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United States District Court, E.D. Pennsylvania

February 6, 2004.


The opinion of the court was delivered by: JACOB HART, Magistrate Judge


After an eight day trial in this Title VII/ยง 1983 case, the jury returned a verdict for the Plaintiff against the City of Philadelphia, John Timoney, JohnNorris, Thomas Healey, and Joseph Sweeney. Although the jury did not find the Defendants liable for racial discrimination, they did find that the Plaintiff's civil rights had been violated. The jury awarded the Plaintiff a total of $430,000, including minimal punitive damages against each of the individual defendants and $105,000 for front pay. Thereafter, the Court requested counsel to brief the feasibility of reinstatement in lieu of the front pay award, the Defendants filed a motion for judgment as a matter of law, or in the alternative, a motion for a new trial. The Plaintiffs filed a motion to mold the verdict and for attorneys's fees.

Before issuing an opinion on the post-verdict motions, the court conducted a settlement conference and the parties came to an agreement. Pursuant to the agreement, the City agreed to pay Mr. DeVore $400,000, vest him in his pension, and provide the contributions to the pension plan that it would have made had Mr. DeVore not been terminated. In addition, the City agreed that within 30 days of the settlement, they would expunge Mr. DeVore's record and refer to him as retired from the Police Department. Thus, on June 25, 2003, the Court entered an Order dismissing the case, while retaining jurisdiction to resolve any issues arising under the settlement agreement.

  Last month we were advised that the City had not abided by all the conditions of the settlement agreement. Although the City timely paid Mr. DeVore the $400,000, it failed to comply with other provisions in the agreement, including expunging his record and vesting him in his pension. As a result of the City's failure to abide by the agreement to expunge his records, the Plaintiff now claims that he was recently denied a position with the Pennsylvania State Police.

  Upon learning of the violation of the settlement agreement, the Court scheduled a conference. After reviewing the settlement agreement entered into by the parties, we concluded that the only options the Court had were to enforce the agreement or vacate the agreement and restore the case to its posture prior to the Court's dismissal. Thus, the verdict would be reinstated and the Court would issue its rulings on the post-verdict motions.

  During a conference last week, the City admitted that it failed to comply with all of the terms of the settlement agreement, but denied that its failure to expunge Mr. DeVore's employment record caused the Pennsylvania State Police to reject him. During the conference, the City suggested the possibility of reinstating Mr. DeVore as a Philadelphia police officer, an idea they had opposed at the time the post-verdict motions were filed. Mr. DeVore stated that he would be satisfied with reinstatement and would not, in such event, pursue the City for additional damages resulting from the breached settlement agreement. Based on the assumption that the City would, in fact, reinstate Mr. DeVore, we did not vacate the settlement, but rather issued an order enforcing it.

  Now, the City has informed the Court it will not reinstate Mr. DeVore. Since it is admitted that the original settlement agreement was breached, the Plaintiff must now be permitted the option of keeping our enforcement Order intact or obtaining a new Order vacating the settlement agreement in its entirety. If the enforcement Order stands, the Plaintiff would, of course, retain the right to file suit against the City for breach of the settlement agreement in either the state court or the federal court, if federal jurisdiction could be proven. If we vacate the settlement agreement, the jury's verdict will be reinstated, and the court will issue its rulings on the post-verdict motions, molding the verdict, considering the issue of attorneys' fees, and deciding the issue of reinstatement in lieu of the jury's front pay award. Mr. DeVore shall have ten days in which to inform the Court if he wishes us to enforce the settlement agreement, thus preserving his rights to file a separate damages suit for breach, or if he wishes the Court to declare the settlement void, as set forth in the Settlement Agreement. If he chooses the later, we will reinstate the jury's verdict and issue our rulings on the post-verdict motions.


  AND NOW, this 6th day of February, 2004, upon consideration of the Defendants' breach of the settlement agreement, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Plaintiff shall have ten days from date this Memorandum and Order is entered to inform the Court in writing whether he wishes the Court to continue its Order enforcing the settlement agreement, or vacate the settlement, thus reinstating the jury's verdict to be molded by the Court's decisions on the post-verdict motions.


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