Opinion
No. 01 C 6528.
July 9, 2004
DECISION ON EQUITABLE RELIEF
This disability discrimination case was tried and submitted to a jury during November, 2003, and resulted in an award to the plaintiff, Don A. Jackson, of damages for emotional distress in the amount of $325,000. In addition to the award of damages, as the prevailing party, plaintiff is entitled to be made whole for that which he lost as a result of the discrimination found. See 42 U.S.C. § 12117 (Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., incorporates remedies provided by the 1964 Civil Rights Act, 42 U.S.C. §§ 2000c-1 et. seq., including § 2000e-5(g)(1), which provides that a court may order appropriate equitable relief including, but not limited to, back pay.) Plaintiff has submitted a Summary of Damages in which he calculates that he is entitled to $50,079, representing lost wages, overtime pay and benefits for the period April 1, 2001 (the day following his discharge) to the date of the verdict, November 7, 2003 (the back pay period). Defendant, Lake County, Illinois ("County") calculates that plaintiff's entitlement pursuant to the finding of liability is approximately one half that amount, $23,247 (to the nearest dollar). The court addresses the issues raised under the method provided by Rule 56, Fed.R.Civ.P. On claims entailing no genuine issues of material fact, the claim is ruled upon herein. Where an issue of material fact exists, the matter will be set for trial.
Lost wages. The parties' submissions demonstrate that there is no substantial dispute as to the amount plaintiff actually earned: plaintiff says, $86,221 + $8,190 unemployment compensation benefits, a total of $94,411. Defendant says $85,213 + $8,190 unemployment compensation, a total of $93,403. The parties dispute, however, the amount of wages plaintiff would have earned during the back pay period had he remained employed by County. The disputes arise from differing assumptions as to what hourly increases in pay plaintiff would have received during the period. Plaintiff assumes a raise of 2.5% every April 1 and of 5.75% every November 15. County assumes increases based on a change in compensation that County made during 2001, which imposed a solely "merit" compensation system of one raise per year, and calculates based on plaintiff's last performance evaluation. The parties further dispute the proper method of calculation of overtime for the same period. The hourly rate of pay, as well as the projected number of hours are disputed. Plaintiff bases his estimate on the actual hours of overtime he worked during the first three months of 2001. County bases its estimate on the average annual number of hours plaintiff worked during the preceding two years. County's position is more reasonable because a 24-month period is likely to produce a more accurate average. Because County demands trial on the issue of the projected rate of pay, the court will set this issue for trial. Unemployment compensation. Plaintiff contends that the unemployment compensation should not be deducted from his award, and County argues to the contrary. The matter is discretionary with the trial court. See Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1428-29 (7th Cir. 1986) (further pointing out that "[t]he majority of the other circuits, however, hold that unemployment benefits may never be deducted from backpay," and "[t]his circuit's rule. . which allows the district judge discretion to deduct or not deduct unemployment benefits in Title VII cases (and . . . substantively similar section 1981 cases) may be unduly favorable to defendants."). Alternative to deducting the benefits from the back pay calculation, County argues that the court should follow Certified Midwest, Inc. v. Local Union No. 738, 686 F. Supp. 189 (N.D. Ill. 1998), and require that a check be made out to both the State of Illinois and plaintiff because the State is entitled to recoupment under "Ill.Rev.Stat. ch. 48, ¶ 490(D)" ( 820 ILCS 405/900). That section provides as follows:
The dispute appears to be regarding the amount earned at County, which should be easily ascertainable. If the court reads Exhibit E to County's submission correctly, plaintiff's gross earnings in 2001 were $36,923, in which case the lost earnings would total $86,221, as plaintiff states.
D. Whenever, by reason of a back pay award made by any governmental agency or pursuant to arbitration proceedings, or by reason of a payment of wages wrongfully withheld by an employing unit, an individual has received wages for weeks with respect to which he has received benefits, the amount of such benefits may be recouped or otherwise recovered as herein provided. An employing unit making a back pay award to an individual for weeks with respect to which the individual has received benefits shall make the back pay award by check payable jointly to the individual and to the Director.
Because the statute does not specifically include a back pay award made by a court, the legislature apparently contemplated recoupment of awards made under collective bargaining agreements and governmental labor department procedures. The Seventh Circuit, in holding that law preempted by the National Labor Relations Act, N.L.R.B. v. Ill. Dept. of Employment Sec. 988 F.2d 735, 741 (7th Cir. 1993), distinguished Certified Midwest but has never considered its applicability to back pay awards in the context of federal discrimination laws. In light of the large number of cases in which the issue might arise but the lack of reported cases other than Certified Midwest which have applied it to a discrimination case, this court doubts the applicability of § 900D with respect to awards under federal discrimination laws. But see Steck v. Bimba Mfg., No. 96 C 7442, 1997 WL 685003 (N.D. Ill. Oct. 30, 1997) (granting motion to exclude evidence of receipt of unemployment compensation but advising that § 900D would require joint payment to plaintiff and State.). For these reasons, the court will not deduct unemployment compensation from the award or require joint payment.
Benefits. Plaintiff claims that he should be compensated for lost benefits, measured by the employer costs that would have been expended for plaintiff's medical insurance premium, dental insurance premium, workers compensation, and unemployment compensation (presumably referring to the employer tax) in the amount of $5,424.50 for the period from the date of discharge until he became covered under his new employer's benefit plan. Defendant argues that a make-whole remedy should include only plaintiff's out-of-pocket expenses for medical and dental care during that period. Defendant cites Pedreyra v. Cornell Prescription Pharmacies, Inc., 465 F. Supp. 936 (D. Co. 1979). In that case the court awarded to plaintiff her out-of-pocket payment for substitute insurance but did not address the issue presented here. Plaintiff has cited no authority in support of his position. On balance, the court concludes that defendant's position is better taken. Plaintiff had no out-of-pocket loss. Even had plaintiff continued working for County, he would not have received the value of the employer contributions unless he obtained reimbursement for medical expenses incurred during that period. Inasmuch as plaintiff can point to no outlay for which he needs to be made whole for loss of medical benefits, an award equivalent to the employer contribution to premium is denied.
Although the requested amount reflects their inclusion, the court assumes that plaintiff does not intend to request reimbursement for the unemployment tax inasmuch as he received the benefit of that tax. Similarly, the workers compensation tax protects against workplace injury, and plaintiff was not working, so the court finds no basis to include that tax.
Front pay. Plaintiff contends that he is also entitled to front pay for a five-year period at the rate of the average annual differential between his new wages during 2002 and 2003 and what he would have earned with County. County contends that plaintiff is already earning more than he would have earned at County, thus presenting an issue of fact deriving from the question addressed above as to back pay. Further, County argues that the question of reinstatement is for the court and the issue presents triable disputes of fact.
Front pay is awarded where reinstatement is not a practicable remedy. See McNeil v. Economics Lab., Inc., 800 F.2d 111 (7th Cir. 1986) ("When reinstatement is infeasible or inappropriate, front pay may be appropriate to make the plaintiff whole."). Front pay is "money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement." Pollard v. E.I. duPont de Nemours Co., 532 U.S. 843, 846 (2001). Or as the Seventh Circuit has put it, front pay is "a lump sum . . . representing the discounted present value of the difference between the earnings [an employee] would have received in his old employment and the earnings he can be expected to receive in his present and future, and by hypothesis inferior, employment." McKnight v. General Motors Corp., 908 F.2d 104, 116 (7th Cir. 1990) (citations omitted). "In deciding whether front pay is appropriate, . . . the district court in its discretion should consider the circumstances of each particular case, and should note such factors as whether the plaintiff has a reasonable prospect of obtaining comparable employment; [whether] the time period for the award of front pay is relatively short; and whether liquidated damages have been awarded (and if so, in what amount)." Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1332 (7th Cir. 1987), citing McNeil, 800 F.2d at 818-19.
Because the parties do not agree on the facts relating to whether reinstatement is feasible, and if not, whether plaintiff's job with People's Gas is comparable, the court reserves the issue of front pay for trial.
Pension benefits. As an element of front pay, plaintiff seeks $51,379 to compensate him for the present value of lost pension benefits under the Illinois Municipal Retirement Fund, which benefits would have vested on September 23, 2004 (his 8-year anniversary). He calculates the present value based on wage assumptions discussed above, thus an issue of fact is present. As to his entitlement, County argues that because his pension rights were not vested and he withdrew his contributions when he left his employment, he is not entitled to be compensated as if his rights were vested. County also argues that the award should be offset by the value of vested pension rights he expects to receive from People's Gas. Should an award be made for lost pension benefits, the parties should be prepared to address whether it is appropriate to offset such an award by the value of the pension rights, if any, plaintiff has or is likely to receive from People's Gas, and the projected growth on the contributions which he liquidated upon leaving County employment.
The court will allow compounded prejudgment interest as proposed by plaintiffs.