United States District Court, D. Colorado
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
(10th 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
(10th 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 (10th 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 (1st 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 (10th
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 (10th 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 (6th Cir.) (citing Nasser v.
University of Texas Southwestern Medical Center, 674
F.3d 448, 455 (5thCir. 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 (11th Cir. 1991). See also
Nord v. United States Steel Corp., 758 F.2d 1462, 1473
(11th 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
(10thCir. 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 ...