Summary
discussing courts' "discretionary authority to fashion equitable remedies for a violation of 42 U.S.C. § 1983"
Summary of this case from Monette v. Cnty. of NassauOpinion
99-CV-1036Sr.
August 24, 2001
DECISION AND ORDER
Pursuant to and in accordance with the provisions of 28 U.S.C. § 636(b)(1)(c)(I), the parties herein previously consented to my having jurisdiction for the resolution of all of the issues raised in this litigation. The plaintiff brought suit pursuant to 42 U.S.C. § 1983 against the above-named defendants, as well as others who were subsequently dismissed from the litigation, seeking reinstatement to his position of City Clerk for the City for North Tonawanda; an award of back pay; as an alternative remedy in the event reinstatement was not ordered, an award of front pay; punitive damages and attorney's fees.
FACTS
The plaintiff claimed that he was wrongfully removed from his position of City Clerk for the City of North Tonawanda by the defendants Dennis J. Barberio, Scott P. Kiedrowski and Paul P. Reidenouer who were acting as members of the five (5) person City Council for the City of North Tonawanda wherein and whereby said defendants voted not to reappoint the plaintiff to another two-year term as City Clerk and instead voted to appoint another person to such position. More specifically, plaintiff alleged that his removal from office was based on improper political motivations and therefore, in violation of his First Amendment rights under the United States Constitution.
The position of City Clerk for the City of North Tonawanda is an appointed position having a maximum term of office of two calendar years commencing on January 1. Every two years, as part of a government organizational meeting, the Council of the City of North Tonawanda convenes on or about January 1 and decides, among other things, whether the incumbent in the position of City Clerk should be reappointed for another two-year term or whether a new appointee should replace the incumbent. In the instant case, the plaintiff's term as City Clerk was ending on December 31, 1998, and a new term for the position of City Clerk commenced on January 1, 1999 and ended on December 31, 2000. On or about January 1, 1999, the Council of the City of North Tonawanda did not renew the term of plaintiff and, instead, appointed Michael Cox to that position. The political party makeup of the Council had changed as a result of the November, 1998 elections whereby the Democratic majority was lost and a Republican majority took its place. The plaintiff had been active in Democratic Party affairs for the City of North Tonawanda at the time of his original appointment to the position of City Clerk and continued to be such at the time he was voted out of his position of City Clerk effective January 1, 1999. Michael Cox was the Republican Party Chairman for the City of North Tonawanda during the November, 1998 elections and held that post when he was appointed to replace plaintiff as City Clerk for the City of North Tonawanda effective January 1, 1999. Mr. Cox completed that two year term, was reappointed City Clerk in January 2001 and is presently serving in that capacity and apparently will continue in such position for the remainder of the term which ends on December 31, 2002.
A jury trial of the legal issues was commenced on February 27, 2001 and concluded on March 6, 2001 when the jury returned a verdict in favor of the plaintiff against the aforementioned defendants and awarded damages relating to "back pay" to the plaintiff in the sum of $42,973.74 but refused to award punitive damages to the plaintiff. The City of North Tonawanda has accepted liability on behalf of the individual defendants as part of an agreement of indemnification with said defendants.
The plaintiff seeks reinstatement to his former position or, in the alternative, an award of money which would compensate him for "future earnings," including "benefits," that he would have realized had he not been improperly removed from his position of City Clerk. Since both of these remedies, "future earnings" and reinstatement, are deemed to be equitable in nature, they were reserved for the Court's determination after the jury made its finding on the issue of liability. Plaintiff also seeks an award of attorney's fees as the prevailing party herein pursuant to 42 U.S.C. § 1988, as well as prejudgment interest on the jury's award of back pay which issues are also left for the Court's determination.
The parties were given an opportunity to submit post-trial legal memoranda in support of their respective positions on the aforesaid issues, and such memoranda have been submitted along with an affidavit by plaintiff and considered by the Court in reaching its decision herein. Affidavits by counsel for the respective parties herein have also been submitted on the issues of attorney's fees and prejudgement interest which the Court has also considered in its deliberations.
DISCUSSION AND ANALYSIS
Because the jury found that the plaintiff had been improperly removed from his position of City Clerk by reason of the defendants voting not to reappoint him for political reasons and awarded monetary damages as compensation to the plaintiff as a result of such removal, I find that the plaintiff has legally established that he in fact is the prevailing party on the substantive issues herein and therefore, is entitled to additional equitable relief as hereinafter described. I also find that plaintiff is entitled to an award of prejudgment interest on the compensatory damages awarded to him by the jury representing "back pay" and to an award of attorney's fees pursuant to 42 U.S.C. § 1988.
The Equitable Remedy
As stated earlier, plaintiff seeks reinstatement to his former position of City Clerk for the City of North Tonawanda, or in the alternative, an additional award of money damages to compensate him for "lost future earnings and benefits" that he would have earned had he not been improperly removed from his position. I find that reinstatement of the plaintiff to the position of City Clerk for the City of North Tonawanda would not be an appropriate remedy under the facts and circumstances that exist at this time and that an award of monetary damages, as hereinafter described, is more appropriate in compensating plaintiff for the harm suffered and will "make him whole" from an equity perspective.
The reasoning of Chief Judge Larimer of this District is most appropriate in aiding this Court in reaching its decision on the issues of reinstatement and front pay as an equitable remedy to be afforded the plaintiff herein. Since Chief Judge Larimer has succinctly stated the applicable law, there is no reason for me to attempt to expand or edit his language and therefore, I have taken the liberty of adopting it in wholesale fashion.
After a jury finds § 1983 liability in a loss-of-employment case, the Court must attempt to make plaintiff whole, while avoiding granting plaintiff a windfall. Stanley v. Chilhowee R-IV School Dist. 5, 5 F.3d 319, 322 (8th Cir. 1993). Reinstatement of plaintiff to [his] former position is an available remedy under § 1983 and is appropriate when plaintiff has been denied a right to continue employment. Petrella v. Siegel, 843 F.2d 87, 89 (2d Cir. 1988).
* * *
[B]ecause of the equitable nature of reinstatement, a court must consider, in the exercise of its discretion, whether reinstatement is appropriate in light of all the surrounding circumstances. The Court must weigh and balance all of the equities and circumstances in an attempt to determine if reinstatement is the appropriate remedy for that particular case.
In weighing and balancing the equities in an attempt to determine if reinstatement is an appropriate remedy, Rosario-Torres instructs the district court to consider the following:
[R]einstatement in unlawful-discharge cases often will place some burden on the [governmental] agency; there will likely be tension (even hostility) between the parties when forcibly reunited; employees who have assumed duties previously performed by the fired worker will have to be displaced when he or she returns; and as a result the public's business may be conducted somewhat less efficaciously.Frank v. Relin, 851 F. Supp. 87, 91-92 (W.D.N.Y. 1994), quoting Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 322 (1st Cir. 1989).
As the plaintiff acknowledged, he did not have a vested lifetime appointment to the position of City Clerk for the City of North Tonawanda. He also admitted that it is not legally required that he be reappointed to such position even if his job performance was acceptable, so long as the failure or refusal to reappoint was not for unlawful reasons. Stated another way, "just cause" was not required as a basis for the refusal to reappoint the plaintiff to the position of City Clerk at the expiration of the two-year term. Since reinstatement of the plaintiff to the position of City Clerk would necessitate the removal of Michael Cox from that position, which he has held since 1999, Mr. Cox would unfairly be subjected to an adverse impact through no fault of his own. Mr. Cox's present term as City Clerk will end on December 31, 2002. At that time, or sometime prior thereto, plaintiff, Michael Cox, and anyone else may apply for the position of City Clerk for the City of North Tonawanda, and the City Council of the City of North Tonawanda will have the opportunity to select the applicant that it considers to be the best person to fill the position based on articulated legitimate reasons for the selection. Admittedly, the plaintiff has been and will continue to be deprived of the opportunity to hold the position of City Clerk, at least until January 1, 2003, as a result of the defendants' improper actions in removing him from that position. Nevertheless, I find that plaintiff can be equitably and adequately compensated for that loss by the award of front pay, including benefits for the time period January 1, 1999 through December 31, 2002.
Denial of reinstatement. . . without an award of reasonable, offsetting compensation, would leave the plaintiff irreparably harmed in the future by the employer's [improper] discharge, and would permit the defendant's liability for its unlawful action to end at the time of judgment. To prevent this injustice a reasonable monetary award of front pay is necessary as 'equitable relief'. . . .Whittlesey v. Union Carbide Corp, 742 F.2d 724, 728 (2d Cir. 1984). Because the plaintiff will not have an opportunity to apply for the City Clerk position until sometime in late 2002 in anticipation of the new term commencing on January 1, 2003, I find that an award of front pay for the period January 1, 1999 through December 31, 2002 is not unreasonable since the evidence produced at trial established that plaintiff has no reasonable prospect of obtaining comparable alternative employment for that time period. As the Court of Appeals for the Second Circuit has stated:
[T]his Court and other circuits previously have affirmed awards of front pay for substantial periods of time when necessary to provide whole relief for victims of employment discrimination.Padilla v. Metro-North Commuter Railroad, 92 F.3d 117, 126 (2d Cir. 1996), cert. denied, 520 U.S. 1274 (1997).
Such front pay and benefits shall be calculated at the existing rates of compensation paid to the incumbent in the position of City Clerk for the City of North Tonawanda for the period January 1, 1999 to the date of this Decision and Order. In view of the fact that the salary for the position of City Clerk for the City of North Tonawanda is pre-established as an annual salary commencing January 1 of each year as determined by the City Council for the City of North Tonawanda, it is presumed that the annual salary and benefits for the calendar year 2001 have been established for the position; and therefore, calculation of the award to be made in the form of front pay and benefits for the remainder of the year 2001 should be easily determined. However, the Court has no way of knowing what the annual salary and benefits for the calendar year 2002 will be for the City Clerk for the City of North Tonawanda since that is a matter to be determined by the City Council at the appropriate time in the future.
In order that there not be any misunderstanding or disagreement as to what is intended in the payment of "benefits" as part of the calculation of front pay for the period January 1, 1999 through December 31, 2002, I find that the term "benefits," as used herein, includes the following if provided by the City of North Tonawanda for the position of City Clerk during the time periods in question:
1. Medical and dental insurance coverage;
2. Vacation pay;
3. Holiday pay;
4. Life insurance;
5. Pension contributions; and
6. Any other emoluments provided for the position of City Clerk.
In calculating the appropriate amounts to be awarded to the plaintiff in the form of front pay for the period January 1, 1999 through December 31, 2002, the following adjustments shall be made to such calculations so as not to provide plaintiff with an undeserved windfall by reason of the equitable remedy imposed herein:
1. A reduction of the 2001 front pay calculation by subtracting that portion of the jury award of compensatory damages that was contained in its award of back pay for the period January 1, 2001 to and including March 6, 2001, the date of its verdict, by utilizing the comparative hourly wage figures submitted by plaintiff for that time period.
2. A further reduction of the front pay calculation for the calendar year 2001 by the actual amounts of compensation received by plaintiff for the period March 7, 2001 through December 31, 2001. Since the calendar year is not completed and since it is unknown as to what plaintiff's earnings will be for the remainder of the year 2001, the following procedure shall be implemented. Counsel for the plaintiff shall submit certified copies of plaintiff's payroll stubs or earnings statements pursuant to section 2105 of the New York CPLR to counsel for the defendants for the period March 7 through and including August 31, 2001. Plaintiff's earnings for that time period shall be deducted from the amount representing compensation for the City Clerk position for the same time period. The defendant City of North Tonawanda shall make payment of the negative difference in earnings, if any, to the plaintiff within ten (10) business days after receipt of said certified copies of plaintiff's earnings. The amount to be paid to plaintiff shall be a net amount, i.e., the amount after appropriate payroll deductions required by law have been made.
If the compensation paid to the incumbent City Clerk is greater than the compensation received by the plaintiff for the time periods in question, the balance after subtracting plaintiff's compensation from the compensation paid to the incumbent is deemed to constitute a negative difference in earnings. If plaintiff's compensation is greater than that paid to the incumbent for the time periods in question, there is no balance to be paid to the plaintiff since his compensation resulted in a "positive" difference in earnings for purposes of the issues herein.
3. For purposes of calculating front pay compensation for the calendar year 2002, the following procedure shall be implemented:
Within ten (10) business days after the completion of a calendar quarter commencing January 1, 2002 and continuing thereafter for the remainder of the year, counsel for the plaintiff shall submit certified copies, pursuant to section 2105 of the New York CPLR, of plaintiff's pay stubs or record of earnings, if any, for the completed calendar quarter to counsel for the defendants. Within ten (10) business days after receipt of such compensation data, the defendant City of North Tonawanda shall make payment to the plaintiff of the negative difference in earnings, if any, after deducting the quarterly earnings of plaintiff from the amount of quarterly compensation paid to the City Clerk for that quarter. The amount to be paid to plaintiff, if any, shall be the net amount after deducting the payroll deductions required by law.
The defendant, City of North Tonawanda, shall also calculate the value of the aforesaid "benefits," except pension benefits, that were, are and will be included in the compensation package payable to the City Clerk for the City of North Tonawanda for the time period January 1, 1999 through and including December 31, 2002 and include such values in its calculations of front pay to be paid to the plaintiff as aforesaid. As to pension benefits, the City of North Tonawanda shall calculate the amount it would have been and will be required to contribute into the appropriate pension fund in accordance with federal and New York State Law for the benefit of the plaintiff as though he were an active employee in the position of City Clerk for the City of North Tonawanda for the period January, 1999 through and including December 31, 2002 and timely remit those payments to said pension fund on behalf of the plaintiff. If contributions to said pension fund were, are and will be required by plaintiff as an employee under New York State law, the plaintiff shall make payment of the required contributions by having them deducted and remitted by the City of North Tonawanda from the front pay monies due him as calculated aforesaid, for the period January 1, 1999 through and including December 31, 2002. If there are no monies due to be paid to the plaintiff or insufficient monies after the aforesaid calculations, plaintiff shall then be permitted to make such contributions, as required, from his own personal funds for the period January 1, 1999 through December 31, 2002 in order to make him whole for purposes of his pension benefits and rights under federal and New York State law and in accordance with the pension plan applicable to the position of City Clerk for the City of North Tonawanda for the time period January 1, 1999 through December 31, 2002. Plaintiff shall deposit such contributions with the City of North Tonawanda, and the City of North Tonawanda shall include such funds with its required contributions to the appropriate pension fund on behalf of the plaintiff.
The City of North Tonawanda, through its appropriate agent, shall undertake the necessary procedures and actions to ensure that plaintiff is credited with the proper amount of employment time and contributions with said pension fund for the period January 1, 1999 through December 31, 2002.
The awarding of "benefits" as aforesaid is hereby deemed to be included as an additional award under "back pay" as well as an additional award under "front pay" as part of this Court's discretionary authority to fashion equitable remedies for a violation of 42 U.S.C. § 1983. By doing so, I find that the plaintiff will receive complete redress for the economic injury that he has suffered as a result of having been improperly removed from, or not reappointed to, the position of City Clerk for the City of North Tonawanda. See Saulpaugh v. Monroe Community Hospital, 4 F.3d 134 (2d Cir. 1993), cert. denied, 510 U.S. 1164 (1994).
The jury's award of "back pay" in the sum of $42,973.74 did not include the fringe benefits that the plaintiff is entitled to for the entire period of January 1, 1999 through and including March 6, 2001 and thus the reason for the distinction being made for an additional award under back pay as well as an additional award under front pay.
Prejudgment Interest
The Court of Appeals for the Second Circuit has held that prejudgment interest is appropriate on an award of back pay in an action commenced under 42 U.S.C. § 1983. Miner v. City of Glens Falls, 999 F.2d 655 (2d Cir. 1993); see also River Oaks Marine, Inc. v. Town of Grand Island, No. 89-CV-1016, 1992 WL 373533 (W.D.N.Y. November 24, 1992). Since the plaintiff has been deprived of the additional earnings that he would have received as City Clerk for the City of North Tonawanda since January 1, 1999 until the entry of the jury's verdict herein on March 6, 2001, he is entitled to prejudgment interest on the jury's award of $42,973.74 because the purpose of prejudgment interest in an improper termination case is to compensate the plaintiff for the use of the money that he otherwise would have had but for the termination of employment. Saulpaugh v. Monroe Community Hospital, 4 F.3d 134; Chandler v. Bombardier Capital, Inc., 44 F.3d 80 (2d Cir. 1994). Further, the plaintiff is entitled to have interest on the back pay award computed at a compounded rate. Saulpaugh, 4 F.3d 134. Interest on the jury's award of back pay shall be calculated in accordance with and pursuant to the provisions set forth in 28 U.S.C. § 1961(a) effective December 21, 2000.
Attorney's Fees
The relevant statute, 42 U.S.C. § 1988, expressly provides for the awarding of attorney's fees to the prevailing party in an action to enforce the provisions of 42 U.S.C. § 1983.
The calculation of reasonable attorney's fees is a factual issue whose resolution is committed to the discretion of the district court. See Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). In determining the proper amount of attorney's fees a district court must multiply "all reasonable hours expended" by a "reasonable hourly rate."Saulpaugh, 4 F.3d at 145.
David Gerald Jay, Esq., attorney for the plaintiff herein, has submitted an affidavit sworn to March 27, 2001, wherein he details his professional experience as a member of the bar along with his "timesheets" prepared from "contemporaneous time records kept during the prosecution of this action." Mr. Jay asserts that a total of 111.6 hours has been expended by him in representing the plaintiff since his initial conference with him on May 8, 1999 until the preparation and filing of post-trial legal memoranda and affidavits on March 19, 2001 and requests an award of attorney's fees based on an hourly rate of $250 per hour. I have reviewed these time records, and based on my knowledge as well as my own personal experience in private practice as a trial attorney for thirty-nine (39) years, including representation of clients in employment discrimination cases, I find that the time expended on behalf of the plaintiff in the prosecution of this case to be reasonable.
Mr. Jay has been in private practice as a member of the New York Bar for thirty-four (34) years and has established a reputation in the Western District of New York as a skilled and experienced attorney in the field of civil rights. Once again, calling upon my own private practice experience in the Western District of New York and my knowledge of hourly rates for attorneys in said District based on their years of experience, his requested rate of $250 per hour is reasonable and in keeping with the standards and rates in the Western District of New York for an attorney of his stature. Because additional post-trial legal work has been performed by Mr. Jay after March 19, 2001, e.g., appearing in court for the argument of post-trial motions and reviewing and responding to defendants' post-trial submissions, I have exercised my discretion by crediting him with an additional three (3) hours of time to cover that additional work. As a result, I find that plaintiff and his attorney are entitled to a separate award of attorney's fees pursuant to 42 U.S.C. § 1988 in the sum of $28,650.00 which sum shall be added to the final judgment to be filed herein in favor of the plaintiff against the above-named defendants.
Costs
Plaintiff has submitted a sworn certification that he has incurred costs and disbursements in prosecuting this action in the sum of $2,008.15 for court filing fees, deposition transcripts, service of subpoenae and trial witness fees. I find these costs to be reasonable and necessarily incurred for the successful prosecution of this action and therefore award the sum of $2,008.15 to the plaintiff as costs and disbursements to be included in the final judgment to be filed herein in favor of the plaintiff against the above-named defendants.
Post-Judgment Interest
As the prevailing party, plaintiff is entitled to post-judgment interest on the final judgment to be entered herein. Such interest shall be calculated pursuant to and in accordance with the provisions of 28 U.S.C. § 1961(a) effective December 21, 2000.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that judgment be entered herein in favor of the plaintiff and against the above-named defendants as follows:
1. An award of "back pay" in the sum of $42,973.74 with prejudgment compounded interest thereon for the period January 1, 1999 through and including March 6, 2001 calculated pursuant to and in accordance with the provisions set forth in 28 U.S.C. § 1961(a) effective December 21, 2000.
2. A sum of money representing the negative difference in earnings, if any, between (1) compensation received by the plaintiff during the period March 7, 2001 and August 31, 2001 and (2) the amount of compensation paid to the incumbent City Clerk for the City of North Tonawanda for that same period, with prejudgment compounded interest thereon calculated pursuant to and in accordance with the provisions of 28 U.S.C. § 1961(a) effective December 21, 2000.
3. A sum of money representing the negative difference in earnings, if any, between (1) compensation received by the plaintiff during the period September 1, 2001 and December 31, 2001 and (2) the amount of compensation paid to the incumbent City Clerk for the City of North Tonawanda for that same period, together with post-judgment interest for that period which is to be calculated pursuant to and in accordance with the provisions of 28 U.S.C. § 1961(a) effective December 21, 2000.
4. A sum of money representing the negative difference in earnings, if any, between (1) compensation received by the plaintiff during the period January 1, 2002 and December 31, 2002 and (2) the amount of compensation paid to the incumbent City Clerk for the City of North Tonawanda for that same period tegether with post-judgment interest for each calendar quarter for which payment is due in accordance with this Court's Decision and Order as aforesaid, which interest is to be calculated pursuant to and in accordance with the provisions of 28 U.S.C. § 1961(a) effective December 21, 2000.
5. The City of North Tonawanda shall make the required pension benefit contributions on behalf of plaintiff to the applicable pension fund in which plaintiff was a participant and would have continued as a participant in his position of City Clerk for the City of North Tonawanda for the period January 1, 1999 through and including December 31, 2002 as though plaintiff had remained an active employee of the City of North Tonawanda in the position of City Clerk for that time period. Required contributions by the plaintiff, if any, to said pension fund shall be made as set forth in the Decision and Order herein.
6. The City of North Tonawanda shall compute the value of any and all additional fringe benefits and emoluments as set forth in this Decision and Order that have been and will be paid to the incumbent in the position of City Clerk for the City of North Tonawanda for the period January 1, 1999 through and including December 31, 2002 and make payment to the plaintiff in sums equal to those values as computed, together with interest thereon, as calculated in accordance with 28 U.S.C. § 1961(a) effective December 21, 2000 as follows:
If the plaintiff has received benefits without any cost to him, with the exception of pension benefits, that are equal to or greater than the benefits awarded to the incumbent City Clerk for the City of North Tonawanda for the period January 1, 1999 through and including December 31, 2002, the City of North Tonawanda shall not be required to make payment to the plaintiff for those particular benefits during such time period. Disclosure of such benefits received shall be made by plaintiff's attorney along with the submission of plaintiff's earnings statements as set forth herein.
A. For the period January 1, 1999 through July 31, 2001, payment of the aforesaid benefits shall be made no later than September 21, 2001;
B. For the period August 1 through December 31, 2001, payment of the aforesaid benefits shall be made no later than January 15, 2002;
C. For the period January 1, 2002 through June 30, 2002, payment of the aforesaid benefits shall be made no later than July 15, 2002;
D. For the period July 1, 2002 through and including December 31, 2002, payment for the aforesaid benefits shall be made no later than January 15, 2003;
7. Payment of the attorney's fees awarded herein shall be paid no later than September 14, 2001 and shall be made payable in the form of a check drawn on the account of the City of North Tonawanda made payable to the order of John W. Wylucki and David Gerald Jay, Esq., his attorney.
8. The City of North Tonawanda shall also pay to the plaintiff the sum of $2,008.15 which represents his costs and disbursements necessarily incurred by him in the prosecution of this action.
Finally, the parties and their attorneys are hereby advised that they are free to negotiate and enter into a post-trial settlement of plaintiff's claims for the purpose of immediately resolving the financial obligations imposed herein thereby eliminating the need for the future timetables established herein for the awarding of front pay and benefits should they desire to do so.