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VERNON v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

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 ...


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