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GALLO v. JOHN POWELL CHEVROLET

December 10, 1991

CAROL GALLO, PLAINTIFF,
v.
JOHN POWELL CHEVROLET, INC., DEFENDANT.



The opinion of the court was delivered by: McCLURE, District Judge.

    MEMORANDUM

BACKGROUND

Plaintiff Carol Gallo filed this Title VII action*fn1 against her former employer, John Powell Chevrolet ("John Powell" or "the dealership"), alleging that she was terminated from her position as an automobile salesperson on June 23, 1988 due to her gender and to her pregnancy in violation of Title VII and the Pennsylvania Human Relations Act ("PHRA").*fn2 She seeks injunctive relief, back pay, punitive damages, attorney's fees and costs. (Plaintiff's complaint, filed May 18, 1990).

Following the first phase of the bifurcated trial, we entered a memorandum and order (Record Document No. 38, filed May 24, 1991) finding in plaintiff's favor on liability. 765 F. Supp. 198. We found that John Powell had violated Title VII and the PHRA in discharging Gallo. Trial of the damage issues was held July 2, 1991.

FINDINGS OF FACT

Based on the testimony and exhibits presented at trial, as well as certain stipulated facts, the court makes the following findings of fact:*fn3

Lost earnings and benefits

Gallo worked as an automobile salesperson at John Powell from May 4, 1987 to June 23, 1988, the date of her termination. She was compensated solely on a commission basis and received a percentage of the profit for each vehicle which she sold. During the approximately thirteen months she was employed at John Powell, she earned commissions*fn4 totalling $22,552.21, calculated to an average weekly wage of $357.54 before deductions.

As part of her compensation, Gallo also received benefits in the form of (1) the use of a demonstrator vehicle for her business and personal transportation needs; and (2) Blue Cross/Blue Shield "Plan C" and major medical health insurance coverage. During periods when she was unable to work due to a medical disability, she was entitled to receive a disability benefit of $56.00 per week. (After she left John Powell's employ, this benefit was increased to $100.00 per week.)

Gallo is entitled to back pay from the date of her termination, June 23, 1988, to the date judgment is entered in her favor (the "calculation period").

Calculation of Gallo's back pay award involves more than a straight-line projection of her prior earnings over the three years following her termination.

The earnings of automobile salespersons are affected not only by their individual selling abilities, but also by the economy, the price of vehicles and other extraneous factors beyond the salesperson's control.

Gallo was a competent and aggressive salesperson who, throughout most of her employment at the dealership, earned commissions commensurate with those earned by other John Powell salespersons of comparable experience and ability. Had Gallo continued working at the dealership, she would have continued to perform in a manner commensurate with her prior performance and would have earned commissions approximating those earned by other full-time salespersons with comparable experience.

Only two salespersons have remained full-time employees of the dealership throughout the calculation period, Dave Johnson and Chet Schick. Their earnings over the calculation period, when calculated as a percentage of their earnings during the "base year" (June 1987-June 1988, when Gallo was employed at the dealership) offer the fairest method of projecting the commissions Gallo would have earned had she continued working. The court has determined Schick's and Johnson's combined average earnings, reflected as a percentage of their base year (6/16/87 to 6/15/88) earnings, to be 114.5% of the base year for June 16, 1988 to June 15, 1989, 152% of the base year for June 16, 1989 to June 15, 1990, and 95.5% of the base year for June 16, 1990 to June 15, 1991.

As part of her back pay award, Gallo is also entitled to recover the value of the benefits she would have received as a John Powell employee. She is entitled to recover the cost of obtaining comparable health insurance coverage over the calculation period, a total of $4,389.00.*fn5

She is also entitled to recover the cost of obtaining the use of a vehicle comparable to the demonstrators she was typically assigned. Reasonable compensation for the loss of the demonstrator is the expense Gallo would have incurred had she attempted to rent a comparable vehicle. Gallo was typically assigned a new vehicle with an average retail price between $18,000 and $20,000, although she was sometimes assigned used vehicles with a lesser retail value. The fairest measure of the compensation due Gallo for loss of the use of a vehicle is the cost of leasing a comparable vehicle. A general rule of reference in the automobile leasing business is that the monthly cost of leasing a vehicle is twice its retail value divided by 100. When we reduce the average value of the demonstrator vehicles assigned to Gallo to $15,000.00 to reflect the fact that she was sometimes assigned used demonstrators, and apply the formula stated above, we find that Gallo is entitled to recover $300.00 per month, or a total of $11,100.00 ($300.00 x 37 months*fn6 = $11,100.00) for loss of use of a demonstrator. Gallo would not have been entitled to a demonstrator during the eighteen weeks she would have been on maternity leave, and we have reduced the calculation period to reflect that fact.

Had her employment not been terminated, Gallo would have received a disability benefit of $56.00 per week during the ten weeks maternity leave she would have taken for the birth of her daughter, Ashley, born August 26, 1988 (a total of $560.00) and a disability benefit of $100.00 per week during the eight weeks (a total of $800.00) maternity leave she would have taken for the birth of her daughter, Tarel, born July 7, 1990.

Gallo is entitled to a gross back pay award of $92,347.13 inclusive of all fringe benefits and disability payments but exclusive of pre-judgment and post-judgment interest, both of which will be reflected in the final judgment. Her total back pay award, exclusive of interest, and before deductions, is calculated as follows:

    PROJECTED LOST COMMISSIONS                 $75,498.13
     ADDITIONS
      Disability pay for birth of Ashley           560.00
      Disability pay for birth of Tarel            800.00
      Blue Cross/Blue Shield and Major Medical
       coverage — premium cost                   4,389.00
      Use of demonstrator vehicle               11,100.00
                                               ----------
    GROSS BACK PAY AWARD                       $92,347.13

Deductions from back pay

Gallo would not have earned any commissions during the ten week maternity leave she would have taken in August-September, 1988 or during the eight-week leave she would have taken in June-July, 1990.

From July 2, 1988 through January 21, 1989, Gallo collected Pennsylvania unemployment compensation benefits of $252.00 per week, totalling $6,253.50. Following her employment at Shirn's, Gallo collected Pennsylvania unemployment benefits of $196.50 per week, totalling $4,912.50.

During the month she was employed at Shirn's, Gallo earned commissions totalling $690.00.

Gallo's back pay award will be reduced by the projected commissions she would not have earned while she was on maternity leave, and by her earnings from Shirn's. Gallo's back pay award will not be reduced by the unemployment compensation benefits she received. Her net back pay award is calculated as follows:

    GROSS BACK PAY AWARD                      $92,347.13
    DEDUCTIONS
     Earnings at Shirn's           $690.00
      1988 maternity leave         4,093.80
        (10 weeks x $409.38 per
      week) 1990 maternity leave   2,731.52
                                  ---------
        (8 weeks x $341.44 per
      week)
      TOTAL DEDUCTIONS                        - 7,515.32
                                                --------
    NET BACK PAY AWARD                       $84,831.81

The final judgment will include additional back pay from the date of this order to the date of final judgment calculated at the rate of $416.45 per week. This is based on the most recent projected earnings of $341.45 per week plus $75.00 per week for lost use of a demonstrator vehicle.

Attempts to secure other employment

Gallo made reasonable and diligent attempts to secure other employment during the three years following her termination from John Powell. She sent resumes [P-69]*fn7 and employment applications to prospective employers, contacted local employment offices about possible job openings, monitored notices of job openings posted at employment offices, periodically checked "help wanted" advertisements in local newspapers, and consulted friends and family about possible job openings. She has concentrated her efforts on applying for retail sales positions, since nearly all of her work experience lies in that field, although she has applied for other positions as well.

Due to circumstances beyond her control, Gallo has been unable to secure lasting employment in the three years since her termination.

She was successful in obtaining only one job, which lasted just four weeks. She was hired as an automobile salesperson in March, 1989 by a local dealership, Shirn's Auto Mart ("Shirn's"). Due to conditions for which she cannot be faulted, her sales performance was not good, and her employment was terminated there for that reason. Shirn's hired several other sales-persons at or about the same time Gallo was hired, and the others were likewise terminated either the same day or next day after she was terminated.

Gallo has been involved in only one other endeavor to earn money since her termination. In the spring/summer of 1989, she attempted to start a business of her own, an errand service for shut-ins. She advertised this service in a local newspaper [P-70], but the results were disappointing. She received only one or two responses, and found that it was not economically profitable to run errands for a single customer. Because of the apparent lack of interest in the service she proposed to offer, she abandoned the idea of pursuing this as a business enterprise.

Reinstatement and expungement

There are no impediments to Gallo's return to her former position. She has expressed a sincere willingness to return to John Powell's employ and demonstrated while she was there that she is able to perform the job competently and conscientiously even in the face of hostility from her colleagues.

Emotional distress and egregious conduct by employer

Gallo was humiliated in front of the other salespersons and told outright by her supervisor, William Struncis, that her pregnancy was the reason for her termination, and that she was "fat" and "waddled" across the showroom floor.

Gallo is entitled to the sum of $500.00 as compensation for her mental anguish and emotional distress caused by her termination and the events leading up to it.

Struncis' conduct toward Gallo, although insensitive at times, was not outrageous or carried out because of an evil motive or reckless indifference on his part to her rights.

DISCUSSION

Back pay ...


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