Opinion
Case No. 97-4041-SAC.
March 14, 2002.
MEMORANDUM AND ORDER
This case comes before the court on plaintiff's motions to alter or amend judgment, defendant's motion for a stay pending expiration of its appeal time, defendant's motion to compel plaintiff's cooperation, and plaintiff's motion to enforce judgment of interest. The first two motions are premised upon this court's order dated January 29, 2002, in which the court ruled upon several motions to enforce judgment. In that order, the court modified its previous judgment of reinstatement, found that reinstatement was not a viable option, and ordered front pay as a necessary and appropriate substitute for reinstatement. (Dk. 211.) The third motion seeks an order compelling plaintiff to "cooperate with Defendant in calculating the appropriate amount of back pay due." (Dk. 220, p. 1.) The fourth motion seeks an order compelling defendant to pay post-judgment interest on plaintiff's compensatory damage award. (Dk. 222.)
Although the docket reflects two motions, (Dk. 215, 216) they are identical but for the fact that one was fax filed on February 8, 2002, and the other was a hard copy filed later.
I. PLAINTIFF'S MOTIONS TO ALTER OR AMEND (Dks. 215 216)
By these motions, plaintiff asks the court to increase her front pay award.
A. Power to Modify Final Order
Defendant raises a procedural challenge to the court's judgment which ordered front pay in lieu of reinstatement. The government contends that the court lacked power to sua sponte modify its previous order and judgment. Rule 60(b) says that a judge may vacate a judgment "on motion" for "any . . . reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). Although the rule does not say whether the motion must be by a party or can be sua sponte, the Tenth Circuit reads the rule as implicitly requiring a motion from the affected party. See Dow v. Baird, 389 F.2d 882, 884 (10th Cir. 1968) (noting that 60(b), unlike 60(a), does not say "by the court . . . of its own initiative.").
Most circuits interpret the rule differently. See Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347 (9th Cir. 1999); International Controls Corp. v. Vesco, 556 F.2d 665, 668 n. 2 (2d Cir. 1977); McDowell v. Celebrezze, 310 F.2d 43 (5th Cir. 1962); United States v. Jacobs, 298 F.2d 469, 472 (4th Cir. 1961).
This issue is purely academic. Even if Dow controlled the facts in this case and this court lacked power to sua sponte modify a final judgment on non-clerical grounds, this court did not act sua sponte in modifying its final order. Instead, as the government was aware, the plaintiff had filed several motions relating to the court's final judgment. Although the pro se plaintiff captioned those motions as "motions to enforce" the judgment, see Dks. 201, 202, 204, 208, 210, the court could not decide any of those motions without fully revisiting its final judgment and finding some practical way of moving the parties from their impasse about multiple issues relating to plaintiff's reinstatement and/or front pay. Thus the parties were on actual notice that the final judgment was at issue, and both parties had ample opportunity to fully address their concerns, which they did in multiple briefs.
Although neither party primarily sought front pay in lieu of reinstatement in those motions or responses, the issue of front pay was inseparable from the issue of reinstatement. Both parties knew that the court's initial order (Dk. 177) found that if an appropriate position for the plaintiff were not immediately available without displacing an incumbent employee, plaintiff was to be paid front pay until reinstatement occurred. Additionally, although plaintiff's primary focus in her motions to enforce judgment was on the terms and conditions of her reinstatement, plaintiff specifically requested front pay as one alternative to reinstatement. The court thus finds that it properly exercised its authority under the rules of civil procedure in modifying its judgment.
See e.g., (Dk. 204, p. 18) ("The Plaintiff respectfully requests the Court to issue an Order that the Plaintiff be reinstated or receive backpay and front pay as a full-time carrier employee . . .")
B. Propriety of Front Pay Award
Although Defendant faults the court for relying upon the parties' representations to the court about the hostile nature of the work relationship, and each party believes the other to be the primary cause of such animosity, both parties now agree on one matter: that reinstatement is not a viable option. See Dk. 219, p. 9 (defendant's concession that "plaintiff harbors a level of animosity and hostility that may prevent her from ever being a productive employee."); Dk. 216, p. 7 (plaintiff's assertion that her "future employment with the Defendant will only result in on-going retaliation and problems against her by the defendants.") Further, neither party has disputed the court's finding that for it to decide the multiple ministerial personnel issues which the parties had failed to resolve regarding plaintiff's reinstatement would require the court to hold a host of evidentiary hearings and to act as a super-personnel department throughout plaintiff's remaining years of employment with the defendant. Front pay in lieu of reinstatement is thus most appropriate. C. Amount of Front Pay Award
The government states, without citation to authority, that "the judgment should not have been modified without the Court's receipt of evidence to support the need for a modification." (Dk. 219, p. 5).
The court's order of front pay in lieu of reinstatement has the effect of barring plaintiff from attempting to seek other employment with Defendant.
Both parties dispute the amount of front pay. Plaintiff considers the amount of front pay to be too low, and defendant considers the amount of the award to be too high. The court believes it is just right Motions to alter or amend are an opportunity to correct manifest errors of law or fact, to hear newly discovered evidence or to consider a change in the law. Renfro v. City of Emporia, Kan., 732 F. Supp. 1116, 1117 (D.Kan. 1990), aff'd, 948 F.2d 1529 (10th Cir.) , cert. dismissed, 503 U.S. 915 (1992). "[A] party's failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion to amend." Paramount Pictures Corp. v. Video Broadcasting Sys., Inc., 1989 WL 159369, at *1 (D.Kan. Dec. 15, 1989).
Although defendant notes the propriety of offsetting "the amount it has already paid in front pay," it does not state what it believes that amount to be, does not allege that the amount is undisputed, and has not moved the court to alter or amend its ruling.
"`The mere fact that damages may be difficult of computation should not exonerate a wrongdoer from liability.'" Equal Employment Opportunity Commission v. Prudential Fed. Sav. and Loan Ass'n, 763 F.2d 1166, 1173 (10th Cir. 1985) (quoting Koyen v. Consolidated Edison Co., 560 F. Supp. 1161, 1169 (S.D.N.Y. 1983)). On the other hand, plaintiff cannot recover damages which were not proved at trial or would be disproportionate to the injury worked upon her by defendant.
Plaintiff's primary contention is that the court should have based its front pay award on the rate of pay post-trial briefs show she earned with the defendant during the short time she worked there in 2001-2002 in accordance with the court's order of reinstatement, instead of upon the amount proved at trial. The court is bound to calculate front pay based upon the evidence admitted at trial, where both parties had full opportunity to address the issue, rather than upon documents attached to post-trial motions. Plaintiff had ample opportunity at trial to present evidence relating to the amount of pay a part-time flexible career carrier would earn today or in the future, but failed to do so. The court could do no other than to base its calculations upon the only evidence of record relating to the issue.
Defendant contends that extending front pay for ten years is too long, and plaintiff contends ten years is too short. The court selected ten years based upon evidence reflecting plaintiff's date of birth, and then calculated a projected date of retirement as age 65. Although the court is unable to tell with certainty whether plaintiff would or would not have continued to work for Defendant until age 65, plaintiff's testimony at trial is sufficient evidence that she would have. Given plaintiff's age at the time of trial, it does not require unreasonable speculation to assume that she would have continued to work for the Defendant for ten more years, had she not been the victim of retaliation. See Wulf v. City of Wichita, 883 F.2d 842, 873-74 (10th Cir. 1989).
Although plaintiff now contends that she intended to work until age 70, and that 70 is the mandatory retirement age for postal workers, (Dk. 223, p. 16) no such evidence was presented at trial. Even if it had been, however, the court would not have extended plaintiff's front pay more than ten years.
An award of front pay, in lieu of reinstatement, is an equitable remedy, and the court has discretion to decide whether such an award is appropriate. See Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989). This court has wide discretion in fashioning remedies to make victims of discrimination whole. Sears v. Bennett, 645 F.2d 1365, 1378 (10th Cir. 1981); see also Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 230 (1982). The court has reexamined its assessment of front pay in light of all the arguments raised by the parties, including plaintiff's mitigation of damages, fringe benefits, step increases, and tax consequences, and reaffirms that regardless of the manner in which the computations were made, the total amount of front pay is appropriate. The court is fully convinced that any lesser amount would fail to adequately compensate plaintiff for the future effects of the retaliation she suffered by Defendant, but any greater amount would constitute a windfall to plaintiff at the expense of Defendant.
No evidence of the amounts of plaintiff's fringe benefits or step increases, or any evidence relative to tax consequences was introduced at trial.
II. DEFENDANT'S MOTION FOR STAY (Dk. 218)
Defendant has not represented that it intends to appeal, but seeks an order staying the operation and enforcement of the court's order and judgment regarding front pay for 60 days so that it will not need to pay the front pay judgment prior to the appeal date, preserving the status quo until then. The court has reviewed plaintiff's response and objection to the stay, but finds defendant's request to be reasonable and fair to both parties, and does not believe that plaintiff will suffer any undue hardship by virtue of the stay. Defendant's motion for a stay of execution until April 1, 2002 shall therefore be granted.
III. DEFENDANT'S MOTION TO COMPEL (Dk. 220)
By this motion, Defendant seeks to compel plaintiff to cooperate with it in calculating the appropriate amount of back pay due. (Dk. 220, p. 1.) Defendant contends that plaintiff refuses to fill out its Form 8038, which seeks information about plaintiff's other sources of income, and that it cannot calculate the appropriate amount of back pay without plaintiff's completion of such form. Plaintiff responds that she has in fact completed the requested Form 8038 not once, but twice. (Dk. 225). The court thus finds this motion to be moot.
This motion and its response serve as yet another example of the polarity of the parties which led the court to deem it necessary to alter its previous order of reinstatement and order front pay instead.
IV. PLAINTIFF'S MOTION TO ENFORCE JUDGMENT OF INTEREST ON COMPENSATORY DAMAGES (Dk. 222)
Plaintiff has filed a motion seeking to recover 10% interest on the $80,000 awarded as pain and suffering, which the defendant has recently paid. Plaintiff construes the court's original order and judgment (Dk. 179) as ordering defendant to pay this amount of interest on this award. Defendant has responded, (Dk. 224) stating its belief that the court awarded prejudgment interest on the back pay award, but no pre-judgment interest on the compensatory damage award.
Defendant is correct that the court's prior order awards prejudgment interest only on the back pay award. See Dk. 177, p. 15-16; Dk. 179. However, plaintiff's current motion is unambiguous in seeking to enforce the court's order of post-judgment interest, not pre-judgment interest. Defendant's response (Dk. 224) fails to address this issue in any manner.
The court's original judgment (Dk. 179) states that plaintiff is "to recover of the defendant her costs of action and any post-judgment interest as permitted by law." Defendant does not contend that post-judgment interest on this award is not permitted by law, and the court has found no cases so holding. Instead, post-judgment interest on a damages award against the Defendant is expressly permitted by law. See 42 U.S.C. § 2000e-16 (specifically making USPS subject to Title VII, and providing in subsection d: "the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties"); Loeffler v. Frank, 486 U.S. 549, 565, (1988) (general waiver of immunity granted through the sue-and-be-sued clause applies to all causes of action involving USPS, including those created by special statutory schemes such as Title VII, unless Congress specifically limits the general waiver); Sandia Oil Co., Inc. v. Beckton, 889 F.2d 258, 261 (10th Cir 1989) (rule that United States is generally immune from awards of interest on claims against it is inapplicable where interest awards are specifically provided for in statute); Milner v. Bolger, 546 F. Supp. 375 (E.D.Cal. 1982) (holding that the "sue and be sued" clause of Postal Reorganization Act constitutes a waiver of sovereign immunity as to USPS and that such waiver extends to interest on Title VII judgments). Accordingly, plaintiff is entitled to post-judgment interest on her compensatory damage award in accordance with the court's previous judgment.
The rate of prejudgment interest on a back pay award is a matter of the court's discretion. Kleier Advertising, Inc. v. Premier Pontiac, Inc., 921 F.2d 1036, 1042 (10th Cir. 1990) (" Because there is no federal statutory interest rate on prejudgment interest, the rate imposed will be left to the trial court's discretion.") In its discretion, the court established the rate of 10% per annum, which is the Kansas statutory rate, see K.S.A. § 16-201, § 16-204(e), for its award of prejudgment interest on plaintiff's back pay award. The rate of post-judgment interest on a damages award is not discretionary, however. Instead, the federal post-judgment rate is established by 28 U.S.C. § 1961, which adopts the weekly average 1-year constant maturity Treasury yield as of the week preceding the date of the judgment. That rate for the week preceding the date of the judgment was not 10%, but 2.95%.
The rate is obtained from the clerk's office. Interest is to be computed daily to the date of payment and shall be compounded annually. 28 U.S.C. § 1961(b).
The award of post-judgment interest "as permitted by law" (Dk. 179) was not limited to any particular category or amount of damages, but was applicable to both the compensatory and front pay awards. The award of post-judgment interest was made in accordance with law to provide an incentive for the defendant to pay plaintiff promptly or to pay more in the form of interest, and to compensate the plaintiff for the loss of use of her money over time. There was, in fact, considerable delay before plaintiff received her monetary award for non-economic damages. Plaintiff is entitled to post-judgment interest at the rate of 2.95% pursuant to 28 U.S.C. § 1961 from the date of judgment on her compensatory damage claim, September 14, 2001, until those damages were paid, February 15, 2002.
The court, both in its original judgment (Dk. 179) and in the court's subsequent order regarding front pay (Dk. 211) (which awarded post-judgment interest at the "statutory rate,") refers to the federal statutory rate determined by 28 U.S.C. § 1961, not to the Kansas interest rate.
See 28 U.S.C.A. § 1961 (providing that "interest shall be allowed on any money judgment in a civil case . . .).
This date is the date defendant placed plaintiff's compensatory damages check in the mail, and not the date plaintiff received such check. See 28 U.S.C. § 1961, requiring interest "to the date of payment," not to the date payment is received.
IT IS THEREFORE ORDERED that plaintiff's motions to alter and amend (Dks. 215, 216) are denied, and that Defendant's motion to stay operation or enforcement of amended judgment (Dk. 218) is granted.
IT IS FURTHER ORDERED that defendant's motion to compel (Dk. 220) is denied as moot, and that plaintiff's motion to enforce judgment of interest (Dk. 222) on her compensatory damages is granted.