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January 2, 2003


The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge


This case involves claims of gender discrimination-hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964. This decision is issued to supplement the oral decisions of the Court following the jury verdict rendered on December 20, 2002. After a three week trial, the jury found in favor of the plaintiff on her Title VII gender discrimination-hostile work environment-supervisors cause of action. However, the jury found in favor of the defendant on the remaining two Title VII causes of action. As to damages, the jury awarded "zero" damages for: (1) emotional distress to the present date; (2) emotional distress in the future; and (3) net back wages. For the plaintiff's net loss of benefits from October 15, 1995 to the present date, the jury awarded her the sum of $58,625.86.


A court determines the issue of back pay under Title VII because it is an equitable remedy. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001) ("[T]he employee is entitled to individualized equitable relief, which may include back pay and front pay."); Vernon v. Port Authority of New York and New Jersey, 220 F. Supp. 223, 234 (S.D.N.Y. 2002); Townsend v. Exch. Ins. Co., 196 F. Supp.2d 300, 306-07 (W.D.N.Y. 2002).

In this case, the Court allowed the issue of back pay to be decided in the first instance by the jury pursuant to Rule 39 of the Federal Rules of Civil Procedure, as an advisory verdict. See Fed.R.Civ.P. 39(c) ("In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury. . . ."). See, e.g., Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 595-96 (2d Cir. 2001) ("Although the parties had agreed that the determination of damages would be made by the trial judge following a jury trial on liability, the jury was asked to give an advisory verdict with respect to damages.").

Although an advisory verdict is not binding on the trial court, its purpose is "to enlighten the conscience of the Court." Skoldberg v. Villani, 601 F. Supp. 981, 982 (S.D.N.Y. 1985). However, it is wholly within the discretion of the trial court whether to accept or reject in whole or in part the verdict of the advisory jury. 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2335 (2d ed. 1995). When utilizing an advisory jury, a court must specifically find facts and state its conclusions of law separately. See Fed.R.Civ.P. 52(A). In that regard, a court may make its findings of fact and conclusions of law "orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court." Id.

Here, the jury found in favor of the plaintiff on one of her Title VII causes of action but declined to award any damages for back pay. In motions after the verdict, the Court affirmatively adopted that advisory verdict and determined in its discretion that no back pay should be awarded. In denying an award for back pay, the Court stated:

A reasonable jury could find that the government was more than good to her by paying her $310,000, after she voluntarily left the employ of the government part, in Worker's Compensation and part in back pay, pay for what, I don't know why they were paying her, but they paid her.
So, a reasonable jury could find all these things. A reasonable jury made a proper verdict in my opinion.
They found that she shouldn't be entitled to back pay. They might have found mitigation, that she for seven years didn't work and raised four children. So why pay her, they may have found. It was her choice to stay home they could have found.
THE COURT: Even if it's advisory, I'm going to accept it as the verdict. Your motion is denied.
THE COURT: Okay. If I had to make a finding of fact, and I do make a finding of fact that I would not have awarded back pay. Mrs. Hine was given $310,000 by the United States Government. Mrs. Hine did not look for work for seven years. I would not have awarded-if I were the trier of facts, I would not have awarded any back pay. And again, I would not award any front pay for the same reason. It was totally speculative as to front pay.

(Tr at 2487-2488, 2491, 2493-2494).*fn1

Consistent with these rulings, the Court now formally confirms the jury's finding and denies any recovery for back pay. It is well-settled that a plaintiff in a Title VII case must attempt to mitigate her damages by using "reasonable diligence in finding other suitable employment." Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231, 102 S.Ct. 3057, 3065 (1982); see 42 U.S.C. ยง 2000e-5(g)(1) ("Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable."). The burden to mitigate is not onerous, and only ...

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