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VERNON v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

United States District Court, Southern District of New York


March 25, 2003

LEONARD VERNON, PLAINTIFF, AGAINST THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANT.

The opinion of the court was delivered by: J. Leisure, United States District Judge

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, 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 adjusted the $1.5 million compensatory damage award downward to $300,000, and awarded the plaintiff: (1) attorney's fees of $43,632.50 and costs of $2,261.38; (2) back pay including prejudgment interest in the sum of $117,550; and (3) front pay in the sum of $118,540. See Vernon v. The Port Authority of New York and New Jersey, 220 F. Supp.2d 223 (S.D.N.Y. 2002) (Leisure, J.). Port Authority then brought a motion for a new trial under Fed.R.Civ.P. 59, or in the alternative, for remittitur of the amounts awarded for front pay and back pay. Along with his opposition to this motion, Vernon brought a cross-motion for modification of the judgment seeking: (1) doubling the back pay judgment entered by the Court by applying the liquidated damages recoverable under the ADEA; (2) reinstating the remainder of the jury verdict for non-Title VII claims, to wit: intentional infliction of emotional distress. The Court will address these issues in seriatim.

Background

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 Port Authority discriminated against Vernon on the basis of national origin, thus violating Title VII, but that age was not a motivating factor in 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 Port Authority's motivation to downgrade Vernon's PPR ratings was founded in retaliation for Vernon filing a complaint with 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 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 Port Authority's decision not to promote Vernon, and thus violated both Title VII and the ADEA. See id. at 1223-24. The jury awarded Vernon $1.5 million in compensatory damages and found that he was entitled to back pay.*fn1 See id. at 1224-25.

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. ("Freifelder Report"). In response, Port Authority submitted its economic report regarding back pay and front pay owed to Vernon and its opposition to the award of attorney's fees. In response to Vernon's application for attorney's fees and costs, the Court awarded the plaintiff attorneys' fees of $43,632.50 and costs of $2,261.38. See Vernon, 220 F. Supp.2d at 230-32. In light of the fact that compensatory damages are not available under the ADEA, see, e.g., Johnson v. Al Tech Specialities Steel Corp., 731 F.2d 143, 147 (2d Cir. 1984), the Court found that the entire award of $1.5 million must be attributed to the violations arising under Title VII. See Vernon, 220 F. Supp.2d at 232. Therefore, pursuant to the statutory limit on compensatory and punitive damage awards under Title VII,*fn2 the Court adjusted the $1.5 million compensatory damage award downward to meet the $300,000 maximum. Id. The Court reviewed both parties' submissions regarding back pay and front pay and found the plaintiff's economic report to be more compelling.*fn3 Relying upon Freifelder's calculation of the difference between Vernon's current salary and his assessment of the salary Vernon would have earned had he been promoted, the Court ordered Port Authority to pay Vernon $117,550 in back pay.*fn4 In addition, the Court awarded Vernon front pay, discounted to its present value, in the amount of the difference between Vernon's current salary and the salary he would be earning and would continue to earn in the future had he received the promotion in 1995, as well as the pension benefits that Vernon would have accumulated due to this higher salary. Relying on Freifelder's calculations, the Court awarded Vernon $118,540 in front pay, finding that such an award was necessary to make Vernon "whole." See Vernon, 220 F. Supp.2d at 236 (citing Sharkey v. Lasmo (AUL Ltd.)., 214 F.3d 371, 375 (2d Cir. 2000)).

Discussion

I. Motion for New Trial, or in the Alternative, Remittitur

Port Authority argues that the Court should direct a new trial on the issue of back pay and front pay, or in the alternative, deny the motion for a new trial on the condition that Vernon accept the remittitur of the back pay and front pay awards. See Defendant's Memorandum of Law In Support of Defendant's Motion for New Trial or Remittitur ("Def. Mem.") at 2. The Court should not grant a Rule 59(a) motion for a new trial unless the Court is convinced that "the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice." Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987). "While the Court need not necessarily weigh the evidence in the light most favorable to the non-moving party, disagreement with the verdict alone is insufficient to justify ordering a new trial." Muller v. Coletello, 997 F. Supp. 299, 302 (N.D.N.Y. 1998) (citing Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983)). In the case at bar, Port Authority is only moving for a new trial on the issue of the amount of back and front pay awarded by the Court, the determination of which the parties stipulated would be made by the judge and not the jury.*fn5 the parties were aware that the Court would be making the determination regarding the amount of back pay and front pay based on the parties' submissions see Tr. at 1039-40, the determination of the amount of these awards is not an appropriate one for the granting of a new trial.

It is however, an appropriate issue for remittitur, as the Court made the determination of the back pay and front pay awards based on imprecise calculations and insufficient information provided in the parties' original submissions, which led the Court to award more than the amount to which the plaintiff was entitled. In fact, it is incumbent upon the Court to condition its denial of the motion for a new trial on such remittitur since the award of back pay and front pay damages are intended to restore the victims of unlawful discrimination to the "position where they would have been were it not for the unlawful discrimination," not to place those victims in a better position than they would have been. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (quoting 118 Cong. Rec. 7168 (1972) (remarks of Sen. Williams regarding the goal of Title VII in compensating victims of discrimination)). The Court has authority to enter a conditional order of remittitur "`where the Court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken.'" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (Kearse, J.) (quoting Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 337 (2d Cir. 1993)). In Kirsch, the Second Circuit held that the District Court did not abuse its discretion in ordering remittitur of the back pay damages awarded by the jury on the grounds that jury erred in its calculations of back pay and awarded the plaintiff more than the amount that the plaintiff would have earned absent the discrimination. Id., Holmes v. West Palm Beach Housing Auth., 309 F.3d 752, 758 (11th Cir. 2002) (holding that the district court did not abuse its discretion in reducing the damage award returned by a jury, and declining to offer the appellant the option of a new trial in lieu of accepting remittitur, because the "lost back-pay/benefits from the denial of promotion" were "quantifiable," and it was apparent that certain identifiable sums included in the verdict should not have been there). While these cases upheld the Court's authority to order remittitur of damages awarded by a jury based on errors in the jurors' calculations, in the present case, the Court is merely being asked to reduce the damage award previously determined by the Court. Furthermore, the Court is ordering remittitur based on information provided by Port Authority, supplementing its prior deficient submission, which allows the Court to determine effectively the amount of money that will make Vernon "`whole,'" by restoring him "`so far as possible . . . to a position where [he] would have been were it not for the unlawful discrimination.'" Albemarle Paper Co., 422 U.S. at 421.

In response to the Court's prodding that Port Authority would be "well advised to support its arguments more comprehensively" in any post-judgment motion it might bring pertaining to the determination of the back pay award,*fn6 Port Authority has now fulfilled this obligation and provided the Court, in its submissions in support of the present motion, with the information regarding Port Authority's practices and procedures in awarding promotional and merit increases necessary for the Court to determine what Vernon would have earned absent the discrimination. See id. It is only with an accurate assessment of that amount that the Court can determine the appropriate amount of back pay (i.e. the difference between Vernon's actual compensation and what Vernon would have earned absent the discrimination). In its submissions, Port Authority not only draws attention to several mistakes and inaccuracies with the figures used in the Freifelder Report, both for the assessment of Vernon's actual earnings as well as Vernon's estimated earnings had he been promoted, but Port Authority also submits that the Freifelder Report did not take into consideration any information regarding Port Authority's procedures and policies for awarding promotional and merit increases in determining what Vernon would have earned had he been promoted.*fn7

The Court made the back and front pay award determinations based on the assumption that the calculations in the Freifelder report relied, in some part, on information obtained from Port Authority, and that those calculations accurately reflected the difference between Vernon's actual earnings and what Vernon would have earned had he been promoted. Port Authority's submissions pertaining to inaccuracies in those calculations and including Port Authority's policies and procedures for awarding promotional and merit increases, which were not incorporated into Freifelder's calculation of what Vernon would have earned, undermine that assumption and consequently, warrant an adjustment of the awards previously determined by this Court, in order to prevent the Court from awarding Vernon a windfall with respect to back pay and front pay.

II. Back Pay

A successful plaintiff in a suit arising under either Title VII or the ADEA is generally entitled to an award of back pay consisting of the recovery of lost wages and benefits between the time of the discrimination and the entry of judgment for the plaintiff. See Kirsh 148 F.3d at 167 (2d Cir. 1998) (holding that back pay in the amount that the plaintiff would have earned absent the discrimination is an available remedy under the ADEA); Hawkins v. 1115 Legal Servs. Care, 163 F.3d 684, 695 (2d Cir. 1998) (holding that back pay may be awarded under Title VII). Because Vernon remained an employee of the Port Authority after his failure to be promoted in 1995, he successfully mitigated the damages. See Hawkins, 163 F.3d at 695 (holding that an employee discharged under Title VII or the ADEA must take reasonable measures to mitigate their losses). Therefore, in order to incorporate the principal of mitigation into the determination of Vernon's back pay award, the Court must calculate the difference between his current salary and the salary Vernon would have earned had he been promoted. The Court adopted the Freifelder report's estimation of this difference in arriving at the back pay award on the assumption that the Freifelder report accurately calculated this difference.

However, Port Authority identifies several flaws in the Freifelder report's back pay calculations, the first of which is the method used by Freifelder in comparing Vernon's actual salary to Vernon's estimated salary had he been promoted in 1995 ("estimated salary"). In determining the difference between Vernon's actual salary and his estimated salary, Freifelder does not use Vernon's actual salary in 1995, but rather uses Vernon's actual net earnings, thereby incorporating whatever deductions Vernon voluntarily took from his gross salary, such as deferred compensation or healthcare benefits, so that Vernon appears to have earned much less than he actually earned in 1995 ($61,370 as opposed to $70,616).*fn8 Compare Freifelder Report at 11, with Mr. Leonard Vernon Jr., Job and Salary History, Actual and Proposed, attached as Ex. L to Def. Not. ("Ex. L") This is problematic because, in determining what Vernon should have been paid in 1995 had he been promoted, the Freifelder Report uses Port Authority's gross salary figures and makes no adjustment for voluntary deductions. What results from this comparison of two divergent figures is a much larger difference in the income that Vernon would have earned had he been promoted and the income that Vernon actually earned, and accordingly, a much larger figure of the back pay due Vernon. Therefore, the comparison of Vernon's actual net earnings to his estimated gross salary is not the appropriate one for determining the amount of back pay due Vernon. Instead, the comparison should be made between Vernon's actual gross salary, including any monetary fringe benefits (i.e. any lump sum distributions in lieu of wages, money received from selling unused vacation days back to Port Authority, etc.), and his estimated gross salary had he been promoted. Port Authority includes a comparison of the gross salary figures in its current submission. See Estimated Loss of Earnings Assuming Promotion to Principal Engineer in March 1995, attached as Exhibit K to Def. Not. ("Ex. K"); Ex. L.

Port Authority also argues that Freifelder's calculations are flawed because, in determining what Vernon's salary would have been had he been promoted, Freifelder fails to incorporate any of the promotional or merit increase policies in place at Port Authority from 1995 to 2001. In order to calculate what salary Vernon would have earned from 1995 to 2002 had he received the promotion to the B-95 position of Principal Engineer in 1995 ("B-95 position"), Freifelder adopted the 2002 top-of-grade salary for a Principal Engineer and reduced that figure by 1.21%, which is the percentage difference between Vernon's current salary as a Senior Engineer and the top-of-grade salary for his current position. See Freifelder Report at 6. In order to obtain estimates of what Vernon would have earned from 1995 to 2001 as a Principal Engineer, Freifelder worked backwards and reduced that figure by 3.79% per year. Id. Port Authority asserts that this approach is fundamentally flawed because it ignores the promotional increase policies in place at Port Authority in 1995, which controlled the promotional increases of all managerial level employees, including Vernon. See First Mont Aff. ¶ 5. Furthermore, simply adjusting the 2002 Principal Engineer's salary downward by 3.79% per year does not incorporate the merit increases to which Vernon would have been entitled, and which are dictated by Port Authority's policies in place for each given year. Id. ¶ 8. Port Authority has submitted its records documenting the merit increase and promotional increase policies in place from 1995 to 2001. See Exhibits A-J, attached to Def. Not. Port Authority uses these records to determine what Vernon's salary would have been each year, including what merit increases and what promotional increases, if any, he would have received, if he had been promoted in 1995. See Ex. K-L. Port Authority then compares these figures to Vernon's actual gross salary for 1995 through 2002, as opposed to his net earnings. See Ex. K. Conversely, Vernon does not appear to have incorporated any of the promotional or merit increase policies in place at the Port Authority from 1995 to 2002 into his calculations of what his estimated salary would have been had he been promoted, and therefore those policies are not incorporated into Vernon's calculation of the back pay due to him. While Freifelder states that his calculations are based upon his review of certain documents, it does not seem that any of those documents pertain to the promotional or merit increase policies in place at the Port Authority from 1995 to 2001.*fn9 See Freifelder Report at 2, 4.

Vernon does not respond to the concerns raised by Port Authority regarding the inaccuracies in the calculation of back pay brought about by the comparison of Vernon's net earnings with his estimated gross salary had he been promoted. While asserting that Port Authority's statement regarding the failure of the Freifelder Report to incorporate any of the Port Authority promotional and merit increase policies in effect from 1995 to 2002 in its calculations of Vernon's estimated salary as a Principal Engineer is "patently untrue," Vernon fails to identify how the Freifelder Report incorporated any of Port Authority's policies, nor does Vernon identify any information or documents regarding these policies that Freifelder relied upon in his calculations. See Plaintiff's Opposition to Defendant's Motion for a New Trial or Remittitur and Plaintiff's Cross Motion ("Pl. Opp.") at 6. Rather Vernon argues that Port Authority's application is without legal basis and "raises legal propositions and economic conclusions which were not brought to the Court's attention in a timely manner, and are totally unsupported by expert analysis." Id. at 5-6. Rather than legal propositions and economic conclusions, what Port Authority provides the Court at this juncture is information concerning Port Authority procedures in place from 1995 to 2002, which is necessary in allowing the Court to determine the appropriate amount of back pay due Vernon. While Port Authority's original submissions did not include sufficient documentary evidence in support of its calculations of back pay due Vernon, Port Authority heeded the behest of the Court in the present motion by providing significantly more comprehensive submissions, and as such, the information is deemed timely. See Vernon, 220 F. Supp.2d at 234 n. 11; supra note 3. With regard to the lack of "expert analysis" in Port Authority's submissions, the Court notes that Port Authority provided affidavits from two individuals, Reinhardt and Montgomery, who have been employed in the Human Resources Department of the Port Authority for 39 and 12 years, respectively, and as such, have an in-depth knowledge and familiarity with the policies and procedures implemented by the Port Authority concerning salary, promotions, and merit increases.*fn10 See Affidavit of Megan Lee, Esquire, sworn to on Nov. 15, 2002 ("Lee Aff.").

In further support of his opposition to Port Authority's submission, Vernon's affidavit in support of this motion identifies several "inaccuracies" in the calculation of back pay made by Port Authority. However, Vernon provides no evidence to support any of the allegations made regarding each one of these "inaccuracies," and each one is addressed and refuted in the affidavits submitted with Port Authority's Reply. For instance, Vernon alleges that Port Authority's calculations regarding his estimated salary for 1995 are flawed since it appears that, according to Port Authority's calculations, he would only have received a 3% lump sum merit increase, and not the 10% promotional increase to which he was entitled. Vernon Aff. ¶ 5. In response to Vernon's allegation, Port Authority explains that its estimated salary figures include both the lump sum payment of 3% of his salary, as well as a promotional increase of $4,992, the maximum allowed to Port Authority employees, which was added to his estimated base salary on March 12, 1995, to reflect the promotion he would have received. Second Mont. Aff. ¶ 4. Vernon alleges that he would have been entitled to a promotional increase of the full 10% of his estimated salary, however Port Authority has provided documentation of the policy regarding promotional increases, which limited them to $5,000 in 1995.*fn11 See Ex. I, attached to Def. Not. In response to Vernon's allegation that Port Authority's figures regarding Vernon's actual salary fail to include a merit increase in 2000 when Vernon was granted a promotion on his anniversary date (January 1st), Port Authority informs the Court of Port Authority's standard practice regarding the merit increases for employees who receive promotions on their anniversary date — those employees do not receive a merit increase in addition to their promotional increase for that year. See Affidavit of Oscar Suros, sworn to on Nov. 15, 2002 ("Second Suros Aff."), ¶ 5. Therefore, the denial of the merit increase that year was consistent with Port Authority policies. Port Authority further noted that in calculating Vernon's estimated salary had he been promoted in 1995, Port Authority accurately included both a merit increase in January 1995 and a promotional increase in March 1995, since the promotion that should have happened in March 1995 would not have occurred on his anniversary date, and therefore Vernon would have been entitled to both the promotional and the merit increase that year. See id.; Ex. L.

In order to understand why it is crucial that the calculation of back pay due Vernon incorporate the Port Authority's merit and promotional increase policies, which would dictate the actual salary received by Vernon, and the salary that Vernon would have received had he been promoted in 1995, it is necessary to revisit the objective of the Title VII legislation. "Title VII's primary goal, of course, is to end discrimination; the victims of job discrimination want jobs, not lawsuits. But when unlawful discrimination does occur, Title VII's secondary fallback purpose is to compensate victims for their injuries." Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 230 (1982). Title VII aims to compensate victims of discrimination for their injuries by restoring them, as far as possible "to a position where they would have been were it not for the unlawful discrimination." Albemarle Paper, 422 U.S. at 421; Ford Motor Co., 458 U.S. at 230. Since the object of compensatory relief under Title VII is "to make the victim whole," courts must as nearly as possible, "`recreate the conditions and relationships that would have been had there been no' unlawful discrimination." Rios v. Enter. Ass'n. Steamfitters Local Union 638 of U.A., 860 F.2d 1168, 1175-76 (2d Cir. 1988) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977)). "The purpose of a back pay award is to make whole the victim of unlawful discrimination, not to punish an employer or provide a windfall to the employee." Cole v. Uni-Marts, Inc., 88 F. Supp.2d 67, 76 (W.D.N.Y. 2000) (citing Clarke v. Frank, 960 F.2d 1146, 1151 (2d Cir. 1992)); Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 412 (S.D.N.Y. 1996)("At the same time, Title VII plaintiffs should not be made more than whole; they should not receive a windfall."). Accordingly, the back pay award should compensate Vernon for the wages and benefits he lost on account of the Port Authority's failure to promote him to Principal Engineer in 1995, but not place him in a better position than he would have been had he received the promotion in 1995. See Meling v. St. Francis College, 3 F. Supp.2d 267, 275 (E.D.N.Y. 1998); Iannone, 941 F. Supp at 412. By failing to incorporate the actual promotional and merit increase procedures in effect at Port Authority from 1995 to 2002, the calculations of back pay in Freifelder's report do place Vernon in a better position than he would have been had he received the promotion in 1995.

III. Prejudgment Interest

Incorporating the promotional and merit increase policies and procedures in effect at the Port Authority from 1995 to 2002, Port Authority has calculated that plaintiff is entitled to $28,544 in back pay. See Ex. L; First Mont. Aff. ¶ 14. For the reasons stated above, the Court finds that this is the best calculation of the difference between the actual salary Vernon received and the salary he would have received had he been promoted in 1995. See Ex. K. This Court previously determined that Vernon was entitled to received prejudgment interest on the back pay damages, and the Court approved of Freifelder's calculation of that interest using the rates of high-grade municipal bonds maturing in 2005 and high-grade municipal bonds maturing in seven to twelve years, with rates of 4.0% and 5.0%, respectively. See Vernon, 220 F. Supp.2d at 235-36 ("Such an award [prejudgment interest] is necessary to make the plaintiff whole."). However, Port Authority was unable to calculate the prejudgment interest to which Vernon would be entitled based on Port Authority's calculation of the back pay damages, because the Freifelder Report did not set forth precisely how the present value of lost earnings was calculated. See Def. Mem. at 7. Therefore, Port Authority asked that Freifelder provide Port Authority with the interest rates and compounding periods used in arriving at the "Present Value of Lost Earnings" set forth in his report, see Freifelder Report at 11, upon receipt of which Port Authority would be able to calculate the correct amount of prejudgment interest to which Vernon is due, and the total amount of back pay damages to be awarded. See Def. Mem. at 7; First Mont Aff. ¶ 15. In Vernon's opposition to the present motion, Vernon failed to provide Port Authority with these interest rates and compounding periods from Freifelder's prejudgment interest analysis. Therefore, the Court now orders Vernon to provide Port Authority and the Court with this information within thirty days of this decision. Upon receipt of these figures, Port Authority is instructed to calculate the correct amount of back pay to award to Vernon, incorporating the appropriate amount of prejudgment interest, and submit its calculations to Vernon and the Court within thirty days of Port Authority's receipt of the figures from Vernon. Upon the Court's approval of this calculation, the Court will order Port Authority to pay that amount as back pay to Vernon.

IV. Front Pay

The Court granted Vernon an award of front pay, which consisted of (1) the difference between Vernon's current salary and the salary he would have received had he been promoted and, (2) the amount of pension benefits Vernon would have accumulated due to his higher salary, as these figures were calculated in the Freifelder Report.*fn12 Vernon, 220 F. Supp.2d at 236-37. Front pay is an equitable remedy to be awarded by the Court, available but not mandatory under Title VII, and distinct from the award of compensatory damages. See Pollard v. E.I du Pont de Nemours & Co., 532 U.S. 843, 848 (2001); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2000). "It is within the Court's discretion to award front pay, reinstate the plaintiff's employment, or do nothing at all with regard to future employment." Vernon, 220 F. Supp.2d. at 236 (citing Banks v. Travelers Cos., 180 F.3d 358, 364 (2d Cir. 1999)). Acknowledging the reality that reinstatement is not always a viable option, courts have ordered front pay as a substitute for reinstatement. See Pollard, 532 U.S. at 846; Banks v. Travelers Cos., 180 F.3d 358, 364 (holding that front pay should be awarded where reinstatement may not be an option due to animosity between the parties or availability of positions).

While courts have defined front pay in several ways, it is generally understood to be an award for lost compensation during the period between judgment and reinstatement, or in lieu of reinstatement. Pollard, 532 U.S. at 845; United States v. Burke, 504 U.S. 229, 239 n. 9 (1992) (defining front pay as an award for "future lost earnings"). In the present case, the Court premised the award of front pay on the improbability that, in light of the animosity between the parties, Vernon would be granted the B-95 position he was denied, and consequently would not be earning the salary he would have, had he received that promotion. See Vernon, 220 F. Supp.2d at 236. Upon the judgment of the jury, Port Authority did not grant Vernon the B-95 position he was denied in March 1995, but rather has agreed to permanently increase Vernon's salary to what it would have been had he been promoted to the B-95 position in 1995. See Def. Mem. at 8. Whether Vernon has not been appointed to the B-95 position because of hostilities between the parties or because the B-95 position was effectively abolished, is of no moment to this Court. See Affidavit of Oscar Suros, sworn to on September 16, 2002 ("First Suros Aff."), attached as Ex. 3 to Def. Not, ¶ 20. Rather, the key issue to be determined is whether the damages awarded to Vernon made him "whole." Pollard, 532 U.S. at 850 (2001) (finding that the award of front pay as a substitute for the remedy of reinstatement, in situations where reinstatement would be an inappropriate option, was "a necessary part of the `make whole' relief mandated by Congress and by this Court" (citing Albemarle, 422 U.S. at 421)); Shore v. Fed. Express Corp., 777 F.2d 1155, 1158-1159 (6th Cir. 1985) ("Front pay is . . . simply compensation for the post-judgment effects of past discrimination." It is awarded "to effectuate fully the `make whole' purposes of Title VII"). In the present case, Port Authority argues that Vernon shall be fully compensated for the discrimination suffered, and shall be made "whole," by Port Authority's raising of Vernon's salary to what it should have been had he been promoted in 1995. See Def. Mem. at 8; First Suros Aff. ¶ 21. Therefore, Port Authority argues, it is not necessary for the Court to award Vernon front pay damages since, contingent upon the Court's approval of Port Authority's calculations, Port Authority will pay Vernon the salary that he would have been earning had he been promoted in 1995.

Moreover, a portion of the front pay award the Court granted to Vernon consisted of Freifelder's calculations of the pension benefits Vernon would have accumulated due to the higher salary Vernon would have been receiving had he been promoted in 1995. Vernon, 220 F. Supp.2d at 237; Freifelder Report at 5-6. The award of these pension benefits are indeed necessary to make Vernon "whole." See Sharkey v. Lasmo (ALJ 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 antidiscrimination laws."). The Court awarded Vernon $118,540 in pension credits based on Freifelder's calculations. See Vernon, 220 F. Supp.2d at 237. Freifelder calculated that Vernon would have a loss of pension benefits unless Port Authority increased Vernon's salary to a level consistent with Vernon having been promoted in March 1995. See Freifelder Report at 5, n. 3. In order to eliminate any future loss of pension benefits, Freifelder calculated that this salary increase would need to be retroactive to February 11, 2001. Id.

Port Authority now asks the Court to cancel the award of front pay granted in this Court's August 26, 2002 Opinion and Order on the basis that Port Authority has and will take measures in response to the judgment of the jury and the Court which will fully compensate Vernon for the injuries resulting from Port Authority's failure to promote him in 1995. See Def. Rep. at 8; Def. Mem. at 8. Port Authority has agreed to increase permanently Vernon's salary to what it would have been had he been promoted to the B-95 position in 1995. See Def. Mem. at 8; Ex. L attached to Def. Not. Furthermore, upon the Court's acceptance of Port Authority's calculations regarding what Vernon's salary would have been from 1995 to the present, Port Authority has informed the Court that it will file the necessary forms with the New York State Retirement System so that Vernon's pension plan and benefits will be based upon the salary that Vernon would have earned had he been promoted in 1995. See Def. Mem. at 8; Tobia Aff. ¶ 2-4. Vernon has argued that the salary increase would need to be made retroactive to February 11, 2001 in order to avoid Vernon's future loss of pension benefits, see Freifelder Report at 5, n. 3, but Port Authority is willing to make that salary increase retroactive to March 1995, when Vernon should have received his promotion. Therefore, in light of the measures to be taken by Port Authority upon this Court's acceptance of their calculations — i.e. raising Vernon's salary to the level it would have been had he received the promotion in 1995, and filing the necessary papers to ensure that Vernon receives pension benefits in line with this heightened salary — there is no need to further compensate Vernon with an award front pay, since front pay is intended merely to make the plaintiff "whole," not bestow a windfall on the plaintiff. See Barbano v. Madison County, 922 F.2d 139, 146-47 (2d Cir. 1990) (upholding denial of front pay because a finding that the plaintiff had already been made whole was within the district court's discretion); Rao v. New York City Health and Hosps. Corp., 882 F. Supp. 321, 332 (S.D.N.Y. 1995). Where the plaintiff has been fully compensated for all compensable injuries resulting from defendant's discrimination, front pay is not appropriate. Id.

Vernon argues that Port Authority's contention that its intended measures will make Vernon whole and obviate any need for the award of front pay must fail on two grounds: (1) Port Authority incorrectly assumes that Vernon is willing to retire at this time, and (2) "a promotion to a position of higher level is in fact what the jury decided Mr. Vernon should have received in 1995." See Def. Opp. at 11. With regard to Vernon's first argument that Port Authority makes its calculations based on the assumption that Vernon is willing to retire at this time, Port Authority does not make this assumption, but rather states that by making Vernon's promotion and salary increases retroactive to 1995, Vernon will be entitled to retire immediately and receive the full benefit of the promotional increases he was denied, rather than wait an additional year and a half before he can retire and receive these benefits. See Pl. Mem. at 9. While Port Authority clearly views this as a benefit to Vernon in light of Port Authority's recently offered new retirement package, at no point does Port Authority indicate that Vernon must or is even expected to retire at this time. See id. In fact, Port Authority informs the Court that it will permanently adjust Vernon's salary to what it would have been had he been promoted in 1995, $92,286, and "[a]ssuming plaintiff continues to work at Port Authority, his merit increases will be based on the salary he would have received has he been promoted to B-95 in 1995."*fn13 Id.; see First Suros Aff. ¶ 21.

Vernon next argues that the remittitur of front pay is inappropriate because Port Authority has failed to award Vernon the promotion to a higher level that the jury decided Vernon should have received in 1995. However, whatever equitable remedy the Court determines is appropriate, whether it be an award of front pay or an order that Vernon be promoted to a certain position at this point, is within the discretion of the Court, and intended to ensure that Vernon is "made whole" with respect to his injuries from the discrimination. See Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727 (2d Cir. 1984). This Court previously stated that Vernon was unlikely to be granted the B-95 position he was denied in 1995 due to the animosity between the parties, in which case it seemed prudent that Vernon receive front pay in the difference between Vernon's current salary and the salary he would have earned had he been promoted. See Vernon, 220 F. Supp.2d at 237. The jury did not award Vernon a promotion to the position of "Principal Engineer," as Vernon contends in his affidavit accompanying his opposition to the present motion, but rather the jury found that Port Authority had discriminated against Vernon in not promoting him to that position. See Vernon Aff. ¶ 13. Therefore, the Court's duty in fashioning the appropriate remedy is not to necessarily to order Port Authority to promote Vernon at this point, but rather to ensure that Vernon, as a victim of discrimination, is "made whole." Rios, 860 F.2d at 1175-76. In cases where a jury finds that a plaintiff has been terminated from his employment as the result of discrimination, the Court does not require that the plaintiff be reinstated in every situation, but rather provides for the contingency that the plaintiff will not be reinstated, where it would not be appropriate to do so, by awarding front pay to compensate the plaintiff for his loss of future income. See Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125-26 (2d Cir. 1996) (holding front pay should be awarded in situations where it is unlikely that plaintiff will be able to find reasonably comparable employment in the future); Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957 (10th Cir. 1980) (upholding award of front pay where continuing hostility existed between the parties).

In the present case, it seems that mandating a promotion for Vernon at this juncture would not be an appropriate resolution since Port Authority informs that Court that the B-95 position to which Vernon should have been promoted in 1995 no longer exists, but that Vernon did receive a promotion to an EDP-7 position, which is equivalent to a B-94 position, as soon as this position was created in Vernon's division in 2000. See First Suros Aff. ¶ 20; see Second Suros Aff. ¶ 9. Therefore, in determining the amount of front pay to award Vernon, the Court must focus on making Vernon whole by compensating him for the economic injuries he incurred from Port Authority's discrimination; and the Court does that by establishing what Vernon would have been earning had he received that promotion in 1995, and what pension benefits he would have been eligible to receive had he been given that promotion. By raising Vernon's salary to what it would have been had he been promoted, and filing the appropriate paperwork with the New York State Retirement System so that Vernon will receive pension benefits in line with what he would have been entitled to receive had he been given the 1995 promotion and consequently been earning a higher salary, Port Authority will be taking the necessary steps to compensate for Vernon's economic injuries from the discrimination.*fn14

Therefore, the Court orders that Port Authority raise Vernon's salary to the level it would have been had he received the promotion in 1995, and file the necessary forms with the New York State Retirement System to reflect what Vernon's salary should have been from 1995 to date, making the necessary adjustments to the pension plan. Once Port Authority does this, the Court finds that Vernon will be fully compensated regarding his future earnings, and there will be no need to further compensate him with an additional award of front pay. Therefore the front pay awarded in this Court's August 26, 2002 Opinion and Order is hereby remitted to the extent that that amount exceeds the amount that will be awarded to Vernon in the steps to be taken by Port Authority, as described above.

V. Vernon's Cross-Motion

Plaintiff brings a cross-motion to modify the award granted by the Court in the August 26, 2002 Opinion and Order by: (1) applying the liquidated damages recoverable under the ADEA in order to double the amount of the back pay award; and (2) reinstating the remainder of the jury verdict for the non-Title VII claims, to wit: Intentional Infliction of Emotional Distress. For the following reasons, the Court denies the cross-motion and both its proposed modifications.

Defendant argues that Vernon's cross-motion should be denied as untimely since Vernon brought the cross-motion to amend the Court's August 26, 2002 judgment more than ten days after the judgment was entered. See Def. Rep. at 9. Rule 59 of the Federal Rules of Civil Procedure provides that any motion for a new trial or motion to amend a judgment shall be filed no later than ten days after the entry of the judgment. Fed.R.Civ.P. 59(b); 59(e). In the present action, the judgment was entered on September 3, 2002. Pursuant to Rule 59(b), Port Authority filed a timely motion for a new trial, or in the alternative, for remittitur on September 16, 2002, within ten business days after the entry of judgment on September 3, 2002. However, plaintiff's counsel did not file plaintiff's cross-motion or plaintiff's response to Port Authority's motion until October 18, 2002. On October 3, 2002, plaintiff's counsel did seek leave of the Court for an additional twenty days to reply to defendant's motion, pursuant to Rule 59(c). See Letter from Thomas F. Bello, Esq. to the Court, dated Oct. 3, 2002 ("Pl. Oct. 3 Letter"). By seeking an extension from the Court, plaintiff was able to file a timely opposition to Port Authority's motion under Rule 59(c), however, the Court's extension of time for the plaintiff to reply did not cause plaintiff's cross-motion filed with that reply to be deemed timely. See Fox v. City Univ. of New York, 187 F.R.D. 83, 91 n. 5 (S.D.N.Y. 1999) (finding that plaintiff's timely filing of a Rule 59 motion does not cure the defect of defendants' untimely Rule 59 motion); Tisdel v. Barber, 968 F. Supp. 957, 962 (S.D.N.Y. 1997) (court held that the plaintiff's timely filing of a motion to set aside the damages portion of the verdict did not make the defendants' cross-motion four months later timely).

If a party intends to move to amend or alter the judgment of the Court, such a motion must be filed no later than ten days after entry of the judgment. Fed.R.Civ.P. 59(e). Rule 6(b) of the Federal Rules of Civil Procedure makes these ten-day time limitations jurisdictional, "so that the failure to make a timely motion divests the district court of power to modify the trial verdict." Rodick v. City of Schenectady, 1 F.3d 1341, 1346 (2d Cir. 1993) (citing Lapiczak v. Zaist, 451 F.2d 79, 80 (2d Cir. 1971)). In Rodick, the Second Circuit went on to state that Rule 6(b) denies to district courts the power to enlarge the ten-day limit under Rule 59(e). Id. While it is clear that Vernon's motion is untimely under Rule 59 and should not be entertained by this Court, the Court will nevertheless briefly address the issues raised in Vernon's cross-motion and the grounds on which the cross-motion would have been denied by this Court, even if it had been filed in a timely manner.

A. Plaintiff Is Not Entitled to Liquidated Damages

The ADEA does allow a prevailing plaintiff to recover liquidated or double damages in an amount equivalent to a plaintiff's award for back pay and benefits where the statutory violation was "willful." 29 U.S.C. § 626(b). Vernon argues that the Court should double his back pay award, increasing it from $117,550 to $235,100, because it is clear, from the testimony in this case, that "Vernon's rights with respect to his complaints were recklessly disregarded" and that Port Authority's actions in this regard constituted a willful violation of the ADEA. It is unnecessary for the Court to reach the question of whether the testimony at Vernon's trial demonstrated a willful violation of the ADEA on the part of the Port Authority, since this Court has already stricken Vernon's claim for punitive damages based on Port Authority's immunity from punitive damages as a government entity. See Vernon v. Port Auth. of New York and New Jersey, 154 F. Supp.2d 844, 860 (S.D.N.Y. 2001); Recreation World, Inc. v. Port Auth. of New York and New Jersey, 1998 WL 107362, at *12 (S.D.N.Y. Mar. 9, 1998) (holding that Port Authority is immune from punitive damages). Furthermore, the Second Circuit has held that liquidated damages in the context of a willful violation of the ADEA does indeed constitute punitive damages. McGinty v. State, 193 F.3d 64, 70-71 (2d Cir. 1999) ("ADEA's added liquidated damages may fairly be characterized as `punitive in nature,' . . . they do after all provide an ADEA victim with more than his or her out-of-pocket damages or any other strictly compensatory amounts." (citing Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 282 (2d Cir. 1987)). Therefore, since liquidated damages in this context would be deemed punitive damages and Port Authority is immune from punitive damages, liquidated damages would not be available under the ADEA, and the Court would have to deny Vernon's cross-motion to apply liquidated damages to double Vernon's back pay award.

B. Vernon Is Not Entitled to Have 1.2 Million Dollar Compensatory Damage Award Reinstated
Vernon's second proposed modification of the Court's August 26, 2002 decision is the reinstatement of the portion of the jury's compensatory damage award which was in excess of the $300,000 statutory cap — $1.2 million — to the non-Title VII claims, specifically the plaintiff's claim for intentional infliction of emotional distress. Even if Vernon had filed his cross-motion to modify the judgment in a timely fashion, the Court would not reinstate the excess $1.2 million because intentional infliction of emotional distress was not a separate claim on which the jury found for Vernon. While courts have reallocated compensatory damage awards to successful state law claims where the compensatory damage award had a statutory cap, the plaintiff has to prevail on the state law claim in order for the court to reallocate the funds. See Martini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336 (D.C. Cir. 1999); Ginsberg v. Valhalla Anesthesia Assocs., Inc., 1997 WL 669870, at *2 (S.D.N.Y. Oct. 28, 1997). Vernon cites to Martini as analogous case, even though Vernon pled no state claims in the present case, because it supports the premise that "statutory caps of Title VII do not render a verdict in excess where other claims without. caps are pled and considered." Pl. Opp. at 13. The problem with Vernon's logic in making the cross-motion for reinstatement of the $1.2 million award lies in the fact that a separate claim for intentional infliction of emotional distress was not pled and was not considered by the jury. The jury did not receive a charge based on the claim of intentional infliction of emotional distress under New York law, and in fact the only charge which the jury did receive regarding emotional distress specifically limited the recovery of damages for emotional distress to Vernon's Title VII claim. See Jury Charge for Emotional Distress ("Jury Charge"), attached as Ex. 5 to Plaintiff's Opposition to Defendant's Motion and Notice of Cross Motion ("Pl. Mot."). Vernon points to the Court's denial of Port Authority's request to remove the language regarding emotional distress from the jury charge as an indication that a separate claim for intentional infliction of emotional distress existed. See Pl. Opp. at 12. However, the Court kept the language regarding emotional distress in the jury charge for the purpose of instructing the jury on awarding damages for emotional distress under Title VII. See Jury Charge, attached as Ex. 5 to Pl. Mot. Furthermore, there was no interrogatory given to the jury in the verdict form regarding a common law claim for intentional infliction of emotional distress under New York State law. See Verdict Form, attached as Ex. 2 to Pl. Mot.

Conclusion

For the foregoing reasons, Port Authority's motion for a new trial is denied. However, Port Authority's motion for remittitur of the amounts awarded to plaintiff for front and back pay is granted. The Court's prior award for back pay in the amount of $117,550 is remitted to the extent that it exceeds the sum of $28,544 and the appropriate amount of prejudgment interest. In order for Port Authority to determine the appropriate amount of prejudgment interest to be paid, Vernon is ordered to provide Port Authority with the interest rates and compounding periods used in arriving at Freifelder's determination of the "Present Value of Lost Earnings." Freifelder Report at 11. The Court orders Vernon to provide Port Authority and the Court with this information within thirty days of this decision. Upon receipt of these figures, Port Authority is instructed to calculate the correct amount of back pay to award to Vernon, incorporating the appropriate amount of prejudgment interest, and submit its calculations to Vernon and the Court within thirty days of Port Authority's receipt of the figures from Vernon. Upon the Court's approval of this calculation, the Court will order Port Authority to pay that amount as back pay to Vernon.

Furthermore, the Court orders that Port Authority raise Vernon's salary to the level it would have been had he received the promotion in 1995, and file the necessary forms with the New York State Retirement System to reflect what Vernon's salary should have been from 1995 to date. By doing this, Port Authority is to ensure that the necessary adjustments are made to the pension plan so that Vernon receives the pension benefits to which he would have been entitled had he received the promotion in 1995. The Court orders Port Authority to take these steps within thirty days of this decision, and to provide Vernon and the Court with the appropriate paperwork illustrating that these steps have been taken. Since Vernon shall be fully compensated for his economic injuries from Port Authority's discrimination by the aforementioned steps to be taken by Port Authority, the front pay awarded in this Court's August 26, 2002 Opinion and Order is hereby cancelled. Finally, Vernon's cross-motion to modify the award granted by the Court in the August 26, 2002 Opinion and Order by: (1) applying the liquidated damages recoverable under the ADEA; and (2) reinstating the remainder of the jury verdict for the non-Title VII claims, is hereby denied.

SO ORDERED.


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