Eugene Margerum, et al., Appellants-Respondents,v.City of Buffalo, et al., Respondents-Appellants.BriefN.Y.January 6, 2015To be Argued by: CHRISTEN ARCHER PIERROT (Time Requested: 30 Minutes) APL-2013-00290 Appellate Division Docket No. CA 12-01540 Erie County Clerk’s Index No. I 2007-1462 Court of Appeals of the State of New York EUGENE MARGERUM, ANTHONY HYNES, JOSEPH FAHEY, TIMOTHY HAZELET, PETER KERTZIE, PETER LOTOCKI, SCOTT SKINNER, THOMAS REDINGTON, TIMOTHY CASSEL, MATTHEW S. OSINSKI, MARK ABAD, BRAD ARNONE and DAVID DENZ, Appellants-Respondents, – against – CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF FIRE and LEONARD MATARESE, Individually and as Commissioner of Human Resources for the City of Buffalo, Respondents-Appellants. BRIEF FOR APPELLANTS-RESPONDENTS Of Counsel: ANDREW P. FLEMING, ESQ. CHRISTEN ARCHER PIERROT, ESQ. CHIACCHIA & FLEMING, LLP Attorneys for Appellants-Respondents 5113 South Park Avenue Hamburg, New York 14075 Tel.: (716) 648-3030 Fax: (716) 648-0810 Date Completed: January 31, 2014 i TABLE OF CONTENTS Table of Authorities …………………………………………………… iii Questions Presented …………………………………………………… 1 Jurisdictional Statement ……………………………………………….. 3 Procedural History …………………………………………………….. 4 Statement of Facts as to Damages …………………………………….. 8 I: Damage Assumptions Relied Upon By the Trial Court …. 8 II. Assumptions Summarily Rejected By the Appellate Division …………………………………………………… 14 III: Appellate Division’s Modifications to the Non-IOD Plaintiffs: (Reduced Collectively By $732,113) …………………….. 16 Eugene Margerum ………………………………………… 16 Timothy Cassel ……………………………………………. 20 Joseph Fahey ……………………………………………… 23 Matthew Osinski ………………………………………….. 26 Thomas Reddington ………………………………………. 30 Timothy Hazelet …………………………………………… 32 Peter Lotocki ………………………………………………. 36 Peter Kertzie ……………………………………………….. 39 Scott Skinner ……………………………………………….. 42 ii Table of Contents, Cont. IV: Appellate Division’s Damages Modifications to the IOD Plaintiffs: (Reduced Collectively By $412,632) ………………………. 43 Brad Arnone ………………………………………………… 43 Mark Abad …………………………………………………… 45 David Denz ………………………………………………….. 47 V: EVIDENCE SUPPORTING THE TRIAL COURT’S ACCEPTED ASSUMPTIONS AS TO OVERTIME …….. 51 VI: EVIDENCE SUPPORTING THE TRIAL COURT’S ACCEPTED ASSUMPTIONS AS TO PROBABILITY FACTORS, PROMOTION SCENARIOS, AND BASELINE DAMAGES …………..………………………. 56 VII: EVIDENCE SUPPORTING THE TRIAL COURT’S ACCEPTED ASSUMPTIONS REGARDING THE IOD PLAINTIFFS……………………………………. 66 ARGUMENT ………………………………………………………………. 76 POINT I: ANY UNCERTAINTIES THAT EXIST AS TO DAMAGES SUFFERED BY VICTIMS OF ILLEGAL DISCRIMINATION ARE TO BE RESOLVED AS AGAINST THE WRONGDOER AND THE TRIAL COURT’S DETERMINATION TO RESOLVE ANY LINGERING UNCERTAINTIES AS AGAINST DEFENDANTS IS AMPLY SUPPORTED BY EVIDENCE ……………………… 76 iii Table of Contents, Cont. POINT II: THE TRIAL COURT’S CONCLUSIONS REGARDING PLAINTIFFS’ ECONOMIC DAMAGES ARE SUPPORTED BY A FAIR INTERPRETATION OF THE EVIDENCE AND SHOULD NOT HAVE BEEN DISTURBED …………………………………. 90 CONCLUSION …………………………………………………………….. 94 iv TABLE OF AUTHORITIES Cases: A & S Trucking Serv. v. New York State Thruway Auth., 268 A.D.2d 493, 702 N.Y.S.2d 347 (2d Dept. 2000) ……………………… 91 Bagley v. Smith, 10 N.Y. 489, 61 Am.Dec. 756 (1853) ……………………………………... 79 Bigelow v. R. K. O. Radio Pictures, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946)…………………………. 82 Blakesley v. State of New York, 289 A.D.2d 979 (4th Dept. 2001)…………………………………………… 82-83 Blakesley v. State of New York, 98 N.Y.2d 605, 774 N.E.2d 221, 746 N.Y.S.2d 456 (2002)……………….. 82 Brady v. Erlanger, 231 N.Y. 563, 132 N.E. 889 (1921) ……………………………………….. 79 Brady v. Erlanger, 188 A.D. 728, 177 N.Y.S. 301 (1st Dept. 1919)…………………………… 79 Brant v. Barreto, 24 Misc.3d 145(A), 901 N.Y.S.2d 898 (1st Dept. 2009) ………………….. 91 Buckley v. Reynolds Metals Co., 690 F.Supp. 211 (S.D.N.Y.1988)……………………………………….. 80-81 Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918 (2d Cir. 1977) ………………………………………………. 78 Cross v. New York City Transit Authority, 417 F.3d 241 (2d Cir. 2005)……………………………………………….. 90 DiBruno v. Abrams, 208 A.D.2d 672, 617 N.Y.S.2d 371(2d Dept. 1994)………………………. 91 v Table of Authorities, Cont. Dunkel v. McDonald, 272 A.D. 267, 70 N.Y.S.2d 653 (1st Dept. 1947)………………………….. 78 Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759 (2d Cir. 1964)………………………………………………. 78 Flynn v. Allstate Indem. Co., 22 Misc.3d 1138(A), 880 N.Y.S.2d 872 (N.Y.City Ct. 2009)…………….. 78 Frank v. Relin, 851 F.Supp. 87 (W.D.N.Y. 1994)………………………………………. 79-80 Greenberg v. Behlen, 220 A.D.2d 720, 633 N.Y.S.2d 189 (2d Dept. 1995)……………………… 91 Hirschfeld v. IC Securities, Inc., 132 A.D.2d 332, 521 N.Y.S.2d 436 (1st Dept. 1987)………………………. 78 H. P. Corp. v. 210 Central Park South Corp., 16 A.D.2d 461, 228 N.Y.S.2d 883 (1st Dept. 1962)……………………….. 78 Johnson v. Goodyear, 491 F.2d 1364 (5th Cir. 1974)……………………………………………… 80 Koyen v. Consolidated Edison, 560 F.Supp. 1161 (S.D.N.Y.)……………………………………………… 80-81 MacGregor v. Watts, 254 App.Div. 904, 5 N.Y.S.2d 525 (2d Dept. 1938)………………………. 79 Margerum v. City of Buffalo, 83 A.D.3d 1575, 921 N.Y.S.2d 457 (4th Dept. 2011)…………………… 5 Margerum v. City of Buffalo, 63 A.D.3d 1574, 880 N.Y.S.2d 820 (4th Dept. 2009)…………………… 5 Mechwart v. Mechwart, 292 A.D.2d 354, 738 N.Y.S.2d 604 (2d Dept. 2002)………………………. 91 vi Table of Authorities, Cont. New York City Transit Authority (Estate of Donner) v. City of New York, 166 A.D.2d 336, 562 N.Y.S.2d 467 (1st Dept. 1990) …………………….. 92 Northern Westchester Professional Park Associates v. Town of Bedford, 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 N.E.2d 809 (1983) ………………. 92 Osterhout v. Mesivta Sanz of Hudson County, 226 A.D.2d 893, 640 N.Y.S.2d 363 (1996)……………………………….. 91 Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)…………………… 64, 80 Sharkey v. Lasmo , 214 F.3d 371 (2d Cir.2000) ………………………………………………. 90 Silverman v. Mergentime Corp./J.F. White, Inc., 252 A.D.2d 925, 676 N.Y.S.2d 301 (1998)……………………………….. 90 Spitz v. Lesser, 302 N.Y. 490, 99 N.E.2d 540 (1951)……………………………………… 77-78 St. James Nursing Home v. De Buono, 12 A.D.3d 921, 784 N.Y.S.2d 712 (3d Dept. 2004)………………………. 90 Thoreson v. Penthouse Intern., Ltd., 80 N.Y.2d 490, 606 N.E.2d 1369 (1992)………………………………….. 91 Vernon v. Port Authority of New York and New Jersey, 2003 WL 1563219 (S.D.N.Y. 2003)…………………………………….. 90 Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 4 N.E. 264, 54 Am.Rep. 676 (1886)………………………. 78-79 Walsh v. State of New York, 232 A.D.2d 939 (3d Dept. 1996) …………………………………………. 82 vii Table of Authorities, Cont. Warm v. State, 308 A.D.2d 534, 764 N.Y.S.2d 483 (2d Dept. 2003) ……………………… 91 Statutes McKinney’s CPLR § 5501………………………………………………… 4, 92 Other Authority 22 Am.Jur.2d ADamages@ ' 457 ……………………………………………. 80 Siegel, New York Practice, § 529 …………………………………………... 92 1 QUESTIONS PRESENTED 1. Did the Appellate Division, Fourth Department erroneously draw inferences from the evidence within the record and choose to credit Defendants’ expert’s assumptions over Plaintiffs’ expert’s assumptions where doing so resulted in the inherent uncertainties of the damages calculations being resolved as against the Plaintiffs, instead of being resolved against Defendants, where it is undisputed that the Defendants’ unlawful actions created some uncertainties in predicting Plaintiffs’ future damages? Answer: The Appellate Division, Fourth Department answered this question in the negative. Specifically, the Appellate Division credited the assumptions of Defendants’ expert, who assumed each of the Plaintiffs would continue to be promoted well into the future and, in turn, deducted the compensation from those anticipated promotions from Plaintiffs’ damages, over Plaintiffs’ expert, who assumed that Plaintiffs would not continue to be promoted after the time of trial and into the future, which necessarily resolved any uncertainties about the Plaintiffs’ future job prospects against the Plaintiffs instead of the Defendants (contrary to established case law). Further, in awarding the dollar figures that it did, the Fourth Department also necessarily credited Defendants’ expert’s assumptions as to future overtime calculations inasmuch as his calculations were premised on same. 2 Questions, Cont. 2. Did the Appellate Division erroneously exercise its discretion where it vacated the trial judge’s findings regarding the inferences to be drawn from the evidence in the record where the record was exceedingly long and contained in excess of 5,000 pages of trial testimony and exhibits; where the trial judge was undisputedly in the most favorable position to pass critique on the evidence and record as a whole as he presided over thirteen separate days of trial and ruled upon hundreds of exhibits, objections, and pre and post-trial motions; and, especially, where the Appellate Division gave no analysis or justification as to why it found Defendants’ expert’s assumptions to be inferable as to future job prospects and failed to address altogether Defendants’ assumptions regarding overtime, which were not supported by the record? Answer: The Appellate Division, Fourth Department, by vacating the trial judge’s findings, by substituting its judgment for that of the trial judge, by electing to credit Defendants’ expert over Plaintiffs’ expert, and, ultimately, by modifying and reducing the trial judge’s award of damages as to the non-IOD Plaintiffs, without so much as an explanation, answered this question in the negative. 3 Questions, Cont. 3. Is the Appellate Division’s reversal of the trial court’s determinations with respect to the Injured on Duty (“IOD”) Plaintiffs supported by the record where the Defendant’s expert relied upon data that is not included within the record, committed mistakes in his conclusions regarding same, the trial court noted the deficiencies in Defendant’s expert’s cross-examination testimony, and where Plaintiffs’ expert relied upon credible data contained within the record and conducted, what the trial court found to be, a more meaningful analysis on same? Answer: The Appellate Division, Fourth Department, by vacating the trial judge’s findings, by substituting its judgment for that of the trial judge, by electing to credit Defendants’ expert over Plaintiffs’ expert, and, ultimately, by vacating the trial judge’s award of damages as to the IOD Plaintiffs answered this question in the affirmative. 4 JURISDICTIONAL STATEMENT The Court of Appeals has jurisdiction to hear and decide this appeal pursuant to CPLR '5602(a)(1)(i) in that the Order sought to be appealed from is a final determination, there are no remaining legal claims that have not been decided, and the motion for leave was timely made. [A-3, 5.] 5 PROCEDURAL HISTORY Plaintiffs-Respondents, (hereinafter APlaintiffs,” or individually referred to by their names) commenced suit in New York State Supreme Court on or about February 12, 2007, after having learned that each Plaintiff, between September 2005 and February 2006, was indisputably and deliberately denied a promotion that each Plaintiff was otherwise set to receive solely because each Plaintiff was white. Specifically, each Plaintiff had taken, passed and scored high enough on a competitive promotional civil service examination, earned a place on the resulting certified eligible list, and received a notice of appointment to his respective promotional position only to be prevented from securing such appointment by the unilateral decision of former City Civil Service Commissioner, Leonard Matarese, to expire the lists deliberately to prevent the appointment of any additional white candidates to promotional spots (even though, in some cases, African Americans had already been promoted from the lists ahead of Plaintiffs). [A-57.] After successfully defending two appeals regarding the issue of liability before the Appellate Division, Fourth Department by the City Defendants (see Margerum v. City of Buffalo, 83 A.D.3d 1575, 921 N.Y.S.2d 457 (4th Dept. 2011) and Margerum v. City of Buffalo, 63 A.D.3d 1574, 880 N.Y.S.2d 820 (4th Dept. 2009), Plaintiffs were finally able to proceed with a bench trial on damages in the late summer and fall of 2011 and which concluded only after thirteen separate days 6 of trial with a February 8, 2012 Decision and Order (hereinafter “Decision”) awarding a collective $2,510,170 in economic and a collective $226,913 in emotional distress damages to twelve of the thirteen Plaintiffs. [A-9, 11, 20.] The City appealed the awards that the trial judge, Hon. John A. Michalek made. [A-17.] The Fourth Department unanimously modified the award by reducing the collective economic damage award by nearly $1.2 Million Dollars. [A-5.] The Appellate Division did not modify the emotional distress awards. Plaintiffs served Respondents’ counsel with the Fourth Department’s Order, together with a Notice of Entry of same, via regular mail on July 9, 2013. The Plaintiffs sought leave, directly from this Court, to appeal the damages modification by the Fourth Department on the basis that such modification resolved all uncertainty in the calculation of damages as against the victim Plaintiffs instead of the wrongdoer Defendant. Defendant also sought leave, directly from this Court, to appeal the Fourth Department’s 2011 Decision upholding the issue of liability in Plaintiffs’ favor. On October 17, 2013, this Court granted the parties’ cross applications for leave. [A-3.] 7 STATEMENT OF FACTS AS TO DAMAGES Foreword: This submission is lengthy. This is so, in part, due to the fact that there are twelve Plaintiffs participating in this appeal, each of whom has a back story and a set of unique facts and circumstances regarding the economic and personal impact of the discrimination upon them. The length of this submission is also the natural result of the fact that the trial record in this case was nearly 5,000 pages. There are many facts; there was much testimony; and, the exhibits are voluminous. Here, we have done our best to organize the facts, distinct from the legal analysis, for the Court below in seven separate points: Damage Assumptions Relied Upon By the Trial Court; Assumptions Summarily Rejected By the Appellate Division; Appellate Division’s Modifications to the Non-IOD Plaintiffs; Appellate Division’s Modifications to the IOD Plaintiffs; Evidence Supporting the Trial Court’s Accepted Assumptions as to Overtime; Evidence Supporting the Trial Court’s Accepted Assumptions as to Probability Factors, Promotion Scenarios, and Baseline Damages; and Evidence Supporting the Trial Court’s Accepted Assumptions Regarding the IOD Plaintiffs. As a result, our legal argument does not begin until page 76 of this brief. 8 I: Damage Assumptions Relied Upon By the Trial Court Plaintiffs were each denied a promotion in 2005 and/or 2006, which each would have otherwise had but for the racial discrimination against them by the City of Buffalo, through the unilateral decision of its Civil Service Commissioner, Leonard Matarese. [A-9-10, 20-22, 59-71.] Each Plaintiff has his own section in the pages which follow. As a result of this discrimination, Plaintiffs have suffered lifetime economic damages due to lost promotions (and even where four of the Plaintiffs did receive their initial lost promotion by the time of trial, the delay in receiving such promotion has, for all intents and purposes, caused them a lost promotion at the end of their careers). Each Plaintiff, admittedly some more than others, has suffered a snowball set back effect as a result of missing the 2005/2006 appointment to which each was entitled. This is especially so since the City of Buffalo failed to administer another series of examinations and establish a list from which to appoint until 2008. [A-1788.] In order to award Plaintiffs damages, a determination needed to be made as to what each Plaintiff’s future looked like at the time of trial (post-discrimination) as compared to what it would have looked like back in 2005/2006 absent the discrimination. In order to create a picture of these two separate futures, a number of criteria had to be analyzed and a number of conclusions, or assumptions, had to 9 be drawn. That criterion included, among other things, determining the proper interest rate to apply to present value the future damages, estimating an appropriate work life expectancy, projecting future wages, projecting future overtime earnings, determining future promotion probabilities, and, as to the Injured on Duty (“IOD”) Plaintiffs who became disabled as firefighters after not having been promoted, estimating the future likelihood of their being injured and going out on disability retirement as a Lieutenant had they been promoted in 2005/2006. Each expert put forth certain assumptions justifying his position on the above factors. After hearing all of the testimony in the case, Judge Michalek, after a lengthy non-jury trial, reached conclusions by relying on the various assumptions that he deemed most credible and equitable. Judge Michalek did an outstanding job in plowing through this fact intensive analysis. The Appellate Division technically modified only three of Judge Michalek’s conclusions on the damages portion of the appeal. Each of the other factors and conclusions as determined by the judge, sitting as trier of fact, were left intact. The first factual conclusion in controversy (and which was necessary for the experts to calculate future damages) concerned the appropriate period in time from which to utilize data regarding the overtime compensation paid by the City of Buffalo to its firefighters. Both experts chose distinct periods of time, took the data from same, and calculated projections into the future in an effort to make an 10 educated prediction as to what overtime compensation would have been earned in the absence of discrimination, as compared to what overtime compensation will be earned in this now post-discrimination world. The City’s expert, Mr. Besaw, determined to use the five year period of time immediately preceding the discrimination, or 2000, 2001, 2002, 2003, 2004, and 2005, a time when overtime was exceedingly low. [A-1957.] The Plaintiffs’ expert, Dr. Richard Shick, determined to use the three year period immediately preceding the date of the damages trial (Fall 2011), or 2008, 2009, and 2010. [A-1531.] Judge Michalek, while making a factual determination as trier of fact, rejected both conclusions and determined, instead, that overtime data from the years 2006, 2007, 2008, and 2010, was the most likely to accurately predict future overtime for purposes of calculating Plaintiffs’ front pay and pension losses. [A- 47-48, 3180.] The Fourth Department, in its Decision, did not address this rather critical overtime assumption/determination by Judge Michalek. However, by virtue of imposing the damage awards that it did, it inherently overturned the trial court’s determinations in this regard and, whether purposely or not, it credited the Defendant’s expert’s proposed time period of 2000-2005. This is so because the set of damage figures imposed by the Appellate Division were directly premised upon 11 data from the 2000-2005 time period, which had been rejected as a matter of fact by Judge Michalek. [A-5, 3086, 3088-3105.] The Appellate Division’s decision was erroneous and an abuse of discretion and ought to be reversed because (a) the evidence within the record supports the trial court’s determinations regarding overtime, (b) because the Appellate Division failed to even remark on the overtime issue, much less explain its departure from the trial court’s findings in that regard [A-7] and, further, (c) because the Court could have imposed damage figures which appear in the record and which contemplate the trial court’s accepted overtime period of 2006, 2007, 2008, and 2010, even while disregarding the trial court’s assumption as to future promotions [A-3106-3115], which is set forth more fully below. The second factual conclusion that the trial court accepted was Plaintiffs’ expert’s assumption regarding a “baseline” from which to calculate future losses. Plaintiffs’ expert, for reasons which will be set forth more fully below, calculated each Plaintiff’s loss on the premise that each of the Plaintiffs will now not receive any other promotions through the duration of his career, except those already received by the time of trial, if any. [A-1589-1590, 1606-1609.] Defendant’s expert, on the other hand, predicted that every Plaintiff will be promoted every seven years into the future. [3062-3064.] 12 The trial court determined, for a number of reasons which will be described more fully below, to resolve the uncertainty of whether Plaintiffs will be able to achieve any further promotions against the wrongdoer Defendant. [A-50.] In doing so, however, the trial court made a number of other adjustments in the assumptions, all of which served to protect against the Plaintiffs being either undercompensated or overcompensated. [A-42-52.] The trial court instructed Defendant’s expert to recalculate his numbers using the baseline used by Plaintiff’s expert, i.e., to assume the Plaintiffs will receive no further promotions except for those received by the time of trial and, further, the trial court instructed both experts to base their respective damages using averages from the overtime data from the time period of 2006, 2007, 2008, and 2010, since the court found those figures to be more representative of the overtime figures still prevalent at the time of trial and likely to be prevalent into the future. [A-2995-2997, 3180.] The trial court then awarded damages to the Plaintiffs in amounts which were directly equivalent to the revised calculations reached by Defendant’s expert inasmuch as Plaintiffs’ expert’s calculations were premised upon other assumptions not accepted by the trial court as more credible. To be clear, Defendant’s expert calculated the damages awarded to Plaintiffs by the trial court. 13 [Compare the awards made in the Decision at A-52-56 to the calculations reached by Mr. Besaw at A-3132-3141.] Defendant’s expert’s initial calculations1, however, which have been now imposed by the Appellate Division, contemplated assumptions which had been rejected by the trial court: That Plaintiffs would continue to be promoted, every seven years, into the future and calculated projected future overtime earnings on the overtime figures from the irrelevant time period of 2000-2005. [A-3085, 3087, 3088-3105.] The third factual conclusion summarily rejected by the Appellate Division regarded the trial court’s acceptance of Plaintiffs’ expert’s determinations that the IOD Plaintiffs would have had an 85% chance of still becoming disabled as a Lieutenant had each been promoted in 2005/2006. In short, Dr. Shick determined that Plaintiffs Abad, Arnone, and Denz would have had an 85% chance of still becoming disabled after being appointed to Lieutenant. [A-2995.] He premised his analysis on five separate data sources, including disability retirement rates from 1996-2011, staffing levels during the 2006/2007 budget year, the actual reported 1 Defendant’s expert prepared four sets of damage calculations. [A-3083-3086.] The first assumed that Plaintiffs would continue to be promoted every seven years into the future and calculated future damages using overtime averages from the time period of 2000-2005. The second assumed promotions every seven years, but calculated damages on overtime averages from the time period of 2006, 2007, 2008, and 2010. The third assumed no promotions, but calculated damages on the time period of 2000-2005. The final set of calculations, which were awarded by the trial court, assumed no future promotions, and calculated damages using the overtime data from the time period of 2006, 2007, 2008, and 2010. 14 injury rates for both firefighters and lieutenants during the time period in question (2007), which established that lieutenants were reporting more injuries than firefighters, Plaintiffs’ prior injuries, and an assessment that lieutenant work is just as physically dangerous as firefighter work. Dr. Shick concluded that the IOD Plaintiffs each had an 85% probability of injury even after being promoted to lieutenant. [A-2258-2261.]The City’s expert, Mr. Besaw, after considering only the percentages of disability retirements over the time period of 1996-201, concluded that there was a 58.6% chance that the Plaintiffs would still have become injured following a promotion to Lieutenant. [A-2023-2026.] Mr. Besaw did not consider the Plaintiffs’ prior injuries, the injury rates during the time period in question, the staffing levels of the Department in the relevant time frame, or the similarities between the work of a firefighter and the work of a lieutenant. His probabilities resulted in Abad and Arnone receiving no damages, and Denz receiving $40,966. Id. II. Assumptions Summarily Rejected By the Appellate Division The Appellate Division modified the trial court’s award of damages in its entirety. As to the Non-IOD Plaintiffs, the Appellate Division implicitly rejected both the underlying assumption as to overtime and as to future promotions. Specifically, the court wrote: 15 The parties each presented expert testimony on the issue of economic damages, and the experts provided separate calculations for those plaintiffs who were on “injured on duty” (IOD) status. We conclude that the assumptions on which plaintiffs’ expert relied are not fairly inferable from the evidence, and thus his opinion concerning the non- IOD plaintiffs which was based on speculation about their future job prospects, cannot support the awards made by the court. [A-7 Emphasis added.] Of course, this passage suggests that the Appellate Division only intended to reject the assumption regarding Plaintiffs’ future promotions (“future job prospects”), to wit, the assumption that Plaintiffs would not, subsequent to the discrimination, be promoted in the future (other than those promotions, if any, had by the time of trial). To the extent that the Appellate Division sought to side with the defense and assume future promotions in Plaintiffs’ baseline for future damages calculations, it should have done so merely by awarding damages in line with Mr. Besaw’s calculations which assume those promotions but also use the appropriate overtime period of 2006, 2007, 2008, and 2010, as determined by the trial court. [A-3083- 3086, 3106-3115.] [Even then, the Appellate Division’s departure from the trial court’s findings would be improper inasmuch as the evidence and established case law amply supports Judge Michalek’s ruling that no future promotions should be built into Plaintiffs’ baseline for calculating damages.] 16 The Appellate Division’s summary modification of the trial court’s awards, substituting Mr. Besaw’s initial calculations in toto, which are not premised upon either the no-promotion assumption or the relevant overtime period, implicitly rejected the trial court’s determinations as to the appropriate overtime period, but all without any explanation or reason. To be clear, the Appellate Division did not even acknowledge this result, much less address why Defendant’s assumptions regarding overtime were more inferable from the record than those of the Plaintiffs’ expert, especially where uncertainties ought to be resolved as against the wrongdoer and where the trial court carefully reached its conclusion as a result of evidence put on by both experts. III: Appellate Division’s Modifications to the Non-IOD Plaintiffs: (Reduced Collectively By $732,113) Eugene Margerum Initial Revised2 Plaintiff expert: $742,239 $612,620 Defendant expert: $288,4453 $530,162 Trial court: $528,706 Appellate Division: $288,445 Reduction from Trial court: $240,261 2 The revised calculations are the final numbers submitted by the experts after the Trial court accepted certain assumptions and rejected others. 3 This number represents Defendant’s original calculations as corrected by Kelly Besaw after acknowledging that his initial calculations contained errors. 17 Eugene Margerum, now age 44, commenced his career with the Buffalo Fire Department (ABFD@) on September 30, 1996, when he was just 26 years old. [A- 1309.] He aspired to move up through the ranks and eventually be promoted to Division Chief. [A-1312-1313.] The first time that Gene was eligible to sit for the Lieutenant=s exam was 2001. [A-1310.] He had begun preparing for the Lieutenant=s exam right out of the academy. [A-1311.] He scored Avery well@ on the test, placing 9th on the eligible list that resulted from same. [A-1310.] Gene would have been appointed off of that list but for Defendant Matarese’s unlawful discrimination. Despite Gene’s best efforts to prepare to retake the Lieutenant=s examination in 2008, he failed miserably. He described having to prepare to retake the test as being, Ain a word, a nightmare.@ [A-1313.] Gene explained: I couldn't study. I -- I had a really hard time because I was trying to be excited for it. I had got it put in my mind that I needed to finish number one. That's the only way I can improve my position. I was two out4 when this happened. The only way I could do better was to finish number one. I -- I got all the study materials for the exam because they -- they told us what to study and I couldn't read them. Some of the stuff I had read already. I -- in like two of the books I had read from front to back and it was already highlighted. And every time I tried to sit down and -- and read this, I would get upset. I didn't see the 4 Gene was effectively second on the list since the eligibles in positions one through seven had been appointed. Fellow Plaintiff, Timothy Cassel, was in position number eight and was also anticipating a promotion. Id., p. 11. 18 point in it. I didn't see how it was going to change anything. I felt -- I felt betrayed that, what's the point in me taking the exam . . . [A-1314.] Despite his anxiety and fears, Gene signed up, paid for and appeared to attend a week-end Rock Hill seminar in anticipation of the examination, however, he ended up leaving early. Gene testified about his early departure: I was -- I was just upset. It's very difficult because I'm a pretty capable guy. I've done a lot of things in my life, and I couldn't get in the right place to study. I couldn't -- I couldn't get in the right place. I couldn't sit in the room with these guys. And -- and there -- I couldn't find that passion, that excitement, that drive to do well. It wasn't there. [A-1315.] He went on to explain that he lost his Adrive@ and Aexcitement,@ because at the end of the day, he is still white. Id. Ultimately, Gene placed somewhere in the eighties on the certified eligible list following the grading of the 2008 Lieutenant=s examination, a rank generally considered unreachable in Gene=s experience in the Department. [A-1315-1317 (Testifying that 60th was the farthest down the list that he knew of achieving a promotion off of a list).] Gene=s testimony demonstrates that not only has he has lost hope of being promoted, he has lost his ability to focus, concentrate and perform in the 19 promotional testing process and every subsequent testing opportunity is now a source of distress. Using the trial court’s assumptions as to overtime and a “no future promotion baseline,” Defendant’s expert determined Plaintiff Margerum’s damages to be $530,762. [A-3086.] The trial court awarded $528,706 [A-55], and the Appellate Division reduced the award to the Defendant’s expert’s original calculation of $288,445 [A-7], which drastically undervalues Plaintiff Margerum’s future overtime losses, and undercompensates him for future lose earnings inasmuch as the evidence establishes that he is unlikely to achieve future promotions in light of the difficulty that he has experienced since the discrimination occurred. The Appellate Division’s acceptance of Mr. Besaw’s calculation of $288,445 in damages assumes that Eugene Margerum will promote to Lieutenant in 2016 and then promote again to Captain in 2024 [A-3092], which, in turn, assumes that the City will administer a Lieutenant examination in or around 2016, which Plaintiff Margerum will complete and score well enough on to be able to be reachable for appointment, that the City will appoint him, instead of exercising its right to appoint “one of three,” that the City will then administer a Captain’s examination by 2024, which Plaintiff Margerum will complete and score well enough on to be able to be reachable for appointment, and that the City will 20 appoint him again, instead of exercising its right to appoint “one of three.” Those assumptions are simply not supported by what evidence we have regarding the post-discrimination world, especially where Eugene Margerum has yet to successfully prepare for and take an examination since he was discriminated against. Assuming a single future promotion for Eugene Margerum, much less two, is simply not supported by the record and, as a result, the Appellate Division’s vacatur of his damages award cannot be reasonable as a matter of law. However, even if it was reasonable to infer from the record that Margerum will actually be appointed to Lieutenant and then Captain by 2024, it was still error for the Appellate Division to award damages premised upon overtime figures which are not fairly representative of current or anticipated future overtime trends. Thus, to the extent that this Court would side with the defense and assume future promotions, but conversely side with the trial court and require the 2006, 2007, 2008, and 2010 period for overtime purposes, Eugene Margerum’s damages, as calculated by Mr. Besaw are still $415,509. [A-3086 under Increased Overtime column.] 21 Timothy Cassel Initial Revised Plaintiff expert: $651,116 $577,797 Defendant expert: $282,819 $511,357 Trial court: $511,193 Appellate Division: $282,819 Reduction: $228,374 Tim Cassel, now age 48, commenced his career with the Buffalo Fire Department (ABFD@) in 1996 when he was 30 years old. [A-1451-1452.] Tim was first eligible to sit for the Lieutenant’s examination in 2002, and he did. He finished 8th on the list. [A-1453.] When the Lieutenant’s examination was administered again in 2008, Tim sat for the test, despite having difficulties in preparing for same. He placed 71st on the list. Tim explained why he believed he dropped so drastically in performance from the 2002 exam to the 2008 exam: Well, probably the major issue was just being able to concentrate on the studying. I had been passed over because of my race the first -- the first time around, what was to stop the City from doing it the second time around. It was very hard to concentrate. You sit down and look at -- read the book, you go through a few pages and you realize all you've been doing is thinking about the previous list and why I wasn't promoted. [A-1454.] 22 The Appellate Division’s acceptance of Mr. Besaw’s calculation of $282,819 in damages assumes, just like Eugene Margerum, that Timothy Cassel will promote to Lieutenant in 2016 and then promote again to Captain in 2024 [A- 3089], which, in turn, assumes that the City will administer a Lieutenant examination in or around 2016, which Plaintiff Cassel will complete and score well enough on to be able to be reachable for appointment, that the City will appoint him, instead of exercising its right to appoint “one of three,” that the City will then administer a Captain’s examination by 2024, which Plaintiff Cassel will complete and score well enough on to be able to be reachable for appointment, and that the City will appoint him again, instead of exercising its right to appoint “one of three.” Those assumptions are simply not supported by what evidence we have regarding the post-discrimination world, especially where Timothy Cassel has yet to successfully prepare for and take an examination since he was discriminated against. Assuming a single future promotion for Tim Cassel, not to mention two, is simply not supported by the record. Tim Cassel’s damages, as calculated by Mr. Besaw, are $511,357 [A-3086 under the No Baseline/Increased Overtime column] and, as a result, the trial court’s award of $511,193 [A-53] was supported by the record. The Appellate Division’s modification as to Tim Cassel is erroneous and must be reversed. 23 However, even if it was reasonable to infer from the record that Timothy Cassel will actually be appointed to Lieutenant and then Captain by 2024, it was still error for the Appellate Division to award damages premised upon overtime figures which are not fairly representative of current or anticipated future overtime trends. Thus, to the extent that this Court would side with the defense and assume future promotions, but conversely side with the trial court and require the 2006, 2007, 2008, and 2010 period for overtime purposes, Timothy Cassel’s damages, as calculated by Mr. Besaw, are still $403,844. [A-3086 under the Increased Overtime column.] Joseph Fahey Initial Revised Plaintiff expert: $249,536 $212,873 Defendant expert: $70,567 $178,527 Trial court: $179,095 Appellate Division: $70,567 Reduction: $108,528 Joe commenced his career with the Buffalo Fire Department (ABFD@) in February 1986 when he was just twenty-three years old. [A-1275.] Despite working full-time in the Department, Joe entered law school at the University at Buffalo in 1989 thinking that he would like to pursue a career as a prosecuting 24 attorney. He graduated law school in 1992 and, subsequently, passed the Bar exam, at which point he practiced law occasionally. Shortly thereafter, however, Joe realized that being a fireman meant more to him than practicing law. He testified that his heart was not into practicing law, it was into being a fireman. [A-1280- 1281.] He aspired to move up through the ranks and eventually be promoted to Division Chief. [A-1278.] By November 2000, Joe was promoted to the rank of Captain. [A-1276.] In 2002, having had a year in service as a Captain and after studying for nearly two years, buying, reading and making notes on dozens of books, Joe sat for the Battalion Chief=s promotional examination. [A-1277.] He scored fifth on the test, but due to a promotion, he was effectively in fourth place. By September 2005, Joe was next in line for promotion into a Battalion Chief vacancy. Id. In November 2007, after being discriminated against on the basis of his race and losing his promotion in 2006, Joe sat for a second Battalion Chief=s examination. [A-1279.] Despite having previously performed well and despite having served as a provisional Battalion Chief for over two years= time, Joe was ranked seventeenth on the list. [A-1279.] He believes that he will never make Division Chief now because there is not enough time left in his career; in just three years, Joe will be 55 years old and will 25 have maxed out his pension benefit with 32 years of service. [A-1278.] If Joe is not promoted off of the current 2007 Battalion Chief=s list, he would have to test for Battalion Chief, for a third time. The Appellate Division’s acceptance of Mr. Besaw’s calculation of $70,567 in damages assumes that Joe Fahey will promote to Battalion Chief by 2014 [A- 3090], which, in turn, assumes that the City administered a Battalion Chief examination before 2014, which Plaintiff Fahey will complete and score well enough on to be able to be reachable for appointment, and that the City will appoint him, instead of exercising its right to appoint “one of three.” Assuming a future promotion for Joe Fahey is simply not supported by the record inasmuch as he already took the Battalion Chief examination once since the discrimination occurred and he failed to score high enough on the list to be reachable. The trial court noted influences not considered by the experts in their testimony which would impact a Plaintiff’s ability to promote, like a lack of motivation and pessimism toward the City. Joe Fahey’s damages, as calculated by Mr. Besaw, are $178,527 [A-3086 under the No Baseline/Increased Overtime column] and, as a result, the trial court’s award of $179,095 [A-53] was supported by the record. The Appellate Division’s modification as to Joe Fahey is erroneous and must be reversed. 26 However, even if it was reasonable to infer from the record that Joe Fahey will actually be appointed to Battalion Chief this year, it was still error for the Appellate Division to award damages premised upon overtime figures which are not fairly representative of current or anticipated future overtime trends. Thus, to the extent that this Court would side with the defense and assume a future promotion, but conversely side with the trial court and require the 2006, 2007, 2008, and 2010 period for overtime purposes, Joe Fahey’s damages, as calculated by Mr. Besaw, should have been at least $171,092. [A-3086 under the Increased Overtime column.] Matthew Osinski Initial Revised Plaintiff expert: $256,145 $251,186 Defendant expert: $46,171 $120,005 Trial court: $118,859 Appellate Division: $46,171 Reduction: $72,688 Matt Osinski, now age 44, commenced his career with the Buffalo Fire Department (ABFD@) in 1998 when he was just 27 years old. [A-1422.] When Matt was first eligible to sit for the Lieutenant’s examination in 2002, he did and he placed 11th place on the resulting list (though he was effectively 10th due to a promotion made off of the prior list). [A-1423.] 27 When the Lieutenant’s examination was offered again in 2008, Matt took it, this time placing 27th on the list. However, despite his lower score, he was ultimately promoted in September of 2009. He told the Court that he felt like he was wasting his time preparing for the test, explaining: It was much more difficult to prepare for that exam knowing that I should have been a lieutenant already, knowing that when I was studying I should have been studying for captain as opposed to retrying for lieutenant . . . [A-1424.] Prior to the list being killed, Matt was confident in his future with the Department and he had intended on promoting through the ranks and working until he earned the highest pension available. [A-1425, 1438.] He told the Court: I anticipated moving right up through the ranks. I scored very well on the lieutenant's exam with approximately five years on the job. I figured I was going to get promoted early on that list, be able to take the captain's list, and judging by my score on the lieutenant's, I'd be making captain within ten years and moving on to battalion chief within five years after that, and then to division chief after that. I fully anticipated running up through the ranks. [A-1425.] Of course, Matt explained that after the list was killed, he now has doubts about being promoted in the future, telling the Court: Right now I -- I can't tell you [what my future looks like]. I want to -- I'm going to take the captain's test. I want to become a captain, I still want to go up through the ranks but I don't -- I don't have the trust in 28 the City to think that I'm going to be able to achieve that. What says they're not going to skip me in the future. Id. On cross-examination, the defense posed a hypothetical scenario of Matt placing first, second or third on the next Captain list that issues and asked Matt whether he could think of any reason why he wouldn’t be promoted if he placed in the top three. Of course, Matt justifiably testified that the Department has recently implemented use of the one in three rule, which would allow them to skip over him. Further yet, however, is the absurdity of the proposition that in order for Matt to be promotable he would have to score in the top three on a list (in the post- discrimination world). Matt has never, even when he was not battling the lasting and devastating effects of discrimination, placed in the top three. And, certainly, now that his heart is not in the job, or now that his competition has increased, or now that he has difficulty studying and preparing for the future exams, he cannot be expected to place in the top three on a list. In fact, we know that in the pre- discrimination world, Matt placed 11th on the list and in the post-discrimination world, Matt placed 27th on the list. Even the defense’s own hypothetical scenario forecloses Matt’s promotion opportunities in the future. Indeed, in order to secure further promotions, Matt would have to successfully prepare for and complete additional examinations. He has already 29 testified how difficult it was for him to prepare for the Lieutenant’s examination in 2008 because he had already taken and passed it and should have been testing for Captain. The Appellate Division’s acceptance of Mr. Besaw’s calculation of $46,171 in damages assumes that Matt Osinski will promote to Captain by 2016 and then promote again to Battalion Chief by 2023 [A-3096], which, in turn, assumes that the City will administer a timely Captain’s examination in or around 2016, which Plaintiff Osinski will complete and score well enough on to be able to be reachable for appointment, that the City will appoint him, instead of exercising its right to appoint “one of three,” that the City will then administer a Battalion Chief’s examination by 2023, which Plaintiff Osinski will complete and score well enough on to be able to be reachable for appointment, and that the City will again appoint him, instead of exercising its right to appoint “one of three.” It also is premised upon the 2000-2005 overtime period. Mr. Besaw’s assumptions are simply not supported by what evidence we have regarding the post-discrimination world, especially where Matt Osinski testified regarding his difficulties in preparing for and taking an examination since he was discriminated against. Assuming an additional future promotion for Matt Osinski, not to mention two, is simply not supported by the record. Thus, it was not reasonable for the 30 Appellate Division to award damages which disregarded both the relevant overtime data and Osinski’s unlikelihood of achieving two additional promotions by 2023. Matt Osinski’s damages, as calculated by Mr. Besaw, are $120,005 [A-3086 under the No Baseline/Increased Overtime column] and, as a result, the trial court’s award of $118,859 [A-55] was supported by the record. The Appellate Division’s modification as to Matt Osinski is erroneous and must be reversed. Thomas Reddington Initial Revised Plaintiff expert: $145,006 $133,363 Defendant expert: $64,455 $107,782 Trial court: $107,061 Appellate Division: $64,455 Reduction: $42,606 Tom Reddington, now age 57, commenced his career with the Buffalo Fire Department (ABFD@) in 1988 when he was 30 years old. [A-1316.] In 1998, Tom scored well the Lieutenant examination and was subsequently promoted. [A-1317.] He took the Captain’s examination in 2002 and was next in line for appointment when Matarese killed the list. [A-1317.] As a result, he remained in the Lieutenant position for ten years until the next Captain’s test was 31 administered in 2008. Id. Tom placed 13th on the list and was promoted. Id. At the time of trial in Fall 2011 he was awaiting announcement for the Battalion Chief’s examination, but one had not been made yet. [A-1318.] Of course, Tom should have been next sitting for the Division Chief’s examination, but for Matarese’s discrimination against him. Id. The Appellate Division’s acceptance of Mr. Besaw’s calculation of $64,455 in damages assumes that Tom Reddington will promote to Battalion Chief by 2015 [A-3097] which, in turn, assumes that the City will administer a timely Battalion Chief’s examination before then, which Plaintiff Reddington will complete and score well enough on to be able to be reachable for appointment, that the City will appoint him, instead of exercising its right to appoint “one of three.” Mr. Besaw’s assumptions are simply not supported by what evidence we have regarding the post-discrimination world, especially where Reddington’s promotional appointment is dependent upon the City’s timely administration of an examination; Reddington’s success on same; a vacancy for which he can be appointed into; and the City’s willingness to appoint him. Assuming an additional future promotion for Plaintiff Reddington within which he can work for four years before his retirement is simply not supported by the record. Thus, it was not reasonable for the Appellate Division to award 32 damages which disregarded both the relevant overtime data and Reddington’s unlikelihood of achieving an additional promotion by 2015. Reddington’s damages, as calculated by Mr. Besaw using the assumptions accepted by Judge Michalek, are $107,782 [A-3086 under the No Baseline/Increased Overtime column] and the trial court’s award of same [A-55] was supported by the record. Timothy Hazelet Initial Revised Plaintiff expert: $350,276 $296,8155 Defendant expert: $211,054 $233,808 Trial court: $232,309 Appellate Division: $211,054 Reduction: $21,255 Tim Hazelet, now age 53, commenced his career with the Buffalo Fire Department (ABFD@) in 1985 when he was 24 years old. [A-1357.] He was promoted to Captain shortly thereafter. [A-1359.] 5 This number does not contemplate a “weighted loss” as premised upon various career paths, but instead reflects the loss associated with Plaintiff Hazelet’s inability, as a result of the discrimination, to ever reach the rank of Division Chief, particularly since he was no longer an effective test-taker after having been discriminated against and he does not have enough time to sit for both the Battalion Chief examination and the Division Chief examination since such exams are only administered every 4+ years. 33 Tim took the Battalion Chief’s exam for the first time in 1998, but was not appointed off of the resulting list because he did not score high enough to be reachable. However, determined to succeed on the next examination, Tim re- prepared and sat for the test again when it was administered in 2002. [A1359- 1360.] Tim sat for the Battalion Chief’s examination in 2002 and finished sixth on the list. He was up for promotion when Matarese expired the lists. Id. When the next promotional examinations were announced in late 2007, it was the last blow to Tim and he realized that the situation was not going to be corrected. [A-1361.] He testified that he thought for sure that this mess was going to get corrected. Id. Despite having only a month’s notice, and despite previously describing himself as someone who needs eight months to study and prepare for a test in order to do well, Tim attempted to prepare for and take the Battalion Chief examination again when it was re-administered in late 2007. See SA- 2-3. Tim tried to study for the entire month preceding the exam. He testified that every time he attempted to study for the test that he had already taken and passed, he became so angry that he would throw whatever he was studying away. Id., p. 54. He could not believe he was taking another Battalion Chief examination. It was the first time he felt 34 finality; he felt forgotten about and realization sunk in that they definitely were not being promoted off of the 2002 list. Id. Ultimately, he completed the written portion of the test, but was unable to complete the oral portion. Tim described his experience for the Court: I attempted to [take the test]. There were two parts to it. I did take the written part, and when it came time to take the oral part I wasn't feeling well. I had a headache, dizziness, sweaty, nauseated. So I told the proctor I had to go to the bathroom. She said if I left the room that I wouldn't be allowed to finish the exam, and I said I don't have a choice, I've got to go to the bathroom. So I didn't finish it, no. . . I was sick. I was just physically ill. I couldn't finish the exam. I would have to guess I was stressed out. I was an emotional mess that day. Id., pp. 52-53. On cross-examination, Tim further described his physical symptoms the morning of the 2007 examination for Battalion Chief: I didn't feel well when I got -- actually, I didn't sleep at all. So when I finally rolled out of bed, I had a headache. And by the time I got to the Hyatt where the exam was taken I had other symptoms. I was dizzy, weak, nauseated, sensitive to light, sound. I just felt terrible. [A-1365.] He spent 20 minutes in the men’s room, believing he was going to be sick. He attributed his reaction to stress, being an emotional mess, and anger over retaking the examination. [A-1366, see also SA-2.] 35 Tim is not on a civil service eligible list right now and until and unless he successfully retests, assuming that the City offers other examinations since no such exams have been announced, he will remain a Captain for the duration of his career. It is unlikely that Tim will, in the next five years, successfully retest for Battalion Chief and see a promotion before his thirty-two years are up. Of course, Tim has no confidence that he will ever be appointed to Battalion Chief, either, explaining: I would like to [take other BC exams], but I'm afraid to put the effort into it that I need to take, because if they kill a list or skip a name -- I'm involved in a lawsuit against the City. I'm afraid they're going to do something like this again to me . . . . . . I'm afraid to take any future exams. I -- you know, I just can't, you know, one day show up at an exam and take it and do well on it. I have to study for eight months. And to have, you know, no guarantees that I'm going to get promoted, that scares the heck out of me. [A-1364, see also SA-4.] The Appellate Division’s acceptance of Mr. Besaw’s calculation of $211,054 in damages assumes that Tim Hazelet will promote to Battalion Chief this year, which, in turn, assumes that the City administered a Battalion Chief examination before then, which Plaintiff Hazelet will complete and score well enough on to be able to be reachable for appointment, that there will be a vacancy 36 for him to be appointed into, and that the City will appoint him, instead of exercising its right to appoint “one of three.” Assuming a future promotion for Tim Hazelet is simply not supported by the record inasmuch as he already took the Battalion Chief examination once since the discrimination occurred and he failed to score high enough on the list to be reachable. The trial court noted influences not considered by the experts in their testimony which would impact a Plaintiff’s ability to promote, like a lack of motivation and pessimism toward the City. These factors are very much relevant in Plaintiff Hazelet’s case. Hazelet’s damages, as calculated by Mr. Besaw, are $233,808 [A-3086 under the No Baseline/Increased Overtime column] and, as a result, the trial court’s award of $232,309 [A-53-54] was supported by the record. Peter Lotocki Initial Revised Plaintiff expert: $191,021 $142,692 Defendant expert: $92,397 $103,432 Trial court: $102,577 Appellate Division: $92,397 Reduction: $10,180 37 Pete Lotocki, now age 53, commenced his career with the Buffalo Fire Department (ABFD@) in 1986 when he was 26 years old. [A-1499-1500.] After promoting to Lieutenant, in 2002, when the Captain’s test was offered, Pete sat for it. Pete ranked 7th on the list. [A-1502.] Everyone on the list ahead of Pete was promoted to Captain. Id. Of course, Pete was not promoted as a result of Matarese’s unilateral killing of the list. In 2008, Pete sat for the Captain’s test once again. He was promoted in October 2008 and has been serving as Captain ever since. Pete clearly resents having had to sit for the Captain’s test and told the Court that he did not want to re- test and only did so at his wife’s urging. He explained: I should have been taking . . . the [Battalion] chief's exam. I should have been promoted to captain off that list and I was not. And that, once again, that was out of my control. But I should have been sitting for the battalion chief's exam. I know, I believe I'm very confident would have been promoted chief without any interruption in the process since I've been on this department. [A-1504.] Pete testified that while he would sit for a future Battalion Chief’s examination, he had no belief that he would actually see an appointment from it, explaining: 38 . . . it's the only test available for me. That's the next level. I have to take it if I'm still a fireman. I will take it. Do I have confidence in this test? No. I don't trust what happened. I got denied. I got denied when I earned something. I have no faith in the City of promoting me. We instituted this lawsuit, you know, this whole case. When I signed on for this, I carne to realization, you know, I do this they'll find some way not to promote me ever. I just I don't believe it will ever happen. They have done things now that are -- have never been accepted before, skipping people, cutting lists short. Since I have been on the department, that didn't happen. [A-1505.] At the time of trial, he had only six years left in his career. For all intents and purposes, and even assuming he can make it to Battalion Chief, Pete is out of time to make it to Division Chief. And, promoting to Battalion Chief requires that Pete sit for a Battalion Chief examination, which his testimony clearly reveals he is dreading. Of course, at the time of trial, no Battalion Chief examinations had even been announced. Id. The Appellate Division’s acceptance of Mr. Besaw’s calculation of $92,397 in damages assumes that Pete Lotocki will promote to Battalion Chief by 2015 [A- 3095] §which, in turn, assumes that the City will administer a timely Battalion Chief’s examination before then, which Plaintiff Lotocki will complete and score well enough on to be able to be reachable for appointment, that there will be a 39 vacancy for him to fill, and that the City will appoint him, instead of exercising its right to appoint “one of three. ” Mr. Besaw’s assumptions are simply not supported by what evidence we have regarding the post-discrimination world, especially where Lotocki’s promotional appointment is dependent upon the City’s timely administration of an examination; Loticki’s success on same; a vacancy for which he can be appointed into; and the City’s willingness to appoint him – all just so he can work as a Battalion Chief for two or less years before his projected retirement date of 2017. Assuming an additional future promotion for Plaintiff Lotocki within which he can work for two years before his retirement is simply not supported by the record. Thus, it was not reasonable for the Appellate Division to award damages which disregarded both the relevant overtime data and Lotocki’s unlikelihood of achieving an additional promotion by 2015. Lotocki’s damages, as calculated by Mr. Besaw, are $103,432 [A-3086 under the No Baseline/Increased Overtime column] and, as a result, the trial court’s award of $102,577 [A-54] was supported by the record. 40 Peter Kertzie Initial Revised Plaintiff expert: $71,800 $47,052 Defendant expert: $41,638 $51,905 Trial court: $49,859 Appellate Division: $41,638 Reduction: $8,221 Peter Kertzie’s damages are relatively low, as compared to the other Plaintiffs inasmuch as he was able to retest and secure a promotion to Battalion Chief, thus, the majority of his damages as calculated by the experts contemplate Kertzie’s losses for back pay. Peter Kertzie, now age 57, commenced his career with the Buffalo Fire Department (ABFD@) in 1988 when he was 31 years old. [A-1392-1393.] In 2002, Pete studied aggressively for the Chief’s exam and, ultimately, placed seventh on the list (though he was effectively in the sixth spot due to a prior promotion off of the last list). [A-1396.] By the fall of 2005, he knew that he was up for promotion to Battalion Chief and knew that a spot for him was vacant. [A-1400-1401.] However, due to Matarese’s unilateral decision to kill the list, Pete was not promoted. In 2007, Pete re-tested for Battalion Chief. Once again, he scored seventh on the test and by October 2008, he was promoted. [A-1412.] Of course, Pete should 41 have been sitting for the Division Chief examination in 2007 and he should be employed as a Division Chief now; but he’s not. At the time of trial, if Pete worked for thirty-two years, he will retire in 2020, giving him only eight years left in his career. At the time of trial, no examination for Division Chief was announced. And, even if he were to take the test, score well enough to be reachable, and have a vacancy to promote into, the fact of the matter is that Pete already had a good test history: To finish number one on any of the tests, or number two is really hard. It's beating the odds. He did that twice. And, yet he still lost a promotion. The Appellate Division’s acceptance of Mr. Besaw’s calculation of $41,638 in damages assumes that Peter Kertzie will promote to Division Chief by 2016 [A- 3094]which, in turn, assumes that the City will administer a timely Battalion Chief’s examination before then, which Plaintiff Kertzie will complete and score well enough on to be able to be reachable for appointment, that there will be a vacancy for him to fill, and that the City will appoint him, instead of exercising its right to appoint “one of three. ” Mr. Besaw’s assumptions are simply not supported by what evidence we have regarding the post-discrimination world, especially where Kertzie’s promotional appointment is dependent upon the City’s timely administration of an examination; Kertzie’s success on same; a vacancy for which he can be appointed 42 into; and the City’s willingness to appoint him – all just so he can work as a Division Chief for three or less years before his projected retirement date of 2019. Assuming an additional future promotion for Plaintiff Kertzie within which he can work for three years before his retirement is simply not supported by the record. Thus, it was not reasonable for the Appellate Division to award damages which disregarded both the relevant overtime data and Kertzie’s unlikelihood of achieving an additional promotion by 2016. Kertzie’s damages, as calculated by Mr. Besaw, are $51,905 [A-3086 under the No Baseline/Increased Overtime column] and, as a result, the trial court’s award of $49,859 [A-54] was supported by the record. Scott Skinner Lieutenant Skinner’s damages actually increased by $1,182 and, as a result, he has not been injured by the Appellate Division’s modification in that regard. However, Lieutenant Skinner provided important testimony on his inability to succeed on subsequent testing, which serves to corroborate the notion that it is more difficult, in this post-discrimination world, for these affected Plaintiffs to succeed on subsequent examinations. Indeed, despite his best efforts to prepare to retake the Captain’s examination in 2008 when it was offered, Scott failed miserably. He testified that 43 he couldn’t study because “why would [he] study for Captain when [he] should already be a Captain”; he should have been studying and testing for Battalion Chief because he had already earned a promotion to Captain. [See SA-5.] Scott explained: . . . I tried to study when [the 2008 Captain’s exam] first come out. I mean, I had quite a tough time opening a book up for that . . . I was supposed to be captain, why would I be studying for captain . . . I was feeling what the rest of us thirteen [were feeling], disgust with the City. Id. When asked why he scored so much poorer on the 2008 exam than he did on the 2001 exam, Scott answered: Well, it's much tougher to open up a book for something that -- I should have been studying for a battalion chief's exam, not a captain's exam, for one. And I had some pretty hard feelings about what was going on because I knew what the City was doing and what they did and who was involved. [A-1347; see also SA-7. ] 44 IV: Appellate Division’s Damages Modifications to the IOD Plaintiffs: (Reduced Collectively By $412,632) Brad Arnone Initial Revised Plaintiff expert: $169,776 $155,584 Defendant expert: $0 $0 Trial court: $155,584 Appellate Division: $0 Reduction: $155,584 Brad Arnone, now age 55, commenced his career with the Buffalo Fire Department (ABFD@) in 1982 when he was 26 years old. [A-1485-1486.] After several failed attempts, Brad sat for the 2002 examination and placed 14th on the list, but was effectively 13th in light of a promotion made off of a previous list. [A- 1493.] In January 2006, Brad had learned that Fire Commissioner Lombardo had put a PR in for him. [A-1495.] In November 2006, after he was denied his promotion, and after a long history of debilitating work injuries, Brad was injured and out of work for the final time. [A-1494-1496.] His disability retirement became effective on August 23, 2009. [A-1490.] Because Brad was never promoted to Lieutenant before the natural expiration of the list in September 2006, he receives his disability compensation at the rate of firefighter, instead of Fire Lieutenant. Had Brad been promoted before September 2006, and had he been injured sometime thereafter, he 45 would now be receiving disability compensation at the Fire Lieutenant rate of pay. [A-1492.] The trial court accepted Dr. Shick’s determination that Brad Arnone had three potential career paths, including having been appointed as Lieutenant, not being injured as a Lieutenant, and staying Lieutenant through retirement (11% chance); being appointed as Lieutenant, not being injured as Lieutenant, promoting to Captain, and staying Captain through retirement (4% chance); and being promoted to Lieutenant and then being injured as a Lieutenant (85% chance). Applying those percentages to the various monetary values that Dr. Shick calculated each to be worth, Dr. Shick determined that Abad=s losses are, at a 3% interest rate, $155,584. [A-430.] The Trial court awarded this amount [A-52] and the Appellate Division vacated the Trial court’s ruling in this regard, adopted the Defendant’s expert’s analysis [A-3100-3101] in its entirety, and awarded Arnone $0 in damages. Mark Abad Initial Revised Plaintiff expert: $219,827 $147,545 Defendant expert: $0 $0 Trial court: $147,545 Appellate Division: $0 Reduction: $147,545 46 Mark Abad, now age 51, commenced his career with the Buffalo Fire Department (ABFD@) in 1986 when he was just 23 years old. [A-1444-1445.] Mark sat for the 2002 examination and scored well enough to be reachable. A PR was put in for him, however, he was not promoted as the lists were killed. On January 19, 2007, and after a long history of debilitating work injuries, Mark was injured and out of work for the final time. [See SA-13-14.] He applied for retirement in May 2007 and his disability retirement became effective on March 23, 2009. Id., p. 12. Because Mark was never promoted to Lieutenant before the natural expiration of the list in September 2006, he receives his disability compensation at the rate of firefighter, instead of Fire Lieutenant. Had Mark been promoted before September 2006, and had he been injured sometime thereafter, he would now be receiving disability compensation at the Fire Lieutenant rate of pay. Because we know that Mark Abad was, in fact, injured on January 19, 2007, after the date that he would have been promoted to Lieutenant, there is no need to hypothesize about what his future looks like. He got injured and went out on disability retirement. We know, without speculating, that had he been promoted to Lieutenant before he became disabled, he would be collecting a disability pension greater than the pension he is collecting now, because he would be compensated as a Lieutenant and not as a firefighter. While all back pay and front pay damage awards require some level of recreating the past and predicting the future, here, we 47 can limit to what extent we have to speculate and simply compare what he is receiving now with what he would have received had he been promoted before going out injured. Furthermore, and given Mark’s extensive record of work-related injuries and corresponding time off from work, it is not at all unreasonable to predict that he would have been injured even after a promotion and, if not on January 19, 2007, then on some other date. [A-1447-1448.] [Mark suffered a lower back injury in 1995 and 1999, a ruptured bicep and neck injury in 2004, and, in addition, was out of work on injury status from January 1, 2006 through May 30, 2006 and August 22, 2005 through December 31, 2005. See SA-13-16.] The trial court accepted Dr. Shick’s determination that Mark Abad had three potential career paths, including having been appointed to Lieutenant, not being injured as a Lieutenant, and staying Lieutenant through retirement (11% chance); being appointed to Lieutenant, not being injured as Lieutenant, promoting to Captain, and staying Captain through retirement (4% chance); and being appointed to Lieutenant and then injured as a Lieutenant (85% chance). When applying the various percentages to the monetary worth of each possibility, Dr. Shick determined that Abad=s losses are, at a 3% interest rate, $147,545. [A-420.] The Trial court awarded this amount and the Appellate Division vacated the trial court’s Decision, accepted Defendant’s expert’s analysis in its entirety [A-3098- 3099], and awarded Abad $0 in damages. 48 David Denz Initial Revised Plaintiff expert: $221,253 $150,469 Defendant expert: $0 $40,966 Trial court: $150,469 Appellate Division: $40,966 Reduction: $109,503 David Denz, now age 55, commenced his career with the Buffalo Fire Department (ABFD@) in 1997 when he was nearly 38 years old. [A-1368.] Dave did not have a childhood ambition to be a firefighter. Instead, he obtained his Bachelor of Science degree from Buffalo State College in 1981 and embarked on a twenty year career, of which eight years was active duty service, in the United States Navy as a pilot. Id. The first time that Dave was eligible to sit for the Lieutenant’s examination was 2002. After much preparation, he took the exam and placed fifteenth on the list. [A-1369-1370.] Of course, Dave was never promoted as a result of Matarese’s unilateral action in killing the list. When the next Lieutenant’s examination was announced in late 2007, Dave was determined to sit for it, but he found himself unable to prepare. He explained: 49 I completed the written part, even though I couldn't prepare for it. I couldn't study. I must have opened a book at least a hundred times to try to do that, and I pretty much get the same symptoms every time [A-1370.] He further testified: When I went to sit down, no matter where I was, whether it was the firehouse or at home, I would open up a book and have -- I would get -- I would feel nauseous, I would get a headache, and I was trying to push that aside as best I can. I may have been able to do that, but I had trouble concentrating that I have never had before. I would read the same paragraphs over and over again, and it just wasn't sinking in. And it was consistent down to every single time I sat down to do it, and I think that's because I was trying to prepare for an exam that I should have already been promoted to, and it -- and a position that I was told they didn't want me for . . . A lot of it was disappointment in myself because I couldn't get over it. I would like nothing more to have been able to get over it and actually prepare for it. So I was very distraught, very disappointed that I couldn't do it. [See SA-8.] However, on the morning of the oral examination, Dave found himself sick to his stomach. He told the Court: I had a good night's sleep. I slept really well that night, and I got up, and I showered and got cleaned up and dressed to a T and ready to go and grabbed my wallet and grabbed my keys, and that was it for me. I spent the next forty-five minutes throwing up in the bathroom . . . By that time I was sweating through my uniform, and it was getting very late, and I guess one of the weirdest things is once I decided I didn't -- I wasn't going to go I felt completely one hundred percent better. 50 [See SA-9-10.] Dave explained that the entire time he was sick in the bathroom, he was feeling: Resentment [and] betrayal. I felt like I was asked to do something and I gave it a hundred percent to do it prior to this and I came out with, although a score I wasn't all that happy with, at least the ranking that I knew for a fact was going to be promotable because somebody had -- I think I was fifteen on the list but somebody was promoted off the last list so I was actually number fourteen and fire department always gets well, well past number fourteen so I knew I had a job. And to try to get to the point where I'm throwing up in the toilet is incredibly frustrating and very hard. Id., p. 103 Shortly after the 2008 examination, in March 2008, Dave was injured on the job and out of work for a year. [A-1371, 1375.] Dave was reinjured in December 2009 and was told by his doctor after his second shoulder surgery in October 2010 that he could not return to work. [A-1375-1376.] At the time of trial, Dave had applied for disability retirement with the BFD, but his paperwork was still pending. [A-1376-1377.] Because we know that David Denz was injured, on three separate occasions after his promotion should have been effective (March 2008, January 2009, and October 2010, there is no need to hypothesize about what his future looks like. He got injured, has been out of work and has applied for disability retirement. We 51 reasonably know, without speculating, that had he been promoted to Lieutenant before he was injured, and to the extent that his disability pension is approved, he would be collecting a disability pension greater than the pension he is collecting now, because he would be compensated as a Lieutenant and not as a firefighter. While all back pay and front pay damage awards require some level of recreating the past and predicting the future, here, we can limit to what extent we have to speculate and simply compare what he is receiving now with what he would have received had he been promoted before going out injured. Dr. Shick determined that David Denz could have had three potential career paths, including being appointed to Lieutenant, not being injured as a Lieutenant, and staying Lieutenant through retirement (11% chance); being appointed to Lieutenant, not being injured as Lieutenant, promoting to Captain, and staying Captain through retirement (4% chance); and being appointed to Lieutenant and then being injured as a Lieutenant (85% chance). Dr. Shick calculated Denz=s “weighted loss” damages to be $150,469 [A-447.] The Trial court awarded this amount [A-53] and the Appellate Division vacated same and awarded the amount as calculated by the defense, $40,966. [A-508.] V: EVIDENCE SUPPORTING THE TRIAL COURT’S ACCEPTED ASSUMPTIONS AS TO OVERTIME 52 City Expert, Kelly Besaw, calculated the Plaintiffs’ future losses, in part, by utilizing average overtime earnings among each rank for the six year time period of 2000 through 2005 and projecting those same averages forward in time. However, this six year time period saw especially low overtime rates which simply do not reflect the higher overtime trends from 2006 and extending into the present. This is especially so since the City committed its discrimination in 2006, a year after Besaw cut off his analysis. The City’s 2006 decisions to not appoint any additional white candidates off of the already in place civil service eligibles lists and, further, its decision to not administer other promotional examinations until 2008 caused an extraordinary delay in hiring and promotions because there were no lists to appoint from which, in turn, caused overtime to increase. While overtime may have declined since 2009, it has by no means returned to the low rates experienced between 2000 and 2005. [A-3192-3198.] Thus, Judge Michalek rejected Besaw’s use of that time frame, noting that overtime for that six year period was not representative of the overtime earned in the most recent years and, thus, could not be an accurate projection of overtime to come. [A-47-48.] The City would have this Court believe that Judge Michalek’s determination to utilize data from calendar years 2006, 2007, 2008, and 20106 is erroneous 6 Judge Michalek declined to consider overtime figures from 2009, explaining, “In an effort to 53 because it cannot be said to properly reflect the alleged ongoing decline of overtime since 2010 and into the future. Not surprisingly, the City speaks out both sides of its mouth. At various points during the trial, the City’s counsel confirmed with different witnesses the fact that overtime varies from year to year. [A-1348, 1456, 1808.] Moreover, City attorneys asserted both that overtime had gone down significantly the last two years, while also alleging that overtime had increased in the last two years. [A- 1308, 1321.] City witnesses acknowledge that there are numerous factors that influence overtime, such as emergencies, vacation schedules, sick time, and failing to fill vacancies. [A-1809, 1816.] While now-Commissioner Whitfield testified that overtime has been decreasing since 2010, the fact is that he also had to admit on cross-examination that “all of the factors” that caused high overtime in 2007 and 2008 are still present in the Department as of the time of trial and that no new classes of firefighters were planned. [A-1816, 1827-1828.] The City has hired three classes of recruits since 2008, thus, bringing on over a hundred firefighters. [A-1339.] Yet, at the time of trial in 2011, overtime was still a significant source of compensation for firefighters and officers. In fact, minimize speculation and subjectivity, the Court has opted in its findings to average four (4) of the last five (5) years, i.e., overtime, excluding the one ‘exaggerated year’,” which was 2009, and which neither expert relied upon anyway. Both experts did, in fact, agree that the overtime paid in 2009 was too high to be representative of any trends going forward into the future. [A-47-48.] 54 Plaintiff Scott Skinner had earned at least $18,000 in overtime in just the first five months of calendar year 2011 [A-2078], and Plaintiff Eugene Margerum had earned $22,892 in overtime by the time of trial. [A-2122.] Mr. Besaw, however, based on the overtime information that he utilized from 2000-2005 had projected that Eugene Margerum would earn only $4,000, or less than 1/5 of that much, in 2011. Id. During the course of the trial, it became entirely obvious that Mr. Besaw’s method of projecting future overtime using data from 2000 to 2005 did not correspond to reality. In defending his calculation and the gigantic discrepancy between a minimum sum of $22,892 of actual overtime earned by Eugene Margerum in just a partial calendar year and his $4,000 of projected overtime in a full year, Mr. Besaw merely asserted that “there’s a lot of volatility in the overtime.” [A-2078.] Judge Michalek ruled, as he all but had to, that Mr. Besaw’s use of the earlier 2000-2005 time frame was senseless. Dr. Shick, on the other hand, premised his calculations on 2008, 2009, and 2010. He predicted that Plaintiff Margerum’s overtime for 2011 would be approximately $12,000. [A-481.] It was both less than what Margerum actually earned, while being closer to what Margerum actually earned than what Besaw predicted. Dr. Shick testified: I used those years because, first of all, if you would go back into time, and the alternative would be go back and use a lot earlier data and expand the sample size, in 2007 and in 2008 the firefighters did receive some pay increases. So, therefore, if you went back to 2007 55 and back, your estimation of overtime would be downward biased if you included those numbers, because then there’s a pay increase in them. And so I used the three most recent years, and in the pattern of looking at overtime what I saw was that the overtime in the Buffalo Fire Department had been ramping up, but by the time it got to 2008, it peaked, and then it was coming down. So I felt that those three years were indeed representative to be used for forecasting forward. [A-1533-1534.] The lower Court, however, determined that the most accurate prediction of future overtime was contained within a mix between both Mr. Besaw’s and Dr. Shick’s analyses. Thus, the Court determined that the data set from 2006, 2007, 2008, and 2010 avoided both speculation and either drastically undercompensating or overcompensating the Plaintiffs for future overtime losses as a result of their unlawfully denied promotions. Judge Michalek reasoned: . . . the Defendant City attempted to make a case that overtime is on its way down dramatically. This assertion was supported in the different and new approaches by the new Commissioner, etc. Notwithstanding, even the City witnesses had to acknowledge they were still attempting to get a handle on same. Again, the Court cited the City’s approach as flawed in that the numbers wishing to be utilized were so much lower even than the 2010 reduction. That is to say, even after Besaw’s approach the benefit of the doubt, the substantial decreases which would have to occur after 2010 to get anywhere near his stated averages were almost unreasonable to expect . . . On cross-examination of Besaw by Fleming, utilizing subpoenaed records of overtime from 2011, Fleming showed Besaw’s predicted trends not occurring. Even to this, the Court inquired of Expert 56 Besaw, using his own numbers and giving him credit for the downward trend, that it would be most difficult – mathematically – to get to the numbers he utilizes over a five (5) year period. His explanation was to push the trend out ten (10) to fifteen (15) years to get to the numbers he felt applicable. Again, in an effort to minimize speculation and subjectivity, the Court has opted in its findings to average four (4) of the last five (5) years, i.e., overtime, excluding the one “exaggerated year”, i.e., both sides seems to agree, historically in overtime, i.e., 2009. It is this Court’s intention as far as overtime rates, i.e., to utilize the average of 2006 forward, 2006, 2007, 2008, and 2010, excluding 2009. [A-47-48.] Mr. Besaw submitted supplemental calculations to the trial court calculating damages using the average overtime figures from 2006, 2007, 2008, and 2010. Dr. Shick’s calculations continued to be premised upon peer group averages, instead of rank averages in the department, and, as a result, the trial court awarded Plaintiffs damages in line with Mr. Besaw’s calculations, which appear under the column No Baseline/Increased Overtime at page 3086 of the Joint Appendix. VI: EVIDENCE SUPPORTING THE TRIAL COURT’S ACCEPTED ASSUMPTIONS AS TO PROBABILITY FACTORS, PROMOTION SCENARIOS, AND BASELINE DAMAGES Judge Michalek considered both Mr. Besaw’s and Dr. Shick’s initial approaches in establishing a baseline for calculating Plaintiffs’ future damages. In other words, each expert had to determine what the future would have looked like 57 had each Plaintiff not been discriminated against and been promoted as compared to what we can reasonably expect the future to look like now, in this post- discrimination world. The latter scenario is referred to by the experts and the trial court as “the baseline.” Mr. Besaw’s initial approach as to his baseline aggressively assumes that each of the Plaintiffs would be promoted at least every seven years into the future, thereby significantly discounting the Plaintiffs’ losses, and especially so should they not actually see those appointments in this post-discrimination world. Essentially, Mr. Besaw argued that the discrimination in 2005 and 2006 only delayed the promotions of the Plaintiffs. Thus, it is the City’s position that the Plaintiffs will all eventually “catch up” and continue along the same path that we anticipated they would have had absent discrimination. This theory is referred to by the City and its expert as “promotions delayed,” instead of “promotions denied.” Dr. Shick, on the other hand, assumed that the Plaintiffs, in this now post- discrimination world, would not receive any further promotions other than those already received by the time of trial. Because of the differences that we now know of between the pre-discrimination world and the post-discrimination world, Dr. Shick assessed the uncertainties in the post-discrimination world data as against the City and in favor of the Plaintiffs. Judge Michalek agreed. 58 Furthermore, the trial court was cognizant that Mr. Besaw’s calculations were initially compromised by a mathematical mistake that he made throughout his calculations and which he could not explain because the data that he relied upon did not appear within the record, nor did he have any written evidence of same inasmuch as he testified that the data he based his calculations on was kept in a personnel card system by the City and Mr. Besaw could only view such data in person. The initial mistake that Mr. Besaw made (and which he ultimately corrected, but we have no way of knowing whether he drew other similarly specious conclusions using this same data as to the IOD Plaintiffs) was his specific conclusion that 70% , or higher, of all firefighters promote into an officer rank. Mr. Besaw stood by his analysis for much of his testimony. [A-1942, 2045-2047, 2116-2117, 2120, 2176, 2238, 2865. Ultimately, however, he conceded, based on the number of firefighters retiring as firefighters, which is approximately 70%, that 70% of all firefighters could not also obtain an officer promotion. [A-2238.] On cross-examination, and after being confronted with the math7, Mr. Besaw admitted his mistake, and he also admitted that he could not explain how he came up with that calculation. [A-2238, 2865.] Mr. Besaw used this on-site data from the City 7 In the period from 1996 to 2011 there were 464 retirements, 322 of which were at the rank of Firefighter. [A-2957.] Thus, the exact opposite of what Mr. Besaw had been claiming was actually true -- 69.3% of the individuals who retired were never promoted; not the other way around. 59 (which is missing from the record) to draw other conclusions as to the IOD Plaintiffs, specifically their alleged likelihood of going out on disability retirement upon becoming a Lieutenant. [A-2043.] Judge Michalek was not unreasonable in finding Mr. Besaw’s analysis less credible than Dr. Shick’s. Another obvious flaw in Mr. Besaw’s conclusions regarding the probability of promotion is that he computed them by looking at the time it took individuals to be promoted, but he did not include in his sample those who were never promoted. This results in making his idea of promotion inevitable for everyone. [A-2147.] But we know this is not the case as 70% of all firefighters do not get promoted. For example, Mr. Besaw testified to the absurd proposition that by moving out three standard deviations in his analysis, he could reach the conclusion that 98.7% of all firefighters would be promoted. But, again, we know that is not the case, not every firefighter is promoted. In fact, we know that nearly 70% of firefighters are never promoted. Rather than argue as Besaw does that the probability of promotion increases with the time from the last promotion, Dr. Shick’s approach is consistent with the idea that after a certain amount of time passes, if an individual is not promoted, the probability of promotion substantially decreases be it due to age, ability to study or sit for the examination, and/or the length of time from the possible promotion to 60 retirement inasmuch as examinations are not administered except for every four or more years. As iterated above, if you boil it all down, the difference between Dr. Shick’s and Mr. Besaw’s computations of loss is the idea of “promotion denied” vs. the idea of “promotion delayed.” Mr. Besaw argues that the promotions were at best delayed. His conclusions are ambitious and unrealistic. But, regardless, he is required to support his conclusions with competent evidence proving that, more likely than not, promotion is inevitable for everyone. Of course, he could not meet this burden and Judge Michalek rightfully rejected this proposition and credited Dr. Shick’s assumptions regarding no future promotions over Mr. Besaw’s overly optimistic and aggressive approach. Further, Dr. Shick recognized that in 2005 and 2006 when the City deliberately killed the lists, things changed in the Fire Department. He defended his baseline approach, wherein he assumed no future promotions, testifying: In a post-discrimination world, Your Honor, we have to consider the effect not only on the individuals but also on the ability and the willingness of the department to promote. The individuals we found out subsequently -- we don't have a lot of information post- discrimination. The individuals we found out that only four of them got promoted in 2008 and 2009.The rest of them did not. That says to me that the discrimination has so damaged them that they cannot continue on the process that they were on to get promotions, and that's why I made that assumption . . . The second part of it is the ability of the department to offer these promotions. We don't know what this 61 post-discrimination world looks like, and we don't have enough information to make a reasonable projection, so therefore I have projected that they would not get the promotions. If I err, as he has correctly pointed out if that's an error, and the numbers would go down in terms of loss, but . . . the firefighters take all the risk. [A-1607.] In rejecting Besaw’s approach, Judge Michalek explained: . . . even if the Plaintiffs were able to effectively and successfully prepare for tests for future promotional appointments, there is still no guarantee that any of the Plaintiffs would be promoted because they could be passed over for others. [A-42.] . . . the Court believes as a result of Defendants’ actions, a zero percent probability, future promotions should be assumed and utilized . . . That is today, as asserted by the Plaintiffs’ case – that due to what happened to these Plaintiffs, they did lose along with other things the ability to excel or be motivated for tests, i.e., to get promoted, i.e., must take tests, i.e., top individual, one of top three. Also, again it is this Court’s decision as to baseline, that it also reflects what has been presented as to the availability of tests being hit and miss with the City, i.e., Plaintiffs certainly cannot rely on the continuity or stability with which these tests have occurred. Once more, the institution of recent years of the one and three highest on a Civil Service test has Plaintiffs left with the position that they may never get promoted. The City indeed has that option. [A-50.] 62 The City makes much of the fact that Dr. Shick calculated that, had the Plaintiffs not been discriminated against, each would have had certain probabilities of being promoted, roughly every 7 years and the City argues that those same assumptions should apply in the Plaintiffs’ baseline for calculating damages. The City’s argument fails to acknowledge that those conclusions were reached as a result of comprehensive analysis of data that existed before the Plaintiffs were discriminated against in 2005 and 2006. For sure, these numbers were calculated based on Department history and past practices before race-based hiring decisions were made; before the City canceled its eligibles’ lists early, before the maximum four years had run; before the City delayed its testing by six years; before the City changed its testing; and before the City took the position that the Department’s historical practice of hiring the top candidate on the list was being replaced by the discretionary “Rule of Three,” or “One in Three,” which means that no top ranking candidate is ever guaranteed an appointment as they can be skipped time and time and time again. Judge Michalek acknowledged this. [A-42, 49.] Dr. Shick’s decision to not include intervals of promotions in his baseline took into account the world as it exists now, instead of the world as it existed previously. Indeed, the post-discrimination world is a totally different animal than the pre-discrimination world. Dr. Shick was entirely reasonable and correct in determining that had the Plaintiffs not been discriminated against in the first place, 63 we could have expected them to have a certain likelihood of promotion every seven years. However, that pre-discrimination information, evidence, and past practices have no bearing on the now changed post-discrimination world, because now new evidence exists regarding the City’s promotional practices. Indeed, we can have no confidence in the City’s claims that all of the plaintiffs will be able to test, or that they will test successfully. We no longer get to have confidence that the City will continue the eligible lists for their maximum duration of four years, since we now know that the City has killed its lists early in the past (and done so to specifically prevent appointments from being made). Obviously, Judge Michalek took this into account. We no longer get to have confidence that the City will appoint the highest ranking candidates on the list inasmuch as it has recently implemented the use of the “1 of 3” rule, which allows an entity to appoint any one of the top three candidates on the list. The City has made its rights clear in this regard. Thus, even if Plaintiff Fahey could test and score number one, he has no guarantee (contrary to past Fire Department practices) that he will now be appointed. Further support for Dr. Shick's assumption is found in the testimony of Fire Commissioner Garnell Whitfield, wherein he concedes that persons up for promotion in the Fire Department have been passed over for promotion because the City exercised its 64 right to use the one-out-of-three rule, and selected other than the top name on eligible lists. [A-1837-1841.] Further, given the City’s huge gap and delay in testing between 2002 and 2008, we can no longer have confidence that the City will necessarily test with any regularity, much less every four years. And, this is not even mentioning the fact that the delay in promotions in 2005 and 2006 until 2008 has the potential of costing the Plaintiffs the ability to move all the way up to their maximum ranks due to sheer lack of time remaining in their career. Finally, we cannot have confidence that the City will never again make race- based hiring and promotional appointment decisions. For sure, they’ve done it once (and for months before the United States Supreme Court’s decision in, Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) came out) argued to both the Appellate Division and the lower court that such a decision was not, in fact, race-based). We now have evidence that the City is no longer appointing in rank order, is not testing regularly, is not renewing its lists for the maximum durations, and makes irregular and unlawful race-based decisions, all of which prevent any reasonable trier of fact from concluding that the same pre-discrimination likelihood of and intervals for promotions still apply in this new post- discrimination world. 65 In a pre-discrimination world, the plaintiffs would have been the first to tell you that they would have tested, scored well, and moved up the ranks. But, in a post-discrimination world, it is a free for all. Anything goes. All of the rules that these firefighters and officers once knew are gone; everything has changed. As iterated above; any uncertainty that has been created about the Plaintiffs’ futures has been caused by the Defendants and, in turn, must be resolved as against Defendants and in Plaintiffs’ favor. Thus, Dr. Shick’s “baseline” to determine a starting point for damages appropriately assumes that these plaintiffs will forever continue in the ranks they were in at the time of trial because we have no new and meaningful information to tell us what will happen over the course of time in this new post-discrimination world. Dr. Shick could not be more right in concluding that if you presume that the Plaintiffs will be able to perform well enough to be reachable on an eligibles list and, if you further assume that the City will then actually appoint them and not skip them under the Rule of “1 of 3,” it is the Plaintiffs who bear all of the risk in that situation. They bear the risk of having not been awarded sufficient damages to compensate them for their actual losses and they do so despite the fact that it was the City’s blatantly unlawful and unreasonable action in determining not to appoint any more white candidates that set them back. 66 Thus, in order to establish a “baseline” for calculating both front and back pay damages, Dr. Shick assumed that no further promotions, other than those already made, would be achieved. Judge Michalek appropriately exercised his discretion in determining that Dr. Shick’s baseline – albeit Mr. Besaw’s damages calculations -- was the more reasonable method of determining loss. Indeed, Dr. Shick explained it best when he said, “We don't know what this post-discrimination world looks like, and we don't have enough information to make a reasonable projection . . .” [A-1607.] The trial court agreed. VII: EVIDENCE SUPPORTING THE TRIAL COURT’S ACCEPTED ASSUMPTIONS REGARDING THE IOD PLAINTIFFS It goes without saying that it is the Plaintiffs’ position that IOD-Plaintiffs, Denz, Abad, and Arnone, are entitled to the difference in wages and disability pensions they would have received had they been promoted to Lieutenant before September 2006 and then became disabled after such promotion. Had Plaintiffs Denz, Abad and Arnone been promoted to the position of Lieutenant, each would have been entitled to a disability pension benefit at the salary of Lieutenant when each subsequently became disabled. However, because the Plaintiffs were not promoted, they are only receiving disability wages in accordance with a firefighter=s compensation. 67 Plaintiff Arnone was injured on November 18, 2006, Plaintiff Abad was injured on January 19, 2007, and Plaintiff Denz was injured in both March 2008 and, again, in December 2009, all dates after their appointments to Lieutenant would have been effective (since the list was set to expire in September 2006 and all of the appointments would have been effective by September 2006). The trial court accepted Dr. Shick’s conclusions that had the three IOD Plaintiffs, Abad, Arnone, and Denz, been promoted to Lieutenant, each still had an 85% chance of becoming disabled subsequent to the promotion. Dr. Shick then compared what each Plaintiff was or would be receiving in either his disability retirement or his pre-disability retirement compensation as a firefighter (because each was denied a promotion to Lieutenant on the basis of his race by September 2006), with what each would have received had they been promoted to Lieutenant and then suffered their career ending injuries as Lieutenants. Dr. Shick, however, did not find that the IOD Plaintiffs had a 100% chance of becoming disabled if they had been promoted to Lieutenants, but instead he found, based on data in the same time frame of Plaintiffs’ own injuries, that each would have had an 85% chance of still becoming disabled even after a promotion. Thus, Dr. Shick’s calculations are premised upon 85% of the loss of a Lieutenant’s disability income less 15% of the earnings he would have had if he continued to work (and not become disabled) as a Lieutenant after promotion. 68 Contrary to the Defendants’ assertions that this analysis is speculative and not factually supported, this methodology actually eliminates much speculation about what would have or could have happened because it incorporates what we know happened with certain likelihoods of what we could have expected to happen: Each of these Plaintiffs became disabled, thus, there is no need to hypothesize about what their futures would have looked like. Each Plaintiff was injured and went out on disability retirement. We also know, for certain, that had each of these men been promoted to Lieutenant and then become disabled, each would have been collecting a disability pension greater than what they are collecting now because they would be entitled to compensation as a Lieutenant and not as a firefighter. While all back pay and front pay damage awards require some level of recreating the past and predicting the future, here, we can limit to what extent we have to speculate and simply compare what each Plaintiff is receiving now with what he would have received had he been promoted before going out injured. Furthermore, both Abad and Arnone have an extensive record of work- related injuries and corresponding time off from work, it is not at all unreasonable to predict that each would have been injured even after a promotion and, if not on the actual date upon which they were disabled, then on some other date. 69 For example, Abad suffered a lower back injury in both 1995 and 1999, a ruptured bicep and neck injury in 2004, and, in addition, was out of work on injury status from January 1, 2006 through May 30, 2006 and, again, from August 22, 2005 through December 31, 2005. [See SA-13-16.] Similarly, Arnone, suffered a neck injury in 1995 leaving him out of work for approximately one year, a left shoulder injury in 2000 leaving him out of work for six to eight months, and a further neck injury in 2003, all before becoming totally disabled on November 18, 2006. [A-1494-1497.] Denz was first injured in March 2008 which put him out of work for an entire year, and then he was reinjured in December 2009, at which point he was unable to return to work. [A-1371-1377.] It is by no means unrealistic to believe that each of these men would, given their past injuries and the fact that they actually became disabled, have become disabled subsequent to a Lieutenant promotion. After thoroughly analyzing data regarding injury rates and after considering that Lieutenant work is fairly consistent with the work of a firefighter, Dr. Shick determined Abad=s, Arnone’s, and Denz’s losses based on three potential career paths, including not being injured as a Lieutenant and staying Lieutenant through retirement (11% chance), not being injured as Lieutenant and then promoting to 70 Captain and staying Captain through retirement (4% chance), and being injured as a Lieutenant (85% chance). He explained: Now, coming to the issue of the -- the probability that firefighter Abad would have been injured had he been a lieutenant, that's what the next part of the analysis does. And I believe it is better to look at the disabilities retirements as a percentage, not of the total retirements, but as a percentage of the number of individuals in staff based upon the July 1st, 2006 -- 2006/2007 budget and recompute those percentages [A-2910-2956]. So if you look down at the section which says retirements as a percentage of staffing levels, what I have done is taken the retirement data [A-2405-2417] and then divided it by the staffing which is shown in the section above that. You will notice from that, that the lieutenants, fourteen point seven percent of the lieutenants retired with disability retirements and eighteen point two percent of the firefighters retired with disability retirements. If you take the ratio of the fourteen point seven to the eighteen point two, you then get, and this is the methodology that Mr. Besaw used, you then get a probability of almost eighty-one percent, that if firefighter Abad had been a lieutenant, that he would have been injured when he was injured, not the fifty-eight percent, fifty-eight point six percent, but almost eighty-one percent. I then did a subsequent analysis which was to take all the injury statistics for 2007 and analyze the date of injury and the rank of the individual who was injured. Now, 2007 matches pretty close to the time when all of our firefighters were injured. They were injured in the period from 2006 to 2007. So I used the 2007 data and I found out that a hundred and fifty-two firefighters were injured out of a total of five hundred and fifty or twenty-seven point six percent [A-2418- 2437]. And thirty-two lieutenants were injured out of a hundred and nine which is twenty-nine point four percent. The surprising thing 71 about this is that the injury rate of the lieutenants was actually higher than the injury rate of the firefighters, which again led me to believe that the probability that a firefighter -- excuse me, that a lieutenant would be injured versus the probability of a firefighter would be injured is very, very high, and that when I originally presented my analysis which looked at the loss to the injured firefighters as being the difference in the disability pensions, that this is really the number that should be used. [A-2259-2261.] Ultimately, after calculating the values associated with each career path, weighting each career path by its probability of occurring, and then subtracting what each Plaintiff is now and will be receiving through the future, Dr. Shick determined that Abad=s losses are $147,545; Arnone’s losses are $155,584, and Denz’s losses are $150,469. The City takes issue with Dr. Shick’s conclusion that each of these men had an 85% chance of becoming disabled as a Lieutenant and argues that such a conclusion is based on conjecture and speculation – based on Dr. Shick’s detailed explanation and analysis, we beg to disagree. While, Mr. Besaw concluded that each of these men had only a 58.6% chance of becoming disabled as a Lieutenant, the Court was well within its discretion, after hearing all of the testimony and analyzing the applicable exhibits, to reject same and apply Dr. Shick’s analyses, and award damages as calculated by Dr. Shick. Dr. Shick testified: 72 And, therefore, in the analysis that Mr. Besaw did, he did a calculation using the probabilities as we have done throughout all of this, all of our – our work here, and he came up with an expected loss which turns out to not exist. And it struck me when I looked at that, that the probability fifty-eight point six percent that – that firefighter Abad would have been injured as a lieutenant is quite low. First of all, in my – doing my research I talked to the firefighters about what lieutenants do versus what firefighters do, the impression I came away with is that in many, many cases they’re doing the same work and one would assume they’re exposed to the same risk. [A-2256.] He went on to explain his analysis and the table that he prepared in conclusion (Ex. 248): Now, I call your attention to two numbers in that particular part of that under lieutenant and firefighters disability retirements, the percentage is eighteen point four percent and thirty-one point one percent. On the lieutenants, my percentages, although rounded one decimal more than Mr. Besaw’s, is spot on to Mr. Besaw’s number and the thirty-one point one is just slightly off Mr. Besaw’s number. I don’t know why the numbers are – are different but there’s not a significant differences in those percentages . . . Now, coming to the issue of the – the probability that firefighter Abad would have been injured had he been a lieutenant, that’s what the next part of the analysis does. And I believe it is better to look at the disabilities retirements as a percentage, not of the total retirements, but as a percentage of the number of individuals in staff based upon the July 1st, 2006 – 2006/2007 budget and recompute those percentages. So if you look down at the section which says retirements as a percentage of staffing levels, what I have done it taken the retirement data and then divided it by the staffing which is showin the section above that. You will notice from that, that the lieutenants, fourteen point seven percent of the lieutenants retired with disability retirements and eighteen point 73 two percent of the firefighters retired with disability retirements. If you take the ratio of the fourteen point seven to the eighteen point two, you then get, and this is the methodology that Mr. Besaw used, you then get a probability of almost eighty-one percent, that if firefighter Abad had been a lieutenant, that he would have been injured when he was injured, not the fifty-eight percent . . . but almost eighty-one percent. I then did a subsequent analysis which was to take all the injury statistics for 2007 and analyze the date of injury and the rank of the individual who was injured. Now, 2007 matches pretty close to the time when all of our firefighters were injured . . . So I used the 2007 data and I found out that a hundred and fifty-two firefighters were injured out of a total of five hundred and fifty, or twenty-seven point six percent. And thirty-two lieutenants were injured out of hundred and nine which is twenty-nine point four percent. The surprising thing about this was that the injury rate of the lieutenants was actually higher than the injury rate of the firefighters, which again led me to believe that the probability that a firefighter – excuse me, that a lieutenant would be injured versus the probability of a firefighter would be injured is very, very high, and that when I originally presented my analysis which looked at the loss to the injured firefighters as being the difference in the disability pensions, that this is really the number that should be used. [A-2957, 2259-2261.] Dr. Shick further explained that he predicated his analysis on four pieces of data, consisting of the number of individuals retired during the time period of 1996-2011; the staffing levels in effect in the 2006/2007 budget; the 2007 injury statistics; and the evidence that lieutenants are exposed to the same risks as firefighters. Mr. Besaw only compared the percentage of firefighters retiring with 74 the percentage of lieutenants retiring. He did not consider the injury rates in 2007 or any other year. He did not consider the fact that we know the IOD Plaintiffs actually got injured. He did not consider the staffing levels for the relevant time frame. And, he did not possess knowledge of, much less consider, the job similarities between a firefighter and a lieutenant. Judge Michalek concluded: Expert Besaw’s one scenario, i.e., probability analysis wherein he sets predictions, i.e., future firemen, not being injured as Lieutenant at fifty-six percent (58.6%), the Court felt was flawed as pointed up during cross-examination and brought itself more in line with Dr. Shick’s approach. That is the Court agrees with Dr. Shick’s analysis and the likelihood of future injury as Lieutenant status was actually eighty-five percent (85%). This testimony was further confirmed by a very credible testimony of Plaintiff Anthony Hynes . . . The Court’s approach in this scenario could be considered a conservative compromise, i.e., running figures out assuming the injuries would have occurred anyway. Again, the Court feels this is consistent with the facts in this case, i.e., almost every case Plaintiffs had multiple injury situations, i.e., it was not just one injury at the end, was not one incident that caused them to kick into injury status, but a history of injuries leading up to same. [A-51.] Anthony Hynes’s testimony referred to by the trial court regarded the duties of a Fire Lieutenant. Specifically, Chief Hynes provided testimony that a Lieutenant’s job duties are just as physical and injury laden as those of a firefighter. He explained: 75 Every piece of apparatus in the city, whether it’s an engine or a truck company or a rescue unit, has an officer, and the officer is either a lieutenant or a captain. They are the first line supervisors for that company. So, for example, Engine 4 would have a lieutenants or a captain on duty. There are four platoons, so a captain would be on one platoon and lieutenants would be on the other three. When they get a fire or any of an emergency, that lieutenant and captain works alongside his crew. The difference in the obligations, the difference in their actions at a fire are that while a firefighter has responsibility to handle the emergency, the first line supervisor, in addition to actively working that emergency, whether handling a hose line, swinging an ax, breaking windows, crawling around doing search and rescue, he’s also responsible or she is responsible for the supervision of their crew. So, for example, on an engine company, if an officer is not on the top of the nozzle with one of the firefighters, they’re really not doing their job. If a truck officer is not engaged in some kind of action at a fire scene or any other emergency, he or she is not doing their job. And part of it deals with – with actually an OSHA mandated requirement that we work a buddy system. You can never be alone. And so the crews, the crews go in pairs of two, a crew of four becomes two pairs of two. Two people, for example, might be doing search and rescue, that could be the officer and one of the firefighters, and the other two could be ventilating say up on a roof or whatever. So company officers, which includes both lieutenants and captains, face the same dangers that firefighters face. They’re still fighting fires. [See SA-11-12.] Chief Hynes retired with thirty years of experience in the Fire Department. His testimony is credible and persuasive and carries more weight than the opinions of the three IOD Plaintiffs who testified, as any formerly non-disabled person would be expected to, that had they not been discriminated against they never would have gotten hurt. Plaintiffs’ personal beliefs do not create fact. 76 Indeed, while the IOD-Plaintiffs did not pursue claims for emotional distress against the City as a result of their injuries, which they believed were suffered as a result of not being promoted, the fact of the matter is that the evidence within the record – evidence which is devoid of emotion, anger, and frustration – demonstrates that these men would have still had, based on their prior injuries and the injury rates and disability retirements of other Lieutenants, an 85% chance of going out on disability retirement even after a promotion. Plaintiffs’ emotionally charged initial beliefs otherwise do not compel a different result. Further, as set forth above, Mr. Besaw’s calculations relied upon data that is not in the record inasmuch as Mr. Besaw testified that his “recollection” was that such data was maintained in the City’s personnel card system on City property. [A- 2043.] Mr. Besaw testified that he did not prepare any written summaries or descriptions of the evidence other than what appears in Exhibit 235. [A-2046.] Because we know that he made one mistake, wherein he calculated the wrong probability of the likelihood of promotion, the trial court was not unreasonable in rejecting the other conclusions and probabilities that he drew from that same “missing” data. ARGUMENT POINT I: ANY UNCERTAINTIES THAT EXIST AS TO DAMAGES SUFFERED BY VICTIMS OF ILLEGAL 77 DISCRIMINATION ARE TO BE RESOLVED AS AGAINST THE WRONGDOER AND THE TRIAL COURT’S DETERMINATION TO RESOLVE ANY LINGERING UNCERTAINTIES AS AGAINST DEFENDANTS IS AMPLY SUPPORTED BY EVIDENCE The Fourth Department found that the trial court’s awards to the non-IOD Plaintiffs could not stand because the assumptions regarding Plaintiffs’ future job prospects were “not fairly inferable from the evidence.” [A-7.] While we disagree, it goes without saying that there is always some degree of speculation when one is recreating what the past and future would have looked like absent some wrongdoing and the trial court recognized this. This is why Judge Michalek took great efforts, as explained throughout his 37-page decision, to dispel and, thus, eliminate speculation and ensure that he could make accurate and careful decisions regarding damages. Ultimately, he awarded very conservatively calculated damages to twelve of the thirteen Plaintiffs and no damages whatsoever to Plaintiff Hynes. [Because the facts are set forth, comprehensively, above, they will not be reiterated herein, except as necessary to discuss the application of relevant legal standards.] The Plaintiffs urge this Court to hold the City accountable for creating this mess in the first instance and, as a result, to resolve the uncertainties (which were created by the City) in favor of the Plaintiffs. 78 The Appellate Division’s modifications are contrary to this Court’s holding in Spitz v. Lesser, which reversed the Appellate Division’s decision to reduce the trial court’s award of damages, explaining that the uncertainty as to damages had to be resolved against the wrongdoer because: Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Spitz, 302 N.Y. 490, 494, 99 N.E.2d 540 (1951). The Watertown City Court in Flynn v. Allstate Indem. Co., 22 Misc.3d 1138(A), *18, 880 N.Y.S.2d 872 (N.Y.City Ct. 2009), observed: Furthermore, under the long-standing New York rule, when the existence of damage is certain, and the only uncertainty is as to its amount, the plaintiff will not be denied recovery of substantial damages. Moreover, the burden of uncertainty as to the amount of damage is upon the wrongdoer ... ‘an estimate necessarily requires some improvisation, and the party who caused the loss may not insist on theoretical perfection.’ citing Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir. 1977) (internal citations omitted), quoting Entis v. Atlantic Wire & Cable Corp., 335 F.2d 759, 763 (2d Cir. 1964); see also Hirschfeld v. IC Securities, Inc., 132 A.D.2d 332, 521 N.Y.S.2d 436, 440 (1st Dept. 1987) (holding approximation of damages suffices).” 79 For sure, this is not a new concept. The First Department, in a 1947 decision in Dunkel v. McDonald, acknowledged the difficulty in sometimes proving damages, but noted New York’s long standing policy to not deny damages merely because they may be uncertain. Id., 272 A.D. 267, 70 N.Y.S.2d 653 (1st Dept. 1947), revers’d on other grounds by H. P. Corp. v. 210 Central Park South Corp., 16 A.D.2d 461, 228 N.Y.S.2d 883 (1st Dept. 1962), citing Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205, 4 N.E. 264, 54 Am.Rep. 676 (1886); Bagley v. Smith, 10 N.Y. 489, 499, 61 Am.Dec. 756 (1853); MacGregor v. Watts, 254 App.Div. 904, 5 N.Y.S.2d 525 (2d Dept. 1938). This Court also spoke on this issue in Brady v. Erlanger, 231 N.Y. 563, 132 N.E. 889 (1921), when it affirmed the First Department’s decision (see Brady v. Erlanger, 188 A.D. 728, 177 N.Y.S. 301 (1st Dept. 1919)) wherein the First Department explicitly held: Where the fact of loss is certain, the wrongdoer will not be heard to say that the innocent party shall be deprived of any and all recovery merely because the exact amount of damage cannot be fixed with precision. One who finds that the application of this rule to his particular case works a hardship has only his own wrongdoing to blame for his predicament. Id. at 733. As if this principle needed corroboration beyond established case law, equity, and common sense, it is important to note that the idea of resolving 80 uncertainties as against the wrongdoer is not limited in application to New York State law; it is also well settled under federal law. For instance, the Western District Court, in Frank v. Relin, 851 F.Supp. 87 (W.D.N.Y. 1994), made an important observation in this regard, writing: Of course, there is an element of speculation whenever a court tries to fashion a remedy, after the fact, to place the aggrieved employee back where she would have been but for the wrongful act of the defendant. But lack of certainty should not deter the court from fashioning a remedy for one whose constitutional rights have been violated. To do otherwise would allow the defendant to benefit from the chaos that he created. Id. at 94. The same logic applies equally to racial discrimination claims, especially where such discrimination also gives rise to constitutional claims (and where Ricci has advised that such constitutional claims must take a backseat to Title VII and, in turn, NYSHRL, claims). AAny doubts in proof should be resolved in favor of the discriminatee giving full and adequate consideration to applicable equitable principles.@ Johnson v. Goodyear, 491 F.2d 1364 (5th Cir. 1974) (Holding that any doubts about entitlement to back pay should be resolved against the employer since it is the employer who took the discriminatory action in the first instance); see also Buckley v. Reynolds Metals Co., 690 F.Supp. 211, 216 (S.D.N.Y.1988) (Holding that a defendant Awill not be heard to complain of uncertainty when that 81 uncertainty has been caused by his own acts.@), citing Koyen v. Consolidated Edison, 560 F.Supp. 1161, 1169 (S.D.N.Y.1983) (Athe wrongdoer shall bear the risk of the uncertainty which his own wrong has created@). As noted in 22 Am.Jur.2d ADamages@ ' 457: ... if the wrongful act of the defendant prevents determination of the exact amount of damages, the defendant is not allowed to insist on absolute certainty but only that the evidence show the lost profits by reasonable inference. Id. at p. 408. The City has made it impossible to predict with absolute certainty whether any of the Plaintiffs will score well enough on subsequent examinations in order to be eligible to achieve promotions in the future; the City has made it impossible to predict with absolute certainty whether any of the Plaintiffs who do successfully test will actually be appointed in light of the rule of “one of three”; the City made it impossible to predict with absolute certainty continuing overtime trends; and the City made it impossible to predict with absolute certainty whether the IOD Plaintiffs would have been injured had each of them been promoted when they were originally supposed to. But, the City cannot be heard to complain about these alleged uncertainties in Plaintiffs’ proof regarding the above and, critically, where Plaintiffs have put on more than enough competent proof and argument as to these predictions, any 82 lingering uncertainties must be resolved in their favor. See Buckley v. Reynolds Metals Co., 690 F.Supp. at 216 (S.D.N.Y. 1988) (“[a defendant] will not be heard to complain of uncertainty when that uncertainty has been caused by his own acts.@); Koyen, 560 F.Supp. at 1169 (S.D.N.Y. 1983) (“The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.”); Bigelow v. R. K. O. Radio Pictures, 327 U.S. 251, 264–265, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946) (same). For sure, the City cannot obtain benefit by having committed the wrongs that it did. Our appeal then is to a great extent focused on this point of law as the Appellate Division, Fourth Department failed to apply this principle and, in turn, gave the benefit of uncertainty to the wrongdoer who created it in the first place. In justifying its ability to modify damage awards, the Appellate Division’s Order cites two particular cases, to wit, Walsh v. State of New York, 232 A.D.2d 939 (3d Dept. 1996) and Blakesley v. State of New York, 289 A.D.2d 979 (4th Dept. 2001), leave denied Blakesley v. State, 98 N.Y.2d 605, 774 N.E.2d 221, 746 N.Y.S.2d 456 (N.Y. Jun 11, 2002). In Walsh, the Third Department reviewed and modified a Court of Claims decision which awarded approximately $1.2 Million Dollars, among other things, in future lost earnings to a personal injury plaintiff. The Appellate Division’s 83 modification, however, was both well reasoned and relatively minor, reducing the judgment by only $200,000. Essentially, the Appellate Division conducted its own mathematical calculations, and determined that the trial court’s award of certain overtime monies was speculative and not based in any evidence. Similarly, the Fourth Department relies on its own decision in Blakesley, which absolutely gutted a Court of Claims damages award to a personal injury plaintiff by reducing what was nearly a $1.5 Million Dollar verdict to an award of just over $200,000. Regardless, however, and unlike here, the Fourth Department in Blakesley still provided a detailed rationale and basis for its extreme departure from the trial judge’s awards. In our case, the Appellate Division’s decision to adopt Defendants’ expert’s calculations necessarily accepted Defendants’ expert’s theories as to Plaintiffs’ future promotions and overtime earnings, and, as to the IOD Plaintiffs, the probability that each would have become disabled even after having been appointed as a Lieutenant, inasmuch as Mr. Besaw’s assumptions in this regard are built into his calculations. While each issue is discussed more thoroughly under POINT II, summaries of the evidence and argument are set forth below. Promotions The data and information from which the Defendants’ expert draws his conclusions is, in large part, pre-discrimination data. This simply means that he is 84 using information that was true for the Fire Department before the City commenced its pattern of racial discrimination against the Plaintiffs in the fall of 2005. Moreover, much of the data relied upon by Mr. Besaw in drawing conclusions for the IOD Plaintiffs, the likelihood of promotions, and calculating wages is not even in the record inasmuch as it is maintained on-site by the City in a personnel card system. Plaintiffs’ expert, however, explained that at the time of trial we simply did not have enough post-discrimination data to determine if those pre-discrimination trends would continue to hold true. Further, Plaintiffs’ expert – in line with New York State and Federal law on the topic – assigned the risks in the proof to the City, instead of the Plaintiffs. The bottom line is that future promotions are no longer realistic for most, if not all, of the Plaintiffs and this is so for a variety of reasons, which are summarized below and further elaborated on in Point II. First, the majority of the Plaintiffs were unable to properly motivate, study, and prepare to repeat examination testing that each of them had already studied for and completed successfully. Mentally, emotionally, and physically, these Plaintiffs – who had previously scored so well – failed to either complete the exam or scored so poorly on same that they were not reachable for promotion on the eligibles list. This was a question of fact on which Judge Michalek sided with the Plaintiffs. 85 Second, even where the Plaintiffs could prepare and successfully test for promotional appointments, doing so no longer guarantees a promotional appointment since the City has undisputedly conceded that it now (only much more recently) employs the “rule of one of three,” instead of the previous practice of appointing in rank order. Thus, even if each of our Plaintiffs can achieve the highest ranking position on his respective eligibles list, he is not guaranteed an appointment ever because the City can choose to always skip him in favor of one of the two candidates below him. Third, it is not reasonable to believe that the City will not ever again engage in racially motivated hiring decisions inasmuch as it has already and blatantly done so in the past. Fourth, it is not reasonable to believe that the City will continue each of the eligibles lists for their maximum duration of four years, thereby allowing more promotional opportunities to occur from each test, where the City has already and blatantly expired lists early in an effort to preclude promotions from becoming effective. Lastly, Besaw’s determination that individuals are more likely to be promoted as more time passes can just not be reconciled with the evidence in the record. 86 The uncertainties that exist here – in this now post-discrimination world – exist because of the Defendants’ own unlawful actions. It is an absurd and outrageous proposition that the Defendants can have the benefit of the pre- discrimination world predictions to reduce their liability to the Plaintiffs by assuming that all of the Plaintiffs will achieve promotions at some point in the future when such evidence undisputedly shows such promotions to neither be likely, nor guaranteed. If any party must bear the risk of the uncertainty in this regard, it is surely not the Plaintiffs. Judge Michalek’s ruling not only favored the more credible assumptions and analyses in this regard, but also correctly applied the legal standard in this case. Overtime Judge Michalek rejected both Besaw’s and Dr. Shick’s proposed overtime time frames. Judge Michalek noted that Besaw’s six year period was not representative of the overtime earned in the most recent years and, thus, could not be an accurate projection of overtime to come. He found Dr. Shick’s three year period to be inadequate as well. Judge Michalek made a determination to use the overtime period from the year of the discrimination (2006) through the most complete full year preceding the trial (2010), while properly excluding 2009 because the overtime was considered to be unusually excessive in that year. 87 The Fourth Department outright failed to explain its departure from the trial court’s decision regarding overtime. In fact, the Fourth Department failed to mention overtime at all in its decision. It seems that the Appellate Division, for lack of a better expression, threw the baby out with the bathwater: By summarily throwing out one set of calculations which were premised on both the trial court’s accepted assumptions as to overtime and future promotions and then imposing another set of calculations which contemplate neither assumption, the Appellate Division improperly reduced Plaintiffs’ damages, seemingly without intention or awareness. The Appellate Division could have imposed a set of calculations which were premised upon Mr. Besaw’s theory of future promotions, but which also contemplated the Court’s overtime period of 2006-2010, excluding 2009. Its failure to do so, without explanation, warrants reversal. IOD Plaintiffs The Appellate Division’s conclusions with respect to the IOD Plaintiffs, Arnone, Abad, and Denz, similarly resolved the uncertainties that exist because of the City’s discrimination in favor of the Defendants. Specifically, the issue is the probability that these Plaintiffs would still have become injured and disabled had they not been discriminated against and after having been appointed to the higher paying position of Lieutenant thus entitling them to the higher disability pension rates of Lieutenants over that of Firefighters. 88 Instead of affirming the trial judge’s decision which accepted Plaintiffs’ expert’s determinations that the IOD Plaintiffs would have had an 85% chance of becoming disabled even after having been promoted into a Lieutenant position, the Appellate Division simply assumed that had the IOD Plaintiffs been promoted as they should have been, they would not have had a significant chance of being injured, despite the fact that each plaintiff’s injury date was subsequent to his supposed-to-be promotion date. As a result of the tax consequences in that Plaintiffs’ current disability income is not taxable, these Plaintiffs have been held by the Appellate Division to actually be economically better off having been disabled as Firefighters as opposed to having been promoted to Lietenants and not becoming disabled. However, this conclusion ignores the fact that had these individuals been promoted and still become disabled after the promotion date, each would have been entitled to a higher disability rate of pay inasmuch as Lieutenants earn more than Firefighters do. The Fourth Department gave no meaningful explanation, analysis, or rationale for its departure from Judge Michalek’s awards other than to rely on the IOD Plaintiffs’ initial and personal beliefs that had they been promoted they would not have been injured. Certainly the IOD Plaintiffs never wished for disabling injuries and, as would be expected, there is extra bitterness toward the City for 89 failure to promote in this case for the very reason that there was a chance that if they had been promoted they would not have become disabled. The IOD Plaintiffs were robbed of that chance. Their opinion, however, provides little value to determining what chance they would have had either way. Putting aside emotion and anger and resentment, Dr. Shick determined, after an analysis of the data from that same 2007 time period, that the IOD Plaintiffs would have still had an 85% probability of suffering disabling injuries based on both their prior injury histories and the injuries suffered by other Lieutenants during that same time. Of course, Mr. Besaw did not evaluate the likelihood of Lieutenant injuries or disability retirements in the timeframe subsequent to when the IOD Plaintiffs would have been appointed in 2006. Instead, he allegedly analyzed City data, located in a personnel card system, and which is not part of the record, to conclude that based on retirement information from 1996 through 2010, the IOD Plaintiffs only had a 58.6% chance of becoming disabled as Lieutenants. Of course, Mr. Besaw’s analysis ignores relevant and case specific facts like the Plaintiffs’ prior histories of being out of work due to injuries and the number of injuries incurred by Lieutenants after the Plaintiffs would have been appointed. The former increases the likelihood of becoming disabled after a final injury and the latter is an indication of the type of work, assignments, or risks that the 90 Plaintiffs also would have been subjected to as Lieutenants had they been appointed. Mr. Besaw’s analysis only took into consideration disability retirements. He did not consider the injury rates of Lieutenants or assess how further injuries would have impacted the Plaintiffs personally. In order to be made whole, Plaintiffs, at the very least, need to receive this difference in their pension benefit. See Vernon v. Port Authority of New York and New Jersey, 2003 WL 1563219, *8 (S.D.N.Y. 2003), overruled on other grounds Cross v. New York City Transit Authority, 417 F.3d 241 (2d Cir. 2005), quoting Sharkey v. Lasmo , 214 F.3d 371, 375 (2d Cir.2000) ( AIf [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 anti-discrimination laws.@). This is especially true for David Denz since he had not yet even, at the time of trial, been approved for a disability retirement benefit. Judge Michalek’s decision to reject Mr. Besaw’s analysis was not only reasonable to resolve uncertainties in favor of the Plaintiffs, but it was absolutely warranted based on the record before him. POINT II: THE TRIAL COURT’S CONCLUSIONS REGARDING PLAINTIFFS’ ECONOMIC DAMAGES ARE SUPPORTED BY A FAIR INTERPRETATION OF THE 91 EVIDENCE AND SHOULD NOT HAVE BEEN DISTURBED “A trial court's findings are not to be lightly set aside unless its conclusions could not have been reached based upon any fair interpretation of the evidence.” St. James Nursing Home v. De Buono, 12 A.D.3d 921, 923, 784 N.Y.S.2d 712 (3d Dept. 2004), quoting Silverman v. Mergentime Corp./J.F. White, Inc., 252 A.D.2d 925, 926, 676 N.Y.S.2d 301 (1998), quoting Osterhout v. Mesivta Sanz of Hudson County, 226 A.D.2d 893, 894, 640 N.Y.S.2d 363 (1996). This Court has advised that: [T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses. Thoreson v. Penthouse Intern., Ltd., 80 N.Y.2d 490, 606 N.E.2d 1369 (1992). The Second Department has further advised that: While an appellate court's authority in reviewing a determination after a nonjury trial is as broad as that of the trial court, due deference is given to the trial court's determination . . . Such a determination should not be disturbed on appeal unless it is unsupported by legally sufficient evidence or could not have been reached by any fair interpretation of the evidence. Warm v. State, 308 A.D.2d 534, 535-536, 764 N.Y.S.2d 483 (2d Dept. 2003) [Emphasis added], citing Mechwart v. Mechwart, 292 A.D.2d 354, 738 92 N.Y.S.2d 604 (2d Dept. 2002); DiBruno v. Abrams, 208 A.D.2d 672, 674, 617 N.Y.S.2d 371(2d Dept. 1994); see also A & S Trucking Serv. v. New York State Thruway Auth., 268 A.D.2d 493, 702 N.Y.S.2d 347 (2d Dept. 2000); Greenberg v. Behlen, 220 A.D.2d 720, 633 N.Y.S.2d 189 (2d Dept. 1995); see also Brant v. Barreto, 24 Misc.3d 145(A), 901 N.Y.S.2d 898 (1st Dept. 2009) (Applying the Thoreson standard, holding that “the decision of the fact-finding court should not be disturbed unless the court's conclusions could not have been reached under any fair interpretation of the evidence” and refusing to disturb nonjury trial decision). Thus, while the Appellate Division is “statutorily empowered to review questions of law and questions of fact in the case at bar [per CPLR Sec. 5501(c)]”, we urge this Court, just as the First Department recognized in New York City Transit Authority (Estate of Donner) v. City of New York, 166 A.D.2d 336, 562 N.Y.S.2d 467 (1st Dept. 1990), to hold that Judge Michalek “had the advantage of seeing the witnesses,” and, thus, was in the best position to make credibility determinations and to draw conclusions about the evidence submitted in this case. Id. (Holding that trial court’s decision regarding damages was amply supported by evidence), citing Northern Westchester Professional Park Associates v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 (1983); Siegel, New York Practice, Sec. 529 pp. 731–732. 93 Critically, the trier of fact, Supreme Court Judge, Hon. John A. Michalek, after thirteen separate days of trial testimony and after reviewing and ruling upon hundreds of trial exhibits, concluded, as the tier of fact, that certain assumptions were more credible than others. However, that said, and as has been reiterated throughout this brief, Judge Michalek did not accept Plaintiffs’ expert’s calculations for any of the non-IOD Plaintiffs, nor did he accept all of Plaintiffs’ expert’s assumptions regarding promotions, overtime, or probabilities. He only accepted some of the assumptions that Dr. Shick made as to future promotions, overtime, and the IOD Plaintiffs, at which point Defendant’s expert was asked to base his calculations on those specific assumptions. Judge Michalek then awarded the non-IOD Plaintiffs damages as calculated by the defense and the IOD Plaintiffs damages as calculated by the Plaintiffs. See E-8. Issues of fact were decided. The Fourth Department, in rejecting the trial court’s determinations, improperly substituted its judgment for that of the lower court, finding that Plaintiffs’ expert’s assumptions regarding the non-IOD Plaintiffs’ future job prospects and the IOD Plaintiffs’ future likelihood of becoming disabled were somehow not fairly inferable from the evidence. The Fourth Department reached these conclusions without any real or meaningful explanation. As the above recitation of the facts and evidence demonstrates, the trial court’s determinations 94 were fairly inferable from the record before it, they properly resolved the uncertainties against the City, and the awards made – even at one third of the amounts sought by Plaintiffs -- served to most appropriately compensate the Plaintiffs for the harm done to them. CONCLUSION For the reasons set forth herein, it is respectfully urged that the Appellate Division misapplied the law in resolving alleged uncertainties as against the victims of racial discrimination and, further, exceeded its authority in summarily disposing of the trial court’s damage calculations which were carefully and comprehensively decided after a lengthy trial. January 31, 2014 Hamburg, New York ________________________ Andrew P. Fleming, Esq. Christen Archer Pierrot, Esq. CHIACCHIA & FLEMING, LLP Counsel for the Plaintiffs-Appellants 5113 S. Park Avenue, Hamburg, New York 14075 Tel: (716) 648-3030 E-Mail: andy@cf-legal.com cap@cf-legal.com