The opinion of the court was delivered by: PATEL
These consolidated actions alleging constitutional and statutory violations arising from racial discrimination and harassment in employment practices were settled pursuant to a Consent Decree filed May 20, 1988. The matter is now before the court on plaintiff-intervenors' motion to establish the appropriate interest rate on certain backpay awarded pursuant to the consent decree and on defendant's motion to strike the declaration of William McNeill.
Having considered the papers submitted and the arguments of the parties, for the following reasons, the court grants plaintiff-intervenors' motion and grants, in part, defendant's motion to strike.
These consolidated employment discrimination actions were brought by the United States and various individuals and organizations ("plaintiff-intervenors") against the City and County of San Francisco ("the City") in 1984 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6701 et seq. (repealed 1986). As consolidated, the claims in these actions focused on the City's use of invalid hiring and promotional procedures that had an adverse impact on women and minorities. Certain claims also alleged racial harassment of minority firefighters. All claims were settled as between the City and the plaintiff and plaintiff-intervenors pursuant to a consent decree filed May 20, 1988. United States v. City and County of San Francisco, 696 F. Supp. 1287, 1312 (N.D. Cal. 1988), aff'd as modified by Davis v. City and County of San Francisco, 890 F.2d 1438 (9th Cir. 1989), petition for cert. filed, No. 90-248 (1990) (" Davis III ").
Paragraph 11. (a) of the Consent Decree provides for backpay plus interest for six Black lieutenants as follows:
The Fire Department shall immediately appoint Robert Demmons, Audry Lee, Jimmie Braden, Worthy Brooks, Tyrone Rockett, and Bernie Wangara to the position of permanent fire lieutenant with a retroactive date of appointment of March 9, 1979, and award them backpay from that date, taking into account the applicable base rates of pay for fire lieutenant and their actual regular earnings (not including overtime) plus interest since that date.
Davis III, 696 F. Supp. at 1314.
The City and plaintiff-intervenors agree on the specific amount of backpay due to each of the six individuals. Their dispute is confined to the method to be used to compute the interest on that backpay.
Plaintiff-intervenors propose adoption of the method employed by this court in Richardson v. Restaurant Marketing Associates, 527 F. Supp. 690 (N.D. Cal. 1981). In Richardson, this court held that, in order to accurately reflect ongoing economic changes, interest on backpay in Title VII cases "shall be calculated from the end of each calendar quarter, on the amount then due and owing, at 90% of the average prime rate [as obtained from the Federal Reserve Bank] for the year in which the calendar quarter occurs." Richardson, 527 F. Supp. at 698. In the intervening years, this court and courts elsewhere have followed Richardson. See, e.g., Priest v. Rotary, 634 F. Supp. 571, 585 (N.D. Cal. 1986); Fadhl v. Police Dept. of City and County of San Francisco, 553 F. Supp. 38, 45 (N.D. Cal. 1982), rev'd on other grounds, 741 F.2d 1163 (9th Cir. 1984), judgment aff'd, 859 F.2d 649 (9th Cir. 1988); Association Against Discrimination in Employment v. City of Bridgeport, 572 F. Supp. 494, 495 (D. Conn. 1983).
Against this decisional backdrop, the City urges adoption of either of two alternative measures. First, the City contends that interest should only be applied to that portion of backpay which one of the lieutenants could have invested in the marketplace, that is, interest should be applied only on the after-tax amount. The City suggests that a suitable backpay award for a particular year is determined by first deducting federal income taxes from the gross backpay owed, then applying the Richardson rate to the after-tax figure, and finally adding the result to the gross backpay award. To do otherwise, the City maintains, is to afford the lieutenants a windfall, since they would not have had the full untaxed sum for investment purposes had it been paid in the first instance.
The City provides no authority for its novel position, citing only cases standing for such general propositions as that interest on backpay is "an element of complete compensation," Loeffler v. Frank, 486 U.S. 549, 558, 100 L. Ed. 2d 549, 108 S. Ct. 1965 (quoting West Virginia v. United States, 479 U.S. 305, 310, 93 L. Ed. 2d 639, 107 S. Ct. 702 (1987)) and that backpay is not punitive in nature, Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir. 1971) cert. dismissed, 404 U.S. 1006, 92 S. Ct. 573, 30 L. Ed. 2d 655 (1971) and 404 U.S. 1007, 30 L. Ed. 2d 655, 92 S. Ct. 651 (1972). The City also submits the declaration of its expert, John Draper, who holds a Ph.D. in psychology, and who opines that, based on in his professional experience, the purposes of Title VII backpay awards would be best served by limiting interest to after-tax amounts. Draper Dec. at 2.
Although the precise issue of the propriety of deducting federal taxes from backpay figures before calculating interest payments is a matter of first impression in this circuit, the Fifth Circuit has reached a directly related issue. In Johnston v. Harris County Flood Control Dist., 869 F.2d 1565 (5th Cir. 1989), cert. denied, 493 U.S. 1019, 110 S. Ct. 718, 107 L. Ed. 2d 738 (1990), the court first noted that Title ...