was placed on medication) after April 16, 1993. Therefore, the jury could have reasonably apportioned a small amount of emotional distress damages, traceable to her viewing these two pictures and a suffering some residual stress, after that date. The evidence demonstrates, however, that the vast majority of Blakey's emotional distress occurred prior to April 16, 1993. Therefore, the Court apportions $ 5,000 (2%) of the remitted emotional distress award of $ 250,000 to Continental's conduct after April 16, 1993, and $ 245,000 (98%) of the award prior to April 16, 1993.
The Third Circuit has held that where the facts as to compensatory damages are in dispute, a court may not remit a plaintiff's damages without her consent, but must offer the plaintiff an option between accepting the remittitur or submitting to a new trial. Scott v. Plante, 641 F.2d 117, 136-37 (3d Cir. 1981), vacated on other grounds, 458 U.S. 1101 (1982). A district court has the power to grant a new trial conditioned on the plaintiff's refusal to agree to a remittitur. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 2222, 135 L. Ed. 2d 659 (1996). Therefore, the Court conditionally grants Continental's motion for a new trial on emotional distress and pain and suffering damages only if Blakey refuses to agree to a remittitur of the emotional distress award to $ 250,000.
C. Mitigation of Damages / Backpay Award
Continental argues that the jury's decision to reduce Blakey's award by $ 120,000 is "inexplicable and woefully inadequate," and that a new trial on the back pay award is necessary. Defendant's Brief at 22; Reply Brief at 14-15. The Court disagrees. The defendant has the burden of proving that the plaintiff failed to mitigate her damages. Anastasio v. Schering Corp., 838 F.2d 701 (3d Cir. 1988). A plaintiff who fails to mitigate damages is not barred from recovering back pay; however, the plaintiff's back pay award may be reduced by the amount she could have earned with reasonable diligence. Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 867 (3d Cir. 1995).
Blakey was in a somewhat unusual position during the pendency of the lawsuit. She was not actively working, but she had not been terminated by Continental. Rather she was on administrative leave, by mutual consent. Therefore, she was not entirely free to obtain another job, nor was she able to return to work in what she perceived as an unremedied hostile environment. The jury instructions took account of her unique status and provided that on the issue of mitigation, Continental had to prove "either that it was reasonable for [Blakey] to return to work, or that there were substantially equivalent positions available to her, which she could have in fact obtained through the use of reasonable diligence; and that she failed to use reasonable diligence in attempting to secure such positions." Jury Instructions at 38 (emphasis added).
Continental failed to introduce any evidence that it was reasonable for Blakey to return to work. Continental argues that the work environment had improved by 1993 and that Blakey should have therefore returned to work. Continental also confuses Blakey's medical condition with Continental's work environment. Because Blakey was fit to fly does not mean that Continental's cockpits were fit to work in. There was sufficient evidence for the jury to conclude that it was reasonable for Blakey not to return to work. Continental forgets that it had the burden of proof on the issue of mitigation damages. Continental simply failed to meet it.
The jury, in effect, found that Continental was liable for not effectively correcting a hostile work environment based on the continued presence of pornography in the flight decks even after it was brought to management's attention. Although Continental eventually eliminated the problem, it did nothing, as far as the record is concerned, to assure Blakey of that. It was content to let her remain on administrative leave. Continental did nothing in the interim to allay her fears. It cannot now avoid the consequences. The jury heard evidence that pornography continued to appear in aircraft after 1993 and that Continental management failed to take sufficient action to investigate her complaints about other pilots. Given the evidence of Blakey's previous unpleasant experiences with Continental management, the jury was entitled to conclude that it was not reasonable for her to return to work.
That Blakey's skepticism of Continental's efforts were well-founded was dramatically demonstrated at trial when one of her former chief pilots volunteered something to the effect that he did not believe (even today) that the evidence of pornography at Continental constituted sexual harassment. Apparently he was unaware of the EEOC's Policy Guidance on Sexual Harassment, 8 FEP Manual at 405:6681 (issued on March 19, 1990) that states:
Proliferation of pornography and demeaning comments, if sufficiently continuous and pervasive, "may be found to create an atmosphere in which women are viewed as men's sexual playthings rather than as their equal coworkers." Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569, 573 (W.D.N.Y. 1987). The Commission agrees that, depending on the totality of circumstances, such [an] atmosphere may violate Title VII.
8 FEP Manuel at 405:6692.
Nor did Continental provide any evidence that Blakey could have reasonably obtained a substantially equivalent position as a pilot. The jury was not required to presume that Blakey would have found a position at the same salary that she was making as an A300 captain. Even if Blakey had been able to find other work as a commercial airline pilot, she would not necessarily have had the same seniority or the same salary. Blakey presented evidence at trial quantifying her lost wages. Continental did not dispute this evidence. The jury apparently used Blakey's uncontested evidence and calculated back pay as four years of Blakey's salary plus benefits as a captain, based on the approximately four years she was not flying. The jury then subtracted $ 120,000 from Blakey's back pay award based on their calculation of what she could have reasonably earned during the period she was not flying. The Court finds this to be a rational determination of back pay damages given the evidence presented at trial.
Therefore, Continental's motion for a new trial or remittitur as to the back pay award is denied.
For the foregoing reasons, Continental's motion for a new trial or remittitur on the jury's back pay and front pay award is denied. Continental's motion for remittitur of the jury's emotional distress award is granted and the emotional distress, pain and suffering award is reduced to $ 250,000. Continental's motion for a new trial is conditionally granted solely on the issue of emotional distress and pain and suffering damages if Blakey does not accept a remittitur of the emotional distress damages award to $ 250,000. An appropriate order follows.
WILLIAM G. BASSLER, U.S.D.J.
Date: January 30, 1998
This matter having come before the Court upon the motion of Defendant Continental Airlines, Inc. for a new trial on the issue of damages, or in the alternative, remittitur of the damages award;
The Court having considered the submissions and argument of the parties;
For the reasons set forth in the Court's opinion filed this day; and
For good cause shown;
It is this 30th day of January 1998, hereby ORDERED that Continental's motion for a new trial or remittitur as to the jury's back pay and front pay award is denied ;
It is further ORDERED that Continental's motion for a remittitur as to the jury's emotional distress award is granted, and that the award for emotional distress, pain and suffering is reduced to 250,000 ; and
It is further ORDERED that Continental's motion for a new trial is conditionally granted solely as to emotional distress, pain and suffering damages, if Plaintiff refuses to accept the remittitur of emotional distress damages to $ 250,000.
WILLIAM G. BASSLER, U.S.D.J.