The rationale for calculating the liquidated damages in this
manner is obvious. As Magistrate Goodstein noted in Orzel v.
City of Wauwatosa Fire Department, No. C79C444 (E.D.Wis. Aug.
31, 1981), aff'd, 697 F.2d 743, 760 (7th Cir. 1983), "To rule
otherwise (and permit the reduction of the backpay award prior
to the calculation of the liquidated damages thus necessarily
resulting in a reduction of the liquidated damages amount)
would unfairly penalize plaintiff who was under a duty to
mitigate." In the exercise of its discretion, the Court
therefore holds that defendant's request for mitigation of the
backpay award prior to the calculation of liquidated damages
must be denied and that the amount of the pension benefits
received should be reduced from the total damages award.
II. The Motion for Entry of Judgment on Equitable Issues.
In order to effectuate the goal of making whole those
individuals adversely affected by violations of the ADEA,
plaintiff has requested that the effective retirement date of
Mr. Sotonyi, who does not desire to be reinstated, be
established as the date of the entry of the jury's verdict,
August 25, 1983, and that Mr. Sotonyi be allowed to make
whatever decisions a person retiring for the first time on
that date would be allowed to make. Defendant does not
challenge this motion on the merits, but instead claims that
plaintiff's motion is a motion filed pursuant to Fed.R.Civ.P.
59(e) which, having been filed more than 10 days after the
entry of the jury's verdict, was not timely filed.
Defendant's position is meritless. As this Court has
previously stated in this case, plaintiff's motion is not a
Rule 59(e) motion because the judgment entered on the jury's
verdict was not a final judgment. Indeed, in the pre-trial
stage of this case, it was apparent that certain issues,
including those discussed in part I, supra, would be reserved
for post-trial determination. See, Harris v. Goldblatt Bros.,
Inc., 659 F.2d 748 (7th Cir. 1981).
Consistent with the purposes for affording relief under the
ADEA, Mr. Sotonyi's effective date of retirement is hereby
declared to be August 25, 1983. Mr. Sotonyi shall be afforded
all privileges afforded individuals first retiring as of that
For the reasons stated herein, the amount of damages awarded
to Karlo McArthur shall be $63,437.52, a sum reached by
subtracting the amount of pension benefits received,
$4,085.90, from the total damage award of $67,523.42. The
amount of damages awarded to Zolton Sotonyi shall be
$275,723.54, an amount reached by taking the total amount
rewarded, $288,694.30, and subtracting the amount of the
pension benefits received, $12,970.76. In addition, Mr.
Sotonyi's retirement date is declared to be August 25, 1983.
IT IS SO ORDERED.
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