The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Plaintiff Jacquelyn Hathaway's ("Hathaway") motion for damages and Defendant David A Ross, M.D.S.C.'s ("Ross") motion to strike. For the reasons stated below, we grant in part and deny in part Hathaway's motion for damages, and deny as moot Ross' motion to strike.
Hathaway filed the instant action in August 2003, claiming that her former employer, Ross, had terminated her employment due to her pregnancy in February 2002, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. On April 13, 2006, a jury returned a verdict in favor of Hathaway on her Title VII claim, and awarded to Hathaway $170,000 in total compensatory damages and $700,000 in punitive damages. The parties agreed that any request for equitable damages, including damages that do not fall within the definition of compensatory damages under 42 U.S.C. § 1981a, would be determined by the court rather than the jury. Hathaway has moved for certain equitable damages.
I. Compensatory and Punitive Damages
Under 42 U.S.C. § 1981a(b)(3), a plaintiff who prevails in a Title VII suit is subject to a statutory cap on her damages award. Specifically, a prevailing plaintiff may only recover $50,000 total in punitive damages and compensatory damages that fall under 42 U.S.C. § 1981a(b)(3) from employers of more than fourteen and less than 101 employees. 42 U.S.C. § 1981a(b)(3). To recover punitive damages, the plaintiff must show that the defendant acted "with malice or with reckless indifference to the federally protected rights of" the plaintiff. 42 U.S.C. § 1981a(b)(1). In the instant action, the parties agree that Ross had between fourteen and 101 employees, and therefore Hathaway is subject to the $50,000 damages cap. The jury in this case awarded a total of $170,000 to Hathaway in compensatory damages, which was allocated as follows: Emotional Pain ($10,000), Suffering ($10,000), Inconvenience ($35,000), Mental Anguish ($10,000), Loss of Enjoyment of Life ($35,000), and Past Monetary Losses, including medical bills and real estate losses ($70,000). The jury also awarded Hathaway $700,000 in punitive damages. Of the total award of $170,000 in compensatory damages, only the $70,000 award for Past Monetary Losses is not subject to the damages cap. Thus, Hathaway may recover this entire $70,000 award. The remaining $100,000 in compensatory damages and $700,000 in punitive damages, totaling $800,000, awarded by the jury is subject to the $50,000 damages cap. Therefore, Hathaway is entitled to $50,000 of the $800,000 award.
Hathaway requests that the $50,000 award be considered to be punitive damages rather than compensatory damages, and Ross does not object to this. (Resp. 20); see also Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004)(stating that 42 U.S.C. § 1981a(b)(3) "does not prescribe a method for making this adjustment and we have upheld a decision that took the entire cut out of the award of punitive damages and another that took the entire cut out of the award of compensatory damages").
Although Ross agrees that Hathaway may take her entire $50,000 award as punitive damages instead of compensatory damages, Ross, however, argues that Hathaway should not be entitled to recover any punitive damages because the verdict form regarding the issue of punitive damages did not specifically contain a question asking whether the jury found that Ross acted maliciously or with reckless indifference. Ross' argument is without merit. The court properly instructed the jury both orally and in writing on what Hathaway needed to show to recover punitive damages, and Ross accepted both the jury instructions and the verdict form after a conference with the court. See Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 500 (7th Cir. 2000)(holding in regard to jury instructions that "[w]hen lawyers fail to draw the court's attention to a preventable problem, they must bear the consequences of forfeiture"). Ross has not cited any controlling precedent that holds that a verdict form must specifically ask whether the jury finds that the defendant acted maliciously or with reckless indifference. Therefore, we award Hathaway $50,000 in punitive damages, and $70,000 in compensatory damages that do not fall under the statutory cap as discussed above.
Hathaway has requested an award of back pay in the amount of $186,689.91.
The Seventh Circuit has stated that a "district court has broad equitable discretion to fashion back pay awards to make the Title VII victim whole [and that] [o]nce the district court [finds] unlawful discrimination in violation of Title VII, there [is] a strong presumption that [a plaintiff is] entitled to a back pay award on the basis of what she would have earned absent the discrimination." E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1997). The Seventh Circuit has also made it clear that "the plaintiff has the burden of proving the damages caused [to] her [and that such damages should be] determined by 'measuring the difference between actual earnings for the period and those which she would have earned absent the discrimination by defendant.'" Horn v. Duke Homes, 755 F.2d 599, 606 (7th Cir. 1985)(quoting Taylor v. Philips Indus., Inc., 593 F.2d 783, 786 (7th Cir. 1979)).
Hathaway argues that her back pay award should be based on her 2000 earnings that she earned while working for Ross, rather than her more recent 2001 or 2002 earnings from Ross. Hathaway also argues that her earnings would have continued to grow over time, and that her back pay should not be lowered by the unemployment benefits she received or the period of unpaid maternity leave she would have taken if she had been employed by Ross. In determining the proper award of back pay, a court must make sure that any award is not speculative and does not put the plaintiff in a better position than she was before her termination. See Ilona., 108 F.3d at 1580 (quoting United States v. City of Chicago, 853 F.2d 572, 575 (7th Cir. 1988) for the idea that "[t]he court must 'do its best to recreate the conditions and relationships that would have existed if the unlawful discrimination had not occurred'"). In this case, we agree that the wages Hathaway earned in the early months of 2002, before she was terminated in February, are not necessarily indicative of what her salary would have been over the entire year. We also agree that Hathaway provided evidence at trial showing that her 2001 wages also do not properly represent her salary at Ross because in 2001, Ross stopped doing the extensive advertising that it had done in prior years. Therefore, we will base Hathaway's award of back pay on her 2000 salary, which was $49,653.00
Hathaway also states in her memorandum in support of her motion for damages that "the Court may reasonably find that Plaintiff's earnings would have continued to grow had she not been terminated . . . ." (Mot. 4). The evidence at trial showed that Hathaway's salary increased each year from 1997 to 2000, and only decreased in 2001, when Ross stopped advertising Hathaway's services. Therefore, we find that Hathaway has sufficiently established that her salary would have increased annually during the period of time for which ...