The opinion of the court was delivered by: HOLDERMAN
JAMES F. HOLDERMAN, District Judge:
In April 1993, plaintiff Karen M. Emmel, after complying with the jurisdictional prerequisites, filed the initial complaint in this suit (R.
1-1) under Title VII, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(a)(1). The complaint alleged that defendant Coca-Cola Bottling Company of Chicago, Inc.
("Coca-Cola") committed employment discrimination in 1992 against plaintiff Emmel because of her gender. Plaintiff filed a second complaint in May 1994 alleging the occurrence of additional acts of sex discrimination against her by defendant in 1993. The second complaint was filed as Case No. 94 C 3230. An amended complaint consolidating plaintiff's claims against defendant and alleging acts of sex discrimination in both 1992 and 1993 as well as alleging retaliatory discharge in August 1994 was filed on September 16, 1994. (R. 99.) The trial commenced before a jury pursuant to 42 U.S.C. § 1981a on November 1, 1994. (Tr.
The evidence established that during 1992 and 1993 plaintiff Emmel was denied promotions to certain positions in the upper-management of the defendant company for which she was qualified. Each open position denied to plaintiff in defendant's upper-management was offered to and filled by a man. The evidence at the trial also established that Coca-Cola had a policy of discrimination against women in upper-management positions enunciated by the owner of defendant company, Marvin Herb, or at the very least, had reckless indifference to the federally protected rights of the women qualified for such positions to be free from sex discrimination. The first proof of the discriminating policy's existence surfaced in 1986 (Tr. 153-154, 903-906, 994) and was confirmed by plaintiff's direct supervisor in July 1992 (Tr. 918-19) that the top officials of Coca-Cola had wanted men in these positions. The evidence presented at the trial further showed that at no time while under the private ownership of Marvin Herb (Tr. 56, 90) did Coca-Cola ever allow any woman to hold any of the upper-management positions defendant denied to plaintiff (Tr. 58-61, 95-96) because of defendant's gender discrimination.
On November 21, 1994 the jury in this case, after evaluating all the evidence presented at trial, found that defendant Coca-Cola had unlawfully discriminated against plaintiff because of her gender in connection with three promotions to upper-management positions that defendant had denied to plaintiff during 1992 and 1993.
The jury in returning its verdict (R. 150) in plaintiff's favor as to the three promotions responded in its verdict to detailed special interrogatories and stated:
a. "that plaintiff's sex was, more likely than not, a motivating factor in the decision of defendant, HONDO INCORPORATED, doing business as COCA-COLA BOTTLING CO. OF CHICAGO, not to promote plaintiff, KAREN EMMEL, to one of the five positions of Area Development Manager on or about July 8, 1992." (Interrogatory No. 1.) (R. 150.)
b. "that plaintiff's sex was, more likely than not, a motivating factor in the decision of defendant, HONDO INCORPORATED, doing business as COCA-COLA BOTTLING COMPANY OF CHICAGO, not to promote plaintiff, KAREN EMMEL, to one of the three positions of Key Account Executive on or about September 15, 1993." (Interrogatory No. 3.) (R. 150.)
c. "that plaintiff's sex was, more likely than not, a motivating factor in the decision of defendant, HONDO INCORPORATED, doing business as COCA-COLA BOTTLING COMPANY OF CHICAGO, not to promote plaintiff, KAREN EMMEL, to one of the two positions of Area Development Manager on or about September 15, 1993." (Interrogatory No. 4.) (R. 150.)
The jury, after finding for plaintiff on three promotions that plaintiff had been denied, found that plaintiff's lost wages and salaries up to the date of the jury's verdict, minus any amount resulting from any failure by plaintiff to mitigate damages, totalled $ 43,000. (R. 150, Interrogatory No. 7.) The jury also found that plaintiff had sustained damages of $ 7,325 for humiliation, inconvenience, emotional pain and suffering as a result of defendant's discrimination (R. 150, Interrogatory No. 8.) The jury also found that defendant acted with malice or reckless indifference for the federally protected rights of plaintiff to be free from sex discrimination and assessed punitive damages in the amount of $ 500,000 against the defendant "to punish the defendant and to deter it and other employers from similar conduct in the future." (R. 150, Interrogatory No. 9.)
Applying the statutory limitation that related to the defendant company, the court reduced the jury's verdict of $ 507,325 in compensatory and punitive damages to the statutory cap of $ 300,000.
After adding the statutorily allowed $ 300,000 to the $ 43,000 of back pay that the jury found defendant owed plaintiff up to the date of the verdict, the court entered a judgment of $ 343,000 in favor of the plaintiff and against the defendant. (R. 152.)
The following post-trial motions, listed in the order in which they were filed, have been briefed and are pending:
1. Plaintiff's Motion for Prejudgment Interest (R. 153);
2. Plaintiff's Motion for Lost Benefits Resulting from Employment Discrimination by Defendant (R. 154);
3. Plaintiff's Motion for Permanent Injunction Enjoining Further Violation of 42 U.S.C. 2000e-2(a) (R. 155);
4. Defendant's Renewed Motion for Judgment as a Matter of Law or in the Alternative, Motion for New Trial (R. 157);
5. Plaintiff's Motion for Attorney Fees (R. 162); and
6. Defendant's Motion to Supplement the Record (R. 189).
Ms. Emmel's next position with the defendant company was as a Route Manager, which position latter became known by the title "District Sales Manager." She began this position in September 1981. (Tr. 895, PX 1.) In this position she supervised approximately eight route sales people and eight helpers. (Tr. 895.) She continued to be involved in sales, had supervisory responsibility for the paperwork pertaining to the customer accounts, was involved in presenting programs and providing equipment to the customers, was responsible for collecting money from both trade accounts and rental accounts in her area, and was involved in discipline of employees. Beginning in 1985, plaintiff became responsible for training new employees on the Noran hand-held computer used by defendant's employees in the business. (Tr. 896-898.) In 1986, plaintiff received the special recognition of being named "Route Manager of the Year" for the defendant company. (Tr. 902.)
In 1988, plaintiff, at the request of defendant's management personnel, moved from her position as a District Sales Manager of the Bottle/Can Division of Coca-Cola to the position of District Sales Manager in a brand new division of the Coca-Cola called the Syrup Division. (Tr. 906-907.) Initially, Ms. Emmel and her co-workers in the new Syrup Division had to survey the equipment of the approximately 1,500 accounts defendant had purchased from Coke USA, "sight unseen." (Tr. 908.) Then the equipment needed to be upgraded which "was a selling job." Ms. Emmel was involved in talking to customers about converting to the new bag-in-the-box package. (Tr. 908-909.) Because Ms. Emmel had no previous experience with the syrup end of the business she had to learn everything about this brand new division. (Tr. 909.) Her territory "was spread out immensely." (Tr. 910.) It covered various Illinois communities including St. Charles, Orland Park, Tinley Park and continuing to Joliet, Aurora and Naperville. (Tr. 909-910.) Ms. Emmel enjoyed the challenge of the new division. (Tr. 910.)
In October 1989, Ms. Emmel, because of her expertise, was offered the position of Cold Drink Specialist in the North Division of Coca-Cola. John Walsh, Vice President of Sales for the North Zone of the defendant company, told Ms. Emmel "that he was looking for someone with [Ms. Emmel's] expertise that had knowledge of syrup and had knowledge of cans." He told her that "they were going to be calling on prestigious accounts" such as high schools, park districts, and hospitals. (Tr. 912.) Mr. Walsh told Ms. Emmel he knew she could handle it, he knew her "accomplishments as a route manager, and he said [she would] be reporting to him directly." (Tr. 913.)
Ms. Emmel then accepted the Cold Drink Specialist position "but [she told Mr. Walsh that she] did not want to be stagnant." (Tr. 913.) Vice President Walsh "reassured [her] that [she] wouldn't be, that there were plans for this department in the future." (Tr. 913.)
In the position of Cold Drink Specialist Ms. Emmel maintained the exclusive agreements with accounts Coca-Cola previously had and secured new business, upgraded equipment, placed additional equipment and converted accounts to full service so the defendant company could make more money. (Tr. 913-914.) Her office was located at the headquarters of the Coca-Cola's North Zone in Niles, Illinois and was situated physically in the front office of those headquarters in between the region managers' offices and right across the hall from North Zone Vice President John Walsh to whom plaintiff reported directly through July 8, 1992. (Tr. 914.)
On July 8, 1992, a group of new upper-management positions were created at the defendant company, among them were five upper-management positions called Area Development Manager ("ADM"). Each of the five new ADM positions was offered to and filled by a man. Ms. Emmel was offered none of the positions because the defendant company discriminated against her on the basis of her sex. "We felt these guys deserved promotion" (Tr. 917) was the initial explanation Vice President Walsh gave Ms. Emmel on July 10, 1992 when he told her she also had been considered. After saying "Oh, let's close the door and speak honestly," (Tr. 918) Vice President Walsh privately admitted to Ms. Emmel in his office at Coca-Cola's North Zone headquarters that of the candidates for the recently appointed ADM positions, Ms. Emmel was "the only other one qualified." (Tr. 918.) Vice President Walsh said, "Karen, you know, as we all know, they wanted men in these positions in the past to run...strike duty." (Tr. 918.)
Vice President Walsh on July 10, 1992 made no mention of any deficiencies in Ms. Emmel's qualifications which would have required her to obtain "recent supervisory experience" as a criterion for her receiving a promotion. (Tr. 1237.) At no time prior to plaintiff's filing of her charge of sex discrimination, did any official of defendant company offer any explanation other than the one articulated by Vice President Walsh that the reason plaintiff was not promoted was because "they wanted men in these positions...." (Tr. 918-919, 1016-1017.) Coca-Cola's counsel at the trial argued that the lack of recent supervisory experience was the reason plaintiff Emmel did not receive a promotion. The jury by its verdict rejected that purported reason as a pretext for defendant's gender discrimination against plaintiff.
The July 8, 1992 Memorandum (PX 79) signed by Coca-Cola's President and Chief Operating Officer William O'Rourke and its Vice President, Sales, H. Thomas Noxon (Tr. 949), announcing the promotions, stated that one of the reasons for the creation of the new ADM positions was:
"We are restructuring our sales management team in Chicago putting major emphasis on Cold Drink development." (PX 79.)
Plaintiff Emmel's near three years of experience as a "Cold Drink Specialist" and "Cold Drink Representative", in addition to her other substantial experience with the company, made her highly qualified for a promotion in light of Coca-Cola's announced "major emphasis."
One of the five men promoted to fill the ADM positions instead of plaintiff Emmel in July 1992 was an individual named Nick Merenda who had no experience as a Cold Drink Representative. (PX 1.) He was made Ms. Emmel's supervisor. (Tr. 742, 914.) Mr. Merenda was so inexperienced and so unqualified to hold the new ADM position in July 1992 that after occupying the ADM position for over a year he admitted at the trial that he did not know the qualifications for the ADM position and did not know what skills were required for the ADM position. (Tr. 743.)
At the time of the promotions in July 1992 there was a large disparity between Ms. Emmel's work history at Coca-Cola and that of Nick Merenda. Plaintiff had worked full-time for the defendant company for 16 years while Mr. Merenda had worked for about one-third of that time, 5 1/2 years approximately. (Tr. 734.) Ms. Emmel had 8 years supervisory experience in the position of District Sales Manager. (PX 1.) Mr. Merenda had been a District Sales Manager for less than 2 1/2 years. (Tr. 741.) Ms. Emmel had been named "Route Manager of the Year" in 1986 (Tr. 902). Mr. Merenda had never been so recognized. Ms. Emmel's experience as a District Sales Manager had been in the Syrup Division as well as in the Bottle/Can Division of the defendant company. Mr. Merenda had never worked in the Syrup Division. (PX 1.)
At the time of the July 1992 promotions, Ms. Emmel had never received a disciplinary warning for her conduct during her work with the defendant company. In fact, plaintiff's supervisor for nearly three years preceding the July 1992 promotion decisions, Vice President John Walsh, had never criticized plaintiff's work performance. (Tr. 919.) Vice President Walsh at the trial admitted he "always had admiration for the work she had done at the company." (Tr. 305.) Mr. Merenda, however, had received four disciplinary warnings from the defendant company for his conduct during the four years before he was promoted to the ADM position. (Tr. 744-48; PX 5, 23, 29, 30, 32.)
Ms. Emmel had a college degree. Mr. Merenda did not. (Tr. 771.) For almost three years Ms. Emmel had occupied the office at the North Zone headquarters of Coca-Cola that was assigned to the ADM position Mr. Merenda filled.
On July 24, 1992 plaintiff Emmel filed a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC") along with a two-page affidavit. (Tr. 923). Plaintiff's EEOC discrimination charge set forth the essence of the facts upon which plaintiff claimed:
I believe that I was discriminated against because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that less qualified males were promoted over me. (Tr. 922.)
Approximately a year later, on September 15, 1993, more upper-management promotions were made and announced by the top executives of defendant. Among the promotions were two new ADM positions and three "Key Account Executive" positions. All the people receiving those promotions were men. The memorandum announcing the September 15, 1993 promotions (PX 116) was signed by the defendant company's President and Chief Operating Officer William O'Rourke and the Vice President, Sales, H. Thomas Noxon. (Tr. 950.) Plaintiff was not offered a promotion to any of the three open Key Account Executive positions and was not offered a promotion to either of the two new ADM positions because, as the jury found, defendant discriminated against her based on her sex. (R. 150.)
After the July 1992 promotions, Ms. Emmel's direct supervisor, North Zone Vice President John Walsh, told her that other than the men who had been promoted, she was "the only other one qualified" to be an ADM (Tr. 918). At no time before the September 1993 promotions, had plaintiff received any written evaluations which detracted from her qualifications for a promotion. As stated earlier, Vice President Walsh had never criticized Ms. Emmel's work performance (Tr. 919) and "always had admiration for the work she had done at the company." (Tr. 305.) After the September 1993 promotions, plaintiff Emmel filed an additional sex discrimination charge with the EEOC. (Tr. 938, 949).
One of the men promoted in September 1993 was Nick Merenda. He was promoted to the position of Key Account Executive. Mr. Merenda, as stated earlier, had less formal education and had substantially less management experience with the defendant company than plaintiff. Mr. Merenda as of September 1993 had never filled out and presented a written evaluation of an employee's performance. (Tr. 754.) Before Mr. Merenda was able to carry out his assigned supervisory responsibility of presenting a written evaluation to plaintiff Emmel about her performance (Tr. 753-754), he met with Coca-Cola's Division Manager of the North Zone, Jeff Skarb, (Tr. 500) and went over the points to cover at plaintiff's evaluation meeting. (Tr. 514.) By the time Mr. Merenda presented the written evaluation to plaintiff, he had been promoted from the ADM position he had obtained in July 1992 to the position of Key Account Executive. Plaintiff by then had filed the charges of sex discrimination with the EEOC. Division Manager Skarb was present when Mr. Merenda met with Ms. Emmel to review Mr. Merenda's written evaluation of her. Plaintiff Emmel received an overall rating of "Fair" from Mr. Merenda (Tr. 754) to which plaintiff did not agree. (DX 10.)
Another man promoted to an ADM position in September 1993 was Tony Taylor who immediately before his promotion had been a Cold Drink Representative for the defendant. (PX 1.) Mr. Taylor had been the Cold Drink Representative in the company's South Zone for about 1 1/2 years compared to plaintiff's 4 1/2 years in the Cold Drink Representative position in the North Zone. Mr. Taylor had been with the defendant company at that time for about 6 years compared to plaintiff's more than 17 years with the defendant company. (PX 1.)
Defendant's owner, Marvin Herb, informed top company executives who passed the word to other employees "that [he] Marvin Herb, the owner of the company, no longer wanted women in route management." (Tr. 153-54, 903-06, 994.) Vice President, South Zone, Duane Hallstrom, in the presence of Tom Noxon, Vice President Sales, company-wide, in 1986 told Joan Fitzsimons, an employee of defendant, of Mr. Herb's discriminatory gender-biased attitudes, when Ms. Fitzsimons was moved from a route manager position.
Mr. Hallstrom's counterpart at the North Zone headquarters of the defendant company was North Zone Vice president, John Walsh. Vice President Walsh echoed the discriminatory sentiments of the defendant's owner and top management when in July 1992 he admitted "As we all know, they wanted men in these positions...," (Tr. 918-19) in explanation to plaintiff as the reason why plaintiff had not been promoted. It was reasonable for the jury to infer that the "they" to whom Vice President Walsh was referring in his July 10, 1992 explanation was Coca-Cola's top executives, Messrs. O'Rourke and Noxon, and the company's owner Mr. Herb. It was also reasonable for the jury to infer that Vice President Walsh was going to continue to fulfill the well-known desire of top management to have men hold the upper-management positions denied to plaintiff.
Defendant's President William O'Rourke, himself, at a gathering of company management at the Brookwood Country Club in 1988 or 1989, announced "that he didn't think the beverage industry was where women were meant to be" (Tr. 164) and "that he wouldn't have his own daughters be managers of Coca-Cola Company, that it was a man's business." (Tr. 930, 1072-073.) Defendant's Vice President, H. Thomas Noxon, at another meeting of all Coca-Cola management personnel at McDonald's Lodge in 1990 announced "Let's have the women stand. We're filling our quotas nicely." (Tr. 931.) The evidence showed that these sexist actions and statements of the defendant company's top officials at official company functions fostered an intentionally discriminatory corporate attitude.
The evidence was clear that by the time of the 1992 and 1993 promotion decisions, Coca-Cola's owner and the key executives involved in those decisions had expressed and displayed discriminatory attitudes against women and had the intent to discriminate on the basis of sex. This was also evident when Vice President Walsh behind his closed office door admitted to plaintiff in July 1992: "Karen, as you know, as we all know, they wanted men...." (Tr. 918-19) regarding the people allowed to fill the positions denied to plaintiff in upper-management at the defendant company.
I. Plaintiff's Motion for Prejudgment Interest (R. 153)
Plaintiff's counsel in Plaintiff's Motion for Prejudgment Interest argues that:
"Prejudgment interest should be assessed on the amount of the judgment for $ 343,000 at the prime rate from July 8, 1992, the date on which plaintiff was discriminated against because of her sex, up to November 21, 1994, date the judgment was entered." (Plaintiff's Motion for Prejudgment Interest, p. 1.)
As an initial matter, the jury's verdict shows that the discriminatory conduct that caused the damages supporting the $ 343,000 amount did not all occur on July 8, 1992; some occurred on September 15, 1993. Assessing prejudgment interest on the full $ 343,000 amount back to July 8, 1992 is not warranted. This is especially true since a substantial portion of that amount is punitive damages.
Title VII authorizes prejudgment interest as part of the back pay remedy against private employers in cases like this one. Loeffler v. Frank, 486 U.S. 549, 557-58, 100 L. Ed. 2d 549, 108 S. Ct. 1965 (1988); Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 411 (7th Cir. 1989). In Gorenstein Enterprises v. Quality Care, U.S.A., Inc., 874 F.2d 431, 436 (7th Cir. 1989) the Seventh Circuit stated:
The award of prejudgment interest is particularly appropriate in a case such as this when the violation was intentional, and indeed outrageous.
The Gorenstein case, however, did not involve employment discrimination.
In an age discrimination case, Fortino v. Quasar Co., 950 F.2d 389, 397-98 (7th Cir. 1991), the Seventh Circuit held that prejudgment interest was not appropriate because punitive damages had been awarded under the statutory scheme allowing a "double" damages penalty. The Seventh Circuit reconciled Gorenstein in the Fortino opinion by stating:
We agree both that the purpose of prejudgment interest is to make sure that an award of compensatory damages is fully compensatory and that it is a salutary purpose--as a matter of fact we have held that such interest is presumptively available in cases under federal law. Gorenstein Enterprises, Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989). But when such interest is added to an award that is half punitive, as the plaintiffs would have us do, it ceases to have a compensatory function and becomes an unauthorized form of punitive damages.
Even confined to the compensatory part of the award, prejudgment interest would be questionable. A recognized if secondary (and often implicit) purpose of punitive damages is to make sure that the judgment does not inadvertently undercompensate the plaintiff.
950 F.2d at 397-98. Under the current posture of the Seventh Circuit law on point, it appears plaintiff's request for prejudgment interest on the punitive damage amount is not sustainable and the request for prejudgment interest on back pay is "questionable." Id.
The jury found the back pay amount owed by defendant to plaintiff was $ 43,000 (R. 150, Interrogatory No. 7). Defendant in paragraph 7 of its Response to plaintiff's Motion, without any citation to the record and seemingly without any regard or deference for the jury's finding, argues that:
"7. Plaintiff is eligible to receive back pay in the amount of $ 4,784.83. $ 2008.76 of this amount is attributable to the period July 27, 1992 to September 30, 1993. Thus, back pay the rate of $ 32.70 per week during this period. An additional $ 421.86 is attributable to the period of September 30, 1993 to November 1, 1993. Finally, additional $ 2,354.21 or $ 58.65 per week is attributable to the period of November 1, 1993 to August 9, 1994, when Plaintiff was properly discharged. At most, prejudgment interest could be assessed on only these amounts."
(Defendant's Response to Plaintiff's Motion for Prejudgment Interest, p. 3.) (R. 161.) Defendant does not explain in its motion or by what legal basis it arrived at its purported back pay amount, but its method limiting plaintiff's back pay to that received by other employees is inconsistent with the right of the jury to consider all the evidence. The jury's calculation of $ 43,000 is consistent with and supported by the exhibits and testimony introduced in the evidence.
Initially, it should be noted that defendant had no objection (Tr. 1987) to the Special Verdict Interrogatory No. 7 (R. 150):
INTERROGATORY NO. 7. What is the fair and reasonable amount of the wages and salaries proven to have been lost by plaintiff to date, minus any amount resulting from any failure by plaintiff to mitigate her damages, as a result of the discrimination or retaliation proven by the evidence?
(R. 150, Interrogatory No. 7.) (emphasis added) Moreover, based on the evidence, the jury could have reasonably inferred that if plaintiff Emmel had not been discriminated against by defendant, she would have remained in defendant's employ through the date of the verdict in November 1994. From July 1992, when the defendant's initial act of gender discrimination against the plaintiff was committed, through November 21, 1994, when the verdict was returned, is a period of approximately two years and five months. Consequently, the proper time frame for calculation of plaintiff's back pay in this case is from the first act of discrimination which caused her to lose back pay "to [the] date" of the jury's verdict. (R. 150, Interrogatory No. 7.) Defendant's counsel accepted this point and waived any argument by not objecting to Interrogatory No. 7 at that appropriate time (Tr. 1987).
Although the court does not know how the jury arrived at its calculation, the jury's verdict does not exceed the bounds of the inferences that could be reasonably drawn from the evidence presented at trial. The jury was not limited to a comparison of individual employees' salaries because the jury had other evidence at its disposal with which to make its determination. See Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1229-31 (7th Cir. 1994).
Defendant's Exhibit 5, which was introduced by agreement (Tr. 1310) and displayed to the jury by defense counsel (Tr. 1310, 1429), provided the jury a range of salaries from which to choose in determining the salary plaintiff would have had as an ADM in July 1992 had she not been discriminated against by defendant. Defendant's Exhibit 5 stated the 1992 "Annual Salary Range" for both the position of ADM and the position of Key Account Executive. That range which became effective January 1, 1992 (Tr. 1258) was $ 32,500-$ 50,400 (DX 5) (Tr. 1259). The jury was entitled to use Defendant's Exhibit 5 to determine the amount of plaintiff's back pay salary that she would have received in 1992 had she not been discriminated against by defendant.
Considering plaintiff's substantial and wide-ranging experience plus her expertise in the "Cold Drink" area upon which defendant was placing major emphasis in July 1992, it was reasonable for the jury to determine that plaintiff's appropriate non-discriminatory salary to be at or near the top of the 1992 salary range.
From July 1992 through September 1993, the month when the next upper-management promotions occurred, plaintiff's actual gross annual salary was $ 35,000 or $ 2,916.67 per month (DX 13). The total gross income she actually earned during the 15-month period of July 1992 through September 1993 (2916.67 x 15) equalled $ 43,750. Had plaintiff received the ADM promotion in July 1992 and received the top of the 1992 salary range set forth in Defendant's Exhibit 5 of $ 50,400 which is $ 4,200 per month, she would have received a gross salary for the 15 months from July 1992 through September 1993 ($ 4,200 x 15) equal to $ 63,000. For that period, using those figures, her lost back pay equalled $ 19,250 ($ 63,000 minus $ 43,750).
Beginning in October 1993, each of the three men who were promoted to the Key Account Executive position in September 1993 received a substantial pay increase (PX 3) over their salaries immediately before their promotions. When they were promoted in September 1993, Messrs. Dulin, Linke and Merenda, the three men promoted to Key Account Executive, received salary increases of 14.28%, 12.24% and 9.9% (PX 3) respectively. Had plaintiff Emmel been promoted in September 1993 to Key Account Executive from the ADM position and received a 14% pay increase on her 1992 ADM annual salary, as Mr. Dulin did (Tr. 1089), plaintiff would have then received $ 57,456 annual gross salary which is equal to $ 4,788 per month beginning October 1, 1993. During October 1993 plaintiff was still earning a monthly salary of $ 2,916.67 in the position of Cold Drink Representative. Consequently, her lost salary during the month of October 1993 as a result of defendant's discrimination equalled $ 1,872 ($ 4,788 minus $ 2,916).
Effective November 1, 1993, plaintiff though still in the Cold Drink Representative position, received a 5% pay increase from $ 35,000 annually to $ 36,750 annually (Tr. 1083-84, 1370) or $ 3,062.50 per month. (PX 1, DX 13.) For the year from November 1, 1993 through October 31, 1994 the jury could infer that plaintiff's annual gross salary rate would have remained at $ 36,750. Based on the jury's findings, had plaintiff not been discriminated against, she would have been promoted to both the 1992 ADM position and the 1993 Key Account Executive position. Had she been compensated as the jury was entitled to find based on the evidence discussed above she would have earned an annual gross salary of $ 57,456 beginning October 1, 1993. At that salary rate plaintiff would have earned $ 57,456 in gross annual salary for the year November 1, 1993 through October 31, 1994. Therefore, the proper lost back pay damages for the period of November 1, 1993 through October 31, 1993, equals $ 20,706 ($ 57,456 minus $ 36,750). During the 21 days of November 1994 up to the verdict, the salary rate she would have earned if she had not been discriminated against was $ 4,788 per month ($ 57,456 annual salary divided by 12 months). When reduced by the $ 3,062.50 per month which plaintiff would have earned had she not been discharged, the result of that calculation ($ 4,788 minus $ 3,062.50) is $ 1,725.50. Dividing $ 1,725.50 by 30 (the total number of days in November) and multiplying that number by 21 (days in November 1994 to the verdict) equals $ 1,207.85.
Based on the calculations and figures just discussed and proven at trial, plaintiff's lost back pay earnings resulting from defendant's discrimination from the time of the first discrimination up to the date of the jury's verdict are:
$ 19,250.00 July 1992 through September 1993
1,872.00 October 1993
20,706.00 November 1, 1993 through October 31, 1994
1,207.85 November 1, 1994 through November 21, 1994
$ 43,035.85 Total
Although the jury's $ 43,000 back pay determination clearly is supported by the evidence, the language in the Seventh Circuit's most recent discussion on the issue of prejudgment interest does not bode well for plaintiff receiving prejudgment interest. In discussing its own precedent as well as authority from other circuits, the Seventh Circuit in Reich v. Sea Sprite Boat Company, 64 F.3d 332 (7th Cir. 1995) stated that:
We have held that the penalty component of such double or triple damages schemes sometimes serves in lieu of prejudgment interest on the compensatory portion of the award. Fortino v. Quasar Co., 950 F.2d 389, 397-98 (7th Cir. 1991). Contra, Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 1101-03 (3d Cir. 1995) (holding that the plaintiff is entitled to prejudgment interest on the compensatory portion of the award). Prejudgment interest also creates a risk of exceeding the maximum penalty, often set at a maximum dollar award per transgression. See Rodgers v. United States, 332 U.S. 371, 374, 92 L. Ed. 3, 68 S. Ct. 5 (1947).
Id. at 3. By citing the Starceski case which is consistent with decisions from the Second, Ninth and Eleventh Circuits, 54 F.3d at 1102, as contrary to Seventh Circuit law, the Seventh Circuit in Sea Sprite Boat, No. 92-1650 sl. op. at 3, sent the clear message that prejudgment interest is disfavored in the Seventh Circuit when punitive damages have been awarded. Consequently, this court declines to assess prejudgment interest on the $ 43,000 back pay due from defendant to plaintiff as a result of defendant's sex discrimination against plaintiff as proven by the evidence in this case.
II. Plaintiff's Motion for Restitution of Lost Benefits Resulting from Employment Discrimination by Defendant in Making Management Promotions to the Positions to which Plaintiff was Denied (R. 154.)
The enforcement provision of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-5(g) states:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in any unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, . . ., or any other equitable relief as the court deems appropriate.
This court finds that the evidence clearly supports the jury's verdict that defendant intentionally and maliciously, or at least, with reckless indifference for plaintiff's rights, engaged in the unlawful employment practice of discriminating against plaintiff because of her gender as to the three promotions upon which the jury found in plaintiff's favor. To the extent that benefits should have flowed to plaintiff as a result of the positions she was denied because of the defendant's intentional and unlawful conduct, those benefits should be considered as part of the back wages and salary that plaintiff was deprived of due to defendant's unlawful conduct.
The evidence presented at the trial does not adequately show the value of the benefits of which defendant unlawfully deprived plaintiff beyond the $ 43,000 in back wages the jury found based on the evidence. (Tr. 1418-19.)
To the extent that such benefits or return of contributions remain due plaintiff at this time as result of plaintiff's termination from defendant's employ on August 9, 1994, which the jury found was not retaliatory, such benefits are beyond the scope of the claims that were tried in this case. Such benefits and return of contributions, to the extent they were not a part of this case, are not precluded by this adjudication from being sought. If further legal action is necessary to recover such benefits or return of contributions, that legal action will have to be pursued outside the context of this case.
Despite the court's finding as to defendant's unlawful conduct based upon the jury's verdict and this court's own assessment of the evidence, this motion is denied.
III. Plaintiff's Motion for Permanent Injunction Enjoining Further Violation of 42 U.S.C. § 2000e-2(a) and Enjoining Defendant from Considering Gender in Making Management Promotions to the Positions to which Plaintiff was Denied (R. 155.)
Ordinarily, this court believes that no injunction should be necessary to ensure that any defendant complies with the employment discrimination laws of the United States. Given the fact, however, that the evidence established at the trial that the defendant company had a policy of intentional gender discrimination that victimized the plaintiff and given the fact that the evidence showed that policy emanated from the owner of Coca-Cola, Marvin Herb, and pervaded the decisions of defendant's top-management over a number of years may make this case the exception.
The fact that plaintiff was lawfully discharged from defendant because she photocopied at defendant's offices certain documents that plaintiff believed were pertinent to her lawsuit and not in retaliation for bringing the suit eliminates any possible reinstatement order being entered by this court pertaining to plaintiff's employment with defendant. That being the case any permanent injunction against defendant engaging in any future gender discrimination would not pertain to plaintiff. This was not an enforcement action brought by the EEOC to protect certain putative employees of defendant. Perhaps the EEOC should closely monitor the conduct of defendant Coca-Cola in the future pursuant to its statutory empowerment in 42 U.S.C. § 2000e-5(a) "to prevent any person from engaging in any unlawful employment practice," given the deliberate policy of gender discrimination shown by the evidence under which plaintiff suffered at defendant company. A permanent injunction against defendant's future similar violations emanating from this private case, however, would not re appropriate. See City of Chicago v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086, 1094 (7th Cir. 1992), cert. denied, 113 S. Ct. 2961, 125 L. Ed. 2d 662 (1993). This motion is denied.
IV. Defendant's Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for a New Trial (R. 157.)
A. The Weight of the Evidence Supports the Verdict
Defendant's initial post-trial assertion is that:
1. The jury verdict is against the weight of the evidence.
Vice President Walsh after he closed the door to his office to "speak honestly" (Tr. 918) during his conversation with plaintiff on July 10, 1992 told plaintiff Emmel that she was as qualified as the men who were promoted but the reason she was not promoted was, "as we all know, they [defendant's top management] wanted men in these positions ...." (Tr. 918) clearly informing plaintiff that defendant's top management desired men and not women in the upper-management positions. The direct evidence of these statements to plaintiff by Vice President Walsh, who defendant claims was the decision-maker, demonstrate Mr. Walsh's intent to adhere to the gender-biased policies of the defendant regardless of plaintiff's federally protected rights.
The circumstantial evidence of the company's lack of women in the upper-management positions denied to plaintiff is further proof of defendant's intent to engage in the unlawful gender discrimination which victimized plaintiff. As the Seventh Circuit recently stated:
The 100% sex-segregated workforce is highly suspicious and is sometimes alone sufficient to support judgment for the plaintiff.
Loyd v. Phillips Brothers, Inc., 25 F.3d 518, 524 n. 4 (7th Cir. 1994).
The sexism that was expressed in the public announcements by Coca-Cola's top officials at company functions such as the company "was a man's business" (Tr. 930) and that women at the defendant company were there for the purpose of "meeting [the company's] quotas" (Tr. 164, 931) further demonstrated defendant's intent to discriminate against plaintiff. These discriminatory statements, that further support the jury's finding of defendant's intentional sex discrimination, were made by the very same top officials who decided that only men would be promoted to the five new ADM positions in July 1992 and to the two ADM and the three Key Account Executive positions in September 1993 denied to plaintiff.
Defendant's intent to discriminate against plaintiff because of her sex was proven by both direct and circumstantial evidence. The direct evidence, as stated earlier, consisted in part of Vice President Walsh's July 10, 1992 admission to plaintiff that "as we all know, they wanted men in these positions...." (Tr. 918). This admission was very similar to the direct evidence of discrimination discussed by the Seventh Circuit in Mojica v. Gannett Co., 7 F.3d 552, 561 (7th Cir. 1993) (en banc). In Mojica the Seventh Circuit, detailing the direct evidence of discriminatory intent to which plaintiff testified, stated:
Mojica presented evidence of discrimination at the original trial by testifying that Marv Dyson, the station general manager, told her in 1986 that she would not be promoted into a more lucrative shift because she was not "a black male."
Gannett argues simply that Marv Dyson never made the statement. But the jury could have believed Mojica. Because we conclude that the verdict is supported, we need not comment on any of the other evidence Mojica relied on to prove discrimination.
In this case, plaintiff Emmel not only established her claims by direct evidence, but also by presenting persuasive circumstantial evidence of defendant's discriminatory intent. The facts in this case closely follow the three types of circumstantial evidence the Seventh Circuit described in Troupe v. May Department Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994) as sufficient both individually and collectively "to support a judgment for the plaintiff." Id. at 736.
In discussing the three types of circumstantial evidence which prove discriminatory intent, the Seventh Circuit in Troupe stated:
The first consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn.