Opinion
Case No. 96-4127-DES
July 19, 2001
MEMORANDUM AND ORDER
This matter is before the court sua sponte and on plaintiff's (Doc. 274) and defendant's (Doc. 273) memorandums regarding a possible award of back pay. On June 20, 2001, the jury returned a verdict in favor of plaintiff in this case. After the verdict was accepted, the court informed the parties that the back pay award selected by the jury was only advisory. The court ordered the parties to file the instant memorandums regarding the imposition of a back pay award, and the court delayed the entry of judgment until this issue was resolved. Therefore, after consideration of the parties arguments, the court finds plaintiff is entitled to an award of back pay as detailed below.
• BACKGROUND
After a week long trial, the jury returned a verdict for plaintiff regarding his Title VII failure to hire claim. In particular, the jury found defendant discriminated or retaliated against plaintiff when it refused to hire him at its Kittrell, North Carolina, Job Corps Center ("Kittrell"). As part of the compensation for this claim, the jury awarded plaintiff $20,000 for lost wages. Plaintiff applied for the position at Kittrell in July 1993 and was subsequently denied the position. Plaintiff was unable to secure replacement employment until March 1994 when he was hired by Oceanside California Boys and Girls Club ("Oceanside"). The anticipated salary for plaintiff at defendant's Kittrell facility was $30,000. Plaintiff's salary at Oceanside in March 1994 was $25,000. However, as of June 1, 1994, plaintiff's salary at Oceanside increased to $35,000. From June 1, 1994, till trial in 2001, plaintiff's salary at Oceanside has always exceeded $30,000.
Only those facts necessary for the present determination have been recounted. Further discussion of plaintiff's other claims and the factual background in general may be found in Godinet v. Management and Training Corp., 994 F. Supp. 1348 (D.Kan. 1998) (granting in part defendant's motion for summary judgment).
The term "lost wages" was defined by the court as "the amount plaintiff would have earned in his employment with defendant if he had been hired at defendant's Kittrell, North Carolina, facility in July 1993 to June 1, 1994, minus the amount plaintiff earned from other employment during this period." (Jury Inst. No. 13).
DISCUSSION
• Award of Damages
Under Title VII, the court may award a successful plaintiff any appropriate relief, including reinstatement, back pay, or "any other equitable relief" the court deems appropriate. 42 U.S.C. § 2000e-5(g). The amount of back pay awarded to a Title VII plaintiff is committed to the sound discretion of the district court. Daniel v. Loveridge, 32 F.3d 1472, 1477 (10th Cir. 1994); Whatley v. Skaggs Cos., 707 F.2d 1129, 1138 (10th Cir.), cert. denied, 464 U.S. 938 (1983). The court concurs with the jury in this case and finds plaintiff has suffered an injury addressable by the equitable power vested in the court under Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-21 (1975) (noting once liability is established, back pay should generally be awarded unless special circumstances exist).
• Mitigation of Back Pay
While a successful plaintiff may be entitled to an award of back pay, a plaintiff must make a reasonable and good-faith effort to mitigate such damages. Acrey v. American Sheep Indus. Ass'n, 981 F.2d 1569, 1576 (10th Cir. 1992); Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990). The mitigation usually takes the form of replacement employment. See 42 U.S.C. § 2000e-5(g)(1) (amounts earnable with reasonable diligence reduces back pay allowable).
Defendant has not presented any argument to the court alleging plaintiff failed to exercise reasonable efforts in securing replacement employment during his eight months of unemployment.
Generally, the court would examine the total salary lost during the appropriate recovery period, i.e., the time from the date of the defendant's illegal conduct until the date of judgment, and then reduce this amount by the actual (or contemplated) earnings compiled by the plaintiff during the recovery period. Such offset is critical to ensure the plaintiff is made whole but does not receive a windfall. In this particular case, however, plaintiff actually earned more money in his replacement employment than he would have if he had been hired by defendant. Defendant argues, therefore, that plaintiff has in essence mitigated his back pay award to zero, for in the totality he has no apparent financial loss. This aggregate approach to mitigation does not take in to consideration any loss suffered at a particular point in time.
On the other hand, plaintiff asserts the court should examine the award using a periodic approach to mitigation. According to plaintiff, he is entitled to an award starting in July 1993 and ending on June 1, 1994, the date at which plaintiff began earning a higher salary at Oceanside. Furthermore, plaintiff argues any "excess" salary earned after June 1, 1994, should not be used to offset the prior shortfall amassed between July 1993 and June 1, 1994. In other words, the court should, irrespective of plaintiff's total earnings during the recovery period, compensate plaintiff for the period in which he earned less than his anticipated salary at Kittrell.
While the aggregate approach endorsed by defendant seeks equity in the long run, such an approach in this case fails to adequately satisfy the very real and concrete periodic injuries sustained by plaintiff. The court finds, in light of the need to address the particular injuries sustained by this plaintiff, that the back pay award should be fashioned on a periodic basis. See Darnell v. City of Jasper, Alabama, 730 F.2d 653, 656-57 (11th Cir. 1984) (applying periodic basis under Title VII); Hartman v. Duffey, 8 F. Supp.2d 1, 6 (D.D.C. 1998) (same); Eichenwald v. Krigel's, Inc., 908 F. Supp. 1531, 1567 (D.Kan. 1995) (same); EEOC v. Fotios, 671 F. Supp. 454, 460 (W.D.Tex. 1987) (same); Somers v. Aldine Indep. Sch. Dist., 464 F. Supp. 900, 903 (S.D.Tex. 1979) (same). See also Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 426 (6th Cir. 1999) (applying periodic basis under the ADEA); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 693 (8th Cir. 1983) (same). See generally NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 347 (1953) (discussing the disadvantages of the aggregate approach). Therefore, the court will award plaintiff back pay from June 1993 to June 1, 1994.
• Amount of Back Pay
The jury awarded back pay in the amount of $20,000. The court agrees that for the eight months plaintiff was denied the anticipated $30,000 salary he incurred a loss of $20,000. However, plaintiff also worked an additional three months at a salary $5,000 below the anticipated salary, which represents an additional loss of $1251. Therefore, the total amount of back pay awarded to plaintiff is 21,251.00.
For all calculations, the court has approximated dates to the first of each month and rounded figures to the nearest whole number.
• Prejudgment Interest
The court finds plaintiff's request for prejudgment interest appropriate. The court will award prejudgment interest on the back pay award utilizing the Internal Revenue Code's underpayment interest rate. 26 U.S.C. § 6621(a)(2). Plaintiff is directed to submit interest calculations by August 1, 2001, showing the total amount of interest accumulated on the $21,251 award of back pay. The defendant shall file any written objection to the calculations by August 8, 2001. The court will enter final judgment upon receipt of the additional submissions.
IT IS THEREFORE BY THIS COURT ORDERED that plaintiff shall be awarded $21,251.00 in back pay, subject to prejudgment interest to be determined based on additional submissions. Plaintiff shall file prejudgment interest calculations by August 1, 2001. Defendant shall file any written objection to the calculations by August 8, 2001. The court will enter final judgment upon consideration of the additional submissions.