United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART, AND
TAKING UNDER ADVISEMENT IN PART, PLAINTIFF'S MOTION FOR
BACK PAY AND FRONT PAY, AND ORDERING FURTHER
BRIEFING
William J. Martínez, United States District Judge.
Plaintiff
Brandon Fresquez (“Fresquez”) sued his former
employer, BNSF Railway Co. (“BNSF”), for
retaliating against him for engaging in protected activity by
terminating his employment, all in violation of the Federal
Railroad Safety Act, 49 U.S.C. § 20109
(“FRSA”). On February 11, 2019, the case
proceeded to a 6-day trial before Senior U.S District Court
Judge Wiley Y. Daniel. On February 19, 2019, the jury
returned a verdict in favor of Fresquez, finding that BNSF
retaliated against Fresquez in violation of the FRSA. (ECF
No. 152.) The jury awarded $800, 000 to Fresquez as
compensatory damages for emotional distress, pain, suffering,
inconvenience, and mental anguish, and an additional $250,
000 in punitive damages. (Id. at 3-4.) The issue of
back pay and front pay did not go to the jury because Judge
Daniel decided, and the parties did not dispute, that back
pay and front pay are equitable remedies to be decided by a
judge. (ECF No. 159 at 131-32.)
After
the jury returned a verdict for Fresquez, Judge Daniel
instructed the parties to attempt to reach an agreement on
back pay and front pay, or request a hearing. (ECF No. 163 at
198.) The parties did not reach an agreement, and Fresquez
filed the instant Motion for Back and Front Pay (the
“Motion”) seeking damages. (ECF Nos. 155 &
166.) Judge Daniel set a hearing on the matter.
Unfortunately, prior to the hearing Judge Daniel passed away.
On May 16, 2019, the matter was drawn to the undersigned.
(ECF No. 171.) Thereafter, BNSF moved for a hearing on the
issues of back pay and front pay, as well as attorneys'
fees, which the Court granted in part only as to the back pay
and front pay issues. (ECF Nos. 180 & 183.)
For the
reasons discussed below, the Court grants in part and denies
in part Fresquez's motion, and reserves ruling on the
final amounts of back pay and front pay. The Court orders the
parties to submit additional briefing and evidence from which
the Court can determine the amount of back pay and front pay
owed to Fresquez. The Court also orders Fresquez to
supplement his fee motion (ECF No. 165) to account for the
hours expended on litigating post-verdict issues.
I.
BACKGROUND
A.
Factual History
This
summary is drawn from the Order Denying BNSF's Motion for
Summary Judgment.
Fresquez
began working for BNSF in 2005 in the Maintenance of Way
Department. (ECF No. 83 at 1.) He worked mostly as a track
inspector responsible for determining if railroad tracks
complied with the Federal Railroad Administration
(“FRA”) regulations and BNSF track safety
standards. (Id. at 1-2.) Track inspectors are
responsible for locating track defects that deviate from FRA
or BNSF safety standards, remediating such defects by
repairing or protecting them, and reporting any defects.
(Id. at 2.) A track inspector protects a defect by
making a report, reducing the track speed limit, or removing
the track from service. (Id.) Defects are normally
reported by updating an electronic track inspection database
called TIMS. Track inspectors report to track supervisors
called roadmasters, and are required to comply with
instructions from roadmasters. Roadmasters are authorized to
instruct tract inspectors to measure a track for defects.
(Id. at 2.)
BNSF's
employment policy, Policy for Employee Performance
Accountability (“PEPA”), applies to all employees
and has three categories of employee discipline. The most
severe is “stand alone dismissible violations, ”
which includes insubordination. Insubordination is also
prohibited by BNSF's Maintenance of Way Operating Rule
1.6. Failure to follow a supervisor's instruction is not
a stand-alone dismissible violation. The difference between
failure-to-follow-instructions and insubordination is often
subjective, but an employee can be charged with the former
when he is asked to do something and does not do it, and an
employee can be charged with the latter for refusing a direct
order. A collective bargaining agreement (“CBA”)
allows an employee to participate in an investigation to
determine whether a violation occurred. BNSF's 2016 Code
of Conduct prohibits retaliation for reporting hazardous
conditions, and BNSF maintains an anonymous hotline that
allows employees to report behavior that conflicts with the
Code of Conduct.
Fresquez
became aware that Michael Paz (one of his roadmasters) and
Mark Carpenter (another supervisor) were inappropriately
reporting repairs to tract defects when no repair had
actually been made. (Id. at 4.) Fresquez claimed he
confronted Paz about the false reports and that Paz admitted
it. (Id.)
Subsequently,
on May 5, 2016, Fresquez claims that he spoke with Paz about
another track defect requiring removing a track from service,
that Paz told him to falsify the report, and that Fresquez
refused. (Id. at 5.) Plaintiff called an FRA field
agent to ask whether the defect should be changed.
(Id.) Later that afternoon, Paz and Fresquez met to
discuss another alleged defect. They disagreed whether there
was a defect, and whether Paz ordered Fresquez to measure the
alignment of the track with a string-line. (Id. at
5-6.) Fresquez drove his truck away without measuring the
possible defect, but later returned to find Paz and another
employee measuring the track with a string-line.
(Id. at 6.)
That
same day, Paz reported to Carpenter that Fresquez had, at a
minimum, refused an instruction, and perhaps stated that
Fresquez was insubordinate. (Id. at 7.) Carpenter
removed Fresquez from service pending an investigation, and
later charged Fresquez with violating BNSF's policy
prohibiting insubordination. At an investigatory hearing,
Plaintiff testified that he believed he was taken out of
service in retaliation for confronting Paz about the defect
reports. (Id. at 7.) After the investigation,
Fresquez was terminated on May 27, 2016. (Id. at 9.)
The
case proceeded to trial, and the jury found that BNSF
retaliated against Fresquez in violation of the FRSA. (ECF
No. 152.)
B.
Relevant Trial History
At
trial, Judge Daniel and the parties discussed the
compensatory damages instruction, Instruction No. 21,
multiple times. (See ECF No. 150 at 22-23.) Judge
Daniel raised the issue on the first day of trial, suggesting
that back pay-the “amount of lost wages and back
pay”-is an equitable remedy. (ECF No. 157 at 25-27.)
While Judge Daniel did not locate any cases analyzing whether
back pay is an equitable remedy under the FRSA, he found that
the Sarbanes-Oxley Act had the same burden-shifting framework
as the FRSA, and the back pay remedy under Sarbanes-Oxley was
an equitable remedy. (Id.) Judge Daniel also noted
that in Title VII cases, back pay and front pay are both
considered equitable remedies. He thus asked the parties to
consider the existing law, and bring any reasons to
reconsider his decision to his attention. (Id. at
27.)
The
following day, Judge Daniel again raised the issue of back
and front pay. (ECF No. 159 at 130-36.) The parties agreed
that back pay was an equitable remedy to be decided by a
judge. (Id. at 131-32.) Judge Daniel also proposed
providing the jury with a limiting instruction that back pay
or lost wages would be determined by the Court. (Id.
at 133-34.) He also determined that, in the event of a
plaintiff's verdict, he would hold an evidentiary hearing
on the issue of mitigation and damages. (Id. at
135-36.)
Later,
during the charging conference, the parties did not raise any
objection to the inclusion of the following language in the
compensatory damages instruction: “In calculating
compensatory damages, you should not consider any back pay or
front pay that the Plaintiff lost.” (ECF No. 163 at
35-38.) During Fresquez's closing argument, counsel
started to raise the issue of wage loss, and BNSF objected.
(Id. at 147-48.) Judge Daniel sustained the
objection and instructed the jury “to disregard the
amount because any consideration of back pay or front pay
damages will be decided by the Court because of some legal
requirements.” (Id.) The jury ultimately
awarded Fresquez $800, 000 in compensatory damages. (ECF No.
152 at 3.) The jury also awarded Fresquez $250, 000 in
punitive damages. (Id.)
C.
Hearing on Back and Front Pay
On
September 6, 2019, the undersigned held a hearing on the
issue of back and front pay. Fresquez testified himself, and
called expert Jeffrey Opp to testify on how back pay and
front pay should be calculated. BNSF called its vocational
expert Cynthia Bartmann to testify on Fresquez's
employability, estimated wages, and how long it should have
taken Fresquez to find work.
II.
ANALYSIS
Under
the FRSA, a prevailing plaintiff is “entitled to all
relief necessary to make the employee whole, ”
including:
(A) reinstatement with the same seniority status that the
employee would have had, but for the discrimination;
(B) any backpay, with interest; and (C) compensatory damages,
including compensation for any special damages sustained as a
result of the discrimination, including litigation costs,
expert witness fees, and reasonable attorney fees.
42 U.S.C. § 20109(e)(1) & (2). In addition, a
prevailing plaintiff may receive up to $250, 000 in punitive
damages. Id. § 20109(e)(3).
Fresquez
seeks a damages award of back pay of $183, 821 and front pay
of $1, 338, 706, for a total award of $1, 522, 527, plus
prejudgment and postjudgment interest. (ECF No. 166 at 10.)
BNSF asks that Fresquez's front pay be limited to, at
most, four or five years of “wage differential based on
the amount he could have made with reasonable efforts,
” and that various aspects of Fresquez's damages
calculations for back pay and front pay should be rejected.
(ECF No. 169 at 15.)
A.
Front Pay in Lieu of Reinstatement
In an
adverse employment action, front pay is a form of equitable
relief awarded by the court to make the plaintiff whole.
Whittington v. Nordam Group Inc., 429 F.3d 985, 1000
(10th Cir. 2005); Hall v. Claussen, 6 Fed.Appx. 655,
679-80 (10th Cir. 2001). “Although reinstatement is the
preferred remedy . . ., front pay may be awarded instead when
appropriate.” Davoll v. Webb, 194 F.3d 1116,
1143 n.19 (10th Cir. 1999); see Wooten v. BNSF Ry.
Co., 387 F.Supp.3d 1078, 1100 (D. Mont. 2019) (FRSA
context).
The
parties agree that reinstatement is not a viable option.
(See ECF No. 166 at 6; ECF No. 169 at 5.) Based on
the parties' agreement and the Court's own review of
the record, the Court agrees that reinstatement is not
feasible. See Cooper v. Asplundh Tree Expert Co.,
836 F.2d 1544, 1553 (10th Cir. 1988) (“[T]he trial
court must state why front pay is more appropriate than
reinstatement.”). Thus, the Court may consider an award
of front pay in lieu of reinstatement. See Goico v.
Boeing Co., 347 F.Supp.2d 986, 992 (D. Kan. 2004) (an
award of front pay or future damages in lieu of reinstatement
furthers the remedial purpose of anti-discrimination statutes
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”).
“‘[D]etermining
a front pay award requires the district court to predict
future events and consider many complicated and interlocking
factors.'” Davoll, 194 F.3d at 1143
(quoting Mason v. Okla. Tpk. Auth., 115 F.3d 1442,
1458 (10th Cir. 1997)). The Tenth Circuit has recognized that
an “award of front pay is based on speculation.”
Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1246
(10th Cir. 2000). However, even though front pay awards are,
by nature, somewhat speculative, “a defendant may not
take advantage of the fact that its unlawful conduct was the
cause of such uncertainty.” Barnett v. Bd. of Cnty.
Comm'rs of Cnty. of Montrose, 2015 WL 5074471, at *3
(D. Colo. Aug. 28, 2015). Ultimately, “the district
court must attempt to make the plaintiff whole, yet the court
must avoid granting the plaintiff a windfall.”
Abuan v. Level 3 Commc'ns, Inc., 353 F.3d 1158,
1176 (10th Cir. 2003).
To
determine an appropriate award of front pay, the district
court looks at the individualized circumstances of the
plaintiff, including
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.
Davoll, 194 F.3d at 1144; see e.g., McInerney v.
United Air Lines, Inc., 463 Fed.Appx. 709, 725-26 (10th
Cir. 2011) (district court did not abuse its discretion to
deny front pay where the record contained “no reference
to any attempt on [the plaintiff's] part to address life
expectancy, continued term of employment with United, or a
viable discount rate that would have supported a calculable
front pay amount”). “A court may also consider a
plaintiff's future in the position from which he was
terminated.” Davoll, 194 F.3d at 1144.
The
district court must also specify an end date for front pay
and show that the end date is “based on more than
‘mere guesswork.'” Id. at 1144-45.
The appropriate cutoff is “the point at which the
plaintiff finds employment comparable or superior to her old
job.” Hayes v. SkyWest Airlines, Inc., 2018 WL
4561266, at *8 (D. Colo. Sept. 24, 2018). “The burden
is on the plaintiff to produce evidence to support [his]
damages claim.” Metz v. Merrill Lynch, Pierce,
Fenner & Smith, Inc. 39 F.3d 1482, 1493-94 (10th
Cir. 1994).
The
parties dispute the appropriate duration of a front pay
award. This disagreement stems from their differing ideas
about the purpose of front pay. Fresquez contends that union
railroad jobs are well-paid, secure positions available
without a college degree with good health insurance and
retirement benefits, and that no comparable employment exists
outside the railroad industry. (ECF No. 166 at 7.) He
therefore requests a front pay award for the difference
between his position at BNSF and his “best available
alternative employment, ” including salary, health
benefits, and retirement benefits, from the date of the
verdict until August 17, 2045, when he will turn 60 years old
and would have been eligible for full retirement at BNSF.
(ECF No. 166 at 7; ECF No. 166-1 at 5.) Opp calculates the
net present value of Fresquez's lost wages, lost
benefits, and employee annuity pensions as $1, 338,
706.[1]
(ECF No. 166 at 8.)
BNSF
does not directly address the argument that Fresquez cannot
obtain comparable employment outside the railroad industry.
Instead, BNSF argues that front pay until 2045 is
inappropriate for several reasons: (1) Fresquez did not ask
for an award of front pay; (2) Fresquez has failed to present
sufficient expert testimony to support lost future earnings,
and (3) an equitable award of front pay should be limited to
two to four years. (ECF No. 169 at 5-10; Transcript of Sept.
6, 2019 Hearing (“Tr.”)[2].) BNSF argues that front pay
as a limited-term stopgap payment for Fresquez until he is
able to secure a good job, not a long-term award for the
remainder of Fresquez's career (as is common in personal
injury cases, where the plaintiff's capacity to work is
diminished as a result of a defendant's wrongful
conduct). (ECF No. 169 at 6-7.) BNSF also argues that any
award of front pay or back pay should be reduced because of
Fresquez's failure to mitigate his damages.
1.
Fresquez Asked For An Award of Front Pay
BNSF
briefly suggests that Fresquez “did not ask the jury
for such an award.” (ECF No. 169 at 7.) Fresquez's
complaint asked for lost income and benefits, and any relief
deemed just and equitable by the Court. (ECF No. 1
¶¶ 45.) The jury instructions did not include lost
future wages as part of compensatory damages because, as
discussed above, the Court determined that back pay and front
pay were equitable remedies to be decided by the Court. (ECF
No. 159 at 130-36; ECF No. 163 at 147-48.) Indeed, when
Fresquez began to discuss wage loss in his closing argument,
the Court sustained BNSF's objection because “any
consideration of back pay or front pay damages” would
be decided by the Court. (ECF No. 163 at 147.) The Court
...