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If New Haven firefighter Sheryl P. Broadnax won only back pay in her sex discrimination and hostile workplace suit, the loss to the city would have been about $30,000. Instead, the jury listened to her attorney’s closing argument request for $30,000 for each year between 2002, when Broadnax was fired, and her forecasted retirement and handed Broadnax a $1.45 million award, including roughly $930,000 in future “front pay.” The city fought the case to the 2nd U.S. Circuit Court of Appeals. There, in a July 20 decision of first impression, it found New Haven had waived the issue of front pay by not asking enough questions about Broadnax’s job hunt. And because the city didn’t object to letting the jury decide lost wages, it is now stuck with a verdict that came in about a million dollars above what either side expected the final result to be. Said Broadnax’s lawyer, Norman A. Pattis, in an interview: “Prior to trial, the defendants did nothing to determine whether the plaintiff was seeking front pay — pay into the future. By the time they got around to raising the issue, it had been waived and it was too late. So I think what this case stands for is, when you’re at trial, stay on your toes. It’s easy to waive a claim. And a claim as significant as that should well have been litigated prior to the appeal.” New Haven Corporation Counsel Thomas W. Ude Jr. said the city believed the issue of Broadnax’s front pay disappeared once she said she was not looking for a new job. “If someone admits they weren’t doing anything to look for work, it seemed, from the case law, they hadn’t established damages,” Ude said. A panel of Judges Guido Calabresi, Robert A. Katzmann and Barrington D. Parker decided otherwise in a ruling written by Katzmann. NO BURDEN SHIFTING Under the case law, an employer can meet its burden of demonstrating that an employee failed to mitigate damages from lost wages by showing “suitable work existed” and “the employee did not make reasonable efforts to obtain it.” But the 2nd Circuit’s 1998 case of Greenway v. Buffalo Hilton Hotel, Katzmann said, “establishes an exception to this general rule and holds that an employer is released from the duty to establish the availability of comparable employment if it can prove that the employee made no reasonable effort to seek such employment.’” The city of New Haven relied on Greenway to claim it was entitled to a judgment as a matter of law. The circuit did not agree. “By asserting that Broadnax’s failure to offer evidence of a job search precludes a lost wages award, the City suggests that Greenway shifts to the plaintiff the burden of showing effort to obtain employment,” Katzmann wrote. “The City is mistaken.” The Greenway opinion, Katzmann said, “makes it clear that the exception it creates is merely an alternate evidentiary route by which the defendant can prove the plaintiff did not fulfill the duty to mitigate, not a burden-shifting device.” The city’s appeal was handled by Charles D. Ray, of McCarter & English’s Hartford office. “I think this was a close case that could have gone either way, especially on the issue of mitigation and front pay,” he said. “Based on the entire record, I was convinced that Ms. Broadnax made no effort to mitigate her damages by seeking other employment once she left the fire department. I wish the Court of Appeals had agreed with my conclusion.” ‘VERY DISAPPOINTED’ In Pattis’ view, the ruling in his client’s case “refines Greenway and says it still is the defendant’s burden to prove a failure to mitigate. You can’t just stand up and say she didn’t try to mitigate. There is some de minimus burden, and insufficient questions were asked to determine whether Ms. Broadnax had mitigated.” The case was photo-finish close, and Ude agreed that it might have gone the other way with just one or two more questions to Broadnax. Similarly, it was the city’s assent to allowing the jury to evaluate lost wages that allowed it to be the jury’s job. Under federal practice Rule 39(c), even in “actions not triable of right by jury,” such as an equitable actions like Broadnax’s Title VII discrimination case, the court, “with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.” Thus, the panel ruled, “having juries calculate lost wages requires no special competence or authority belonging solely to the court.” At trial, New Haven was represented by city attorney Martin Echter. “He’s no longer working here,” said Ude. Echter resigned last year, the day after the city sustained an $800,000 verdict in another trial he was defending. Ude said he didn’t think “anybody was expecting the huge calculation that the jury made, especially for an able-bodied 42-year-old. We’re very disappointed.” Pattis said he was not surprised that the jury returned the $1.4 million verdict, but “I am surprised I was able to hold on to it on appeal.” Because of the size of the award, the city is currently weighing the extraordinary option of petitioning for certiorari from the U.S. Supreme Court. Broadnax was fired in 2002, but that penalty was reduced to a six-month suspension, later overturned in state court. At that point, however, she didn’t return to work, saying she “just couldn’t take it anymore.” Earlier, Broadnax had expressed the career ambition of rising to the top job in the fire department. These days, said Pattis, “She is on the market. I think she’d like to return to fire services, but not in New Haven — unless they’d like to make her chief.”

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