civ. 12070, 2002 WL 975625, at *3 (S.D.N.Y.
May 9, 2002) (holding that reimbursement for a restaurant charge
created a windfall because meals are everyday expenditures).
Further, Mr. Bello includes a charge of $43.13 for "Avery legal
dividers" which fall under either the category of overhead costs
or supplies, neither of which is compensable. See
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998)
(holding ordinary overhead is not recoverable); see also
Meacham v. Knolls Atomic Power Lab., 185 F. Supp.2d 193, 243
(N.D.N.Y. Feb. 13, 2002) (holding cost of supplies, such as
exhibit tabs and binders, is not recoverable). Accordingly, Mr.
Bello is awarded all the costs he has submitted, with the
exception of the $36.80 for dinner and the $43.15 for the legal
dividers. The total for costs is $2,261.38.
II. Compensatory Damage Award
The jury awarded $1.5 million in compensatory damages to
Vernon for the Port Authority's aforementioned violations. The
Second Circuit has held that compensatory damages are not
available under the ADEA. See, e.g., Johnson v. Al Tech
Specialties Steel Corp., 731 F.2d 143, 147 (2d Cir. 1984)
(affirming district court's dismissal of compensatory damages
under ADEA because "affording victims of discrimination the
opportunity to obtain such relief would deter them from fully
participating in the ADEA's administrative conciliation
scheme."); Grandison v. United States Postal Serv.,
696 F. Supp. 891, 896 (S.D.N.Y. 1988) (holding that compensatory
damages are unavailable under the ADEA). Therefore, because the
ADEA does not allow for compensatory damages, the entire award
must be attributed to the violations arising under Title VII.
The Port Authority correctly identifies the statutory limit
placed on compensatory and punitive damages awards under Title
VII.*fn6 See Port Authority Letter at 4. The compensatory
damage limits are tied to the number of employees that are
employed by the defendant.*fn7 The
Port Authority employs over 500 people and therefore is subject
to the maximum penalty under the guidelines set forth by
42 U.S.C. § 1981a. Thus, pursuant to this statutory directive, the
$1.5 million compensatory damage award must be adjusted downward
to meet the $300,000 maximum. See Muller v. Costello,
187 F.3d 298, 30607 (2d Cir. 1999) (capping a compensatory damage award
of $420,300 at $300,000); Shapiro v. AOE/Ricoh, Inc., No. 96
Civ. 2058, 1997 WL 107641, at *1 (S.D.N.Y. Mar. 11, 1997)
(capping a $3 million award at $300,000).
Vernon asserts a convoluted argument to support his theory
that the statutory cap is not applicable to the instant action.
See Affirmation of Thomas F. Bello Esq., dated August 2, 2002
("Bello Aff."), at 2. Relying on a Ninth Circuit decision,
Vernon argues that awards issued under 42 U.S.C. § 1981 are not
subject to the statutory cap and that "Section 1981a does not
force a plaintiff to choose between Title VII and Section 1981
remedies." Id. (citing Pavon v. Swift Trans. Co.,
192 F.3d 902, 910 (9th Cir. 1999)). The Court does not disagree with
either assertion, but finds the two arguments are inapposite to
this case because Vernon failed to include in his complaint a
cause of action under 42 U.S.C. § 1981. It is unclear whether
Vernon is attempting to analogize Title VII claims and Section
1981 claims because the standards for relief are identical. See
Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct.
2363, 105 L.Ed.2d 132 (1989). It is well established, however,
that the claims are "separate, distinct, and independent."
Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct.
1011, 39 L.Ed.2d 147 (1974). Thus, in order to be granted relief
under Section 1981, and possibly to avoid the statutory cap set
forth for Title VII claims, a plaintiff must allege
discrimination under Section 1981 in his complaint. Because
plaintiff failed to allege discrimination under Section 1981 in
his complaint, the entire award resulted from violations arising
under Title VII, and therefore the award is subject to the
statutory caps set forth by 42 U.S.C. § 1981a.*fn8
Accordingly, the Port Authority must pay Vernon $300,000 in
III. Additional Monies Owed to Vernon
The Court has reviewed both parties' submissions regarding
back pay and front pay and finds that although there is a large
discrepancy in the results of the two reports, the plaintiffs
economic report is more compelling.*fn9 This is due in large
part because of the woefully inadequate submission prepared by
the Port Authority and the continued failure to communicate
between both parties.*fn10 The memorandum and supporting
affidavit and exhibits included with the Port Authority's
response neither aided the Court in its determination of back
pay, nor explained adequately the Port Authority's
contentions.*fn11 The plaintiffs economic report relies on
several documents, including tax returns, social security
statements, and questionnaires submitted to the Port Authority.
Moreover, the economic report is both detailed and clear as to
the monies Vernon is owed by the Port Authority.
A. Back Pay
1. Applicable Law
A plaintiff successful in a suit arising under either Title
VII or the ADEA is generally entitled to an award of back pay.
See Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 695 (2d
Cir. 1998) (holding back pay may be awarded under Title VII);
Kirsch v. Fleet St., Ltd., 148 F.3d 149, 167 (2d Cir. 1998)
(holding back pay is an available remedy under the ADEA). An
award of back pay does not fall into the category of
compensatory damages, and therefore is not subject to the
statutory cap that Title VII imposes. See Zimmermann v.
Associates First Capital Corp., 251 F.3d 376, 380 (2d Cir.
2001) (Newman, J.) (affirming an award in excess of the
statutory cap because a portion was comprised of back pay);
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160
(2d Cir. 2001) (holding that plaintiffs are entitled to seek
equitable relief in the form of back pay in addition to
compensatory damages). The Second Circuit has determined that
under the ADEA back pay is a form of liquidated damages and is
therefore an issue of fact to be decided by the jury, see
Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1257-58 (2d
Cir. 1987), while under Title VII back pay is considered to be
an equitable award determined by the judge. See Robinson, 267
F.3d at 160. The plaintiff is entitled to such payments accruing
between the time of the violation and the entry of judgment.
See Kirsch, 148 F.3d at 167. Because the actual entry of
judgment may be uncertain, the Court may need to update the
award of back pay by a pro rata increase of the award. See
Banks v. Travelers Cos., 180 F.3d 358, 364 (2d Cir. 1999).
There are, however, exceptions to the general rule that back
pay is awarded after a violation of Title VII or the ADEA. An
employee discharged under
Title VII or the ADEA must take reasonable measures to mitigate
their losses. See Hawkins, 163 F.3d at 695. Plaintiffs are
thus required to seek out and accept other suitable employment.
See id. Another exception may occur if an employer chooses to
submit after-acquired evidence of wrong-doing on the plaintiffs
part to reduce the damages. See McKennon v. Nashville Banner
Pub. Co., 513 U.S. 352, 362-63, 115 S.Ct. 879, 130 L.Ed.2d 852
(1995). This evidence will reduce the damages only if the
employer can show that the plaintiff would have been fired "on
those grounds alone if the employer had known of it at the time
of discharge." Id.
The jury in this case indicated that Vernon is entitled to
back pay, however, because the jury did not find a violation of
the ADEA, and moreover, due to a stipulation by the parties, the
Court will determine the precise amount of the back pay rather
than the jury. In the instant action two different instances of
discrimination and retaliation occurred: the first took place in
January 1995 when Vernon's PPR was downgraded, and the second
occurred in March 1995 when the Port Authority declined to
promote Vernon to a B-95 position. Back pay should be calculated
according to the failure to promote in March 1995 because this
violation directly affected Vernon's salary. See Greenbaum v.
Handelsbanken, 67 F. Supp.2d 228, 270 (S.D.N.Y. 1999) (holding
that the back pay period should reflect what the person would
have earned if not for the discrimination); cf. Banks, 180
F.3d at 364 (holding back pay is an award that should commence
at the time of discharge from employment). Vernon's economist
correctly used this date as a starting point for the
calculations. See Economic Report at 2. Vernon's economist has
calculated the back pay period as ending on June 30, 2002. See
id. at 3. Therefore, the Court has adjusted the back pay award
to incorporate the time between June 30, 2002, and the date of
Vernon's award is not further reduced or eliminated due to the
exceptions described previously. Vernon remained an employee of
the Port Authority, and therefore successfully mitigated the
damages. Because Vernon's request for back pay incorporates the
principal of mitigation by calculating his award as the
difference between his current salary and the salary he would
have earned had he been promoted, the damages he seeks do not
need to be reduced any further. Moreover, the Port Authority
provides no evidence of any wrong-doing by Vernon, thus the
award shall not be reduced on this ground.
B. Prejudgment Interest
1. Applicable Law
It is well settled that it is within this Court's discretion
to award prejudgment interest on plaintiffs back pay damages.
See Endico Potatoes, Inc. v. CIT Group/Factoring, Inc.,
67 F.3d 1063, 1071-72 (2d Cir. 1995) ("The decision whether to
grant prejudgment interest and the rate used if such interest is
granted are matters confided to the district court's broad
discretion, and will not be overturned on appeal absent an abuse
of that discretion.") (internal quotations omitted). Such an
award is necessary to make the plaintiff whole. Indeed, the
Supreme Court has noted that prejudgment interest on back pay
awards "of course, is an `element of complete compensation.'"
Loeffler v. Frank, 486 U.S. 549, 558, 108 S.Ct. 1965, 100
L.Ed.2d 549 (1988) (quoting West Virginia v. United States,
479 U.S. 305, 310, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987)).
Moreover, prejudgment interest serves the purpose of
discouraging an employer from attempting to "enjoy an
interest-free loan for as long as [it can] delay paying out
back wages," Clarke v, Frank, 960 F.2d 1146, 1153-54 (2d Cir.
The rate at which the prejudgment interest is calculated is
within the Court's discretion, see Endico Potatoes, 67 F.3d at
1071, however, courts traditionally have used the treasury rate,
which "adequately ensures that the plaintiff is sufficiently,
but not overly, compensated." McIntosh v. Irving Trust Co.,
873 F. Supp. 872, 883 (S.D.N.Y. 1995).
Vernon's economist calculated the prejudgment interest using
the rates of high-grade municipal bonds maturing in 2005 and
high-grade municipal bonds maturing in 7-12 years, with rates of
4.0% and 5.0% respectively. See Economic Report at 7-8. These
rates seem fair in light of the fact that the average treasury
rate between 1995 and 2001 was 5.45%. See U.S. Census Bureau,
Statistical Abstract of the United States: 2001, No. 1195,
"Bond Yields: 1980 to 2000" (121st ed. 2001). Thus, it appears
that Vernon's economist's calculations of prejudgment interest
are reasonable. Accordingly, the Court holds that the Port
Authority owes Vernon $117,550 in back pay.
C. Front Pay
1. Applicable Law
Front pay is an equitable remedy, available but not mandatory,
under Title VII and the ADEA. See Robinson, 267 F.3d at 160
(holding that front pay is a remedy under Title VII);
Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727 (2d Cir.
1984) (holding that front pay is a remedy under the ADEA). It is
within the court's discretion to award front pay, reinstate the
plaintiffs employment, or do nothing at all in regard to future
employment. See Banks, 180 F.3d at 364 (holding that
reinstatement may not be an option due to animosity between the
parties or availability of positions). Courts are encouraged to
fashion a remedy that "ensure[s] the victims of age
discrimination are made whole." Whittlesey, 742 F.2d at 727.
The Second Circuit has held that front pay should be awarded in
situations where it is unlikely that the plaintiff will be able
to find a reasonably comparable employment in the future. See
Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125-26 (2d
Cir. 1996). Although a monetary determination is certain to be
speculative in nature, the Second Circuit repeatedly has upheld
awards of front pay, when reinstatement is not an option. See,
e.g., Whittlesey, 742 F.2d at 728 (holding front pay was
available to a plaintiff who only had four years to retirement
because the time period was short and therefore did not lead to
a great deal of speculation). Further, in calculating front pay
the amount should be discounted to its present value. See Tyler
v. Bethlehem Steel Corp., 958 F.2d 1176, 1189 (2d Cir. 1992).
Lastly, front pay, like back pay, is not an element of
compensatory damages, and therefore does not count toward Title
VII's statutory cap. See Pollard v. E.I. du Pont de Nemours &
Co., 532 U.S. 843, 848, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001).
The Port Authority argues that front pay is to be determined
by the jury and that it is likely included within the
compensatory damage award. See Port Authority Letter at 3-4.
However, front pay is a remedy to be granted by the court, see
Whittlesey, 742 F.2d at 727, and is distinct from an award of
compensatory damages. See Pollard, 532 U.S. at 848, 121 S.Ct.
1946. Vernon is unlikely to be granted the B-95 position he was
denied, particularly due to the animosity between the parties.
See Banks, 180 F.3d at 364. Therefore, it seems prudent to the
Court that Vernon should receive front pay in the
difference between Vernon's current salary and the salary he
would have earned had he been promoted. Because Vernon is only a
few years from the age of retirement the award is not overly
speculative. Moreover, the calculations set forth by Vernon's
economist have been discounted to their present value and
therefore are an accurate measure of what Vernon is owed. Vernon
is also seeking pension benefits that he would have accumulated
due to his higher salary. This is also necessary to make Vernon
"whole." See Sharkey v. Lasmo (AUL Ltd.)., 214 F.3d 371, 375
(2d Cir. 2000). "If [plaintiff] [is] denied compensation for
lost pension benefits, he [has not been] made whole, and thus
[has] not receive[d] the proper measure of relief under the
anti-discrimination laws." Id. Thus, Vernon is entitled to the
pension credits as set forth by his economist. Accordingly, the
Port Authority owes Vernon $118,540.*fn12
Therefore, based upon the foregoing reasoning, it is hereby
ORDERED that Vernon shall be awarded the aforementioned damages
and the Clerk of the Court is directed to enter judgment for the
plaintiff accordingly: (1) attorney's fees of $43,632.50 and
costs of $2,261.38; (2) compensatory damages of $300,000; (3)
back pay including prejudgment interest in the sum of $117,550;
and (4) front pay in the sum of $118,540.