Summary
finding that unemployment compensation benefits "are a collateral source that should not be deducted from back pay" under Title VII
Summary of this case from Newcomb v. Corinth Sch. Dist.Opinion
CIVIL ACTION NO: 99-3714, SECTION: "D" (2)
October 22, 2001
MINUTE ENTRY
The non-jury Trial on the issue of back pays was held on Tuesday, September 11, 2001, and post-trial briefing was completed on October 2, 2001. Now, having considered the evidence offered at Trial, the parties' Stipulations (Doc. No. 73), the Trial and deposition excerpts offered by Defendant, and the parties' post-trial briefs, and further having assessed the credibility of the witnesses, the court makes the following findings of fact and conclusions of law.
The jury Trial on the liability issues was held on January 15-17, 2001. The jury found in favor of Plaintiff and against Defendant on Plaintiffs claims of hostile work environment (through sexual harassment) and retaliation (by constructive discharge), and awarded Plaintiff $62,500.
The award of back pay in Title VII cases is governed by Section 706(g) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (g), which provides that a court, upon finding that a respondent intentionally engaged in unlawful employment practices, may "enjoin the respondent from engaging is such unlawful practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5 (g) (emphasis added).
The statute, however, also imposes upon the plaintiff a duty to mitigate her damages: "Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." 42 U.S.C. § 2000e-5 (g) (emphasis added).
Further, "the duty of a successful Title VII claimant to mitigate damages is not met by using reasonable diligence to obtain any employment. Rather the claimant must use reasonable diligence to obtain "substantially equivalent" employment." Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990) "Substantially equivalent employment" is that "employment which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which the Title VII claimant has been discriminatorily terminated." Id.
While the successful Title VII plaintiff has the statutory duty to mitigate damages, the employer has the burden of proving failure to mitigate. Id. To meet this burden, an employer may show that substantially equivalent work was available and that the plaintiff did not exercise reasonable diligence to obtain it. However, "if an employer proves that an employee has not made reasonable efforts to obtain work, the employer does not also have to establish the availability of substantially equivalent employment." Id.
In this case, Plaintiff seeks $34,586.93 in back pay from July 1999 (when she was constructively discharged) to January 15, 2001 (when the liability Trial on Plaintiff's discrimination claims began). In seeking this amount, Plaintiff claims she is entitled to lost earnings, lost health insurance, and lost profit sharing. The court next discusses each of these components.
I. Lost Earnings?
From September 1993 through the beginning of July 1999, Plaintiff worked at J.D. Fields and Company, Inc., as a secretary/receptionist/clerk. In 1999, she made $2200 per month for each month worked (January through July). Plaintiff was also paid bonuses, which averaged $3740 per year (for the five full years, 1994-98, that Plaintiff worked for Defendant). The court concludes that had Plaintiff remained employed at J.D. Fields for the remainder of 1999, she would have earned for the year a total of $30,140 = ($2200/month x 12 months) + $3740 bonus.
For the years 1994-98, Plaintiff received the following bonuses: $3,000 in 1994; $5,350 in 1995; $1,100 in 1996; $5,250 in 1997; and $4,000 in 1998. (Trial Exhibit 1).
In making calculations throughout this Minute Entry, the court is mindful that:
Two general premises apply in computing a back pay award:
(1) unrealistic exactitude is not required; and
(2) uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the discriminating employer.Shipes v. Trinity Industries, 987 F.2d 311, 317 (5th Cir. 1993).
(a) Lost Earnings for 1999
Plaintiff left her employment at J.D. Fields and Company, Inc. in early July 1999. She next became employed as a chiropractic assistant from October 1999 through December 1999, making approximately $9/hour, but she worked less than 40 hours a week. The court finds that Plaintiff failed to reasonably mitigate her damages by not working 40/hours a week, and that Plaintiff failed to offer a credible explanation as to why she did not work 40/hours a week or why she did not become employed until October 1999, when her employment with J.D. Fields and Company, Inc. ended in early July 1999. The court concludes that "with reasonable diligence" Plaintiff could have earned from August 1, 1999 through December 31, 1999, at least $7200 = 5 months x 160 hours x $9/hour. Thus, for 1999, Plaintiff is entitled to back-pay in the amount of $7,540.calculation:
$30,140 (what she would have made had she remained employed at J.D. Fields) — $15,400 (what she earned at J.D. Fields through July 31, 1999) — $ 7,200 (the least amount Plaintiff could have reasonably earned in mitigation of her damages) $ 7,540
From October 1999 through December 1999, Plaintiff actually earned a total of 53, 721.50 while working for Cupp Chiropractic. At $9/hour, this equates to 413.5 hours ($3721.50/59) or only 4.44 weeks (413.5 hours/40 hours).
The court rejects Defendant's argument that Plaintiff's back pay award should be reduced by the amount of unemployment compensation benefits Plaintiff would have obtained had she filed for unemployment. Plaintiff did not apply for or receive unemployment compensation benefits, so there is no double recovery. Further, even if Plaintiff had received unemployment compensation benefits, the court finds that they are a collateral source that should not be deducted from back pay. The purpose of Title VII is both to make the victim of the discrimination whole and to deter discrimination. Permitting an employer to benefit from other sources of income, like unemployment compensation, would not serve the deterrence function of the statute.
(b) Lost Earnings for 2000
For the year 2000, Plaintiff should have earned at least $18,720 = 52 weeks x 40 hours x $9/hour. Thus, for 2000, Plaintiff is entitled to back-pay in the amount of $11,630.
For the year 2000, Plaintiff actually earned a total of $14,667.97 ($2,875.50 as a chiropractic assistant from Cupp Chiropractic from January 2000 to March 2000; $8,335.40 as an office/clerical worker at Schubert's Marine from March 2000 to August 2000; $631.50 as a veterinarian assistant/dog groomer at Angel's Pet Grooming; and $4,289.63 as a dog groomer for Pet Central from September 2000-December 2000). Plaintiff testified that other than her job at Schubert Marine, she did not seek any type of secretarial/clerical job. Further, other than her job at Cupp Chiropractic, she did not seek any type of chiropractic assistant job.
The court concludes that in 2000, Plaintiff failed to make reasonable efforts to obtain "substantially equivalent employment" earning at least $9.00/hour for 40 hours/week.
calculation.
$30,140 (what she would have made had she remained employed at J.D. Fields) — S18,720 (the least amount Plaintiff could have reasonably earned in mitigation of her damages) $11,420
(c) Lost Earnings for January 1-15, 2001
For the year 2001. Plaintiff seeks back pay up to the date of the liability Trial, which commenced on January 15, 2001. For that 1/2 month of January, Plaintiff actually earned $772.65 as a dog groomer plus unreported tips. Thus, for January 1, 2001 through January 15, 2001, Plaintiff is entitled to back-pay in the amount of $300:Calculation:
$ 1,100 (1/2 of $2200 monthly salary at J.D. Fields) — $ 800 (what Plaintiff actually earned plus a reasonable amount in tips) $ 300 II. Lost Health Insurance?
At J.D. Fields, Plaintiff had paid health insurance. According to Plaintiff, none of the jobs she had following her employment with J.D. Fields offered health insurance benefits. However, Plaintiff offered no reasonable explanation why she did not seek employment that offered her health benefits. More importantly, Plaintiff failed to submit any proof that she purchased substitute coverage or incurred out-of-pocket medical expenses. Thus, the court concludes that Plaintiff is not entitled to an award of lost health insurance benefits absent proof of actual loss. Pearce v. Carrier Corp., 966 F.2d 958 (5th Cir. 1992).
III. Lost Pension Benefits?
At J.D. Fields, Plaintiff was also entitled to employer profit sharing contributions. Based on Plaintiff's calculations, she received an average of $2,734.71 per year in 401K benefits while working for J.D. Fields. (See Plaintiff's Post-Trial Memo., Exhibit A).
Plaintiff received her last profit sharing contribution on or about September 8, 1999. ( See Trial Exhibit 14).
calculation
$15,943.39 (Exhibit 16) / 5.83 years = $2734.71 per year
In her formula contained on Exhibit A, attached to her Post-Trial Memoranda, Plaintiff erroneously entered 5.58 years. However, Plaintiff began her employment at J.D. Fields in September 1993, and ended in July 1999, thus covering 5.83 years.
As part of her back pay damages, Plaintiff now seeks approximately $3,988 in lost 401K benefits $2,734.71 from July 1999 to July 2000; and $1,253.40 from August 2000 to January 15, 2001. However, Craig Strawbridge, the Chief Financial Officer for J.D. Fields, testified at Trial that there was no employer contribution made to the employee profit sharing plan in the year 2000. (Strawbridge Testimony, TR 60). Thus, the court concludes that had Plaintiff remained employed at J.D. Fields from July 1999 to July 2000, she would not have received any employer pension contribution, and she cannot now recoup what she was not otherwise entitled to.
For the period from August 2000 to January 15, 2001, the court finds that Plaintiff is entitled to $1,070 in lost 401K benefits. In determining this amount, the court first re-calculates the average annual employer profit sharing contribution to be $2,334.32, based upon a modification of Plaintiff's formula to include a zero contribution in the year 2000, and an addition to the number of years worked:
Calculation
($15,943.39 + 0) / (5.83 years + 1) $2,334 per year
Next, the court finds that this average annual contribution of $2,334 equates to $194.50 per month. Thus, for the 5 1/2 months from August 2000 to January 15, 2001, Plaintiff's lost 401K benefits would be $1,070.
Calculation
$194.50 x 5 1/2 months = $1,070
IV. Conclusion
Based on the foregoing, Plaintiff is entitled to a total of $20,330 in back-pay = $7,540 (lost earnings for 1999) + $11,420 (lost earnings for 2000) + $300 (lost earnings for 2001) + $1,070 (lost 401K benefits)
The last remaining issue in this case is attoney's fees. Pursuant to Local Rule 54.2, the court ORDERS counsel for Plaintiff to submit to the court and opposing counsel, by November 12, 2001, a contemporaneous time report reflecting the date, time involved, and nature of the services performed. The report shall be in both narrative and statistical form and provide hours spent and justification thereof.
If Defendant contests the amount of attorney's fees so claimed, counsel for Defendant must depose counsel for Plaintiff, and submit to the court and opposing counsel, by December 12, 2001, an opposition memorandum. Thereafter, the court will rule and issue Judgment.