VIII. REMEDIES:
A. Back Pay and Back Deferred Compensation:
113. The parties have stipulated to a number of facts with respect to back pay and deferred compensation. (Stip. Nos. 35-46, 60, 76). The key facts include these:
35. The City's administration of its pay plan is governed . . . by the Supervisory, Professional and Management (SPM) Rules and Regulations for employees not within a bargaining unit.
. . .
37. The Recreation Supervisor position is in the SPM group.
. . .
39. All City employees are eligible to contribute up to $7,500 of their annual base salary to the City's deferred compensation program. For SPM employees who defer compensation, the City contributes a sum equal to that contributed by the employee except that the City's contribution may not exceed three percent (3%) of the employee's annual base salary.
. . .
43. To determine the applicable salary for a City position, reference must be made to the Salary Schedule covering the dates in question for the particular . . . SPM employees. Within the pay range there are graduated pay increases (Step 1 through Step 5). The beginning rate for a new employee is normally the lowest step in the established pay range for the classification. In unusual situations, a pay rate above the minimum rate may be authorized to: (1) meet difficult recruiting problems or to obtain a person with markedly superior qualifications; (2) correct salary inequities or give credit for prior service, or (3) recognize outstanding performance.
44. After appointment or promotion a City employee is eligible for a pay increase to the step pay rate midway between his or her entrance rate and the next higher step pay rate at the end of six month's satisfactory service. Upon completion of twelve months service the employee is eligible for a pay increase to the next higher step pay rate.
45. The date of the twelve month step pay increase constitutes the employee's anniversary date and he or she is eligible for one-step increases annually on this anniversary date until he or she reaches the top step of the pay range.
(Stip. Nos. 35, 37, 39, 43-45).
114. The Recreation Supervisor position, although it had higher pay and greater responsibilities than other positions in the department, was not part of a promotional ladder. Thus, if a current employee was hired into the position, it was an "appointment" and not a "promotion." (Stip. No. 14; Tr. at 210-12).
115. The complainant had "markedly superior qualifications" for this position. She had prior service in the Recreation Supervisor position. Her evaluations reflected her consistently outstanding performance. See Findings of Fact Nos. 77, 86, 97. Under these conditions, it is more likely than not that, in a nondiscriminatory process, Complainant Whaley would have been hired into the Recreation Supervisor position at step 2. (Stip. No. 43).
116. The parties stipulated that:
If the Complainant had been appointed to the Recreation Supervisor position on January 11, 1988, she would have earned through the close of 1993 additional salary and longevity pay of . . . $18,789.72 if she had commenced the position at Step 2 of the Salary Schedule.
(Stip. No. 76-Chart 3). Therefore, Complainant is due $18,789.72 in back pay exclusive of deferred compensation and interest through the close of 1993.
117. Complainant contributed to deferred compensation at the rate of 3% of her salary. (Tr. at 104-05). However, since she has not been an SPM employee, she received no matching funds. She would have received such matching fund contributions from the city, for amounts deferred up to 3% of her annual base salary if she had been hired into the Recreation Supervisor position. (Stip. No. 37, 39, 60; Tr. at 104).
118. The amount due Complainant Whaley in matching deferred compensation funds for the years 1988 to 1993 inclusive may be determined by (a) adding the stipulated earnings for the Recreation Supervisor commencing at step 2 for those years; and (b) multiplying that sum by three per cent (3%).
119. These stipulated earnings are:
Year Earnings of Recreation Supervisor Commencing At Step 2 1988 $24,605.71 1989 $27,399.98 1990 $29,897.79 1991 $32,599.85 1992 $34,138.13 1993 $35,450.10 Total $184,091.56 earnings of Recreation Supervisor Commencing at Step 2 for the years 1988-1993.
(Stip. No. 76-Chart 1).
120. The amount due Complainant Whaley in matching deferred compensation for the years 1989-1993 inclusive is equal to three per cent of $184,091.56, which is $5522.75.
121. Complainant Whaley is also due back pay for the year 1994. This amount shall be calculated by deducting Whaley's actual earnings from the amount she would have received in 1994 if she had been appointed to the Recreation Supervisor position at step 2 on January 11, 1988.
122. If Complainant Whaley continued to defer pay under the deferred compensation program in 1994, she shall also be provided matching funds for all amounts deferred up to 3% of what her base salary would have been if appointed to the Recreation Supervisor position at step 2 on January 11, 1988.
123. Complainant Whaley should also receive interest on her back pay and deferred compensation amounts to compensate her for the lost value of the use of the money awarded.
B. Front Pay and Front Deferred Compensation:
124. As long as her pay is less than what it would have been if hired as a Recreation Supervisor, Complainant Whaley shall be paid at a rate equal to what she would have been paid if appointed to the Recreation Supervisor position at step 2 on January 11, 1988.
125. Throughout the remainder of her employment with the City, provided that Complainant Whaley is deferring compensation, she shall receive matching deferred compensation from the City in an amount up to the maximum then provided for incumbents in the Recreation Supervisor position or the amount provided to incumbents in her position, whichever is the greater.
C. Emotional Distress Damages:
126. Complainant Whaley suffered substantial and serious emotional distress because of the discrimination inflicted on her by the Respondent. Her reactions included the following forms of distress: disbelief, extreme disappointment, frustration, embarrassment, and anger over the blatant sex discrimination she was confronted with. (Tr. at 73, 106-08).
127. The memory of these events will be with her forever. Complainant Whaley credibly testified:
I will never forget the words. . . . [I]t's kind of like the thing with Kennedy when he got shot. Everybody says do you know where you were when Kennedy got shot. That's the one thing that stuck in my mind, ["]a strong male supervisor["]. I'll never forget those words, and I'll never forget looking at him when he said it to me.
(Tr. at 108-09).
128. Complainant Whaley had been "extremely excited" about the challenge of moving on the Recreation Supervisor position. "This was the job I had wanted, and it was finally open." (Tr. at 105). Her initial reaction was anger and frustration over not being able to have the job because she was female. (Tr. at 73, 106). She was so embarrassed over not having been given the job that she didn't go to the central office for several days because she didn't want to face her coworkers. (Tr. at 106-07).
129. For several months, Whaley couldn't help but to continue to think about the situation. (Tr. at 106-08). "It just eats at you, more than anything." (Tr. at 106-07). She would think about this while she was driving down the street or when she was working. (Tr. at 107-08). She credibly testified:
I would lay awake at night. At first, I couldn't even go to sleep because you just play this thing over and over again. . . [W]hen you're in bed, that's all you're thinking about. When you wake up in the morning, that's all you're thinking about. It got worse after they hired Jack Carey. Not that he's a bad person, but every time I saw him I would start thinking about it all over again.
(Tr. at 107-08).
130. Whaley not only lost sleep, but also cried out of frustration and anger over the situation. (Tr. at 73, 108). She met with John Delorenzo, Parks and Recreation Department Director, because she needed to find out whether she had any future with the City or whether she should go back to teaching. (Tr. at 73-74).
131. Complainant Whaley also suffered a substantial loss of income due to the sex discrimination in this case. It can be and is reasonably inferred that such loss of income would cause emotional distress. See Findings of Facts Nos. 116, 120. See Conclusion of Law No. 77.
132. Given the duration and severity of the emotional distress suffered by Complainant Whaley due to discrimination, an award of ten thousand dollars ($10,000) would be full, reasonable, and appropriate compensation for the distress.