This is an appeal by the defendants
The basic facts underlying this appeal are not in dispute. In 1971, the plaintiff was appointed director of planning and budgeting for the New Haven police
The city of New Haven operates on the basis of a civil service system. The city's charter and civil service rules and regulations establish specific, mandatory procedures for the hiring, promotion, or termination of municipal employees. The applicable civil service rules provide that openings in higher positions in the classified service of the city are to be filled, in the first instance, by promotion from lower classes on the basis of competitive tests, and then by administration of competitive exams to any qualified persons. Civil Service Rules and Regulations, Rule X.
Following the reorganization, Morrone, acting in violation of these regulations, filled the new directorships without the administration of competitive exams and without first making the positions available to employees already working in the civil service system. Morrone appointed the defendant Paul Guidone director of the planning unit and reassigned the plaintiff to the subordinate position of commander of planning.
On July 1, 1980, the New Haven board of finance eliminated the position of commander of planning and terminated the plaintiff's employment. Although the board claimed that the plaintiff was terminated for "budgetary reasons," the trial court found that "the elimination of the plaintiff's position for fiscal reasons was a subterfuge," designed solely to "get rid of the
On the basis of its conclusions that the plaintiff had been wrongfully denied the appointment as director of planning, and that the commander of planning position had been unlawfully eliminated, the trial court awarded the plaintiff $18,025 in compensatory damages. The court reached this figure by subtracting the plaintiff's earnings for the period from 1978 to 1982 from Guidone's salary for the same period. The trial court additionally found the defendants liable for exemplary damages "in an amount which will compensate [the plaintiff] to the extent of his expenses of litigation, including attorney's fees, less taxable costs."
The defendants have appealed the judgment, claiming that the trial court erred (1) in its computation and award of compensatory damages, and (2) in its conclusion that the plaintiff is entitled to exemplary damages. On the cross appeal, the plaintiff claims error in the trial court's refusal to order reinstatement. We find error on the appeal and affirm the judgment on the cross appeal.
We are mindful, in our analysis of the claims presented in this case, of the familiar principle that "[t]his court may reverse or modify the decision of the trial court [only] if the decision is clearly erroneous in view of the evidence and pleadings in the whole record." CEUI v. CSEA, 183 Conn. 235, 251, 439 A.2d 321 (1981).
The defendant's first claim, which questions the propriety of the compensatory award, must be analyzed in two parts: pretermination compensation and posttermination compensation. The trial court found that,
The civil service rules and regulations for the city of New Haven provide specific procedures to be followed in filling vacancies within the service: "Vacancies in higher positions in the classified service of the City shall as far as practicable be filled by promotion from lower classes upon the basis of competitive tests including a consideration of service ratings, provided that in case no persons in the classified service meet the necessary qualifications or it is deemed to the best interests of the City, the Civil Service Board may direct that such position be filled by competitive tests open to any qualified persons." Civil Service Rules and Regulations, Rule X. The appointments made during the Morrone reorganization violated the civil service rules because they occurred without administration of any competitive exams. They were declared null and void by this court in New Haven Police Local 530 v. Logue, 188 Conn. 290, 292-94, 449 A.2d 990 (1982). However, the trial court's conclusion that, but for the illegal appointment of Guidone, the plaintiff would have received the director's position is unsupported by the evidence.
The most that can be said of the plaintiff's status at the time of Guidone's appointment is that he was entitled to compete for the position of director against other similarly qualified candidates.
The purpose of compensatory damages is to restore an injured party to the position he or she would have been in if the wrong had not been committed. See 1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions (1985) § 3.00; McCormick, Damages (1935) § 137. We have concluded that, during the three years preceeding his termination, the plaintiff was not entitled, as a matter of right, to be appointed director of planning. He therefore suffered no compensable injury during those years, and the trial court's award of $8125 in back pay is clearly in error.
With regard to the period following the plaintiff's termination, the trial court found that the commander's position was eliminated solely to get rid of the plaintiff, and that the manner of termination violated civil service regulations. These conclusions are substantially supported by the evidence. In order to recover posttermination compensatory damages, however, the plaintiff must show, in addition to wrongful termination, that he sustained a specific, resulting injury. To determine whether the plaintiff has suffered any posttermination damages, we compare, on a year by year basis, the plaintiff's earnings prior to termination with the salary he received in subsequent employment. See Schlei & Grossman, Employment Discrimination Law (2d Ed. 1983) p. 1445; cf. Labor Board v. Seven-Up Co.,
After his termination in 1980, the plaintiff obtained employment with CETA. His final salary as commander of planning was $22,400, and it is from this figure that we measure any loss of earnings suffered in subsequent years. In 1981 he earned $22,000 with CETA. He therefore suffered a compensable loss of $400 in that year. In 1982 he received $24,000 from CETA. Since the plaintiff realized a gain in salary in 1982, he is entitled to no compensatory damages for that year.
The defendants' second claim is that the trial court erred in awarding the plaintiff exemplary damages. The defendants argue that the acts against the plaintiff do not rise to the level of "wilful and malicious" discrimination upon which an award of exemplary damages can be based, and that since the plaintiff offered no evidence of the cost of the litigation at trial, attorney's fees are not recoverable.
The rules in this state regarding the award of common law punitive damages are well established. "`Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.... If awarded, they are restricted to cost of litigation less taxable costs of the action being tried ....' Vandersluis v. Weil, 176 Conn. 353, 358-59, 407 A.2d 982 (1978)." Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982). "[T]he extent to which exemplary damages are to be awarded ordinarily rests in the discretion of the trier of the facts." Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 295, 472 A.2d 306 (1984).
The trial court, in its memorandum of decision, awarded the plaintiff exemplary damages "in an amount which will compensate him to the extent of his expenses of litigation, including attorney's fees, less taxable costs." At trial, the court took no evidence as to the actual costs of the litigation, and no post-trial hearing in damages was ever held. Consequently, the exact monetary cost of the litigation has never been determined. The defendants claim that, because the plaintiff offered no evidence of actual attorney's fees at trial, the award of exemplary damages must be reversed. While it concededly is true that "`[n]o award for an attorney's fee may be made when the evidence is insufficient'"; Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); it is equally clear that liability for attorney's fees can be placed in the absence of any evidence of the cost of the work performed. In this case the trial court found the defendants liable for exemplary damages based on sufficient evidence of discrimination. It merely failed to set the amount of the award. The proper remedy under these circumstances, and the one which we order, is that the case be remanded to the trial court for a hearing to determine the amount of exemplary damages awarded.
Lastly, we address the plaintiff's claim on the cross appeal that the trial court erred in refusing to order his reinstatement. Generally, where an employee has been unlawfully terminated from employment, the remedy of reinstatement is to be applied by the court whenever possible. A court is not, however, obligated to order reinstatement where the position from which the employee was terminated no longer exists. See Brown v. Colman-Cocker Co., 16 F.E.P. 1046, 1051 (W.D.N.C. 1975). Shortly after this court declared the Morrone appointments illegal and ordered the positions refilled in accordance with civil service regulations; see New Haven Police Local 530 v. Logue, supra; the police department was again reorganized under the direction of a newly appointed chief of police. Each position for which the plaintiff might otherwise be eligible by virtue of his civil service status now carries the additional requirement that applicants be presently sworn members of the police force. Since the plaintiff is not a sworn police officer, it would be futile for this court to order his reinstatement. We therefore affirm the trial court's finding on the cross appeal.
There is error in the trial court's determination that the plaintiff is entitled to $18,025 compensatory damages, the judgment ordering the defendants to pay this amount is set aside, and the case is remanded with direction to render judgment ordering the defendants to pay the plaintiff $400 compensatory damages; there is no error in the trial court's determination that the plaintiff is entitled to exemplary damages and the case is remanded for further proceedings to determine the amount of such damages; there is no error on the cross appeal.
In this opinion SHEA, DANNEHY and SPADA, JS., concurred. O'NEILL, J., concurred in the result.