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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUELINE HATHAWAY, )

)

Plaintiff, )

)

v. ) No. 03 C 5848

)

NEW DIMENSION CENTER FOR )

COSMETIC SURGERY, DR. )

DAVID ROSS M.D.S.C., and )

DR. DAVID ROSS, an individual, )

)

Defendants. )

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiff Jacquelyn Hathaway’s

(“Hathaway”) motion for damages and Defendant David A Ross, M.D.S.C.’s

(“Ross”) motion to strike. For the reasons stated below, we grant in part and deny in

part Hathaway’s motion for damages, and deny as moot Ross’ motion to strike.

BACKGROUND

Hathaway filed the instant action in August 2003, claiming that her former

employer, Ross, had terminated her employment due to her pregnancy in February

2002, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
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U.S.C. § 2000e et seq. On April 13, 2006, a jury returned a verdict in favor of

Hathaway on her Title VII claim, and awarded to Hathaway $170,000 in total

compensatory damages and $700,000 in punitive damages. The parties agreed that

any request for equitable damages, including damages that do not fall within the

definition of compensatory damages under 42 U.S.C. § 1981a, would be determined

by the court rather than the jury. Hathaway has moved for certain equitable

damages. 

DISCUSSION

I. Compensatory and Punitive Damages

Under 42 U.S.C. § 1981a(b)(3), a plaintiff who prevails in a Title VII suit is

subject to a statutory cap on her damages award. Specifically, a prevailing plaintiff

may only recover $50,000 total in punitive damages and compensatory damages that

fall under 42 U.S.C. § 1981a(b)(3) from employers of more than fourteen and less

than 101 employees. 42 U.S.C. § 1981a(b)(3). To recover punitive damages, the

plaintiff must show that the defendant acted “with malice or with reckless

indifference to the federally protected rights of” the plaintiff. 42 U.S.C. §

1981a(b)(1). In the instant action, the parties agree that Ross had between fourteen

and 101 employees, and therefore Hathaway is subject to the $50,000 damages cap. 

The jury in this case awarded a total of $170,000 to Hathaway in compensatory
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damages, which was allocated as follows: Emotional Pain ($10,000), Suffering

($10,000), Inconvenience ($35,000), Mental Anguish ($10,000), Loss of Enjoyment

of Life ($35,000), and Past Monetary Losses, including medical bills and real estate

losses ($70,000). The jury also awarded Hathaway $700,000 in punitive damages. 

Of the total award of $170,000 in compensatory damages, only the $70,000 award

for Past Monetary Losses is not subject to the damages cap. Thus, Hathaway may

recover this entire $70,000 award. The remaining $100,000 in compensatory

damages and $700,000 in punitive damages, totaling $800,000, awarded by the jury

is subject to the $50,000 damages cap. Therefore, Hathaway is entitled to $50,000

of the $800,000 award. 

Hathaway requests that the $50,000 award be considered to be punitive

damages rather than compensatory damages, and Ross does not object to this. 

(Resp. 20); see also Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004)(stating that

42 U.S.C. § 1981a(b)(3) “does not prescribe a method for making this adjustment

and we have upheld a decision that took the entire cut out of the award of punitive

damages and another that took the entire cut out of the award of compensatory

damages”). 

Although Ross agrees that Hathaway may take her entire $50,000 award as

punitive damages instead of compensatory damages, Ross, however, argues that

Hathaway should not be entitled to recover any punitive damages because the

verdict form regarding the issue of punitive damages did not specifically contain a
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question asking whether the jury found that Ross acted maliciously or with reckless

indifference. Ross’ argument is without merit. The court properly instructed the

jury both orally and in writing on what Hathaway needed to show to recover

punitive damages, and Ross accepted both the jury instructions and the verdict form

after a conference with the court. See Pals v. Schepel Buick & GMC Truck, Inc., 220

F.3d 495, 500 (7th Cir. 2000)(holding in regard to jury instructions that “[w]hen

lawyers fail to draw the court's attention to a preventable problem, they must bear

the consequences of forfeiture”). Ross has not cited any controlling precedent that

holds that a verdict form must specifically ask whether the jury finds that the

defendant acted maliciously or with reckless indifference. Therefore, we award

Hathaway $50,000 in punitive damages, and $70,000 in compensatory damages that

do not fall under the statutory cap as discussed above. 

II. Back Pay Damages

Hathaway has requested an award of back pay in the amount of $186,689.91. 

The Seventh Circuit has stated that a “district court has broad equitable discretion to

fashion back pay awards to make the Title VII victim whole [and that] [o]nce the

district court [finds] unlawful discrimination in violation of Title VII, there [is] a

strong presumption that [a plaintiff is] entitled to a back pay award on the basis of

what she would have earned absent the discrimination.” E.E.O.C. v. Ilona of

Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1997). The Seventh Circuit has also
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made it clear that “the plaintiff has the burden of proving the damages caused [to]

her [and that such damages should be] determined by ‘measuring the difference

between actual earnings for the period and those which she would have earned

absent the discrimination by defendant.’” Horn v. Duke Homes, 755 F.2d 599, 606

(7th Cir. 1985)(quoting Taylor v. Philips Indus., Inc., 593 F.2d 783, 786 (7th Cir.

1979)).

Hathaway argues that her back pay award should be based on her 2000

earnings that she earned while working for Ross, rather than her more recent 2001 or

2002 earnings from Ross. Hathaway also argues that her earnings would have

continued to grow over time, and that her back pay should not be lowered by the

unemployment benefits she received or the period of unpaid maternity leave she

would have taken if she had been employed by Ross. In determining the proper

award of back pay, a court must make sure that any award is not speculative and

does not put the plaintiff in a better position than she was before her termination. 

See Ilona., 108 F.3d at 1580 (quoting United States v. City of Chicago, 853 F.2d

572, 575 (7th Cir. 1988) for the idea that “[t]he court must ‘do its best to recreate the

conditions and relationships that would have existed if the unlawful discrimination

had not occurred’”). In this case, we agree that the wages Hathaway earned in the

early months of 2002, before she was terminated in February, are not necessarily

indicative of what her salary would have been over the entire year. We also agree

that Hathaway provided evidence at trial showing that her 2001 wages also do not
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properly represent her salary at Ross because in 2001, Ross stopped doing the

extensive advertising that it had done in prior years. Therefore, we will base

Hathaway’s award of back pay on her 2000 salary, which was $49,653.00

Hathaway also states in her memorandum in support of her motion for

damages that “the Court may reasonably find that Plaintiff’s earnings would have

continued to grow had she not been terminated . . . .” (Mot. 4). The evidence at trial

showed that Hathaway’s salary increased each year from 1997 to 2000, and only

decreased in 2001, when Ross stopped advertising Hathaway’s services. Therefore,

we find that Hathaway has sufficiently established that her salary would have

increased annually during the period of time for which she is eligible for back pay. 

Thus, we apply a fifteen percent annual increase to Hathaway’s salary when

determining her back pay award.

Hathaway argues that “courts typically hold that back pay is not reduced by

unemployment.” (Rep. 15). The Seventh Circuit has stated that courts should not

provide a “ setoff of pension and unemployment benefits against Title VII and

ADEA back pay awards.” E.E.O.C. v. O'Grady, 857 F.2d 383, 390 (7th Cir. 1988). 

Deducting the unemployment benefits that Hathaway received from the amount of

back pay owed to her by Ross would only serve to provide Ross with a windfall in

exchange for its discriminatory actions. Accordingly, Hathaway’s award of back

pay is not offset by the unemployment benefits that she received after her

termination. 
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Ross argues that Hathaway’s back pay award should not include the ten weeks

that Hathaway would have been unavailable to work due to her pregnancy. 

However, Hathaway would have been eligible for six weeks of maternity leave and

had already accumulated two weeks of paid vacation time when she was terminated. 

In addition, Hathaway presented evidence at trial that showed that after her

termination, she was diagnosed with pre-eclampsia, a medical condition that can be

caused by stress. This condition required Hathaway to be on extra bed rest. 

Therefore, based upon the foregoing, we find that Hathaway’s award of back pay

should not be reduced by the ten weeks that Hathaway would have been unavailable

to work due to her pregnancy. We also find that any amounts that Hathaway earned

from other employment after her termination should be deducted from the award of

back pay to which Hathaway is entitled. See Horn, 755 F.2d at 606 (citing Taylor,

Inc., 593 F.2d at 786, for the idea that back pay is “determined by ‘measuring the

difference between actual earnings for the period and those which she would have

earned absent the discrimination by defendant’”). The amount of Hathaway’s

earnings from other employment until December 2003, when Ross ceased to operate

as a business, totals $18,514.00.

Ross raises three final arguments in regard to the issue of a back pay award. 

First, Ross argues that Hathaway’s award of back pay should be reduced due to

Hathaway’s failure to mitigate her damages. Ross admits in its response brief,

however, that Hathaway looked for similar employment for six to nine months
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before going to work for her mother, and that Hathaway posted her resume on

several job search web sites. (Resp. 9). In addition, Ross admits in its response

brief, in relation to an award of front pay, that Hathaway found “comparable

employment” by 2004. (Resp. 16). Therefore, we find that Ross has not shown that

Hathaway failed to mitigate her damages. 

Second, Ross argues that Hathaway is estopped from requesting different

amounts of back pay than she stated she was seeking in the pre-trial order in this

action. The pre-trial order in the instant action, however, was not signed by the

court. In addition, Hathaway is not materially changing her positions or arguments

in any way, such as if she was now seeking to recover a type of damages that she

never requested or was seeking to proceed on entirely new theories. Rather,

Hathaway has simply articulated the specific amount of damages that she believes

she is owed, and therefore Hathaway will not be precluded from requesting the

appropriate award of damages based on the evidence that was presented at trial.

Third, and finally, Ross argues that Hathaway should only be awarded back

pay up to December 31, 2003, when Ross claims it was closed for business. 

Hathaway argues that she should receive back pay up to the date of judgment

because Ross did not actually close on December 31, 2003. In support of this claim,

Hathaway points to the testimony of one former Ross employee who was hired by

the Liposuction Institute, where Doctor David Ross (“Dr. Ross”) is now employed. 

Hathaway also attached to her reply brief a printout of the Illinois Secretary of
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State’s web site, which shows that Ross is still a corporation in good standing in

Illinois. (Ex. J). The issue here, however, is not whether Ross is still an existing

corporation. Rather, the question is whether Hathaway can show that she reasonably

would have been employed by Ross past December 31, 2003. See Ilona, 108 F.3d at

1579 (stating that a plaintiff can recover “what she would have earned absent the

discrimination”). In the instant action, the evidence at trial showed that only one of

Ross’ nineteen employees moved to the Liposuction Institute with Dr. Ross. Ross’

office manager testified that at the end of 2003, she and two other employees were

the last Ross employees, and that their employment ended on December 31, 2003,

when Ross ceased to operate as a business. Therefore, we find that Hathaway has

not shown that, absent her termination, she would have been employed by Ross past

December 31, 2003, and, thus, Hathaway’s back pay award will be limited to the

period of time between her termination and December 31, 2003.

In conclusion, we find that Hathaway is entitled to an award of back pay

based on her 2000 salary of $49,653.00 plus an annual increase of fifteen percent,

calculated from the time of her termination in February 2002, to December 31, 2003. 

This comes to an award of $53,288.88 for the portion of 2002 after Hathaway’s

termination, and $65,666.09 for 2003, totaling an award of $118,954.97 in back pay. 

In addition, we find that Hathaway’s award of back pay should not be reduced by the

amounts she received from unemployment benefits or for the time she would have

been unavailable to work due to her pregnancy. We will, however, reduce the award
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of back pay by $18,514.00, which is the amount Hathaway earned from other

employment in 2003. Therefore, we award Hathaway a total of $100,440.97 in back

pay.

III. Fringe Benefits

Hathaway is seeking $186,689.91 in fringe benefits, based on a statement at

trial by Dr. Ross that her fringe benefits cost Ross as much as her salary. Hathaway,

as the plaintiff, has the burden of showing her damages and has failed to attach any

support for her claim regarding fringe benefits. In addition, a plaintiff can only

recover for fringe benefits that she replaces on her own. See Syvock v. Milwaukee

Boiler Mfg. Co., Inc., 665 F.2d 149, 161 (7th Cir. 1981)(affirming a district court’s

decision to “refuse[] . . . to include lost health insurance benefits in [a damages]

award because [the plaintiff] had not purchased alternate coverage)(reversed on

other grounds in Coston v. Plitt Theatres, Inc., 860 F.2d 834 (7th Cir. 1988)).

Hathaway has not shown that she replaced any of the fringe benefits that she may

have received from Ross, except for the $1,238.97 in insurance costs that she

discusses in the pre-trial order, which Ross does not object to her recovering. (Resp.

12). Finally, we note that we have already compensated Hathaway in our award of

back pay for the time that she would have been on maternity leave or otherwise

unavailable to work due to her pregnancy, including the paid vacation time that she

lost. Therefore, we award Hathaway $1,238.97 in fringe benefits.
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IV. Pre-Judgment Interest

Hathaway is seeking pre-judgment interest on her back pay award. Ross cites

Reich v. Sea Sprite Boat Co., Inc., 64 F.3d 332, 333 (7th Cir 1995), for the idea that

punitive damages “sometimes serve[] in lieu of prejudgment interest on the

compensatory portion of the award.” Reich., 64 F.3d at 333. The Seventh Circuit

has also stated, however, that “[i]f a district court does have discretion in whether to

grant or deny prejudgment interest, that discretion is very limited [and] ‘that

prejudgment interest should be presumptively available to victims of federal law

violation.’” Hutchison v. Amateur Electronic Supply, Inc., 42 F.3d 1037, 1046 (7th

Cir. 1994)(quoting Gorenstein Enterprises v. Quality Care-USA, 874 F.2d 431, 436

(7th Cir. 1989)). 

The Seventh Circuit has stated that “‘district judges [should] use the prime

rate for fixing prejudgment interest where there is no statutory interest rate.’” See 

Fritcher v. Health Care Service Corp., 301 F.3d 811, 820 (7th Cir. 2002)(quoting

Gorenstein Enterprises, 874 F.2d at 436). Hathaway has requested in her motion for

damages an amount of pre-judgment interest, which is calculated at a rate of 8.59

percent. In support of her request, Hathaway has submitted information which

reflects that the average prime rate from 2002 through March 2006, was 5.78

percent. (H Ex. E). The court finds that an interest rate of 5.78 percent based on the

average prime rate is appropriate and reasonable for pre-judgment interest. 

Therefore, we award Hathaway pre-judgment interest of $5,805.49, calculated at a
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5.78 percent, on her back pay award of $100,440.97. 

V. Front Pay

 Finally, Hathaway is seeking “at least $600,000" in front pay or, in the

alternative, $295,361.18 in “future wage loss” damages. (Mot. 8-9). The Seventh

Circuit has held that a plaintiff may recover front pay damages in Title VII cases

“when reinstatement is not available or not advisable because of workplace

incompatibility.” Shick v. Illinois Dept. of Human Serv., 307 F.3d 605, 614 (7th Cir.

2002). An award of front pay is intended “to compensate discrimination victims for

the reasonable time it would take to find comparable employment elsewhere.” Id.

However, an award of front pay is not automatic, and “ is only designed to

compensate a plaintiff from the lost earnings from his old job for as long as he ‘may

have been expected to hold it.’” Id. 

In the instant action, Hathaway is seeking front pay for ten years, beginning in

2006. However, as discussed above, Hathaway has not shown that she could have

reasonably expected to be employed by Ross past December 31, 2003. Hathaway

has also provided evidence to the court showing that she has been employed since

2003, earning amounts that are comparable to her salary at Ross. (Ex. C). 

Therefore, we find that Hathaway is not entitled to an award of front pay. 

Hathaway also requests, in the alternative, “future wage loss” damages, which

she distinguishes from front pay damages. (Mot. 8-9). Hathaway appears to
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calculate her request for future wage loss damages by computing the difference

between her earnings after she was terminated and the earnings she claims she would

have earned if she had not been terminated by Ross. Hathaway’s wage loss damages

calculation, however, is how front pay damages are properly calculated in any case,

and, for the reasons that we stated above, we deny Hathaway’s request for future

wage loss damages. 

VI. Motion to Strike

Ross has filed a motion to strike Hathaway’s exhibits J and K, as well as

sections III.B and IV of Hathaway’s reply memorandum. Because the documents

and the arguments contained in sections III.B and IV did not affect the outcome of

this opinion, we deny Ross’ motion to strike as moot. 

CONCLUSION

Based on the foregoing analysis, we grant in part and deny in part Hathaway’s

motion for damages. Specifically, we grant Hathaway $100,440.97 in back pay, plus 

$5,805.49 in pre-judgment interest and $1,238.97 in fringe benefits. Judgment is

entered in favor of Plaintiff Hathaway and against Defendant Ross by the court in

the amount of $107,484.43 for back pay, including pre-judgment interest on back

pay and fringe benefits. Hathaway is also entitled to $70,000 in compensatory

damages that was awarded by the jury and not subject to the damages cap, and
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$50,000 that was awarded by the jury under the damages cap, which we considered

as punitive damages based on the agreement of the parties. Judgment is entered in

favor of Plaintiff Hathaway and against Defendant Ross as reflected by the jury’s

verdict in the amount of $120,000 for compensatory and punitive damages. The

total amount of damages that Hathaway was awarded by both the jury and the court

is $227,484.43.

__________________________________

Samuel Der-Yeghiayan

United States District Court Judge

Dated: June 6, 2006