Hayes v. Skywest Airlines, Inc.

          Blackburn, J.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDERS RE FRONT PAY

          Robert E. Blackburn, United States District Judge

         This matter came before me for an evidentiary hearing on the issue of front pay on September 4-5, 2018. (See Order Re: Plaintiff's John Hayes' Motion for Additional Monetary Awards ¶ VI.4. at 15 [#220], ^[1] filed July 2, 2018.) The parties appeared through their respective attorneys. Plaintiff, John Hayes, appeared in person, and defendant, SkyWest Airlines, Inc. (“SkyWest”), was represented by its corporate representative, Pennie Hancock.

         Having judicially noticed all relevant adjudicative facts in the file and record of this case pro tanto, considered the evidence educed at the hearing in its various forms, determined the credibility of the witnesses, weighed the evidence, considered all reasons stated, arguments advanced, and the authorities cited by the parties in both written and oral form, and being otherwise sufficiently advised, I enter the following findings of fact (which have been established by a preponderance of the evidence), conclusions of law, and orders.^[2]

         Mr. Hayes's claims against SkyWest for retaliation under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, and for discrimination and retaliation under the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ §§ 12101-12213, were tried to a jury on September 18-22, 2017. On September 25, 2018, the jury returned a verdict in favor of Mr. Hayes on all claims and awarded him substantial damages - both compensatory and punitive. Following the verdict, Mr. Hayes filed a motion seeking, inter alia, an award of front pay. (See Plaintiff John Hayes' Motion for Additional Monetary Awards [#196], filed January 31, 2018.) I determined Mr. Hayes was entitled to such an award. (See Order Re: Plaintiff's John Hayes' Motion for Additional Monetary Awards ¶ II at 7-9.)

         The underlying facts are well-known to the parties and need not be recited at length here. Mr. Hayes worked for SkyWest at Denver International Airport (“DIA”) from 2006 until he was terminated on December 31, 2015. During all times relevant to this lawsuit and up to the point he was cleared to return to work on September 17, 2018, Mr. Hayes was subject to work restrictions related to polycystic kidney disease, including most particularly a lifting restriction. At the time of his termination, Mr. Hayes was on medical leave, SkyWest having determined that the lifting restrictions disqualified Mr. Hayes from the position of Ramp Agent.

         Thereafter, Mr. Hayes took a number of different positions in the airline industry, first in Denver and later in Memphis, Tennessee, where his wife managed to find work after losing her job in Denver in 2016.^[3] As discussed more fully below, during the period of time relevant to the award of front pay, including presently, Mr. Hayes worked in the customer service department for United Ground Express (“UGE”) in Memphis.

         I begin first with a rehearsal of the apposite legal principles. “[F]ront pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 1948, 150 L.Ed.2d 62 (2001). I have broad equitable discretion to grant such relief as will “achieve the broad purpose of eliminating the effects of discriminatory practices and restoring the plaintiff to the position that she would have likely enjoyed had it not been for the discrimination.” Bartee v. Michelin North America, Inc., 374 F.3d 906, 910-11 (10^th Cir. 2004) (citation and internal quotation marks omitted).

         While an employee is entitled to reinstatement to the job he would have held but for the discrimination or retaliation, see Davoll v. Webb, 194 F.3d 1116, 1143 & n.19 (10^th Cir. 1999), and “[a]lthough reinstatement is the preferred remedy and should be ordered whenever it is appropriate, it is not always a viable option:”

This court has recognized that front pay may be appropriate where an employer's extreme hostility renders a productive and amicable working relationship impossible, or if the employer-employee relationship has been irreparably damaged by animosity caused by the lawsuit. Under such circumstances, an award of future damages in lieu of reinstatement furthers the remedial purposes of the [statute] by assuring that the aggrieved party is returned as nearly as possible to the economic situation he would have enjoyed but for the defendant's illegal conduct.

Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1176 (10^th Cir. 2003) (citations and internal quotation marks omitted). See also Buonanno v. AT&T Broadband, LLC, 313 F.Supp.2d 1069, 1085 (D. Colo. 2004) (“[L]itigation, especially litigation that culminates in a trial, is often a polarizing process, driving parties further apart rather than closer together.”). Hostility between the parties may make reinstatement inappropriate even where the employee has been made “an unconditional and comparable job offer” by the employer. Abuan, 353 F.3d at 1178. Reinstatement also is not indicated where a plaintiff's former job no longer exists. See Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1, 18 (1^st Cir. 1999).

         All these conditions pertain here. Even setting aside SkyWest's discriminatory and retaliatory treatment of Mr. Hayes while he was still employed by the company, its apparent scorched-earth policy in the conduct of this litigation leaves no room for the resumption of an amicable employment relationship with Mr. Hayes. The hostility between the parties during both the trial and the front pay hearing, as well as in their written submissions, has been palpable.^[4] Thus, even if SkyWest had made Mr. Hayes a comparable job offer, which it has not, I find he would not have been required to accept a position with the company had one been offered to him at the time, nor would he be required to do so now. Moreover, SkyWest has eliminated the Pilot Recruiter position it suggests is the most apt benchmark for an award of front pay. For all these reasons, I find an award of front pay in lieu of reinstatement is indicated.^[5]

         Determination of an appropriate award of front pay requires the court “to predict future events and consider many complicated and interlocking factors," Mason v. Oklahoma Turnpike Authority, 115 F.3d 1442, 1458 (10^th Cir. 1997), and any award should “reflect the individualized circumstances of the plaintiff and the employer, ” Davoll, 194 F.3d at 1144. Factors relevant to the determination include, but are not limited to

work life expectancy, salary and benefits at the time of termination, any potential increase in salary through regular promotions and cost of living adjustment, the reasonable availability of other work opportunities, the period within which a plaintiff may become re-employed with reasonable efforts, and methods to discount any award to net present value.

Id. The court also may consider all evidence presented at trial. Id. While the court should avoid granting the plaintiff a windfall, Whittington v. Nordam Group Inc., 429 F.3d 986, 1001 (10^th Cir. 2005), ultimately its discretion “should be measured against an anti-discrimination statute's purpose to make the plaintiff[] whole, ” Davoll, 194 F.3d at 1143-44 (citation and internal quotation marks omitted).^[6]

         To return Mr. Hayes “as nearly as possible to the economic situation he would have enjoyed but for the defendant's illegal conduct, ” Abuan, 353 F.3d at 1176, I must first determine what position Mr. Hayes would have held had he not been discriminated and retaliated against by Skywest. SkyWest insists Mr. Hayes's entitlement to front pay should be measured by the value of the Pilot Recruiter position at DIA which was among those positions the jury found SkyWest illegally denied Mr. Hayes. I disagree.

         In considering backpay awards, courts have held if a plaintiff can prove that, but for his employer's discrimination, he would have been hired by a third-party at a higher wage, his award of backpay may be measured by what he would have earned in that job. See Szeinbach v. Ohio State University, 820 F.3d 814, 824 (6^th Cir.) (citing Nasser v. University of Texas Southwestern Medical Center, 674 F.3d 448, 455 (5^thCir. 2012), vacated on other grounds, 133 S.Ct. 2517 (2013)), cert. denied, 137 S.Ct. 198 (2016); Weaver v. Casa Callardo, Inc., 922 F.2d 1515, 1527 (11^th Cir. 1991). See also Nord v. United States Steel Corp., 758 F.2d 1462, 1473 (11^th Cir. 1985) (where employer eventually sold off assets to third-party, victim of discrimination was “entitled to whatever employment opportunities other [employees] were given”). These courts reason that such an award, in an appropriate case, serves to make the plaintiff whole, Szeinbach, 820 F.3d at 823-24; Nasser, 674 F.3d at 455, the ultimate the purpose of backpay, Ford Motor Co. v. EEOC, 458 U.S. 219, 244, 102 S.Ct. 3057, 3072, 73 L.Ed.2d 721 (1982); Estate of Pitre v. Western Electric Co., 975 F.2d 700, 704 (10^thCir. 1992), cert. denied, 113 S.Ct. 459 (1993). See also Nasser, 674 F.3d at 455 (noting Title VII “does not require that the employer liable for back pay be the same entity for whom the plaintiff would have worked had he not suffered unlawful retaliation”).^[7]

         Because front pay likewise is designed to make the plaintiff whole, the same logic applies equally here. Accordingly, a plaintiff who can show he would have had an employment opportunity with a third party absent his employer's discrimination should have the value of his award measured by that lost opportunity. Such is the case here. Had Mr. Hayes not been discriminated and retaliated against by SkyWest, he would have had the opportunity to apply for a job with the company that assumed the SkyWest contract to service United Airlines at DIA, Simplicity Aviation (“Simplicity”). The clear preponderance of the evidence adduced at the hearing supports the conclusion that such jobs were available and that Mr. Hayes most likely would have been offered such a position.

         At the time Simplicity assumed the contract, it had approximately 400 jobs available at DIA, ^[8] including fourteen openings for Trainers, a position for which Mr. Hayes was qualified and which he could perform within both his former and current medical restrictions. In making this finding, I credit the testimony of Robert Hopkins, who worked for SkyWest as a Safety Supervisor prior to the loss of the DIA contract. Mr. Hopkins was hired by Simplicity as a Trainer in October 2014. At the time he was hired, Mr. Hopkins was asked by the Station Manager for Simplicity to identify other SkyWest employees Simplicity should consider hiring. Simplicity hired at least one SkyWest employee Mr. Hopkins recommended. Simplicity ultimately hired four former SkyWest ...