United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
JOAN B. GOTTSCHALL, District Judge.
On November 7, 2013, a jury found that the Village of Antioch discriminated against Dawn Geraty, a police officer in the Village, on the basis of her gender by failing to promote her to the position of sergeant and by failing to transfer her to the position of detective. Now before the court is Geraty's motion for entry of an order awarding her backpay, prejudgment interest, and instatement to the rank of sergeant. For the reasons stated below, Geraty's motion is granted in part. The court concludes that Geraty is entitled to backpay and prejudgment interest as measured from July 22, 2007, and that instatement to the rank of sergeant is an appropriate remedy.
"[B]ack pay is among the catalog of remedies a court can employ when exercising its wide discretion to fashion a remedy to make the victim of discrimination whole." O'Sullivan v. City of Chicago , 540 F.Supp.2d 981, 984-85 (N.D. Ill. 2008). To calculate backpay, the court "measur[es] the difference between actual earnings for the period and those which [the plaintiff] would have earned absent the discrimination by defendant." Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc. , 755 F.2d 599, 606 (7th Cir. 1985) (internal quotation marks omitted). The court must therefore determine, as best it can, the date on which Geraty would have been promoted to sergeant absent the Village's discrimination.
Although the jury found that the Village discriminated against Geraty in connection with the 2006 sergeant-promotion process, it did not determine when during that process she would have been promoted. The 2006 process was in place from June 1, 2006, to June 5, 2009, and consisted of three parts: a written test, an oral interview, and a merit score assigned by the Chief of Police. These three components were then incorporated into an overall score which determined a candidate's ranking on a sergeant promotion list. The Chief promoted candidates off the list as positions became available.
Geraty alleged that the Village discriminated against her in two ways. First, Geraty alleged that the Village Commissioners, who conducted the oral interview, discriminated against her by giving her a low oral-interview score on the basis of her gender. This led to her being ranked lower on the sergeant promotion list than she would have been ranked were it not for the discrimination. Second, Geraty alleged that the Village's Chief of Police at the time, James Foerster, discriminated against her by not promoting her off the list when he had the opportunity to do so.
Geraty argues that the court should measure backpay from June 1, 2006-the earliest possible date on which she could have been promoted off the 2006 list. She admits, however, that even absent any discrimination, she would have ranked no higher than third on the sergeant-promotion list, behind officers Daryl Youngs and Geoffrey Guttschow. Those officers were promoted on June 12, 2006, and July 22, 2007, respectively. It is thus unlikely that Geraty would have been promoted before July 22, 2007, even absent any discrimination.
The Village argues that the court should measure backpay from June 5, 2009-the latest possible date on which Geraty could have been promoted off the 2006 list. The Village argues that the court should not measure backpay from any earlier date because doing so would require the court to speculate as to when Geraty would have been hired. But measuring backpay always involves some level of speculation, and so backpay calculations "need not be precise; exactness is not expected." EEOC v. Custom Cos., Inc. , Nos. 02 C 3768, 03 C 2293, 2007 WL 734395, at *12 (N.D. Ill. Mar. 8, 2007).
Here, the court finds that, of the possible scenarios, it is most likely that Geraty would have been promoted third off the 2006 sergeant list, behind officers Youngs and Guttschow. Geraty testified at trial that she was not surprised that officer Youngs ranked higher than she did on the 2006 list given his years of seniority and his high score on the written test. Officer Guttschow also received a higher score on the written test than Geraty. But Geraty had more seniority and scored higher than any of the other candidates on the 2006 list. She would have ranked third on that list were it not for her low oral interview score, and the Chief of Police generally promoted candidates off the list in the order in which they appeared on the list. The court will thus award backpay as measured from July 22, 2007, which is the date that the third sergeant position became available.
In addition to challenging the date from which backpay should be measured, the Village argues that Geraty's backpay award should be reduced because she went on workers' compensation leave from October 27, 2007, to April 17, 2010. Geraty went on leave after she was injured while responding to a call regarding a missing child. She argues that the court should not reduce her backpay award because she would not have suffered an injury had she been a sergeant. She notes that no other sergeants responded to the call and that she was accompanied by only one other patrol officer.
"The risk of lack of certainty with respect to projections of lost income must be borne by the wrongdoer, not the victim." Goss v. Exxon Office Sys. Co. , 747 F.2d 885, 889 (3d Cir. 1984). In light of this principle, "ambiguities in what an employee... would have earned but for discrimination should be resolved against the discriminating employer." Steward v. Gen. Motors Corp. , 542 F.2d 445, 452 (7th Cir. 1976). Here, the court agrees with Geraty that, had she been promoted to sergeant in July 2007, it is unlikely that she would have suffered a workplace injury as a patrol officer in October 2007. Thus, to provide Geraty the make-whole relief that Title VII contemplates, and resolving any uncertainty in her favor, the court declines to reduce Geraty's backpay award because she went on leave for an injury that she likely would not have sustained were it not for the discrimination.
Finally, the Village argues that Geraty's backpay award should be reduced because she failed to mitigate her damages. Failure to mitigate damages is an affirmative defense. Hutchison v. Amateur Elec. Supply, Inc. , 42 F.3d 1037, 1044 (7th Cir. 1994). To prevail on this affirmative defense, the Village bears the burden of proving that (1) Geraty failed to exercise reasonable diligence to mitigate her damages, and (2) there was a reasonable likelihood that Geraty might have found comparable work by exercising reasonable diligence. Id.
The Village has not met that burden here. The Village argues that Geraty failed to mitigate her damages by failing to take the promotion test in 2009 and by scoring poorly on the sergeant test in 2012. But when the Village solicited applicants for the 2009 sergeant promotion process, Geraty was still on leave because of her injury. James Foerster was still the Chief of Police, and at least one of the Village Commissioners was the same as in 2006. Geraty has stated that the reason she did not take the 2009 promotion test was because she thought it was pointless to apply when the same decision-makers who discriminated against her in 2006 would decide whether to promote her in 2009. Given these circumstances, the court cannot find that she "failed to exercise reasonable diligence" or that there was a "reasonable likelihood" that she would have been promoted had she taken the 2009 test. See Hutchison , 42 F.3d at 1044. Nor does the court agree with the Village that Geraty failed to exercise reasonable diligence by scoring poorly on the 2012 test, as ...