Opinion
Civil Action No: 98-2868 Section: "J"(5)
December 4, 2001
Order and Reasons
Before the Court is Plaintiffs' Motion for Contempt (Rec. Doc. 67), requesting the Court hold the City of New Orleans in contempt for not having complied with the Court's previous orders to the extent plaintiffs, Harry Mendoza and Norvel Orazio, have not received all back pay and other benefits due them. The City opposes plaintiffs' Motion. After considering the memoranda, evidence, and the applicable law, the Court concludes, for the following reasons, that Plaintiff's Motion for Contempt should be DENIED. Additionally, the Court determines that no back pay award is due either Plaintiff because both have fully mitigated their damages.
The Court and counsel have agreed that no factual issues remain to be resolved in conjunction with plaintiffs' Motion for Contempt on the back pay issue, and, therefore, that the remaining issues of law raised in Plaintiffs' motion are to be tried via briefs and documentary evidence.
On July 27, 1999, and May 31, 2000, the Court found that the City of New Orleans violated the Williams Consent Decree and Stipulation by allowing the percentage of captains in the police department to fall below 1.8% for a period of greater than nine months. On August 3, 2000, the Court ordered that Plaintiffs Mendoza and Orazio be promoted from the rank of lieutenant to captain, in accordance with the Consent Decree, retroactive to August 5, 1998, with all back pay and other benefits, no later than fifteen days from that date. While Plaintiffs were eventually promoted on February 10, 2001, plaintiffs filed a Motion for Contempt (Rec. Doc. 67) on March 20, 2001, because the City had not complied with the Court's order to the extent that Plaintiffs had not received all back pay and other benefits due them.
The Fifth Circuit stayed the order pending the City's appeal. The appellate court affirmed the Court's findings on January 29, 2001. Plaintiffs were thereafter promoted to the rank of captain in accordance with the August 3, 2000, order.
DISCUSSION
I. Back Pay / Overtime Earned
Plaintiff s argue that they are entitled to be paid the difference for every hour worked, including overtime, between the pay of a lieutenant and that of a captain. Plaintiff a, however, recognize that, while lieutenants are non-exempt employees and, thus, eligible for overtime pay on an hourly basis, captains are exempt employees, who do not receive extra compensation for overtime work performed. See 29 U.S.C. § 207 (a)(1) and 213(a)(1). plaintiffs argue that, although Plaintiffs were made captains retroactively as of August 5, 1998, they were not, in fact, exempt employees during that time period, as they did not meet the required test for exemption of receiving compensation on a salary basis.See 29 C.F.R. § 541.1 (f).
plaintiffs note that it is undisputed that they were compensated on an hourly basis from August 5, 1998 to January 17, 2001. It is further undisputed that both plaintiffs performed significant hours of overtime work. Therefore, Plaintiffs argue, they were clearly non-exempt employees eligible for overtime compensation, and it would be logically inconsistent to have two different retroactive rates for back pay — a captain's rate for regular work and a lieutenant's rate for overtime compensation. Plaintiffs assert that to give the Court's order full force and effect, plaintiffs must be compensated at the rate of pay for captains and be given credit for overtime work performed during that period at the retroactive pay rate.
In a related argument, Plaintiffs note that they were required to use their annual leave to make up for any time missed in an eight-hour work day. They assert that captains are given credit for an eight-hour work day as long as they work at least one hour during the day. plaintiff s therefore request that they either be compensated for the leave they used that they otherwise would not have had to take, or, alternatively, that the City reinstate their leave.
In opposition, the City argues that no back pay award is due either Plaintiff, because both Plaintiffs Mendoza and Orazio worked significant amounts of overtime to supplement their base pay as lieutenants. The City notes that the wages and compensation actually earned by Plaintiffs during the period in question exceeded the sum each would have earned during the same period had they been timely promoted to the rank of captain. The City reasons that Plaintiffs mitigated their damages as generally required in civil rights cases involving awards of back pay.See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1996). The City asserts that the principle of mitigation of damages is applicable to Plaintiffs' claims for back pay regardless of the fact the claim arises from enforcement of the Consent Decree rather than the original Williams cause of action. Furthermore, the City notes that courts have routinely deducted actual interim or subsequent earnings from a back pay award. See, e.g., Johnson v. San Jacinto Jr. College, 498 F. Supp. 555 (D.C.Tex. 1980); Figueroa-Rodriguez v. Aquino, 863 F.2d 1037 (1st Cir. 1988); Schwartz v. State of Florida, 494 F. Supp. 574 (D.C.Fla. 1980).
The City cites the case of Chesser v. State of Illinois, 985 F.2d 330 (7th Cir. 1990), as being most on point. In that case, the court determined that earnings from the plaintiff's moonlighting should be offset against his back pay award, where the plaintiff-police officer would have been unable to hold the moonlighting jobs simultaneously with the position as a state trooper, which position he had been unfairly denied. The court in that case discussed the fact that the goal of back pay is to compensate the employee, not punish the employer. Id. at 338.
The City argues that, as it is uncontested that plaintiffs would not have been compensated for the hours of overtime worked during the period in question had they been captains, those earnings must be deducted from any back pay award, which leaves the City owing nothing in back pay.
Upon a review of the relevant jurisprudence, the Court concludes that the City's argument has merit. For example, in Bing v. Roadway Express, Inc., 485 F.2d 441 (1973), the Fifth Circuit considered the question of whether the plaintiff's earnings from part-time, supplemental work should be deducted from his award of back pay. In that case, the plaintiff was a city driver who was wrongfully denied a transfer to the better-paying position of road driver because of his race. The district court calculated the plaintiff's back pay award by first determining the difference between the amount a road driver would have made during the relevant time and the amount the plaintiff actually made as a city driver. The court did not include earnings for a nineteen month period in which there was a road driver layoff, which would have affected the plaintiff. Finally, the court deducted from its initial calculation the plaintiff's "moonlight earnings," from various part-time jobs he performed outside of his full-time job as a city driver. Id. at 453.
On appeal, the Fifth Circuit affirmed the district court's deduction of the plaintiff's supplemental earnings from the back pay award, explaining that, while it may seem like the court was penalizing the plaintiff for the extra work, Title VII required it to deduct interim earnings made by the plaintiff. Bing, 485 F.2d at 454. The court defined "interim earnings" as those received by the plaintiff for performance of work that he could not have performed had he been properly promoted. Id. By contrast, the court stated that if the supplemental compensation could have been earned by the plaintiff even if he had been promoted to the desired position of road driver, and there was reason to believe he would have performed that extra work, the earnings would not have been deducted. Id.
In that case, the Fifth Circuit agreed with the district court that the plaintiff had in fact been better off financially as a city driver, able to earn the part-time compensation, than if he had been a road driver during that same time, since as a road driver he would have been required to work 60 to 100 hours a week and would have been unable to perform any supplemental work. Id. See also Chesser, supra (holding that wrongfully discharged state police officer's back pay award was properly reduced by the amount of his compensation from moonlighting jobs during the pertinent period, as he would have been unable to perform that work as a state trooper).
The Fifth Circuit ultimately remanded the case to the district court, finding that it had erred in not considering that the plaintiff would have performed supplemental work during the time of the road driver layoff and that those earnings should have been calculated into the back pay award, prior to any deductions being made.
On the specific issue of whether overtime compensation should be deducted from a back pay award, most courts agree that it should not, as long as the plaintiff could have earned the compensation even if he had been properly promoted. See. e.g., Nordstrom v. National Labor Relations Board, 984 F.2d 479 (D.C. Cir. 1993); Behlar v. Smith, 719 F.2d 950 (8th Cir. 1983); Welbern v. Hunt, 929 F.2d 1341 (8th Cir. 1991); Floyd v. Mellon Bank, N.A., 1991 WL 30755 (E.D.Pa. Mar. 6, 1991); Anderson v. Phillips Petroleum Co., 736 F. Supp. 239 (D.Kan. 1990).
However, the question presented in the instant case is not squarely addressed by the case law; i.e., whether Plaintiffs' back pay awards should be reduced by the amount of their overtime compensation, when they could have worked the overtime hours even if promoted to captain, and would have been required to work some amount of overtime, but would not have been compensated for any "mandatory" or "voluntary" overtime work performed. The Court concludes that the majority of the relevant case law supports a finding that Plaintiff's overtime earnings should be deducted from any back pay award, because it is undisputable that Plaintiffs would have been unable to earn that compensation if they had been working as captains.
In particular, the Fifth Circuit's decision in Bing supports that conclusion, as it found that, while it did not want to penalize the plaintiff for being "energetic" and working more hours, it was clear that the plaintiff could only have earned the extra compensation until he was offered his new position as a road driver. Bing, 485 F.2d at 454. The same is true in the present case. While Plaintiffs clearly could have worked overtime hours as captains, they could not have earned any extra compensation for doing so; they could only earn the extra compensation while they were still lieutenants. Plaintiffs would, in fact, be made "more than whole" if the overtime earnings were not deducted, as their earnings as lieutenants being compensated for both mandatory and voluntary overtime work were greater than their earnings would have been had they been promoted to captains.
The Court notes that both Plaintiffs also earned significant compensation from private "moonlighting" jobs they performed entirely outside of department work. Those earnings have not been considered in the Court's analysis, as Plaintiffs could have performed similar work and earned the same compensation in the private sector even if they had been timely promoted.
Bearing in mind that the purpose of awarding back pay is to compensate a plaintiff for losses sustained and not to penalize the employer,Chesser, 985 F.2d at 338, the Court concludes that a deduction of Plaintiffs' overtime earnings from any back pay award, which would be calculated as the difference between their base salaries as lieutenants and what their salaries would have been as captains for that same period, treats the Plaintiffs equitably under these circumstances. Both sides agree that Plaintiffs would have been required to perform some overtime work if they had been promoted to the rank of captain during the period in question and would not have received any compensation for that or any other voluntary overtime work performed. Furthermore, the calculations provided to the Court by both sides demonstrate that Plaintiffs did, in fact, earn more as lieutenants being compensated for overtime, than they would have earned had they been timely promoted to the rank of captain. Accordingly, the Court concludes that no award of back pay is necessary to remedy Plaintiffs' injuries in this case.
II. Annual Leave / Pension Benefits
As to the issue of annual leave, the City attaches as an exhibit to its opposition an affidavit by Stephanie Landry, Director of Personnel for the Department, who states that the Department is in the process of restoring to Plaintiffs all hours of furlough taken during the relevant time period, which Plaintiffs would not have had to use had they held the rank of Police Captain. The City also attaches an affidavit by Raymond H. Armant, Payroll Supervisor of the Department of Finance for the City of New Orleans, who states that the appropriate retirement contributions have already been made to Plaintiffs' retirement funds. Accordingly, it appears the City has complied with the Court's previous order with respect to employment benefits.
III. Other Damages and Attorneys' Fees
Plaintiffs also argue that the City is liable for liquidated damages equal to the amount of any compensation award, pursuant to 29 U.S.C. § 216 (b), as the City cannot demonstrate it has acted in good faith and, in fact, its behavior has evidenced total disregard for the Court's orders. Furthermore, Plaintiffs seek post-judgment interest until the time of payment, pursuant to 28 U.S.C. § 1961, and attorneys fees.
Civil contempt "is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance." United States v. McMillan, 53 F. Supp.2d 895, 907 (S.D.Miss. 1999) (emphasis added). Thus, contempt proceedings may be employed both "to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained." American Airlines, Inc. v. Allied Pilots Association, 228 F.3d 574, 585 (5th Cir. 2000) (quoting United States v. United Mine Workers of America, 330 U.S. 258, 303-04, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). Compensatory civil contempt reimburses the complainant for the losses and expenses incurred because of the defendant's non-compliance, including "expenses reasonably and necessarily incurred in the attempt to enforce compliance." Norman Bridge Company v. Banner, 529 F.2d 822, 827 (5th Cir. 1976).
In a civil contempt proceeding, the movant bears the burden of establishing by clear and convincing evidence: 1) that a court order was in effect, 2) that the order required certain conduct by the respondent, and 3) that the respondent failed to comply with the Court's order.American Airlines, 228 F.3d at 581 (citing Martin v. Trinity Indus., Inc., 959 F.2d 45, 47 (5th Cir. 1992)). A finding of contempt need not be based on willful actions, but only requires that the defendant actually failed to comply with the Court's order. Id. (citing N.L.R.B. v. Trailways, Inc., 729 F.2d 1013, 1017 (5th Cir. 1984)).
Because the Court concludes that no back pay award is due either Plaintiff, it appears that the City has complied with the Court's previous orders, as Plaintiffs have been promoted to the rank of captain, retroactive contributions have been made to Plaintiffs' retirement funds, and Plaintiffs will be credited for annual leave used as lieutenants which they would not have to use had they been captains. Because Plaintiffs have not demonstrated by clear and convincing evidence that the City has not complied with the Court's order, the Court concludes that the Motion for Contempt (Rec. Doc. 67) should be DENIED.
Conclusion
For the foregoing reasons, Plaintiffs Motion for Contempt (Rec. Doc. 67) is hereby DENIED. Upon finding that the City has complied with the Court's previous orders and that no back pay award is due, Plaintiffs' request for additional relief is hereby DENIED.