MEMORANDUM AND ORDER

JACOB HART, Magistrate Judge

In March, after an eight day trial in this Title VII/§ 1983 case, the jury returned a verdict for the Plaintiff against the City of Philadelphia, John Timoney, John Norris, Thomas Healey, and Joseph Sweeney. Although the jury did not find the Defendants liable for racial discrimination, they did find that the Plaintiff's civil rights had been violated. The jury awarded the Plaintiff a total of $430,000, including minimal punitive damages against each of the individual defendants and $105,000 for front pay. The Court entered judgment on the verdict, but requested counsel to brief the feasibility of reinstatement in lieu of the front pay award. Additionally, the Defendants filed a motion for judgment as a matter of law, or in the alternative, a motion for a new trial.

Before the court had the opportunity to rule on the post-verdict motions, the parties advised the court that they had reached an agreement and settled the case. As explained in our Memorandum and Order of February 6, 2004, the City of Philadelphia breached the settlement agreement. In such an instance, the agreement provides that the settlement shall be null and void. Thus, as the Plaintiff has requested, the court will vacate the settlement and reinstate the verdict.

In this Memorandum, we will address the post-verdict motions that remained undecided in light of the settlement. The Plaintiff's motion for attorneys' fees shall be dealt with in a separate opinion.

FACTS

On October 25, 1993, Mr. Devore joined the Philadelphia Police Department. In June of 1996, he discovered that his partner, James Floczak, had stolen a cell phone from a neighborhood youngster. Mr. Devore reported this to his immediate supervisor. As a result of the information provided by Mr. Devore, an internal affairs investigation was conducted and Officer Floczak was ultimately arrested, terminated from his employment, and convicted.

At the same time that Officer Floczak was being tried, Mr. Devore had been placed under surveillance in connection with a civilian complaint. During the surveillance, it was discovered that Mr. Devore had claimed overtime for which he did not work on six occasions. He was eventually arrested for theft of overtime and his employment was terminated as a result of that arrest.

When Mr. Devore was tried in Municipal Court, he was convicted of theft. On de novo appeal to the Court of Common Pleas, Mr. Devore was acquitted. However, on June 26, 2002, a labor arbitrator sustained Mr. Devore's termination for overtime violations.

In his complaint, Mr. Devore claimed that his employment was terminated due to his race and in retaliation for his reporting Officer Floczak. The Defendants contended that Mr. Devore was fired because he was arrested. As previously mentioned, the jury found that Mr. Devore had not suffered from racial discrimination. However, they did find that he was terminated and not reinstated after his acquittal, due to the exercise of his First Amendment rights in reporting Officer Floczak for stealing the cell phone. DISCUSSION A. Motion for a New Trial I. Exclusion of Evidence

In the Defendants' Motion for Judgment as a Matter of Law or a New Trial, they present several issues for the Court's consideration. First, the Defendants argue that the Court erred in excluding evidence of prior investigations of Mr. Devore. Before the start of trial, the Plaintiff filed a motion in limine to exclude evidence of an insurance investigation undertaken by the police department after Mr. Devore was allegedly found conspiring to strip his personal vehicle for the insurance proceeds. In addition, based on a civilian complaint, Mr. Devore was under investigation for running a speakeasy. Both of these investigations were undertaken prior to the investigation for overtime theft that eventually provided the basis for Plaintiff's arrest and termination. After hearing argument from counsel, this Court gave Plaintiff's counsel the option of having the Court admit all the evidence of these other investigations or excluding the evidence of the other investigations with a cautionary instruction to the jury. Plaintiff's counsel chose the later.

In the post-verdict motion, the Defendants argue that the Court abused its discretion in excluding the evidence. Before addressing the rationale behind the decision, we note that counsel did not object to the Court's decision at trial. Ordinarily, an objection to an evidentiary ruling must be raised at the time of trial to be preserved. See Bruno v. W.B. Saunders, 882 F.2d 760, 767 (3d Cir. 1989). Here, defense counsel failed to object to the Court's ruling either at the time of the ruling, (N.T. 3/3/03, 21-23), or when Plaintiff's counsel opted for the exclusion of the evidence with a cautionary instruction to the jury. (N.T. 3/3/03, 46, 51).

Based on the Defendants' theory of the case, the evidence of other investigations was clearly more prejudicial than probative. Before opening statements to the jury, the court heard argument on the Plaintiff's motion in limine. At that time, defense counsel explained that the other investigations were relevant to explain the reasons that Mr. Devore was under surveillance when the City discovered that he was abusing overtime. (N.T. 3/3/03, 17-18). In other words, the City would be prejudiced if it did not have the opportunity to explain why Mr. Devore was under surveillance when, through the surveillance, it found that Mr. Devore was abusing overtime. On the other hand, Plaintiff's counsel argued that introduction of these other investigations would unduly prejudice his client.

Since the former Police Commissioner testified in his deposition that Mr. Devore was fired only because he was arrested, see Deposition of Timoney, 12/30/02, at 56:2-6, 73:18-19, 75:17, 80:21, and the defense adopted this as their theory of the case, see Defendants' Pretrial Memorandum, at 2, the prior investigations were not relevant to the City's reasons for terminating Mr. Devore's employment. Thus, the only relevance that the prior investigations had was to put the surveillance in perspective.

In order to avoid any inference by the jury that the surveillance was some form of harassment, and thus avoid prejudice to the City, the Court instructed the jury at various times throughout the trial that the surveillance of which they heard testimony was conducted for reasons not relevant to this case and they were to draw no inferences for or against either party. (N.T. 3/3/03, 61). Since the City's only proffered reason for seeking to include the prior investigations was to explain the reason for the surveillance, the Court's instruction provided a perfectly neutral explanation.

It is only now, after the verdict has been returned, that the Defendants argue that they "were stripped of the opportunity to show that their actions [in firing Mr. Devore] were not based on a retaliatory motive." (Motion for New Trial, at 15). In essence, this argument would have required the City to concede that the reason the former Commissioner gave for Mr. Devore's termination was pretextual and then argue that the real reason was that he was a bad cop, one being investigated for several potential crimes. Stated differently, a good cop might not have been arrested or fired for stealing court overtime, but a bad cop would be. We will refer to this as the "Al Capone" defense — Devore was suspected of more significant criminal activity, yet he was arrested and terminated for a comparatively minor infraction.

At no time, until the post-verdict stage, had the City raised the "Al Capone" defense. To the contrary, throughout the trial, the defense maintained that Mr. Devore was fired only because he was arrested. This is the deposition testimony of the decision-maker at the time, as well as the defense theory put forth in the Defendants' Pretrial Memorandum. They have never argued that his discharge was influenced by the more serious conduct of which he was then suspected. During the argument immediately preceding trial, counsel argued only that the other investigations were relevant to explain the reason for the surveillance during which the overtime theft came to light.

Rule 403 gives the trial court the discretion to exclude relevant evidence if "its probative value is substantially outweighed by the danger of unfair prejudice. . . ." See Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 n. 5 (3d Cir. 2002). Considering the Defendants' theory of the case, the other investigations were not relevant to Mr. Devore's termination, and testimony of the other investigations was clearly more prejudicial than probative.

II. Misconduct of Plaintiff's Counsel

The Defendants next complain that they were severely prejudiced when Plaintiff's counsel suggested, during the questioning of a witness, that the witness was under threat of arrest by defense counsel. In this Circuit, when there is an allegation of improper conduct on the part of counsel, the proper inquiry is "whether the improper assertions have made it `reasonably probable' that the verdict was influenced by prejudicial statements." Greate Bay Hotel Casino v. Tose, 34 F.3d 1227, 1236 (3d Cir. 1994) (citing Fineman v. Armstrong World Indus., 980 F.2d 171, 207 (3d Cir. 1992)).

When Plaintiff's counsel began questioning Officer Deborah Francis, he asked about a meeting the day before that she had with defense counsel. Thereafter, he asked if defense counsel told her there was a warrant for her arrest. She said that defense counsel had not told her that. Plaintiff's counsel then asked if defense counsel had told her she was going to be arrested and she responded, "no." At that point, defense counsel objected. After a brief sidebar, the court ordered the jury from the room. (N.T. 3/6/03, 59-61).

Without the jury present, we found out that, like the childhood game of pass-it-down-the-line, Mr. Devore had told his counsel that Ms. Francis had told him that Mr. Miller had told her that there was a warrant for her arrest. (N.T. 3/6/03, 61-62). At best, this was a terrible case of mis-communication. In fact, Mr. Devore was confusing an incident in 1996, during the Internal Affairs investigation, when someone had said there was a warrant for Ms. Francis's arrest. (N.T. 3/6/03, 62).

When the jury returned, the court gave the following instruction:

Members of the jury, before I excused you, there was a question posed to this witness as to whether or not she had a conversation with [defense counsel] prior to coming in here today and she said that she did. And then there was a question as to whether or not in that conversation she had been told that an arrest warrant had been issued against her. And at that point we went to sidebar.

I have examined all of the parties as to the source of that and I will tell you number one, that there was no mention in the conversation between this witness and [defense counsel] last night about her being threatened with or being the recipient of an arrest warrant. So I want you to strike that, and [defense counsel] in no way did anything improper and I ask that you accept on his behalf the Court's apology for anything that may have been said that would tend to suggest the contrary.

I'm also going to inform you that [Plaintiff's counsel's] reason for asking that question was because he received that information from Mr. Devore. And whether or not he understood Mr. Devore correctly or whether or not Mr. Devore said that is not the point. The point is that that was the source of this information. This witness has said no such threat was ever made, no such discussion was ever held.

Now, [Plaintiff's counsel], I'd like you to begin to examine this witness on subjects that are relevant to the issues in this case. And say nothing more about any meetings that she may or may not have had with counsel. Please proceed.

(N.T. 3/6/03, 63-64).

Although Plaintiff's counsel's questions, heard in a vacuum, suggested that defense counsel had intimidated Ms. Francis, the witness denied the allegations, answering in the negative. Moreover, after the Court conducted a colloquy without the jury present, the Court instructed the jury that defense counsel had not, in any way, intimidated the witness or done anything improper and, in fact, the false information originated from the Plaintiff, himself. We believe that the witness's responses, combined with the Court's curative instruction, inoculated the jury from any improper influence from Plaintiff's counsel. The questions, viewed in this light, did not affect the jury's verdict.

Again, in closing arguments, Plaintiff's counsel referred to Officer Francis' fear in testifying. Defense counsel immediately objected. (N.T. 3/12/03, 63-64). At that point, the Court reminded the jury that the allegation regarding an arrest warrant for Officer Francis was false. However, the Court did not strike the comment because Officer Francis had testified that she feared retaliation in return for her testimony. (N.T. 3/6/03, 59). Again we believe that the Court's instruction served to cure any improper inference that could have been made by the jury.

III. Violation of the Court's Discovery Order

The Defendants next complain that the Plaintiff's failure to identify Charles Bucceroni as a witness severely prejudiced the defense. When considering whether to exclude a witness for failure to disclose him/her in a timely manner, the court must consider:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in the court, and (4) bad faith or wilfulness in failing to comply with the district court's order.

Here, Mr. Bucceroni offered testimony regarding the "Rat Poster," a poster with a picture of the Plaintiff, referring to him as a "snitch" and "rat of the week," with a drawing of a rat. (Plaintiff's Exhibit 13). Mr. Bucceroni stated that he saw the poster hanging in the glass cabinet in the roll call room of the 17^th Police District. (N.T. 3/5/03 — Bucceroni, 4-5). This testimony was consistent with that of Lawrence Hammond.

The Defendants argue that the Plaintiff's failure to disclose this witness prior to trial prejudiced their case. Just before voir dire began, the court addressed the failure of both counsel to comply with the Court's Pretrial Order. The Defendants' current complaint is akin to the pot and kettle. However, with respect to Mr. Bucceroni, the Court permitted him to testify because the defense, as well as the Court, was aware of his existence prior to trial. The Plaintiff relied upon Mr. Bucceroni's declaration in defending the motion for summary judgment filed by the defense. Attached in the Exhibits in Support of the Denial of Summary Judgment, the Plaintiff included a declaration by Mr. Bucceroni, which was completely consistent with his testimony at trial. (Exhibit GG, Plaintiff's Exhibits in Support of Denial of Summary Judgment). In addition, we note that the testimony offered by Mr. Bucceroni was cumulative of that offered by Mr. Hammond. Therefore, the Defendants' claims of "severe prejudice" are rejected.

IV. Jury Charges

Defendants next argue that the Court's charges on First Amendment Retaliation and damages were flawed. We note that counsel failed to object to the charge on either of these subjects. Therefore, the objections are waived. See Alexander v. Riga, 208 F.3d 419, 426 (3d Cir. 2000) (failure to challenge a jury instruction prior to the time the jury begins deliberations results in a waiver). The instructions were also proper on the merits.

A. First Amendment Retaliation

With respect to the Court's instruction on the retaliation claim, the Defendants now claim that the instruction given was flawed because it failed to include the affirmative defense that Defendants could not be found liable if they established that they would have taken the same action even if they had not had a retaliatory motive. As previously stated, throughout the preparation of the case, the Defendants' only theory was that the Plaintiff was fired for being arrested for overtime abuse. At trial, the court gave a pretext charge to the jury to guide their consideration of this proffered reason for the Plaintiff's discharge. Such is consistent with the caselaw of the Third Circuit. See Green v. Philadelphia Housing Authority, 105 F.3d 882, 889 n. 9 (3d Cir. 1997)("[a] pretextual argument is appropriate when there is a question whether an employee was penalized because of the challenged speech.")

In the charge, the jury was instructed:

[I]f the Plaintiff has shown by a preponderance of the evidence that the defendant's stated reason for its employment action, that it suspended, fired, and then failed to reinstate Mr. Devore following acquittal, because he was arrested — that that's why they did this — if you find that that is such an implausible reason that you conclude that the defendant knew it was not really disciplining or terminating the plaintiff for that reason, that's what the law means by pretext.

Such a showing by the plaintiff would permit you to find that the real reason for Mr. Devore's termination was because he turned in his partner for theft and was, thereafter, willing to testify against him in court.

(N.T. 3/12/03, 119).

As will be discussed in the "Protected Activity" section of this opinion, see infra, at 15-16, the Plaintiff presented sufficient evidence to support a finding that the employment decisions made by the City were motivated by Mr. Devore's exercise of his First Amendment rights. B. Damages

The Defendants also challenge the Court's instruction on damages, claiming that the Court's instruction permitted the jury to base its award on impermissible speculation. The only speculation referred to in the charge dealt with the period of time that the jury could award front pay and immediately following that reference, the Court instructed the jury that any such award had to be based on credible evidence.

Your determination is necessarily speculative because none of us knows what will happen to Mr. Devore. But, you must use your best judgment and rely on credible evidence presented to figure lost future earnings.

(N.T. 3/12/03, 125).

Read in its entirety, see In re Paoli RR Yard PCB Litigation, 113 F.3d 444, 458 (3d Cir. 1997) (citing United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)), the Court's charge on damages did not permit the jury to base its award on impermissible speculation. Rather, the jury was told that they must rely on the evidence in awarding any damages.

V. Sufficiency of the Evidence

The Defendants next assert that there was insufficient evidence to support the verdicts against each of the individual defendants. We disagree.

A. Thomas Healey

Pursuant to the jury's verdict, they found Mr. Healey had subjected Mr. Devore to harassment on the basis of the exercise of his First Amendment rights. Both Mr. Bucceroni and Mr. Hammond testified that the "Rat Poster" hung in the roll call room of the 17th Precinct at the time when Mr. Healey ran that precinct. The only basis upon which the Defendants now attack the sufficiency of the evidence against Mr. Healey is a claim that Mssrs. Hammond and Bucceroni are not credible because each had an axe to grind with the police department. Clearly this is a credibility issue. The jury chose to believe the testimony offered by these witnesses. "In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version." McDaniels v. Flick, 59 F.d 446, 453 (3d Cir. 1995). The court will not disturb the jury's credibility determination.

B. John Timoney

During trial, the jury heard testimony from former Commissioner Timoney that Mr. Devore was fired because he was arrested, and that this was the Commissioner's policy in all cases. (N.T. 3/10/03, 22, 25, 26). The Commissioner stated that he was not familiar with the underlying facts of the investigation of Mr. Devore. His decision to terminate Mr. Devore was based only on Mr. Devore's arrest. (N.T. 3/10/03, 25). Yet, Mr. Timoney acknowledged that he made an exception to this policy for an officer who had been arrested at an Orioles baseball game. (N.T. 3/10/03, 29). Because the Commissioner had been told and concluded that the arrest of this officer in Baltimore was unjustified, the Commissioner decided to "see how it play[ed] out in court." (N.T. 3/10/03, 30). Because the charges were dropped against him, that officer was never fired.

At the same time, the jury heard testimony regarding the responsibilities of officers, like Mr. Devore, who were waiting for their cases to be called at the Criminal Justice Center. The jury heard about the crowding of the courtrooms in the CJC, and the desires of the Assistant District Attorneys and judges to avoid confrontations between the officers and defendants and their families. (N.T. 3/7/03, 126). Hence, the officers are encouraged not to stay in the courtrooms. Lieutenant Mary Jo Brady discussed the recall system when an officer was given a foot beat. However, having been assigned to the firing range, Mr. Devore was exempt from this system. (N.T. 3/7/03, 126-28). The custom was for the officers who did not have foot beats to leave the courtroom. The officer's actions depended on the desires of the District Attorney. (N.T. 3/7/03, 131). Inspector Jeremiah Daley testified that an "on call" system had developed, where the officers subpoenaed to testify would leave a cell phone number or pager number and "go wandering about." (N.T. 3/5/03, 88-89). The jury also heard that Mr. Devore was eventually acquitted of the overtime theft charges.

Based on this testimony, the jury could easily have concluded that Mr. Devore's case was akin to that of the Orioles fan, i.e. an unjust charge. The jury could have also concluded that because Mr. Devore had turned in his former partner, Mr. Timoney did not accord Plaintiff the same treatment given to the Orioles' fan, treatment which resulted in no discharge upon arrest.

Similarly, the Plaintiff presented the cases of Brady and DiLacqua, two officers arrested and later acquitted of wrong-doing. Unlike Mr. Devore, Brady and DiLacqua were reinstated after their acquittals and did not have to go through arbitration. Sylvester Johnson, the current Police Commissioner, explained that terminating Brady and DiLacqua after their arrests would not have been sustained in arbitration because those officers had already received 20-day suspensions, imposed by former Commissioner Timoney before they were arrested. However, the jury could have disbelieved Commissioner Johnson's reason for not requiring Brady and DiLacqua to go to arbitration, and also could have been influenced by the fact that Brady and DiLacqua received mere "slaps on the wrists" for the serious infractions of drunk driving in one case, and covering up an automobile accident in the other.

We conclude that the evidence is sufficient to support the verdict against Mr. Timoney.

C. John Norris and Joseph Sweeney

At the time of the investigation into Mr. Devore, Mr. Norris was the Inspector of the Internal Affairs Bureau and Mr. Sweeney was the investigator assigned to Devore's case. (N.T. 3/5/03, 106). The Defendants claim that the evidence was insufficient to show that Mr. Norris did anything more than forward the IAB report to the Commissioner and that Mr. Sweeney did anything more than investigate the misconduct of another officer. (Defendants' Motion, at 42, 44).

However, as discussed in further depth in the "Protected Activity" section of this opinion, see infra, the Plaintiff presented evidence that Mr. Devore was the only officer ever disciplined for abusing court overtime despite a widespread "on call" system used by the officers subpoenaed to testify. (N.T. 3/5/03, 47-48 — Testimony of Hammond; 89 — Testimony of Daley). From this, the jury could reasonably have concluded that Mssrs. Sweeney and Norris targeted Devore in retaliation for his involvement in the Floczak matter.

VI. Protected Activity

The Defendants next argue that the Plaintiff failed to establish either that his protected activity was a motivating factor in the police department's termination decision, or that the department would not have made the same decision regardless of Mr. Devore's protected activity. We disagree. From the evidence presented at trial, the jury could have reasonably inferred that the actual reason Mr. Devore was fired was because he turned in his partner, and that had he not done so, he would not have been so seriously punished for abusing court overtime.

The Plaintiff established from the Defendants, themselves, that police officers were hesitant to "come forward and either give up or testify against other police officers for alleged wrongdoing." (N.T. 3/10/03, 14 — Testimony of Timoney). Mr. Norris explained that Internal Affairs would protect officers that came forward with information about other officers (N.T. 3/5/03, 59). Mr. Hammond testified that he was terminated shortly after he confronted his captain about the "Rat Poster" and defended Mr. Devore. Ms. Francis stated that she feared retaliation in response to her testimony. (N.T. 3/6/03, 59). From this, the jury could quite reasonably conclude that an officer who "ratted out" another would be subject to retaliation.

As to the type of retaliation to which Mr. Devore was subjected, the Plaintiff presented evidence that Mr. Devore was one of the first officers ever arrested for theft of any type of overtime, and was the only officer so charged in connection with court overtime. The Plaintiff presented a total of 104 individuals who had been investigated by the Internal Affairs Bureau for theft of overtime. (Plaintiff's Exhibit 8). Four of these individuals, including Mr. Devore, were fired. However, as the Plaintiff pointed out, two of the individuals were civilian employees and the other officer that was fired had also stolen beer kegs. (N.T. 3/5/03, 147-49; 224). Thus, the Plaintiff had differentiated himself from the others who were fired.

Moreover, despite repeated testimony regarding the chaotic nature of the Criminal Justice Center and the emergence of an "on call" system, see infra, at 13-14, Mr. Devore was the first officer ever arrested and fired for abusing court overtime. From this evidence, the jury could logically conclude that the City's employment decisions concerning Mr. Devore were in retaliation for his turning in Officer Floczak.

VII. Qualified Immunity

The Defendants argue that Mssrs. Timoney and Norris are entitled to qualified immunity because, at the time of their actions, it was not clear that Mr. Devore's actions constituted protected speech. Mr. Devore was terminated in August, 1998. Looking at the caselaw from the Supreme Court and this Circuit, it is clear that whistle-blowing of the type Mr. Devore engaged in when he turned in Floczak, as well as his later willingness to testify, were both understood to be protected at that time. In 1983, the Supreme Court discussed the history of its First Amendment — protected speech jurisprudence:

"[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-216, 13 L.Ed.2d 125 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the "highest rung of the hierarchy of First Amendment values," and is entitled to special protection. NAACP v. Claiborne Hardware Co., ___ U.S. ___, ___, 102 S.Ct. 3409, 3426, 73 L.Ed.2d 1215 (1982); Carev v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980).

We conclude that Mr. Devore's rights were firmly established at the time of his termination.

VIII. Monell Liability

The City concedes, as it must, that Commissioner Timoney is a policy-maker, as that term is understood in Monell v. Dept. of Social Services of City of New York, 436 U.S. 658 (1978). See Plaintiff's Motion for New Trial, at 61. However, the City argues that there is insufficient evidence to link Mr. Timoney's actions to a retaliatory motive. In fact, the City argues that there is no evidence that Mr. Timoney even knew of Devore's protected activity.

As for the Commissioner's knowledge of Mr. Devore's protected activity, he testified that, although he had no specific recollection of being informed of Mr. Devore's actions regarding Mr. Floczak, he stated that he was sure that Commissioner Norris had briefed him on it. (N.T. 3/10/03, 24). Moreover, as discussed earlier, the Plaintiff presented evidence of other officers who were treated differently, both with respect to the original termination and then with reinstatement after acquittal. The jury could rationally conclude that the inconsistency was based on a retaliatory motive. As such, this decision maker bound the City for purposes of Monell liability.

IX. Remititur — Backpay

The Defendants make several arguments for reduction to the award of backpay and also argue that the Plaintiff is not entitled to any backpay award based on the arbitrator's opinion. Remititur is appropriate when the jury's conclusion is not rationally based in the evidence. See Evans v. Port Authority of New York and New Jersey, 273 F.3d 346, 354 (3d Cir. 2001). Because we find that the total backpay award was not supported by the evidence we will grant the Defendant's motion, in part.

The burden of proving damages is upon the Plaintiff. At trial, the Plaintiff testified as to the amount of his salary, "anywhere between 33 to $40,000 a year." (N.T. 3/4/03, 8, 85). There was no testimony offered by the Plaintiff regarding the value of his fringe benefits or any salary increases to which he would have been entitled. Therefore, any amount in addition to the $40,000 a year for backpay would not be supported by the evidence. Mr. Devore was fired in August of 1998, four years and eight months prior to the jury's verdict. Hence, the evidence establishes that he is entitled to a maximum of $186,667 in backpay and we will order that the backpay award be remitted to that amount.

The Defendants also argue that the backpay award should be reduced by the amount that Plaintiff received from his employment at Home Depot and unemployment benefits. Just as the Plaintiff had the burden of establishing his damages, the Defendants had the burden on mitigation. The Defendants presented no evidence regarding the salary that Mr. Devore received at Home Depot, the amount of his unemployment benefits, or any evidence regarding the security job that Plaintiff was offered. The Defendants' mitigation argument must die by the same sword of burden of proof, that wounded Plaintiff's backpay damages.

We also reject the Defendants' arguments that the arbitrator's findings require the Court to eliminate any award for backpay. As explained during the trial, the arbitrator's findings do not bind the jury or this Court on the issues in this case. The fact that the union chose not to present a strong case for Mr. Devore will not bar recovery on his civil rights claim.

X. Future Lost Wages — Reinstatement versus Front Pay

In this case, the jury awarded the Plaintiff $105,000 in front pay. The Plaintiff now seeks reinstatement, in lieu of this award. The City objects to Plaintiff's reinstatement. The Third Circuit has held that reinstatement is the preferred remedy in wrongful discharge cases. In re Continental Airlines, 125 F.3d 120, 135 (3d Cir. 1997). However, where either "the relationship between the parties has been so damaged by animosity as to make reinstatement impractical; or . . . where no comparable position is available to which the claimant can be reinstated," front pay is the proper remedy. Ritchie v. Henderson, 161 F. Supp.2d 437, 445 (E.D. Pa. 2001) (citing Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1104 (3d Cir. 1995)).

When asked at trial whether he would like to return to the Philadelphia Police Department, Mr. Devore stated, "At first, yes. Not while certain individuals are in command, no." (N.T. 3/4/03, 90). Now, however, the Plaintiff seeks reinstatement, while the City opposes it.

Having considered the facts of this case and the cases involving reinstatement in this Circuit, we conclude that reinstatement would be inappropriate. The Plaintiff's entire case revolved around "the blue wall of silence," an allegedly unwritten policy in the police department that an officer does not "rat out" another officer. (N.T. 3/5/03, 120 — Testimony of Norris; 3/10/03, 14 — Testimony of Timoney). Plaintiff claimed that he was harassed for violating the wall of silence and that the harassment was widespread, including actions taken by his coworkers, supervisors, the Internal Affairs Bureau, and the Commissioner, himself. Accepting these allegations as true, Mr. Devore's situation on the Philadelphia Police Force would be worse now that he has taken the City, his former supervisors, and former police commissioner to court. Taking Mr. Devore's argument to its logical conclusion, if he thought the "Rat Poster" was a rude retaliation for turning in one officer, imagine the repercussions from taking on the entire force.

In addition, we are persuaded that the job of police officer is distinctly different from that of office worker or laborer. Police officers routinely put their lives on the line and must rely on backup from their partners and other officers. This is not to say that Mr. Devore and his future partners would not provide "back up" to each other, but we are discussing a job in which trust and confidence are essential elements. After all the bad blood that has been exchanged between the Plaintiff and the Defendants, we do not believe it wise to return Mr. Devore to his former position.

Finally, we note some concern that Mr. Devore's reinstatement might well doom this case to repetition. If the blue wall of silence really exists, as Mr. Devore claims, his reinstatement would only offer the Police Department new opportunities to harass him and treat him worse than other officers. We are well aware of the history of this case, and refuse to repeat it.

The City again argues that, based on Plaintiff's testimony regarding his job at Home Depot and the offer of another position, Plaintiff is not entitled to front pay. Like our earlier discussion, however, we conclude that there was no evidence in the record regarding the wages that Plaintiff earned from his position or would have earned from the security position. Mitigation is a burden on the Defendants. Without a basis for comparison and reduction, we will not undermine the jury's verdict. XI. Additional Issues

The Plaintiff has also filed a motion seeking pre- and post-judgment interest and an award for the negative tax consequences of receiving a lump sum rather than a salary over a number of years. As for pre- and post-judgment interest, at this point, this motion is not ripe for review. Once the Defendants have had an opportunity to respond to the Motion, the Court will consider the issue of interest. We request that defense counsel brief the issue of interest and provide a calculation, if necessary. The calculation should address all monies owing to the Plaintiff, including attorneys' fees, but should also take into consideration the settlement amount that the City previously paid.

As for the request for an award for the negative tax consequences that Plaintiff allegedly suffered, the Court will deny the motion. UnlikeO'Neill v. Sears. Roebuck and Co., 108 F. Supp.2d 443 (E.D. Pa. 2000), in which the undersigned permitted recovery for negative tax consequences based on the detailed presentation by an economic expert, this case offered no evidence to support such an award. As we explained inO'Neill, the key to such a recovery is the evidence to support it. Here, the economic testimony proposed was ruled inadmissible prior to trial due to Plaintiff's failure to provide the defense with an expert report.

CONCLUSION

For the reasons stated in this Memorandum, the Defendants' Motion for Judgment as a Matter of Law, or in the alternative, New Trial will be denied. However, this denial is conditioned upon the Plaintiff's acceptance of the verdict as remitted by this Memorandum. As explained in the Remititur section of this Memorandum, the award of $262,500 for backpay is reduced by $75,833, resulting in a total award of $354,167 ($186,667 in back pay, $105,000 in front pay, the punitive damages as previously awarded, and compensatory damages of $60,000).

ORDER

AND NOW, this 20 day of February, 2004, upon consideration of the Defendants' Motion for Judgment as a Matter of Law or, in the alternative, Motion for New Trial, (docket # 87), and subsequent filings, the Plaintiff's Motions for Reinstatement and Make Whole Order, (docket ##81, 85), and subsequent filings, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that:

1. The Settlement entered in this case is VACATED.

2. The Motions for Reinstatement are DENIED.

3. The Motion for Judgment as a Matter of Law, or in the alternative, Motion for New Trial is GRANTED IN PART AND DENIED IN PART as discussed in the accompanying Memorandum. To the extent the Defendants oppose reinstatement, their Motion is GRANTED. The Jury's award of back pay is remitted to $186,667. The denial of the Defendants' Motion is conditioned upon the Plaintiff's acceptance of the verdict as remitted. In all other respects, the Defendants' Motion is DENIED.

4. The Plaintiff's Motion for Damages Resulting from Negative Tax Consequences is DENIED.

5. Defense counsel shall brief the issue of interest, as explained in the accompanying Memorandum, and will provide a calculation, if necessary.