The opinion of the court was delivered by: Lindsay, Magistrate Judge
The plaintiff, Georgina Morgenstern ("Morgenstern"), commenced this action against the County of Nassau, Anthony M. Cancellieri, Patricia Bourne and John P. Donnelly pursuant to 42 U.S.C. § 1983. The plaintiff claimed that the defendants deprived her of her rights to due process secured by the fourteenth amendment and to free speech secured by the first amendment. This matter was tried before a jury for nine days from July 27, 2009 to August 7, 2009. The jury found in favor of the plaintiff on her due process claim and awarded her $1.8 million dollars in compensatory and punitive damages. The jury found against Morgenstern on her first amendment claim.
During the trial, the parties were advised that in the event of a verdict in Morgenstern's favor, the court would determine her entitlement to back and front pay. The parties agreed to submit affidavits and memoranda in lieu of a post trial hearing and have done so. In addition, the plaintiff has applied for an award of attorneys' fees and costs and for enhanced damages for excess tax liability. The defendants have submitted a motion to present mitigation of damages evidence and, if necessary, to amend their answer to add the affirmative defense. For the reasons that follow, the defendants' motion to amend is denied and the defendants are precluded from introducing mitigation evidence. The court awards Morgenstern back pay of $427,718, comprising lost wages from December, 2003 to August, 2009, and declines to enhance the plaintiff's award for increased tax liability. As is addressed below, the court declines to award front pay at this time and will accept additional briefing on the issue of whether reinstatement is feasible. The court also awards Morgenstern prejudgment interest on the back pay award to be determined in accordance with 28 U.S.C. § 1961(a), $1,059,255 in attorneys' fees, $64,500.49 in costs, and post judgment interest pursuant to 28 U.S.C. § 1961(a).
Before addressing Morgenstern's entitlement to back pay and front pay, the court must resolve whether the defendants' failure to plead mitigation of damages as an affirmative defense resulted in a waiver and, if it did, whether the court should grant leave to the defendants to amend their answer to add the affirmative defense. The defendants argue that based on the "universally accepted principle that a harmed plaintiff must mitigate damages," see Roach v. City of New York, 1992 U.S. Dist. LEXIS 10067 *18, n.6 (S.D.N.Y. July 10, 1992), the court should accept evidence of the plaintiff's failure to mitigate her damages following her termination even if accepting such evidence would require an amendment to their answer. The defendants further argue that the defense of mitigation is not an affirmative defense as to damages citing, in support of this argument, Tufano v. Riegel Trans., Inc. 2006 U.S. Dist. LEXIS 8702 *15 (E.D.N.Y. Feb. 11, 2006).
An "overwhelming majority of federal courts have decided, . . . that failure to mitigate damages is an affirmative defense," and therefore, must be pleaded. Eassa v. Hartford Fire Ins. Co., 1991 U.S. Dist. LEXIS 17309 *22 (N.D.N.Y. Nov. 29, 1991); see also Fed. R. Civ. 8(c). Moreover, "[t]he general rule in federal courts is that a failure to plead [this] affirmative defense results in a waiver." Travelers Int'l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1580 (2d Cir. 1994). In light of this well established rule, the defendants' failure to plead mitigation operates as a waiver of this defense. The defendants, nonetheless, argue that mitigation is an affirmative defense to liability, not damages and as such should be considered by this court in awarding damages. The defendants reach this conclusion based on a misreading of the holding in Tufano. In Tufano, the court held that the defendant had waived its right to introduce evidence of mitigation in light of the parties stipulation as to the amount of damages. The court simply noted that had the proffered mitigation evidence also been relevant on the issue of liability it would have been admissible. Consistent with the general rule, this court finds, as did the court in Tufano, that the defendants have waived their right to argue mitigation on the issue of damages.
Notwithstanding the waiver, the defendants have made a motion to amend their answer under Rule 15(b) in order to add the affirmative defense. Rule 15(b)(1) provides:
If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits.*fn1
"Rule 15(b) is 'intended to promote the objective of deciding cases on their merits rather than in terms of the relative pleading skills of counsel." Brandon v. Holt, 469 U.S. 464 (1985)(citing 6 C. Wright & A. Miller, Federal Practice and Procedure § 1491, pp. 453, 54 (1971 ed. and Supp. 1983)). However, in determining whether the party against whom the amendment is offered will be prejudiced, it has been generally held that where a party moves to amend at the close of trial, the objecting party will be prejudiced. See Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 94 (2d Cir. 2000).
The plaintiff, initiated this action on January 8, 2004. Before being served with a responsive pleading, the plaintiff then amended her complaint. On August 2, 2004, the defendants filed an answer to the amended complaint, which asserted a number of affirmative defenses, but not a mitigation defense. On March 9, 2006, the plaintiff filed a second amended complaint. Once again, the defendants failed to plead mitigation in their responsive pleading. During the second week of trial, the defendants sought to introduce testimony to establish that the plaintiff's failure to take advantage of the Collective Bargaining Agreement (CBA), and more specifically the grievance process, constituted a failure to mitigate damages. The court sustained the plaintiff's objection to the introduction of this evidence noting both the failure to plead mitigation as well as the history of this proceeding. The court noted:
I have spent the last hour looking at every argument made by the county throughout all the proceedings in this case. And since '04, every time the county has made an argument in support of its position it has consistently, over and over, taken the position that this plaintiff was not entitled to relief because she was a probationary employee, not entitled to any rights under the collective bargaining agreement.
It was the basis upon which they objected . . . to the preliminary injunction request. It was part of the argument in the motion for judgment on the pleadings. And it was very clearly the posture they undertook coming into this case.
And it wasn't until, . . . Tuesday when . . .I raised the whole issue of post-termination deprivation or post termination proceedings . . . that the county first started to scramble . . . to try and come up with some theory of the case by which they could save or defend the due process claim. . . . The county . . . addressed that issue the following morning . . . .
Never once did they argue that any of this had to do with mitigation . . . . [T]he first time that mitigation was raised ever in these five years of litigation was today. . . .
So to argue now, today, the last hour of the trial that . . . she should be somehow penalized in damages would be wrong. It would be so unfair that I don't even see it as a close call anymore.
Tr. 8/6/09 at 1246-48. Although the court precluded the defendants from offering mitigation evidence at trial, the defendants requested, and were granted, leave to brief the issue post trial, the motion now before the court.
Restating the same arguments made at trial, the defendants contend in their motion papers that Morgenstern "could have 'stopped the bleeding," . . . by pursuing her options available under the CBA with the CSEA Union." In support of this contention, the defendants offer the affidavits Tim Corr, a CSEA Union representative, and Daniel McCray, the Director of Nassau County's Office of Labor Relations. Mr. Corr avers that although he advised Morgenstern that she was a probationary employee and sent her home, "had [she] given him documentation demonstrating that she was permanent, rather than probationary employee, [he] would have assisted her in pursuing the procedures contained in Section 10 of the CBA. Corr Aff. at ¶¶ 13, 15, 23. Mr. McCray explains the grievance process in his affidavit and suggests that Morgenstern would have been reinstated within 95 days of her termination had she availed herself of union grievance procedures. McCray Aff. at ¶¶ 3-13.
The defendants' arguments are unpersuasive given that throughout the long history of this litigation they have consistently maintained that the plaintiff was a probationary employee with no grievance rights under the CBA. The record reflects that when Morgenstern met with the union representative after her termination she was so informed. Within weeks of being fired, Morgenstern commenced this action and moved, by order to show cause, for a preliminary injunction seeking to be reinstated. The position taken by the defendants, who had all of Morgenstern's documentation, was that the plaintiff was a probationary employee and that to the extent her employment records reflected otherwise they were in error. At some point during the five years of litigation, the defendants refined their argument asserting instead that the plaintiff's employment records were not in error so much as they were incomplete and failed to reflect that the plaintiff's probationary term had been extended by the sick and vacation days she took. The defendants have thus been unwavering in their assertion that Morgenstern was a probationary employee with no grievance rights under the CBA.
Under these circumstances, there is no question that the plaintiff would be substantially prejudiced were the defendants permitted to reverse themselves five years after the start of this litigation to argue that the plaintiff's damages should be limited because of her failure to pursue a grievance under the CBA.
Having determined that the mitigation defense will not be considered, the next question for the court is whether the plaintiff is entitled to an award of back pay and front pay.*fn2 "'It is well established that to collect compensatory damages in an action brought pursuant to 42 U.S.C. §1983, a plaintiff must prove more than a mere violation of [her] constitutional rights. [She] must also demonstrate that the constitutional deprivation caused [her] some actual injury." Miner v. City of Glens Falls, 999 F.2d 655, 660 (2d Cir. 1993)(citing McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir. 1983)). As such, "[t]he appropriate remedy for a proven due process violation often depends on the stage at which the violation is found . . . ." Brody v. Minnich, 345 F.3d 103, 119 (2d Cir. 2003). Where, as here, a plaintiff seeks damages for a due process violation that has already occurred, courts require the plaintiff to show that ...