United States District Court, Eastern District of New York
January 2, 2003
JUSTINE HINE, PLAINTIFF,
NORMAN Y. MINETA, SECRETARY OF TRANSPORTATION, DEFENDANT.
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.
I. AS TO BACK PAY
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.
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
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
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
42 U.S.C. § 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 requires that the employee
make reasonable efforts to obtain suitable other employment. Hawkins v.
1115 Legal Serv. Care, 163 F.3d 684, 695 (2d Cir. 1998).
Here, the plaintiff failed to mitigate her damages. In late August
1995, the plaintiff who was then 28 years old, left her position with the
New York Center as an air traffic controller trainee, also known as an
air traffic controller developmental, and never returned. The plaintiff
is now 35 years of age. She never attempted to work again as an air
traffic controller trainee. The plaintiff moved from Long Island to Marco
Island, Florida in February 1999. She received worker compensation
payments until November 1999. After that, her only attempt to obtain
employment was a three month clerical position in a church. These facts
demonstrate that the plaintiff failed to use reasonable diligence in
finding suitable employment.
The plaintiff and her psychologist testified that she could not work
again as an air traffic controller because of the emotional distress she
suffered as a result of a post-traumatic stress disorder and the
symptoms arising from that ailment. The jury apparently totally rejected
this testimony when it awarded no past or future damages for emotional
distress. In this regard, the Court notes that the plaintiff's last
treating consultation was in 1999, some three years ago. Also, at no time
during her treatment was she given any medication for these alleged
serious emotional injuries. In its analysis of the back and front pay
damages, the Court also finds that the plaintiff failed to prove her
claims of past and future emotional distress, which would prevent her
The usual "mitigation" language is that the plaintiff must attempt to
secure "comparable" employment. In this case, there is no "comparable"
employment to that of an air traffic controller. These dedicated men and
women have the awesome obligation of keeping aircraft from diverging. New
York Center, where the plaintiff was training, controls the airspace for
a number of airports in the Northeast area. These extraordinary men and
women have to monitor a number of aircraft on their radar scopes, divided
into sectors involving different attitudes. Their radar scope sometimes
have as many as 8 or 9 close-flying aircraft. Their mission is to make
sure they do not come too close to each other on their paths to and from
the airports. It is an exacting job requiring nerves of steel and it is a
tension-filled occupation. There is no comparable position in the
Notwithstanding her training in this unique occupation, the plaintiff
had a duty to use reasonable diligence in finding other suitable
employment which need not be comparable to that of an air traffic
controller. Ford Motor Co., 458 U.S. at 231, 102 S.Ct. at 3065 ("This
duty . . . requires the claimant to use reasonable diligence in finding
other suitable employment."). When the Court charged the jury as to
mitigation, it used the word "suitable" employment rather than
"comparable" employment. See Dailey v. Societe Generale, 108 F.3d 451,
455 (2d Cir. 1997) for similar language. See also Simmons v. Dean Witter
Reynolds, Inc., No. 96-3873, 1999 WL 825663, at *4 (S.D.N.Y. Oct. 15,
1999) ("A discharged employee must use reasonable diligence in finding
other suitable employment which need not be comparable to
their previous positions.") (citation omitted).
In this case, the defendant clearly established that the plaintiff made
no viable attempt to find any kind of employment for more than seven
years. There was no evidence that, other than the three month church
clerical job in November 2001, she ever sought another job. A reasonable
jury could have found that the plaintiff was physically and emotionally
able to find other suitable employment; that she totally failed to
attempt to mitigate her back pay damages in any manner; and that she was
content to remain at home with her four young children, having received
the sum of $310,000 from the government. As a fact finder, the Court
would make the same determination and award no back pay.
II. AS TO FRONT PAY
In a Title VII case, front pay is an equitable remedy. Robinson, 267
F.3d at 160. It is only awarded in the sound discretion of the court.
Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1182 (2d Cir. 1996). When
reinstatement is inappropriate, front pay "represents compensation for
future losses that the plaintiff would not suffer but for the
discriminatory acts of the defendant." Rivera v. Baccarat, Inc.,
34 F. Supp.2d 870, 877 (S.D.N.Y. 1999). Front pay serves to make a
discharged employee whole where she has "no reasonable prospect of
finding comparable alternative employment." Padilla v. Metro-North
Commuter Railroad, 92 F.3d 117, 126 (2d Cir. 1996) (citation omitted).
As in back pay situations, a plaintiff seeking front pay has the duty
to exercise reasonable diligence in mitigating damages by seeking
alternative employment. Reed, 95 F.3d at 1182; Dunlop-McCuller v. Riese
Org., 980 F.2d 153, 159 (2d Cir. 1992), cert. denied, 510 U.S. 908, 114
S.Ct. 290 (1993). Because there is no comparable position to a civilian
air traffic controller, the Court charged the jury that the plaintiff had
a duty to seek "suitable" other employment. See also Reed, 95 F.3d at
1182 ("[A] plaintiff has the duty to exercise reasonable diligence in
mitigating damages by seeking alternative employment."). Here, it is
undisputed that the plaintiff sought neither alternative nor suitable
other employment. She claims that she was unable to seek other employment
because of her alleged emotional injuries sustained at the New York
Center. The jury rejected this claim. The Court agrees and finds a total
failure to mitigate in any manner.
In addition, and even of greater significance in this case, front pay
should not be awarded where the calculation method is unduly
speculative. Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d
Cir. 1996); Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., No.
00-5207, 2002 WL 1059117, at *10 (S.D.N.Y. May 28, 2002) ("Front pay
should not, however, be awarded where the calculation method is too
speculative."); Rivera, 34 F. Supp.2d at 878 ("[U]nder no circumstances
can the award be based on undue speculation"). The Court finds that it
would be unduly speculative to award front pay in this case. First, the
plaintiff was an air traffic controller trainee when she left her
employment. It can be argued with reasonable certainty that a trainee in
her position would eventually qualify as an air traffic controller, full
performance. However, the plaintiff may have been years away from
achieving that goal. The evidence showed that trainees often took five
years to qualify and that not all succeeded.
Second, there was evidence at the trial that the plaintiff occasionally
experienced emotional problems on the job; these problems, a dangerous
symptom for this
type of job, were sometimes unrelated to the hostile
work environment. Although some of these emotional problems were
evidently caused by the hostile work environment, there was evidence that
she was prone to nervous reactions to certain potentially tense
situations on the job. Third, even assuming that the plaintiff achieved
full developmental ATC status, the length of her service would be purely
conjectural. The plaintiff presented no evidence on the average work
expectancy of an air traffic controller. Nor was there any testimony how
long she expected to work in this profession. We do know that she never
attempted to obtain any meaningful work for many years during a period in
which the jury found that she was not suffering from a serious emotional
Furthermore, the government was not required to show suitable
employment existed because the plaintiff failed to seek other
employment. See Greenway v. The Buffalo Hilton Hotel, 143 F.3d 47, 54 (2d
Cir. 1998) (stating that "an employer should not be saddled by a
requirement that it show other suitable employment in fact existed-the
threat being that if it does not, the employee will be found to have
mitigated his damages-when the employee, who is capable of finding
replacement work, failed to pursue employment at all."); Quinn-Nolan v.
Schulte, Roth & Zabel, No. 00-7936, 2002 WL1758920, at *5 (S.D.N.Y.
2002) ("[I]n instances such as here, where plaintiff failed to make any
efforts to seek comparable employment, the employer is released from the
duty to establish the availability of comparable employment.") (internal
quotation marks and citation omitted); Shannon v. Fireman's Fund Ins.
Co., 136 F. Supp.2d 225, 228 (S.D.N.Y. 2001) ("If the defendant can show
that the plaintiff failed to make a reasonable effort to seek comparable
employment, the defendant is relieved of the burden to prove that
suitable work existed.").
For the reasons stated above, the plaintiff's request for front pay
damages is denied.
By this decision, the Court supplements its oral decisions made after
the jury verdict. The advisory jury verdict denying back pay damages is
affirmed. In addition, the Court finds that the plaintiff failed to
prove, by a preponderance of the credible evidence, that front pay should
be awarded and her request for such future loss of earnings, is denied.