Fresquez v. BNSF Railway Co.

          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 ...