Opinion
Civil Action CV-14-0259
07-31-2018
MICHAEL J. STROUT, Plaintiff, v. COMMUNITY HEALTH AND COUNSELING SERVICES, Defendant.
ORDER ON PLAINTIFF'S MOTION FOR EQUITABLE RELIEF OR, IN THE ALTERNATIVE, ADDITUR AS TO BACK PAY
John O'Neil, Jr. Justice, Superior Court
I. BACKGROUND
The instant Maine Whistleblower Protection Act ("MWPA") suit brought by plaintiff Michael Strout against defendant Community Health and Counseling Services ("Community Health") was tried from January 29 through January 31, 2018. In his proposed jury instructions, Strout proposed that me jury be instructed to "determine the amount of any wages and fringe benefits the plaintiff would have earned in his employment with the defendant if he had not been discharged on September 28, 2013 through die date of your verdict" as well as to "determine the amount of future wages and fringe benefits the plaintiff would reasonably have earned in his employment with the defendant from the date of your verdict through plaintiffs expected retirement age." (Pl.'s Amended Proposed Jury Instructions at 8-9.) Although the jury returned a verdict in plaintiffs favor, it awarded him only half of his requested back pay and did not award any front pay.
Following this decision, plaintiff filed the instant motion for equitable relief or, in the alternative, additur as to back pay. In this motion, plaintiff argues that the court should disregard the jury's decision and impose an award of the total requested amount of back pay and front pay because such awards invoke this court's equitable powers. In the alternative, plaintiff requests an additur to the amount awarded on the basis that there was no evidence supporting the 50% reduction of the requested back pay. Finally, plaintiff requests the court award him $115, 058.90 in front pay. Defendant opposes the motion, asserting that plaintiff chose to send the issues of back pay and front pay to the jury and cannot now attempt to avoid the jury's decision and also that additur is inappropriate because plaintiff has not moved for a new trial.
II. DISCUSSION
a. Plaintiffs Motion for Equitable Relief
Generally, plaintiff is correct that "back pay is an equitable remedy under the Maine Human Rights Act, and the determination of its amount is left to the trial court and not the jury." Ginn v. Kelley Pontiac-Mazda, Inc., 2004 ME 1, ¶ 7, 841 A.2d 785 (citing 5 M.R.S.A. § 4613(2)(B)(2) (2002)). Back pay is awarded "to make plaintiff 'whole' and restore the plaintiff to a position where he or she would have been if not for the unlawful discrimination." Id. (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 422 (1975)). A back pay award is reduced, however, "by whatever amount [the victim] could with reasonable diligence have earned during that time." Me. Human Rights Com. v. Dep't of Corr., 474 A.2d 860, 869 (Me. 1984) (citation omitted).
Front pay is "money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement." Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir. 2004) (quoting Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001)) (quotation marks omitted). Like back pay, front pay serves not as compensatory damages, but as a remedy where reinstatement is impossible or impracticable. Currier v. United Techs. Corp., 326 F.Supp.2d 145, 158 (D. Me. 2004) (citation omitted); see Johnson, 364 F.3d at 378; Traylor v. Windsor Sch. Dep't & Sch. Union No. 51, No. CV-97-047, 1999 Me. Super. LEXIS 249, * 13-14 (September 9, 1999, Kennebec County, Atwood, J.). Thus, like back pay, front pay is an equitable remedy for unlawful employment discrimination. Traylor, No. CV-97-047, 1999 Me. Super. LEXIS 249, *14 (citing Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir, 1998)), However, an award of front pay is discretionary even if reinstatement is impracticable. Currier, 326 F.Supp.2d at 158 (citing Powers v. Grinnell Corp., 915 F.2d 34, 42-43 (1st Cir. 1990)).
Equitable issues are generally for the court to decide and there is no right to a trial by jury. Cyr v. Cote, 396 A.2d 1013, 1016 (Me. 1979) (citations omitted). However, a party can consent to have the jury decide such issues. Id. (citing M.R. Civ. P. 39(d)); see also Bowden v. Grindle, 651 A.2d 347, 349 (Me. 1994) ("The court, may also order a trial with a non-advisory jury on such issues, but only if the parties consent").
Consent sufficient to have the jury decide an equitable issue can be either express or implied. For example, in Rhoads v. FDIC, 286 F.Supp.2d 532 (D. Md. 2003), the United States District Court for the District of Maryland held that even if back pay is an equitable remedy, a party "impliedly consented to have the jury decide the issue of back pay" by failing to object to the submission of the issue to the jury and by further proposing a jury instruction on the issue. Id. at 538.
Here, plaintiff did not object to the jury's consideration of the issues of back pay and front and instead affirmatively requested the jury to decide the issues in his proposed jury instructions and special verdict form. Because plaintiff not only acquiesced to the jury's consideration of back pay and front pay, but affirmatively sought it, he consented to having the jury decide the issues and cannot now ask this court to substitute its own judgment for that of the jury. Thus, plaintiffs motion for equitable relief is denied.
b. Plaintiffs Motion for Additur
Additionally, plaintiff seeks additur in the alternative to equitable relief, arguing that there was insufficient evidence for the jury to find that plaintiff failed to sufficiently mitigate his damage by seeking alternative employment thus justifying the reduction of the back pay award. Additur is "the practice of denying a plaintiffs motion for a new trial based on a claim of an insufficient amount of damages awarded by a jury, conditioned on the defendant's agreement to pay damages in an amount greater than the verdict returned by the jury." 12 Moore's Federal Practice - Civil § 59.13 (2018). The court will grant a motion for a new trial based upon inadequacy of damages only if the party seeking a new trial establishes that, "the evidence being considered in the light most favorably in support of the verdict of the jury, . . the award is without rational explanation and, hence, is to be deemed a disregard by the jury of the evidence or the result of passion, bias, prejudice, accident, mistake or improper compromise." Cope v. Sevigny, Me., 289 A.2d 682, 684 (1972); see also Binette v. Deane, 391 A.2d 811, 815 (Me. 1978).
Additur does not exist independently of a motion for a new trial. The court cannot simply raise the amount awarded by the jury without contemporaneously giving the other party the option of conducting a new trial. Because plaintiff did not move for a new trial and at hearing represented that he does not wish to pursue a new trial, plaintiffs motion for additur is denied.
Rule 59(a) of the Maine Rules of Civil Procedure enshrines the general concept of additur, providing, "A new trial shall not be granted solely on the ground that the damages are inadequate until the defendant has first been given an opportunity to accept an addition to the verdict of such amount as the court judges to be reasonable." M.R. Civ. P. 59(a).
Further, even if plaintiff had moved for a new trial, the court disagrees with its contention that the jury's decision is without rational explanation. The jury is entitled to accept or reject evidence, believe or disbelieve testimony, and apply its ordinary judgment to the case. See Saunders v. Van Pelt, 497 A.2d 1121, 1125 (Me, 1985). The court, taking the evidence in the light most favorably to the verdict, cannot find that the jury's decision was without rational explanation to justify additur.
III. CONCLUSION
For the foregoing reasons, the court declines to disturb the jury's calculation of damages and denies plaintiffs motion for equitable relief. Additionally, because plaintiff did not move for a new trial and because the evidence is sufficient to support the verdict, plaintiffs motion for additur as to back pay is denied.
The clerk shall make the following entry on the docket:
Plaintiffs' motion for equitable relief or, in (he alternative, additur as to back pay is hereby DENIED.
SO ORDERED.