Opinion
Civil Action No: 01-1863 Section: "J"(2)
August 5, 2002
Willie Matthew Zanders, Willie Matthew Zanders, Attorney at law, Clarence Roby, Jr., Law Office of Clarence Roby, Jr., APLC, New Orleans, LA, For Plaintiff.
Robert Emmett Kerrigan, Jr., Ambrose V. McCall, Leah Monique McKenna, Deutsch, Kerrigan Stiles, New Orleans, LA, For Defendants.
ORDER AND REASONS
Before the Court is the plaintiff's Post-Trial Motion for Equitable Relief (Rec. Doc. 154), requesting an award of front pay in the amount of $225,000, reflecting five (5) years of lost future income. Defendant Orleans Parish School Board ("Board") opposes this motion (Rec. Doc. 156), asserting that front pay is not warranted in this case, or, in the alternative, that any award of front pay be reflective of not more than three (3) months' salary. Having considered the record, the various memoranda of the parties, and the applicable law, the Court concludes, for the reasons that follow, Plaintiff is entitled to an award of front pay in the amount of $47,012.00, reflecting one (1) year of lost income.
Background
Plaintiff in this matter was employed as General Counsel for New Orleans Public Schools from May 15, 2000 until September 10, 2001, when her employment was terminated. Plaintiff filed this suit against the School Board and the System's CEO, Colonel Alphonse Davis, alleging she had been illegally terminated in violation of state and federal anti-discrimination laws. Colonel Davis was dismissed from this action prior to trial. Several of Plaintiff's initial claims against the School Board were dismissed as well.
Plaintiff proceeded to trial against the School Board on her Americans with Disabilities Act ("ADA") retaliation claim and her state law whistle-blower claim. A jury trial was held on May 28-31, 2002, and the jury returned a verdict in the Plaintiff's favor, awarding her $53,000 for back pay and $5,600 for emotional distress and mental anguish.
However, the Court reserved for its determination the question of what, if any, front pay or other equitable relief might be appropriate in this case and ordered the parties to brief the pertinent issues. Plaintiff's motion for front pay is now pending before the Court.
Discussion
Federal anti-discrimination statutes, including the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., provide for equitable relief. The intent of these remedies is to return the plaintiff to the status she would have enjoyed but for the discriminatory acts of the defendant. In other words, the relief should be designed to make the plaintiff "whole."
Title 42 U.S.C. § 12117(a) provides that remedies enumerated in 42 U.S.C. § 2000e-5 are applicable to ADA actions. This section allows for "such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement . . . or any other equitable relief as the court deems appropriate." 42 U.S.C. § 200e-5(g)(1).
If a plaintiff was wrongly terminated from her employment for discriminatory reasons, the preferred remedy is reinstatement of that employee to the position vacated. See e.g. Giles v. General Electric, 245 F.3d 474, 489, n. 27 (5th Cir. 2001) (concerning equitable relief under the ADA); Weaver v. Amoco Production, 66 F.3d 85, 88 (5th Cir. 1995) (concerning equitable relief under ADEA); Green v. Tulane, 284 F.3d 642, 658 (5th Cir. 2002) (concerning equitable relief under Title VII). With few exceptions, front pay is only held to be appropriate if reinstatement is shown to be infeasible. See Walther v. Lone Star Gas, 952 F.2d 119, 127 (5th Cir. 1992); Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1469-70 (5th Cir. 1989). Determination of whether reinstatement is feasible or not is within the discretion of the court. For example, courts have found reinstatement to be inappropriate in cases where a terminated employee has since found other employment, where the terminated employee has been replaced and reinstatement would have an unacceptable adverse effect on the replacement, where the parties have stipulated that reinstatement is not feasible or appropriate, and where there is antagonism between the terminated employee and her former employer.
In Johnson v. Chapel Hill Indep. School Dist., 853 F.2d 375 (5th Cir. 1988), the Fifth Circuit suggested that front pay could be used in conjunction with reinstatement, either as an incentive to the employer to "promptly return the discrimination victim to his rightful job . . ." or as "an extension of defendant's back pay liability until the employer makes an offer of reinstatement." Id. at 382-83.
See Waither, 952 F.2d at 127. See also Deloach v. Delchamps, 897 F.2d 815, 822 (5th Cir. 1990).
Webner v. Titan Distribution, Inc., 101 F. Supp.2d 1215, 1235 (N.D. Iowa 2000).
Deloach, 897 F.2d at 822.
Reneau v. Wayne Griffin Sons, Inc., 945 F.2d 869, 870 (5th Cir. 1991).
Green v. Tulane, 284 F.3d 642, 658 (5th Cir. 2002).
In the instant case, the plaintiff does not seek reinstatement, and this appears to be in accord with the defendant Board's wishes. However, considering that the goal of the equitable remedy is to make the plaintiff "whole," what the parties want to happen is not necessarily dispositive. A plaintiff should not be permitted to use employment discrimination as a way to leave an undesirable job; neither should an employer be able to use discriminatory means to rid itself of a disfavored employee.
The facts of this case, though, demonstrate that there is an undeniable antagonism between the plaintiff and her former employer, Col. Davis, which would effectively prevent her return to the position from which she was wrongfully terminated. The plaintiff had served as General Counsel with New Orleans Public Schools. To perform effectively in this position, there must exist a degree of mutual respect and confidence between the General Counsel and those she advises. Reinstatement to such a position is not feasible when that trust has been materially breached. See Whittlesey v. Union Carbide, 742 F.2d 724 (2nd Cir. 1984) However, the antagonistic relationship was chiefly between the plaintiff and her direct supervisor, Col. Davis, who has since left that position. As recently discussed by another court in this district, when one of the antagonists is no longer involved in the situation, the antagonism that existed is no longer a sufficient reason to deny reinstatement. See Morris v. Lee, No. CIV.A. 98-1656, 2000 WL 1224794, at *1 (E.D.La., Aug. 28, 2000).
Yet, even though Plaintiff would not be working directly under Col. Davis any longer, there are other factors which suggest that reinstatement is infeasible in this case. As noted above, neither party seeks reinstatement as a remedy. The School Board insists that the position of General Counsel was "experimental" and no longer exists. See Defendant's Memorandum in Opposition, Rec. Doc. 156, at 5. Moreover, Plaintiff's ability to work effectively with the Board may have been irreparably damaged by the circumstances surrounding her termination. Additionally, the plaintiff has been working in an "of counsel" capacity with her attorney's law firm, and it has been suggested that she has assisted in the representation of several clients in legal actions against the Board, which may give rise to a conflict of interest further precluding the plaintiff's reinstatement. For these reasons, this Court finds that reinstatement is infeasible in this case.
As noted above, in cases where reinstatement is deemed to be infeasible, front pay may be used as an alternative equitable remedy. Front pay is an award of monetary damages designed and calculated to make the plaintiff "whole." It is not intended to be punitive against the defendant. See Sheppard v. American Cyanamid, No. CIV.A. 87-2433, 1988 WL 87906, at *2 (E.D.La., Aug 10, 1988)
Front pay accounts for the speculative lost future earnings sustained by the plaintiff due to the defendant's unlawful discrimination. The calculation of front pay begins from the time judgment is entered and continues until the plaintiff becomes "whole." What constitutes "wholeness," as well as when that may be expected to occur, lies within the discretion of the court. See Sellers v. Delgado College, 781 F.2d 503, 505 (5th Cir. 1986) ("Sellers I")
In an employment discrimination case, any award of damages (including front pay) must be reduced by interim earnings. See Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990) ("Sellers II"). Although earnings in mitigation will reduce the plaintiff's eventual award, there is a clear duty on the injured party to attempt to minimize her damages. "`The person wronged cannot recover for any item of damage which could thus have been avoided [through mitigation].'" Id., quoting C. McCormick, Law of Damages 127 (1935). If that duty is breached, it may prove fatal to the plaintiff's claim for front pay. In Hansard, the Fifth Circuit instructed the district court that it "must consider [the plaintiff's] failure to mitigate his damages in determining the extent to which, if at all, front pay is appropriate." Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461, 1470 (5th Cir. 1989)
The duty to mitigate is not satisfied by just any employment; "the claimant must use reasonable diligence to obtain `substantially equivalent' employment." Sellers II, 902 F.2d at 1193. A "substantially equivalent" position shares such characteristics with the claimant's original position as salary, promotional opportunity, responsibilities and status. See id. Departing the workforce to re-train for another career is generally not held to satisfy the duty to mitigate. A claimant may not make use of her wrongful termination to effect a career change and expect to be compensated for it. See Floca v. Homcare Health Services, 845 F.2d 108, 112-13 (5th Cir. 1988)
The burden of proof of whether the claimant has failed in her duty to mitigate is on the defendant. See Sellers II, 902 F.2d at 1193. This is a very heavy burden, and will be met only upon a showing that the plaintiff's actions were unreasonable. See Greenway v. Buffalo Hilton, 951 F. Supp. 1039, 1059 (W.D.N.Y. 1997) "In evaluating a plaintiff's course of conduct, the court should consider that the `range of reasonable conduct is broad and the injured plaintiff must be given the benefit of every doubt in assessing [his] conduct.'" Id., quoting EEOC v. Kallir, Philips, Ross, Inc., 430 F. Supp. 919, 925 (S.D.N.Y. 1976).
In the instant case, the plaintiff has chosen to pursue a career in the private practice of law. In establishing her practice, she concedes that her prospects for compensation over the near future are dim, and seeks to be compensated for the difference in her salary until her practice has become established, a period she estimates will be five (5) years. See Plaintiff's Memorandum in Support, Rec. Doc. 154, at 8. The defendant characterizes this decision as a failure to mitigate. See Def. Memo., Rec. Doc. 156, at 4-5. The Court finds that the plaintiff's career choice constitutes "substantially equivalent" employment, and holds that the plaintiff has satisfied her duty to mitigate her damages. Accordingly, the court holds that the plaintiff is entitled to an award of front pay such as will make her "whole."
As regards the calculation of the award, the Fifth Circuit perhaps said it best in Sellers I: "Front pay can only be calculated through intelligent guesswork . . ." Sellers v. Delgado College, 781 F.2d 503, 505 (5th Cir. 1986). "Calculations of front pay cannot be totally accurate because they are prospective and necessarily speculative in nature." Reneau v. Wayne Griffin Sons, 945 F.2d 869, 870 (5th Cir. 1991). In the instant case, however, the Court finds that it has the tools to make a reasonably accurate award of front pay.
The first determination with respect to a front pay award is the duration of the award. Defendant somewhat summarily argues that any front pay award should not reflect more than three (3) months of lost income. Plaintiff, on the other hand, argues for an award duration of five (5) years, based largely on two contentions: that it will take this amount of time to establish her practice, thereby making her "whole," and that there is sufficient precedent within the Fifth Circuit to sustain an award of this duration. The plaintiff, relying on Deloach v. Delchamps, 897 F.2d 815 (5th Cir. 1990), further asserts that precedent within the Fifth Circuit supports an award duration of five (5) years. See Pla. Memo., Doc. 154, at 6.
Although the plaintiff may be correct in her contention that it will take five years for her practice to attain the salary and status of her previous position, this contention is insufficient to the determination of when she is made "whole" given all the circumstances of this case. In relying on Deloach as supporting an award for five years of front pay, the plaintiff not only overlooks the fact-specific nature of such a determination, but also fails to appreciate that other Fifth Circuit cases have reached different conclusions. Recent Fifth Circuit decisions awarding front pay have ranged in duration from two (2) years to fifteen (15) years to the end of the plaintiff's working life. A survey of decisions within this Circuit reveals that there is no binding precedent concerning award duration, and that the determination of such duration is within the discretion of the Court.
See Shirley v. Chrysler First, 970 F.2d 39 (5th Cir. 1992).
See Mota v. University of Texas-Houston, 261 F.3d 512 (5th Cir. 2001).
See Hansard, 865 F.2d; Burns v. Texas City Refining, 890 F.2d 747 (5th Cir. 1989).
The Court finds neither Plaintiff's nor the Board's arguments as to the appropriate duration persuasive. At the time of her illegal termination, the plaintiff was a probationary employee. Her probationary period was for three (3) years, of which approximately one and a half (1 1/2) remained at the time of her termination in September of 2001. During that probationary period, Plaintiff could only have been terminated for "just cause" under the Board's policy. See Trial Exhibit 59, p. 100. At the conclusion of the probationary period, it is reasonable to assume that the position, and the plaintiff's performance, would have been reevaluated.
Given this information, the Court concludes that to assume that the plaintiff's employment would continue beyond her probationary period would be overly speculative. Likewise, though, the Court finds that it would also be unreasonably speculative to assume that "just cause" would have arisen during the remainder of the plaintiff's probationary period. Accordingly, the Board's assertion that a duration not to exceed three (3) months is rejected. Given that Plaintiff's back pay award compensates her for lost income up to the date of trial, May 28, 2002, the Court concludes that a front pay award for a duration of the one (1) year remaining of Plaintiff's original probationary period is warranted under the facts of this case.
If Plaintiff had remained in her position as General Counsel for the entire probationary period, the period would have ended on May 15, 2003.
The second step in the calculation of an award of front pay is to determine the appropriate amount. In order to compensate the plaintiff for the future effects of her unlawful termination, the appropriate amount of front pay is the difference between her actual salary and the salary she would have earned were it not for the unjust behavior of the defendants. The plaintiff's salary at the time of her unlawful termination was $72,012.20 per year. She estimates that she will be able to earn $25,000 per year in her new occupation. While Plaintiff's figure is somewhat speculative, it appears reasonable to the Court based on trial testimony that she had earned approximately $10,000 in the eight month period between her termination and trial. Therefore, the appropriate amount of front pay is the difference between these two amounts, or $47,012.20 for one year's lost future income.
The final step is to reduce this award to a present value. The Court declines to speculate on interest rates and inflation over a time frame as short as one year. Furthermore, as noted, the plaintiff's estimate of an annual salary of $25,000 from her practice, upon which this award is based in part, is somewhat speculative. Therefore, the Court concludes that it is not necessary to adjust the award in order to account for interest or inflation. Accordingly, the final amount of the award is $47,012.20.
IT IS ORDERED that the plaintiff's Post-Trial Motion for Equitable Relief (Rec. Doc. 3) is GRANTED in the amount of $47,012.20.