The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge
MEMORANDUM OF DECISION AND ORDER
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).
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
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
(Tr at 2487-2488, 2491, 2493-2494).*fn1