Rojas v. Town of Cicero et al

Filing 458

WRITTEN Opinion entered by the Honorable James F. Holderman on 7/13/2011: The court provides its rulings on the parties' objections to the court's proposed damages instructions [441, 444] in the Statement section of this order.Signed by the Honorable James F. Holderman on 7/13/2011: Mailed notice (am)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

James F. Holderman

CASE NUMBER

Sitting Judge if Other
than Assigned Judge

08 C 5913

DATE

7/13/2011

Merced Rojas vs. Town of Cicero, et al.

CASE
TITLE
DOCKET ENTRY TEXT

The court provides its rulings on the parties’ objections to the court’s proposed damages instructions [441,
444] in the Statement section of this order.

O[ For further details see text below.]

Notices mailed.

STATEMENT
I.

Defendants’ Objections
1.

Waiver of Damages Related to Certain Lost Future Earnings

Defendants Larry Dominick and the Town of Cicero (“Town”) (collectively “Defendants”) argue that
the jury should not be instructed that plaintiff Merced Rojas (“Rojas”) can recover damages related to his lost
future earnings based on damage to his reputation. Specifically, Defendants argue that Rojas failed to
disclose such damages in his Rule 26 disclosures. In those disclosures, Rojas identified the following
damages:
All wages, including back pay and front pay, Plaintiff would have received but for the
discrimination and retaliation, including pre-judgment interest. Plaintiff states that his annual
salary was approximately $49,000 per year;
All benefits, including but not limited to IMRF pension, medical insurance, and all other
benefits Plaintiff would have received but for the discrimination and retaliation;
Compensatory damages in an amount to be determined by a trier of fact at trial to compensate
Plaintiff for the depression, humiliation, anguish, and emotional distress caused by
Defendants’ conduct[.]
(Rojas’s Initial Rule 26 Disclosures 16-17 (attached as Ex. A to Dkt. No. 441).) The court finds that this
disclosure sufficiently placed Defendants on notice that Rojas would be seeking such future damages.
Defendants’ objection to the court’s proposed instruction related to future damages is overruled.

08C5913 Merced Rojas vs. Town of Cicero, et al.

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STATEMENT
2.

Front Pay and Back Pay

Relying on 42 U.S.C. § 1981a and Seventh Circuit Pattern Instruction 3.09, Defendants object to
allowing the jury to award Rojas back pay and front pay as compensatory damages. According to
Defendants, such damages are equitable and should not be considered by the jury. The court disagrees.
Pattern Instruction 3.09 applies to Title VII, § 1981, and Age Discrimination and Employment Act
(“ADEA”) claims, not § 1983 claims. Similarly, although § 1981a(b)(2) explains that “compensatory
damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief
authorized under section 706(g) of the Civil Rights Act of 1964,” Defendants have not cited any authority
applying this provision to § 1983 claims. To the contrary, in United States ex rel. Chandler v. Cook County,
277 F.3d 969, 977 (7th Cir. 2002), the Seventh Circuit noted that “[u]nder the § 1983 statutory scheme, there
is no guidance from Congress as to the damages to be imposed . . . .” Moreover, Seventh Circuit Pattern
Instruction 7.23, which applies to § 1983 claims, does not expressly exclude back pay and front pay from the
jury’s consideration but instead provides the following instruction on such compensation:
The [wages, salary, profits, earning capacity] that Plaintiff has lost [and the present value of
the [wages, salary, profits, earning capacity] that Plaintiff is reasonably certain to lose in the
future] because of his [inability/diminished ability] to work.
See also McNabola v. Chi. Transit Auth., 10 F.3d 501 (7th Cir. 1993) (jury awarded past lost wages and
future lost wages for § 1983 claim). The court’s compensatory damages instruction is based on Pattern
Instruction 7.23. Defendants’ objection is overruled.
II.

Rojas’s Objections
1.

Nominal Damages

Rojas objects to the inclusion of a nominal damages instruction. In the Seventh Circuit, “a nominal
damages instruction is inappropriate when no evidence is presented at trial to support a defendant’s argument
that there was no provable injury.” Briggs v. Marshall, 93 F.3d 355, 359-60 (7th Cir. 1996). Here, because
the constitutional injury is based on Rojas’s termination, the court agrees with Rojas that, assuming the jury
finds that Rojas’s constitutional rights were violated, he has presented evidence of a provable injury.
Consequently, the court will not instruct the jury on nominal damages.
2.

Separate Paragraph for Future Damages

Rojas asks that the court provide a separate paragraph for the instruction related to future pecuniary
losses. Rojas argues that because those types of losses are included in a separate paragraph in Seventh
Circuit Pattern Instruction 3.10, the court should include them in a separate paragraph in this case. Pattern
Instruction 3.10, however, applies to Title VII, § 1981, and ADEA claims, which exclude back pay and future
pay from the jury’s consideration. Consequently, the court does not find that Pattern Instruction 3.10
supports a separate paragraph for future damages in this case. Rojas’s objection is overruled.

08C5913 Merced Rojas vs. Town of Cicero, et al.

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STATEMENT
3.

Discounting Damages for Other Income

Rojas objects to the instruction that the jury should subtract “earnings and benefits that plaintiff has
received from other employment and will likely receive in the future from other employment.” According to
Rojas, “this language is not part of the Seventh Circuit Pattern Instructions.” (Dkt. No. 444, Rojas’s
Objections ¶ 5.)
However, the Seventh Circuit Pattern Instruction 3.11, which applies to Title VII, § 1981, and ADEA
claims instructs that the plaintiff can recover “any lost wages and benefits he would have received from the
Defendant if he had not been [adverse employment action] [minus the earnings and benefits that plaintiff
received from other employment during that time [that he would not otherwise have received]].”
The Seventh Circuit has recognized that a similar setoff for wages is appropriate in the § 1983
context. See Perry v. Larson, 794 F.2d 279, 286 (7th Cir. 1986) (explaining that defendant could have
argued to jury that plaintiff’s compensatory damages should be offset by the income plaintiff received while
unemployed); see also Murphy v. Flagler Beach, 846 F.2d 1306, 1308-10 (11th Cir. 1988) (explaining that
damages for lost wages on § 1983 claim should be offset by plaintiff’s interim earnings); Scott v. Peterson,
09 C 1633, 2010 WL 3173001, at *2 (N.D. Ill. Aug. 11, 2010) (“Proper calculations of back pay represent the
wages the plaintiff would have earned but for the adverse employment decision, less the amount of mitigating
wages earned during that time.”). Consequently, Rojas’s objection is overruled.
4.

Punitive Damages Against the Town

Rojas argues that he is entitled to pursue punitive damages against the Town because the Town has
insurance that covers such damages. Rojas’s position, however, is contrary to Seventh Circuit law:
“Municipalities are not subject to punitive damages in suits under 42 U.S.C. § 1983.” Robinson v. City of
Harvey, 617 F.3d 915, 916 (7th Cir. 2010). The court accordingly will not instruct the jury that it may award
punitive damages against the Town.
5.

Remaining Objections

In paragraphs 3 and 12 of his objections, Rojas argues that the court’s instructions are not consistent
with the relevant Seventh Circuit Pattern Instructions. The court sustains Rojas’s objection in paragraph 3
and accordingly has changed the language in the compensatory damages instruction from “physical, mental
and emotional pain and suffering” to “physical and mental/emotional pain and suffering,” which mirrors the
language of Seventh Circuit Pattern Instruction 7.23.
The court overrules Rojas’s objection in paragraph 12, which argues that the language of the punitive
damages instruction “is not supported by the Seventh Circuit Pattern Instruction.” (Rojas’s Objections ¶ 12.)
Contrary to Rojas’s contention, the court’s proposed punitive damages instruction is identical to Seventh
Circuit Pattern Instruction 7.24–the pattern instruction for § 1983 claims. Rojas has not cited any authority
that Pattern Instruction 7.24 misstates the law.
Additionally, in paragraph 2 of his objections, Rojas objects to the following language in the court’s
08C5913 Merced Rojas vs. Town of Cicero, et al.

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STATEMENT
proposed damages instruction because, according to Rojas, it is a “double negative and will confuse the
jury”:
If you find that Plaintiff Rojas has failed to prove all of his claims against Defendant
Dominick, then you will not consider the question of damages.
(emphasis added). Again, this language is identical to Seventh Circuit Pattern Instruction 7.22. Rojas’s
objection is overruled. The court has considered Rojas’s remaining objections to the court’s proposed
damages instructions and finds that they also lack merit.

08C5913 Merced Rojas vs. Town of Cicero, et al.

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