Opinion
No. CV98-041 21 93S
January 2, 2007
MEMORANDUM OF DECISION POST TRIAL ISSUES
A trial was held on this matter in which the plaintiffs, Brantley and Texeira, asserted violation of their rights under 42 U.S.C. § 1983. Both men, at the time of the alleged violation of their federal rights, were city firefighters and basically claimed they were deprived of their right to be promoted from Lieutenant to Captain. The jury decided in favor of the plaintiffs. Mr. Brantley was awarded $43,218.00 for back pay and $217,260.00 for non-economic damages, for a total of $260,478.00. Mr. Texiera was awarded $71,712 for back pay and $178,920.00 non-economic damages for a total of $250,632.00.
The issues of so-called front pay and loss of pension value for both plaintiffs was to be decided by the trial court after the jury verdict on back pay and non-economic damages.
Front pay has been described as an award "for future lost wages; i.e., wages for the period after the conclusion of trial." Toroysan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 33 (1995).
The jury's verdict was rendered June 29, 2005 but the necessary hearing on front pay and pension issues was not set down by counsel until August 2006 with brief to be filed by September 11, 2006.
I
The issue of front pay as it relates to § 1983 claims does not appear to have been decided by Connecticut appellate courts, but numerous federal cases at the district court and court of appeals level have discussed the issue. The federal law in this area is somewhat complicated. However, two preliminary matters must be discussed which were only assumed by counsel: (1) Can front pay and related pension loss claims be made under § 1983? (2) Do state courts follow federal court policy as to damage awards under § 1983? CT Page 162
(1)
Most of the front pay cases the court has found and that have been referred to by counsel arise under the federal Americans with Disabilities Act; Title VII, The Civil Rights Act dealing with race, gender, and national origin discrimination; the Age Discrimination in Employment Act: There are numerous cases dealing with the issue of age discrimination 29 U.S.C. §§ 621 et seq., see for example Dominic Consolidated Edison Co. Of New York, 822 F.2d 1249, 1251 (CA2, 1987).However, several federal cases, in light of the broad remedial purposes of Section 1983 to make plaintiffs whole as a result of civil rights violations, permit the awarding of front pay. Ballard v. Muskegee Regional Medical Center, 238 F.3d 1250, 1253 (CA 10, 2001); Rao v. New York City Health Hospital Corp., 882 F.Sup. 321, 331 (SDNY, 1995); Sagendorf v. County of Rensseleur, 904 F.Sup. 95, 99 (NDNY, 1955). Jayjohn v. City of Wellston, Case No. 2:04-CV471 (SD of Ohio) (2006); Fournerant v. Beaumont Indep. School District, GF.Sup.2d G12, G13 (E.D. Tex 1998), also see Frank v. Relin, 851 F.Sup. 87, 88 (WDNY, 1994).
In reviewing numerous cases in this area, the court could find no case indicating that the considerations applicable to the issue of front pay, whether it should be awarded and in what amount, differ in Section 1983 cases as opposed to other actions under the various civil rights laws.
(2)
The question then presents itself as to whether state courts should follow federal decisions as to front pay damages to be awarded under § 1983.
Most state courts that have addressed the damages available in § 1983 actions have applied the same policies used by federal courts and state courts have awarded significant amounts of compensation and punitive damages in § 1983 actions. Section 1983 Litigation in State Courts, Steinglass, Volume II, § 16.3, pp. 16.10-16.11.
The only case the Connecticut court could find on this subject is Torres v. Waterbury, 30 Conn.App. 620, 623 (1993) where the Appellate Court cited a Federal Supreme Court case, Smith v. Wade, 461 U.S. 30, 51 (1983) in deciding that: "An award of punitive damages pursuant to § 1983 must be predicated on facts establishing evil motive, intent, recklessness or callous indifference" (followed by cite to Smith v. Wade, (my emphasis)." Thus the Torres case looked to Federal decisional case law as to punitive damages. This court has no reason to believe our appellate courts will not follow federal case law on the question of appropriate damages in § 1983 claims where front pay and loss of pension value claims are made.
II (a)
What then are the policies applied in the federal courts to front pay issues that arise in these various federal acts aimed at one form of discrimination of the other? Unfortunately it is difficult to ascertain a standard policy from the cases in the various circuits. The cases see into agree, as they must, given the purposes of these acts, that where discrimination is shown, the plaintiff must be made whole, Handsard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461, 1469 (CA5, 1989) (age discrimination); Barbano v. Madison County, 922 F.2d 139, 147 (CA2, 1990) (gender discrimination); Sagendorfu County of Rensselear, supra, 904 F.Sup. At page 99 (§ 1983 case citing Barbano).
That is where complete agreement seems to end, however.
A possible cause of confusion arises from the fact that front pay claims in these civil rights actions are commonly described as equitable claims, Banks v. Travelers Cos., 180 F.3d 358 364 (CA2, 1999); Thurman v. Yellow Freight System, 97 F.3d, 833, 835 (CA6, 1996); Lussier v. Runyon, 50 F.3d 1103, 1105 (CA1, 1995) (but see Sharkey v. Lasino, 214, F.3d 371, 375 (CA2, 2000).
Equity has two very broad meanings. On the one hand, it is said (1) that: "the purpose of equity is to do complete justice in a case where a court of law is unable, because of the inflexibility of the rules by which it is bound, to adapt its judgment to the special circumstances of the case, `Equity,' 27A Am.Jur.2d, § 2, pp. 520-21. On the other hand, it is said that (2) " . . . a reason for the classification of (a) remedy as legal or equitable lies in the tradition that equitable relief is discretionary. The old separate courts of equity could refuse the remedy or condition it in someway, even if the plaintiff proved a good case and the defendant proved no defense that would defeat the plaintiff's legal rights," Dobbs, Law of Remedies, Vol. I, § 1.2, page 12. Sup.orting this just-stated view is the broad language in some cases that whether to award front pay completely discretionary. In Suggs v. Service Master Education Food Management, 72 F.3d 1228, 1234 (CA6, 1996), the court said: "Determination of when to award front pay is within the discretion of the trial court, and such awards are reviewed under the abuse of discretion standard," also see Thurman v. Yellow Freight Systems, Inc., 97 F.3d 833, 835 (CA6, 1996), Lussier v. Runyon, supra at 50 F.3d page 1108. One district court in dicta said monetary awards such as front pay could never be awarded in lieu of damages under the federal act barring discrimination because of age because they were too speculative, Munroe v. Penn-Dixie, 335 F.Sup. 231, 235 (ND GA, 1971).
This court would respectfully suggest that the broad use of the word "discretionary" to define whether courts can award front pay in these types of cases, misses the point because it only considers half of the problem presented in civil rights statutory actions. In other words, courts do act in an equitable mode in deciding whether to give front pay relief, but only because they do have the discretion under some of these statutes to order reinstatement. If reinstatement to a position one has lost or has not been appointed to because of discrimination or a violation of civil rights is ordered, then front pay cannot be awarded. It is only in that sense that it is relevant to say that the decision on whether to award front pay is discretionary. Referring to a leading Second Circuit case, Whittlesey v. Union Carbide Corp., 742 F.2d 724 (1984), the court, in Dominic v. Consolidated Edison, 822 F.2d 1249, 1256-57 (CA2) said, "we held that a monetary award of front pay is something necessary as `equitable relief . . . approximate to effectuate the purposes of (the ADEA)' (quoting 29 U.S.C. § 626(b) particularly where the employment relationship has been irreparably damaged by the animosity flowing from the litigation. In such cases, of course, the decision whether to award front pay in lieu of reinstatement is an equitable one entrusted to the trial court." In Hansard v. Pepsi-Cola, 865 F.2d 1461, 1469 (CA5, 1989) the court said "however, consistent with the acts philosophy (federal age discrimination statute), front pay is available only in limited circumstances. Courts have a decided preference for reinstatement instead of front pay. It has been held that front pay cannot be recovered unless the plaintiff shows that reinstatement is not feasible." But if the purposes of these civil rights acts is to make whole a person entitled to their protection, it cannot mean that a trial court, on some whim cannot consider the issue of front pay merely because it has decided reinstatement, is not feasible. Thus, in Whittlesey, the court decided reinstatement was not feasible because "the employer-employee relationship may have been irreparably damaged by animosity associated with litigation," but the court then went on to say:
Denial of reinstatement in those situations, without an award of reasonable offsetting compensation, would leave the plaintiff irreparably harmed in the future by the employer's discriminatory discharge, and would permit the defendant's liability for its unlawful action to end at the time of judgment. To prevent this injustice, a reasonable monetary award of front pay is necessary as "equitable relief . . ." . . . " appropriate to effectuate the purposes of (the act) 29 U.S.C. § 626(b) (age discrimination statute) 747 F.2d at page 728.
In Lewis v. Federal Prison Industries, Inc., 953 F.2d 1277, 1280 (1992), the Sixth Circuit noted that: "Many courts, including this one, have noted that `front pay may be particularly appropriate in lieu of reinstatement where discord and antagonism between the parties would render reinstatement ineffective as a make whole remedy" — ergo the "make whole" point of these statutes does not somehow disappear where, as here, reinstatement is not the issue, but a claim of lost promotion due to a civil rights violation is the basis of the action.
The court, in Ballard v. Muskogee Regional Medical Center, 238 F.3d 1250, 1253 (CA10, 2001), thus can say:
"An award of front pay for claims under § 1983 is an equitable remedy, thus the district court has discretion to decide whether such an award is appropriate." (But the court then went on to say:) "That discretion, however, should be measured against an anti-discrimination statute's purpose to make the plaintiffs whole."
This is not an anti-discrimination case as such, but the reasoning regarding the interplay between describing the court's power on front pay as equitable and the right of a litigant to claim front pay in advancing a procedural or substantive due process claim is applicable.
As the Third Circuit succinctly noted in Goss v. Exxon Office Systems, Inc., 747 F.2d 885, 890 (1984).
"The award of future lost earnings in Title VII cases is an alternative to the traditional equitable remedy of reinstatement . . . The choice of such a remedy in lieu of an order that the plaintiff be reinstated rests in the sound discretion of the trial court." (Emphasis by court.)
Thus a court, after finding a civil rights violation, can order reinstatement, if feasible, or front pay, although not both. Any other definition permitting some unbounded discretion where reinstatement is not an issue to deny provable future wage and pension loss ignores the "make whole" purpose of § 1983 and other civil rights acts based on some archaic definition of "equity" having nothing to do with ameliorative purposes of these acts. CT Page 166
(b)
The court should also note that it has, in light of the foregoing discussion and especially the leading Second Circuit case of Whittlesey, difficulty accepting another notion set forth in some cases at least by way of dicta. That notion or idea is that a trial court in one of these civil rights cases can somehow exercise a further unbounded, and undefined discretion to deny front pay if it concludes the plaintiff has been "made whole" by the jury award for back pay, prejudgment interest, attorneys fees, and/or non-economic damages, Barbano v. Madison County, 922 F.2d 139, 146 (CA2, 1990), Evans v. State of Connecticut, 967 F.Sup. 673, 685 (D.Conn., 1997), Rivera v. Baccarat, Inc., 34 F.Sup.2d, 870, 878 (SD.N., 1999), Greenway v. Buffalo Hilton Hotel, 951 F.Sup. 1039, 1064 (W.D.N.Y., 1997), Thurman v. Yellow Freight Systems, 92 F.3d 833, 835 (CA6, 1996) (citing Barbano).These cases, however, must be closely looked at to see if their resolution supports their dicta. Barbano was a bench trial where the trial court decided in favor of the plaintiff on a claim of gender discrimination under Title VII for failure to hire her as a Director of a Veteran's Service Agency. The failure to hire was in February 1980, the case was argued before the Second Circuit in October 1990, and decided in December 1990. There, as noted, the trial court's decision to deny front pay was upheld but the Second Circuit noted this was not an abuse of discretion since the trial court awarded back pay for a period of 8 1/2 years, prejudgment interest, and attorneys fees. Given these dates and the time covered by back pay, the front pay claim can be considered melded into the decision, moot, or bordering on a windfall.
The district court cases just cited in reality, when closely examined, do not stand for some general proposition set forth in their dicta that front pay need not be awarded if back pay and/or non-economic damages have made the plaintiff whole. In Greenway, the court noted the jury had awarded back pay and prejudgment interest. It then addressed front pay and repeated the rubric "a request for front pay may be denied if the court finds that the back pay award is sufficient," 951 F.Sup. at page 1064. It then noted the plaintiff did not seek comparable employment after his termination but said the defendant did not establish such jobs were available. The court then proceeded to award front pay but not in the full amount ($600,000) that the plaintiff requested, id., — $20,000 for twenty years compensation for the rest of the plaintiff's life).
In Evans, the court said front pay can be denied if the court finds back pay has made the plaintiff whole. But then the court said the plaintiff "has not established that he is entitled to front pay" and future damages as a result of not being reinstated to a police position because of Title VII race discrimination was not due "solely" to the plaintiffs unlawful termination "but is also due to his failure to bring this case to trial in expeditious manner." Reinstatement is in part inappropriate the court said, "due to the length of time that has passed." 967 F.Sup. at p. 685. Rivera is to the same effect; the court said a court can deny front pay if the back pay award "fully compensates" for the discrimination but then proceeded to discuss the fact that the plaintiff was not diligent in seeking comparable employment in any event, 34 F.Sup.2d page 878. Also, see along the same line of reasoning, Palma v. Pharmadica Communications, Inc., Civ. No. 3:00CV1128 (HBF) (D.Conn. 2003).
(c)
But the fact that front pay and lost pension benefits can be granted by a trial court, does not of course mean that they have been appropriately proven in every case and the federal courts have set forth certain guidelines for deciding what must be proven when such a claim is made and the burdens placed on the parties.
(I)
In this regard, the court will first discuss the method of determining an appropriate award of front pay and would note that although arising in the course of a decision involving a breach of employment contract case, our court had the following relevant remarks:
"We acknowledge that the Appellate Court recently has held that damages for future lost wages — i.e., wages for the period after the conclusion of trial — cannot be awarded in an action for breach of an employment contract. The Appellate Court reasoned that such damages, commonly known as "front pay," are an equitable, rather than a legal, remedy and were developed specifically as an alternative to reinstatement in actions for employment discrimination.
See Barry v. Posi-Seal International, Inc., 36 Conn.App. 1, 10-17, 647 A.2d 1031 (1994). Whatever the origins of damages for future lost wages, however, we are persuaded that such damages can be awarded in actions for breach of an implied contract of employment, as long as they are limited to a reasonable time and are supported by the evidence. Damages for future lost profits may be awarded in contract actions . . .; and we can discern no difference between these types of damages and damages for future lost wages." Toroysan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 33-34 (1995).
The leading Second Circuit case of Whittlesey says as much at 742 F.2.d page 728:
While we agree that an award of future damages carries with it some risk of uncertainty and may, indeed, be speculative in some cases, we do not believe the risk to be so great as to preclude automatically front pay in every case. District Courts have had considerable experience with damages for future wages in employment contract and personal injury cases . . . as well as front pay cases under Title VII . . . We are confident they can adapt that wisdom to the special needs of ADEA cases to determine reasonable compensation when reinstatement is inappropriate.
There is no a priori reason why the same "wisdom" cannot be applied to Section 1983 claims.
It is windfalls, lifetime sinecures and undue speculation that must be avoided but in this regard, the court, in Frank v. Relin, 851 F.Sup. 87, 94 (W.D.N.Y., 1994), made an important observation:
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.
(D)efendant will not be heard to complain of uncertainty when that uncertainty has been caused by his own acts. Buckley v. Reynolds Metals Co., 690 F.Sup. 211, 216 (S.D.N.Y. 1988) (citing Koyen v. Consolidated Edison Co. Of N.Y., Inc., 560 F.Sup. 1161, 1169 (S.D.N.Y. 1983) ("the wrongdoer shall bear the risk of the uncertainty which his own wrong has created"). Also see Koven v. Consolidated Edison, 560 F.Sup. 1161, 1168-69 (S.D.N.Y.)
The foregoing is not some radical construct invented for the enforcement of civil rights statutes. For example, determination of lost profits is one of the most difficult tasks thrust on trial courts. But as noted in 22 Am.Jur.2d "Damages" § 457, page 408:
. . . 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.
cf commentary to § 352 of the Restatement (2d) Contracts "Uncertainty of Damages," Vol. I., page 145.
II
Given the foregoing, what are the mechanisms and allocations of burdens of proof to avoid windfalls for plaintiffs on the one hand but to give them fair compensation on the other hand?
This case presents unique problems. The plaintiff, Brantley, was terminated from the fire department prior to judgment in this case for reasons, at least based on the evidence presented, have nothing to do with the specific basis of his civil rights claim under § 1983. Plaintiff Texiera has not been terminated from the department, but continues in his position of lieutenant having been denied the opportunity to become captain at a higher rate of pay. The effect of Mr. Brantley's termination on his claim here will be discussed; that termination is on appeal.
As to the Texeira claim, some, if not all, of the following consideration apply. The court will discuss each claim of the plaintiffs separately.
The termination cases make clear that "a plaintiff has a duty to exercise reasonable diligence in seeking alternative similar employment . . . A plaintiff must show a good faith effort and the reasonableness of the plaintiffs actions must be assessed in light of the individual circumstances of the case." Greenway v. Buffalo Hilton Hotel, supra, 951 F.Sup. at page 1065. Thus, "the court must examine whether (the plaintiff) has used reasonable diligence in (his/her) job search and the burden lies with the defendant to show that the plaintiff did not exercise such diligence." Id. Greenway cites EEOC v. Kalir, Philips Ross. Inc., 420 F.Sup. 919 (SDNY, 1976) (aff'd 559 F.2d 1203 (CA2, 1977) to the effect that for a defendant to rebuff a front pay claim, it must be shown that the plaintiff's conduct "was so deficient as to constitute an unreasonable failure to seek employment."
But it is the defendant's burden to prove that comparable positions were available and reasonable efforts were not made to procure them, Shorter v. Hartford Financial Service Group, Inc., 3:03CV0149, citing CT Page 170 Clarke v. Frank, 960 F.2d 1146, 1152 (CA2, 1992), Greenway v. Buffalo Hilton Hotel, supra where the court noted the plaintiff did not actively seek comparable employment following his termination, but then said, "as noted" the defendant did not establish that following plaintiff's termination, similar jobs with comparable wages, benefits, and job responsibilities were available," 951 F.Sup. at p. 1064.
Finally, before discussing the claims of each plaintiff separately, the court should note that not only do they each make a claim for front pay, but also make a claim for loss of pension value. The previous discussion discussed front pay and the case law regarding such a claim. But the same principles apply to a loss of pension value due to a violation of civil rights. This is necessarily so since the object of Section 1983 and other civil rights statutes is to make the plaintiff whole — if reinstatement is not under consideration so that financial compensation is the issue at hand, the actual "loss" experienced by the employee would include loss of future wages and the factual corollary to that loss in the value of the pension the employee is to receive. In fact, federal courts have awarded lost pension benefits as an element of the equitable relief a plaintiff is entitled to receive, Geller v. Markham, 63 F.2d 1027, 1036 (CA2, 1980); Banks v. Travellers Companies, 180 F.3d 358, 365 (CA2, 1999); Sharkey v. Lasino, 214 F.3d 371, 375 (CA2, 2000); Bonura v. Chase Manhattan Bank, 629 F.Sup. 353, 358 (S.D.N.Y., 1986).
III
The court will now discuss the respective claims of Mr. Texeira and Mr. Brantley. The plaintiff presented the testimony of Dr. Gerald Jaynes. Dr. Jaynes is a Professor of Economics and African-American studies at Yale University. He has a Ph.D in Economics and has been such for 29 years. He has been involved as an expert in some twelve to twenty cases. The court found his testimony to be highly articulate and his methodology presented each plaintiff's claim in a conservative manner. It is recognized that although claims for loss of future benefits always involve some degree of speculation, an expert such as Dr. Jaynes can serve as a guide to avoid undue speculation, cf. Tyler v. Bethelehem Steel Corp., 958 F.2d 1176, 1189 (CA2, 1992).
The defendant presented the testimony of James Sagnella. He is the Payroll and Pension Administrator for the City and has occupied the former position for twenty-nine years. His job includes preparing payrolls under the terms of union contracts; he also administrates the police and fire pension fund. The methodology used by these witnesses was similar and interestingly their calculations on the front pay loss for each plaintiff were not significantly different, although there was a greater difference on the lost pension valuations.
Before turning to each of the claims, the court would also refer to the principle set forth in Greenway v. Buffalo Hilton Hotel, supra that: "Where there is an award of future damages, the court must reduce the future award to its present value . . . this discounting is required to account for inflation and the ability to profit from current investment, and must be applied to awards for future damages . . . This requires the determination of the appropriate discount rate . . ." 951 F.Sup. at p. 1068. In this case when present value estimates were offered, there was no dispute about how they were calculated or the appropriate discount rate.
(I)
The court will discuss the claim of Lieutenant Texeira first.
Texeira currently is a lieutenant in the fire department, reinstatement is not an issue but there is a claim for loss of those future wages he would have received if he had been promoted to captain in 1998; the subject of this litigation. In this regard Texeira would have an obligation to mitigate damages. There of course has been no evidence presented by the City that comparable jobs in private industry would be available to Texeira that would reduce or eliminate the current damage claim for front pay. But the City does argue Texeira has no right to make a claim for front pay or loss of pension value because he failed to take a captain's exam in 2004. Inotherwords, if he had been promoted to captain after the 2004 exam that would have predated the base year of the front pay claim which is 2005 and pension calculations begin in 2014, the projected date of Texeira's retirement.
There are problems with this position which the court has difficulty in accepting. At trial, Texeira said he took the written part of the 2004 exam, but did not take the rest of it. He said he did not complete the exam because of the pending litigation. That would not support a finding that he in fact tried to mitigate his damages. But the court must take other factors into account. In 2004 Texeira was a 52-year old man and had been treating for lymphoma although admittedly he had not been treating for over a year at the time of the August 2006 hearing on this matter. But he further testified that at the time of the 2004 exam, 50 people were taking the exam for three slots. He liked this present assignment and because of his health problems, it did not make sense for him now to take a captain's assignment where apparently he would have "to run around all night during long medical calls, and I'm not a medic."
More to the point, no captain's exam was given between 1998 and 2004 and the 2004 exam as of the date of this August 2006 hearing, has not even been certified. No information has been presented to the court to indicate that if he had been promoted to captain in 1998, as the jury found he should have been, but for a § 1983 violation that the City would have been able, or required under its union contract, or even willing to accommodate Texeira's later developing health problems. As a claim of front pay cannot be speculative, so too a mitigation defense cannot be.
Under the foregoing circumstances, Texeira cannot be said to have failed to try to mitigate his damage claims nor has it been established that given his present circumstances, he could.
Therefore the court will award front pay as per Mr. Sagnella's figure, of $51,250.18. The court will also award a loss pension value of $41,098.26 per Mr. Sagnella's figures.
Although Dr. Jaynes is obviously a brilliant man, as even Mr. Sagnella recognized, the court feels more comfortable with Mr. Sagnella's estimates as to front pay since his estimates are broken down on a yearly basis and the court has been presented with more detail as to how he calculated his conclusions on this basis. As to loss of pension value, the court believes Dr, Jaynes may not have taken into account a 10% cap on increases which is the reason offered by Mr. Sagnella for the discrepancy between his estimate and that of Dr. Jaynes. Dr. Jaynes was never recalled to explain the discrepancy. In general, it appeared from the testimony that through no fault of his own, that Dr. Jaynes was perhaps not made aware of all the relevant facts going into his calculations which Mr. Sagnella had access to.
(ii)
The court will now discuss John Brantley's claim for front pay and loss of pension value.
On the mitigation of damages issue, the court does find that Brantley has taken vigorous steps to secure employment after his termination from the department. Given the specialized nature of his skills, it is also true that the City offered no evidence of comparable employment which he could or should have obtained. If the court were to accept the plaintiff Brantley's damage theory, as in the case of Texeira and for the same reasons it would award $231,749.66 in front pay.
The defendant did not offer a discounted value for the plaintiff Brantley's loss of pension benefits nor did it set forth why or how Dr. Jayne's calculation of loss of pension value was inflated because of a ten percent cap on pension increases previously discussed. Thus if the court were to award a loss of pension value, it would accept Dr. Jayne's figure of $245,031.94.
However, the court concludes based on circumstances outside the present record, it cannot award front pay or calculate any loss of pension value for Brantley. Mr. Brantley was terminated from the City fire department before the date of the jury verdict. The City cannot be required to pay the amounts claimed in a situation where, for all the record indicates, the termination was for something having nothing to do with the civil rights claim made here.
The termination is on appeal and the case was argued to the Appellate Court recently. If the plaintiff were to prevail and Brantley was restored to his position as lieutenant, the front pay and loss of pension amounts arrived at by Dr. Jaynes and Mr. Sagnella would have to be recalculated. The court cannot enter any judgment on these matters at the present time so it cannot award Brantley front pay or loss of pension value.
What is to be done to achieve equity? Section 17-4 of the Practice Book says, "(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the Superior Court may not be opened unless a motion to open or set aside is filed within four months succeeding the date on which notice is sent."
It would be unfair to say that in a case where the City has been found to have violated the plaintiffs § 1983 rights and where hypothetically this is followed by a ruling by our Appellate Courts that he has been wrongfully terminated by the same entity, he would lose his right to advance future damage claims under § 1983 because of a termination found to be wrongful. This would not be procedurally an acceptable result under the federal supremacy clause and it would ignore the fact that in acting on a § 1983 future damage claim, as in any future damage claim such as this, the court acts in an equitable capacity.
So the court will not award any future damages to Brantley but believes that under P.B. § 17-4, it has continuing jurisdiction to entertain a motion to reopen the judgment if the Appellate or Supreme Court determines the termination was invalid.
CT Page 174