Opinion
95 Civ. 4594 (PKL).
June 5, 2003.
OPINION AND ORDER
Plaintiff Leonard Vernon ("Vernon") commenced this action against his former employer, The Port Authority of New York and New Jersey ("Port Authority"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (2001) ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), (d) (2001) ("ADEA"). Following a trial on the merits and a finding in favor of Vernon, Vernon's attorney submitted an application for attorney's fees and an economic report detailing both an award of back pay and an award of front pay owed to Vernon. The Court adjusted the $1.5 million compensatory damage award downward to $300,000, and awarded the plaintiff: (1) attorney's fees of $43,632.50 and costs of $2,261.38; (2) back pay including prejudgment interest in the sum of $117,550; and (3) front pay in the sum of $118,540. See Vernon v. The Port Authority of New York and New Jersey, 220 F. Supp.2d 223 (S.D.N.Y. 2002) ("Vernon I"). Port Authority then brought a motion for a new trial under Fed.R.Civ.P. 59, or in the alternative, for remittitur of the amounts awarded for front pay and back pay.
The parties stipulated that the judge rather than the jury would determine the precise amount of back pay. See Trial Transcript, Vernon v. Port Authority of New York and New Jersey ("Tr."), at 1222-25.
I. Back Pay
On March 26, 2003, this Court issued an Opinion and Order denying Port Authority's motion for a new trial but granting the remittitur of the back pay and front pay awards in accordance with the calculations made and the documents submitted by Port Authority, calculating the salary that Vernon would have received had he been promoted in 1995 based on the policies and procedures concerning promotional increases and merit increases in place at the Port Authority from 1995 to 2002. Vernon v. The. Port Authority of New York and New Jersey, No. 95 Civ. 4594, 2003 WL 1563219 (S.D.N.Y. Mar. 26, 2003) ("Vernon II"). The Court accepted Port Authority's calculations of the appropriate amount of back pay due Vernon based on what Vernon would have earned had he been promoted in 1995, and remitted the prior amount of back pay to the extent that it exceeded $28,544 and the appropriate amount of prejudgment interest.
Both parties refer to the Court's Opinion and Order as dated March 25, 2003, however, that Opinion and Order was not filed and docketed by the Clerk of Court until March 26, 2003.
This Court had previously determined that Vernon was entitled to receive prejudgment interest on the back pay damages, and had approved of Vernon's economist, Leonard Freifelder's ("Freifelder"), calculation of that interest using rates of high-grade municipal bonds maturing in 2005 and high-grade municipal bonds maturing in seven to twelve years, with rates of 4.0% and 5.0 %, respectively. Vernon I, 220 F. Supp.2d at 235-36 ("Such an award [prejudgment interest] is necessary to make the plaintiff whole."). However, Port Authority was unable to calculate the appropriate amount of prejudgment interest to which Vernon would be entitled based on Port Authority's calculation of back pay, so Port Authority asked that Freifelder provide Port Authority with the interest rates Freifelder called the "Present Value of Lost Earnings." Vernon failed to supply these figures in his opposition to Port Authority's Rule 59 motion.
Furthermore, in its March 26, 2003 Opinion and Order, the Court ordered that Vernon provide the Port Authority with the interest rates and compounding periods used in arriving at Freifelder's determination of the "Present Value of Lost Earnings" within thirty days of the decision. Vernon, 2003 WL 1563219, at *13. Thereafter, the Court granted plaintiff's request for a ten day extension of time to adhere to this order, and on May 12, 2003, plaintiff submitted its response to the Court, including an Attorney Affirmation from plaintiff's counsel, Thomas F. Bello, Esq., ("Bello Affirm.") and an updated report from Freifelder, in the form of an Affidavit of Leonard Freifelder, Ph. D. ("Freifelder Aff."). In plaintiff's response to the Court's order that plaintiff provide Port Authority with the interest rates and compounding period used in determining the prejudgment interest, plaintiff requested further relief with respect to the Court's determination of front pay, back pay, prejudgment interest, and attorney's fees and costs. See Bello Affirm.; Freifelder Aff. Mr. Bello's affirmation and the Freifelder affidavit base plaintiff's request for further relief on inaccuracies and misleading statements plaintiff alleges exist in Port Authority's submissions to the Court on September 16, 2002, in conjunction with Port Authority's Rule 59 motion.See Bello Affirm. ¶ 5, 7-8; Freifelder Aff. ¶¶ 6-20, 27-29. However, the appropriate time for plaintiff to bring these alleged inaccuracies and misleading statements to the attention of the Court was in plaintiff's opposition papers to Port Authority's Rule 59 motion, which plaintiff submitted to the Court nearly seven months ago, on October 16, 2002. The Courts finds the arguments made and the affidavits submitted by plaintiff in response to the Court's March 26, 2003 request for the interest rate figures to be essentially plaintiff's arguments in opposition to Port Authority's Rule 59 motion, and as such, are not timely submitted.
Plaintiff's counsel maintains that he could not bring the alleged inaccuracies and misstatements in Port Authority's calculations submitted on September 16, 2002 to the attention of the Court before this time because Freifelder only reviewed those calculations after the Court rendered its March 26, 2003 decision determining the appropriate amount of back pay. See Letter from Mr. Bello to the Court, dated May 21, 2003, at 2 ("Pl. May 21 Letter"); Bello Affirm. ¶ 2. Plaintiff's counsel explains that after the Court reached its decision regarding Port Authority's motion for remittitur, plaintiff felt it "prudent" to resubmit this issue to his expert, Freifelder, "because of the detailed and complex nature of back pay, interest and front pay," Bello Affirm. ¶ 2; and "upon doing so and after a thorough review of all counsel's motion papers, Freifelder has concluded that the defendant's submissions to this Court with its Rule 59(a) motion were inaccurate and misleading." Bello Affirm. at ¶ 5. Plaintiff is certainly correct in his assessment of the "detailed and complex nature" of the issues pertaining to back pay, prejudgment interest and front pay, which is precisely why the Court relied on the parties to raise their objections and arguments pertaining to these issues in their papers submitted in connection with Rule 59 motion, so that the Court could consider the arguments of both parties before determining the appropriate amount of back pay. In Port Authority's Rule 59 motion for remittitur of the back pay and front pay awards, Port Authority directly called into question the methodology used and the factors considered in the back pay and front pay calculations made in Freifelder's original economic report, submitted by plaintiff in conjunction with plaintiff's June 21, 2002 submission to the Court ("Freifelder Report"). In plaintiff's opposition papers to the Rule 59 motion, plaintiff did not respond to any of the flaws identified by Port Authority in its review of Freifelder's calculations and methodology. Vernon II, 2003 WL 1563219 at *4-6 ("Vernon does not respond to the concerns raised by Port Authority regarding the inaccuracies in the calculation of back pay brought about by the comparison of Vernon's net earnings with his estimated gross salary had he been promoted."). Rather, plaintiff has waited until seven months after he submitted his opposition to the Rule 59 motion to bring the alleged inconsistencies and misstatements in Port Authority's calculations to the attention of the Court.
In defense of plaintiff's decision not to have Freifelder review Port Authority's calculations when plaintiff received them but rather wait until after the Court issued its March 26, 2003 Opinion and Order, Mr. Bello argues that "it was only the Court's Opinion and Order of March 25, 2003 and its reliance on Port Authority's submission that rightfully prompted Plaintiff to resort back to Mr. Freifelder's expertise." Pl. May 21 Letter at 4. However, the appropriate time to raise objections to defendant's calculations was not, as plaintiff maintains, after the Court had rendered its decision but rather while the Court was still determining what the appropriate damage award should be. In this case, the appropriate time for plaintiff to have sought Freifelder's expertise and opinion regarding Port Authority's calculations would have been in October 2002 when plaintiff was asked to submit its opposition to Port Authority's motion for remittitur and the calculations relied upon in the papers submitted in connection with that motion. The Court relied upon each party to raise its objections to the other party's submissions in its motion papers so the Court could conduct the most thorough analysis possible in arriving at the appropriate determination of the damage award. By raising his objections to Port Authority's calculations after the Court has rendered its decision on the motion for remittitur, plaintiff is essentially attempting to bring a motion for reconsideration of the Court's decision, which, under the Local Civil Rules for the Southern and Eastern Districts of New York, Rule 6.3, has to be served within ten days after the day the Court's decision is docketed. See Local Rule 6.3. Plaintiff's present motion was brought approximately forty days after the date the Court's decision was docketed, and as such is not a timely motion for reconsideration.
Plaintiff is correct in reminding defendant and the Court that he is under no obligation to hire or rely upon an expert in making his evaluation of the back pay and front pay due to plaintiff. See Pl. May 21 Letter at 3. However, having chosen to rely on such an expert, plaintiff was not excused from responding to the criticisms raised regarding the calculations and methodology used by that expert when those criticisms were raised in Port Authority's motion for remittitur.
Nor does the Court find persuasive plaintiff's argument that his request for reconsideration of the Court's March 26, 2003 decision is timely under Rule 60(b) on the grounds of "mistake, inadvertence, surprise or excusable neglect." Fed.R.Civ.P. 60(b). Plaintiff makes these requests for reconsideration as a part of his submission of the prejudgment interest figures, however, to the extent that plaintiff is attempting to bring a Rule 60(b) motion for relief from the Court's judgment, the Court finds that plaintiff does not have sufficient grounds to bring such a motion. Plaintiff contends that Freifelder's most recent affidavit sets forth the grounds for mistake, inadvertence, surprise or excusable neglect for the Rule 60(b) motion, see May 21 Letter at 2, however, that affidavit consists almost entirely of Freifelder's response to the flaws in his prior calculations identified by Port Authority in its September 16, 2002 submission, and Freifelder's allegations of inconsistencies and misstatements in Port Authority's calculations submitted to plaintiff and the Court on September 16, 2002. Therefore, plaintiff is asking the Court to reconsider its March 26, 2003 award of back pay and front pay based on Freifelder's critique of Port Authority's September 16, 2002 calculations. Hence, this is no more than a motion for reconsideration under Local Civil Rule 6.3, and as such it is untimely. The Court does not find that plaintiff has shown sufficient grounds, either in Freifelder's affidavit or in Mr. Bello's affirmation, to justify a Rule 60(b) motion.
An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review, and the Court of Appeals reviews the determination of a Rule 60(b) motion only for abuse of discretion. See United States v. Clark, 984 F.2d 31, 34 (2d Cir. 1993); Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 263 n. 7 (1978) (citing Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (2d Cir. 1976)).
The Court has reviewed the portion of the Freifelder affidavit which sets forth the interest rates and compounding periods used in arriving at the "Present Value of Lost Earnings" in Freifelder's calculations submitted June 21, 2002, and Port Authority's calculations of the total back pay award, including prejudgment interest through June 30, 2003, based on Freifelder's figures. See Freifelder Aff. ¶¶ 22-26; see Letter from Megan Lee, Esq., to the Court, dated May 21, 2003 ("Def. May 21 Letter"). Having found that Port Authority's calculations are in line with the interest rates set forth in Freifelder affidavit, the Court will accept the calculations of prejudgment interest determined by the Treasury Department of the Port Authority, based on the back pay award as determined by the Court and utilizing interest rates set forth in the Freifelder affidavit. See Def. May 21 Letter; Freifelder Aff. ¶¶ 22-26. Therefore, the Court orders Port Authority to pay Vernon $39,213.60 in back pay damages.
II. Front Pay
In addition to including a request that the Court reconsider its back pay award in plaintiff's response to the Court's order for these prejudgment interest figures, plaintiff also requests that the Court reconsider its front pay award, arguing that merely increasing plaintiff's pay to a level commensurate with a B95 Principal Engineer position and adjusting his pension benefits so that they are congruent with this higher salary is not sufficient to compensate plaintiff for the discrimination suffered. See Bello Aff. ¶¶ 8, 9. For the same reasons stated above, the Court finds this request for reconsideration of the Court's March 26, 2003 decision untimely under Local Civil Rule 6.3, and the Court does not find that plaintiff has articulated sufficient grounds to justify a Rule 60(b) motion.
Plaintiff argues that the Court should grant plaintiff relief from the March 26, 2003 decision regarding front pay based on "information" acquired by plaintiff that another employee of the Port Authority had been awarded a position entitled Principal Engineer at the B95 level, while Port Authority had informed plaintiff and the Court previously that the B95 position had been eliminated. Bello Aff. ¶ 8. The question of whether or not the B95 position currently exists does not impact upon the Court's prior determination regarding front pay, as the Court articulated in its March 26, 2003 Opinion and Order. See Vernon II, 2003 WL 1563219, at *8 ("Whether Vernon has not been appointed to the B-95 position because of hostilities between the parties or because the B-95 position was effectively abolished, is of no moment to this Court. Rather the key issue to be determined is whether the damages awarded to Vernon made him `whole.'" (citing Pollard v. E.I. du Pont de Nemours Co., 532 U.S. 843, 850 (2001)). In fact, in Vernon I, the Court premised the award of front pay on the improbability that, in light of the animosity between the parties, Vernon would be granted the B-95 position he was denied, and consequently would not be earning the salary he would have, had he received that promotion. See Vernon I, 220 F. Supp.2d at 236; Banks v. Travelers Cos., 180 F.3d 358, 364 (2d Cir. 1999) (holding that front pay should be awarded where reinstatement may not be an option due to animosity between the parties or availability of positions). Therefore, even if the B-95 position does exist — for which the plaintiff has presented no evidence aside from the reference in Mr. Bello's affidavit to "information" that an individual had been awarded a position with that title, and no indication that this "information" was not available to plaintiff at the time plaintiff submitted its opposition to Port Authority's motion for remittitur of the front pay — the Court would not be under any obligation to award that position to plaintiff. See Vernon I, 220 F. Supp.2d at 236 ("It is within the Court's discretion to award front pay, reinstate the plaintiff's employment, or do nothing at all with regard to future employment." (citing Banks, 180 F.3d 358, 364)). Rather, in determining the front pay award due to plaintiff, the Court determined that Port Authority's raising of Vernon's salary to the level it would have been had he been promoted in 1995, and Port Authority's filing of the necessary papers to ensure that Vernon receives pension benefits in line with this heightened salary, was indeed sufficient to make plaintiff "whole." Vernon II, 2003 WL 1563219, at *9.
Moreover, plaintiff's argument that raising Vernon's salary to the level it would have been had he received the promotion, and adjusting his pension benefits to reflect that increased salary, is not sufficient to make him whole is belied by the fact that the Court's original front pay award was based on the calculations made by Vernon's economist, estimating what would be just compensation for Vernon based on those very two factors.See Vernon I, 220 F. Supp.2d at 236-37. Several courts have held that an award of the difference between the victim's current salary and the salary he would have had had there been no discrimination is sufficient to compensate the victim in lieu of reinstatement. See Pollard, 532 U.S. at 848 (acknowledging that reinstatement is not always a viable option, courts have ordered front pay as a substitute for reinstatement); United States v. Burke, 504 U.S. 229, 239 n. 9 (1992) (defining front pay as an award for future lost earnings).
In the March 26, 2003 Opinion and Order, the Court ordered Port Authority to provide Vernon and the Court within thirty days of that decision, with the appropriate, paperwork illustrating that the steps increasing Vernon's salary and enhancing Vernon's pension benefits were taken. While defendant's counsel, Ms. Lee, has informed the Court that Port Authority has enacted the increase in plaintiff's salary and is prepared to have the necessary changes made to plaintiff's pension plan, the Court has not received the requested information regarding the steps to be taken. Therefore, the Court now orders Port Authority for the second time to submit this information within ten days of this decision, or be subject to possible sanctions.
III. Sanctions
With regard to plaintiff's request requiring defense counsel to show cause why sanctions should not be imposed under Rules 11(b) and (c) or Rule 11(2) of the Federal Rules of Civil Procedure, directing payment to plaintiff's counsel for the attorney's fees and costs necessitated by defense counsel's actions, the Court finds this request to be without merit. Plaintiff seeks sanctions against defense counsel based on defense counsel's statement in her letter dated May 16, 2003, that plaintiff's counsel never pursued discovery concerning issues that would impact on plaintiff's back pay award. See Letter from Ms. Lee to the Court, dated May 16, 2003 ("May 16 Letter"). Plaintiff contends that this was a "bold misrepresentation" to the Court because these documents were requested on September 7, 1995, and Port Authority responded to that request on September 27, 1996. See Pl. May 21 Letter at 3. Plaintiff argues that Ms. Lee either "intentionally misstated the history of this case or failed to make a reasonable inquiry before she made the allegation," and therefore should be subject to sanctions. Id. However, defendant's counsel responds that her statement regarding plaintiff's failure to pursue certain discovery was based on her knowledge of the litigation since she took over the case in 1999; the file plaintiff's counsel made available for duplicating in order for Port Authority to replace its files which were destroyed on September 11, 2001; and the documents identified by plaintiff's counsel as trial exhibits.See Letter from Ms. Lee to the Court, dated May 23, 2003 ("May 23 Letter"). She also notes that neither she nor Mr. Bello were involved in the case at the time that the aforementioned discovery was sought. The Court finds that Ms. Lee's representation regarding plaintiff's prior discovery was made to the best of her knowledge, information and belief, and formed after a reasonable inquiry under the circumstances, and as such sanctions are not justified. Ms. Lee's understanding regarding plaintiff's failure to request discovery pertaining to Port Authority's promotion and merit increase policies is particularly understandable in light of the fact that plaintiff chose not to rely on these documents at trial; chose not to give them to his expert when his expert was calculating what plaintiff would have earned had he received the promotion in 1995; and chose not to rely upon them in responding to defendant's argument in its Rule 59 motion that plaintiff failed to incorporate the Port Authority policies and procedures in its calculations.
IV. Amendment of Application for Attorney's Fees
Finally, plaintiff seeks leave of the Court to recalculate and resubmit a modification of its application for attorney's fees and costs "due to the additional services that were required by defendants (sic) contentions which were only raised in its motion for new trial and which necessitated engaging the further services of Mr. Freifelder." Bello Affirm. ¶ 10. The Court grants plaintiff's request to amend its application for attorney's fees and costs to include the fees incurred in responding to plaintiff's Rule 59 motion.
However the Court notes, as it has previously, that it was not in responding to defendant's motion for a new trial or in the alternative remittitur that plaintiff engaged the further services of Freifelder, but rather belatedly in making this self-styled motion for relief from judgment pursuant to Rule 60(b).
CONCLUSION
For the reasons stated above, the Court denies plaintiff's request for relief from the Court's March 26, 2003 decision determining the appropriate awards of back pay and front pay. The Court orders Port Authority to pay plaintiff the $39,213.60 in back pay damages. Furthermore, the Court orders Port Authority for the second time to provide plaintiff and the Court with the appropriate paperwork illustrating that the steps increasing plaintiff's salary and enhancing plaintiff's pension benefits have been taken. The Court orders Port Authority to provide plaintiff and the Court with this information within ten days of this decision. The Court denies plaintiff's request for sanctions against defendant's counsel. Finally the Court grants plaintiff's request for leave to amend its application for attorney's fees and costs to include the fees incurred in responding to plaintiff's Rule 59 motion.