26. During his probationary period Wzorek was absent without pay from work a total of 7-3/4 days. According to Commissioner Barnes, excessive absenteeism such as would warrant discharge of a probationary employee in the Department of Sewers was absence without pay for ten or more days.
27. Wzorek received $ 6,118 in unemployment compensation from the Illinois Department of Labor, Bureau of Employment Security, as a result of his termination.
28. Pursuant to Ill.Rev.Stat. ch. 48, para. 555B (Smith-Hurd Ann. 1987), the City of Chicago reimburses the State of Illinois for all unemployment benefits paid to former City employees. This method of reimbursement was in effect while Wzorek received the unemployment benefits described above. The City of Chicago reimbursed the State of Illinois $ 6,118.
29. Upon termination from City employment, Wzorek was entitled to continue coverage under the medical plan in which he was enrolled during the course of his employment with the City. Wzorek did not elect to continue his medical coverage subsequent to his termination because he could not afford it.
30. Wzorek did not obtain substitute health and/or medical insurance subsequent to his termination, as he had no income. He chose not to apply for disability benefits with the Social Security Administration.
31. Wzorek has not actively sought employment since 1986, nor was he capable of doing so at the time of trial.
32. In the opinion of a court-appointed psychiatrist, Dr. Jan Fawcett, Wzorek was not capable of working in any capacity for approximately six to twelve months at the time of trial. Dr. Fawcett further suggested that the City's termination of Wzorek was the cause of Wzorek's incapacity, which is emotional in nature. Dr. Fawcett's testimony was sound, professional, and credible in most respects on the information available. The court observes further that after his termination, Wzorek was not emotionally capable of doing what he could have done before he was terminated.
33. Had the City of Chicago retained Wzorek, it would have paid him $ 132,825.33 in wages and salary. He would have earned $ 13,833.35 in interest. He has incurred $ 3,750 in medical expenses and $ 870 in prescriptions since his departure.
CONCLUSIONS OF LAW
This court has jurisdiction over this cause and the parties pursuant to 28 U.S.C. § 1331 (1982), and by reason of the consent decree entered in 1972 in Shakman v. Democratic Organization of Cook Cty., 481 F. Supp. 1315, 1356, 1358-59 (N.D. Ill. 1979). Wzorek has petitioned this court for relief for a violation of that decree. To establish a violation, Wzorek must establish that he is a person protected under the decree, that he engaged in protected political associations, that he was discharged, and that a motivating factor in the decision to fire him was his political associations. See id. at 1358; Shakman v. Democratic Organization of Cook Cty., 533 F.2d 344, 351 (7th Cir. 1976). Wzorek must establish these propositions by clear and convincing evidence. Id.
There is no dispute that the Shakman decree protected Wzorek and that he was discharged. There is little question as well that Wzorek engaged in protected political acts of association: Wzorek supported Richard M. Daley, financially and otherwise, in his campaign for Mayor of the City of Chicago. The key question is whether these acts were a motivating factor in his discharge. For this court to grant Wzorek relief, Wzorek must demonstrate that but for his association, he would not have been terminated. See Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285-87, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).
This court concludes that Wzorek has demonstrated by clear and convincing evidence that his political associations were a motivating factor in his discharge. Wzorek's supervisors, Sommerford, Wasilewski, and Madia, wished to discharge Wzorek principally for his political activities. They recommended discharge to Barnes, who had the authority to terminate Wzorek. Since the court can attribute the improper motivation of persons recommending a discharge to the person who carries out the decision pro forma, see Oxman v. WLS-TV, 846 F.2d 448, 456-57 (7th Cir. 1988), this court holds that the City discharged Wzorek for improper political reasons. Through the pen of a misinformed Barnes the City thus violated the Shakman decree.
As a penalty for violating the Shakman decree, the City properly owes Wzorek back pay in the amount of $ 132,825.33. The court will offset against this amount the unemployment compensation received by Wzorek, $ 6,118, as the City reimbursed the State of Illinois for those benefits. See Olshock v. Village of Skokie, 541 F.2d 1254, 1260 (7th Cir. 1976) (back pay awards within court's discretion); Nottelson v. Smith Steel Wkrs. D.A.L.U. 19806, 643 F.2d 445, 456 (7th Cir. 1981) (proper to offset back pay award by amount liable party contributed to worker's unemployment compensation fund); Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 161-62 (7th Cir. 1981) (offsetting unemployment compensation contributions prevents double recovery).
Wzorek requests that this court give him pre-judgment interest on the award of back pay. Approval of such a request lies within this court's discretion. The Seventh Circuit has suggested that the courts consider in this vein the amount of evidence in support of the finding of liability, the degree to which the liable party acted willfully, and the injured party's attempts to mitigate his damages. See id. at 162 (presenting equitable considerations in pre-judgment interest decisions rendered under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. (1982)). As noted above, the evidence supporting the finding that the City violated the Shakman decree was clear and convincing. Wzorek did not attempt to mitigate his damages, but this failure was understandable; he was and continues to be an emotional wreck. The court thus holds that an award of pre-judgment interest in the amount of $ 13,833.35 is appropriate in this case.
The wilfullness of the City's violation of the Shakman decree will also result in an award to Wzorek of $ 3,750 in medical expenses and $ 870 in prescriptions related to treatment of his emotional problems. This is because the City's termination of Wzorek precipitated the emotional problems which Wzorek suffers. While Judge Bernard Decker ruled earlier in this case that Wzorek could not recover damages as a matter of course for mental and emotional distress, he expressly relied on authorities submitted to him by the City that allow such recovery when the party who violates a decree of the court acts deliberately or maliciously. See, for example, Thompson v. Johnson, 410 F. Supp. 633, 643 (E.D. Pa. 1976), affirmed without opinion, 556 F.2d 568 (3d Cir. 1977) (deliberate and malicious conduct resulting in mental anguish can be considered in assessing punishment for violation of consent decree). The actions of Wzorek's supervisors amount to such deliberate and malicious conduct that this court can, and will, assess damages for the results of that conduct.
Wzorek asks this court to impose one further sanction on the City for its violation of the Shakman decree: reinstatement to his former position. The Seventh Circuit has suggested that reinstatement, like other equitable remedies, is permitted in cases involving unlawful or improper termination. The decision whether to reinstate a discharged employee lies within the court's discretion, based on its assessment of the facts of each case. See Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1330 (7th Cir. 1987) (discussing equitable remedy of reinstatement available under ADEA); McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 118-19 (7th Cir. 1986) (similar discussion). The aggrieved person must be presently qualified, however, for the position he or she seeks. See Franks v. Bowman Transportation Co., 424 U.S. 747, 772 n.31, 47 L. Ed. 2d, 444, 96 S. Ct. 1251 (1976) (present qualification needed for equitable reinstatement under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1982)); Kamberos v. GTE Automatic Elec., Inc., 603 F.2d 598, 603 (7th Cir. 1979) (same).
As this court found above, Wzorek is presently incapable of working. The court thus will not reinstate him to his former position at this time. In the opinion of Dr. Fawcett, Wzorek could recover from his emotional infirmities, and thereby resume work, within the year. In the interim, the court will award Wzorek front pay and benefits. See McNeil, 800 F.2d at 118 (front pay appropriate where aggrieved party has no reasonable prospect of obtaining work, or where award period is relatively short). The court will decide in supplemental proceedings within a reasonable time after November 1, 1989 whether Wzorek can or should be reinstated, or if some other form of prospective relief is appropriate. The court reminds Wzorek that if he is capable of resuming work sooner, he has a duty to make reasonable efforts to mitigate his damages. See id.
Despite his emotional fragility, and largely without the aid of learned counsel, Eugene Wzorek has prevailed against the sinister forces that precipitated his illegal termination. Wzorek is indeed the worse for his experience although he should take pride in his efforts before this court. His case is an example of how the judicial system helps protect important political freedoms, albeit retrospectively.
This court enters judgment in favor of Eugene Wzorek. The court awards him back pay pre-judgment interest, and medical and prescription expenses in the amount of $ 145,160.68. The court further awards Wzorek front pay and benefits. The court will treat Wzorek's request for reinstatement in supplemental proceedings.
DATE: March 21, 1989
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED that judgment in the amount of $ 145,160.68 plus front pay and expenses is entered in favor of the plaintiff and against the defendant. Enter judgment.
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